Maruti vs Tippanna Siddappa Dalawayi

S.N. Satyanarayana, J.—The plaintiff in O.S. No. 68/2005, on the file of Civil Judge (Jr.Dn.), Hukkeri, has come up in this second appeal, impugning the concurrent finding of both the Courts below in dismissing his suit for possession and mesne profits, by judgment and decree dated 16.8.2008, which is confirmed by the lower appellate Court in R.A. No. 19/2008, on the file of Civil Judge (Sr.Dn.), Hukkeri, by its judgment dated 2.11.2011.

In this second appeal an application in I.A. No. 1/2012 is filed seeking to produce a PT sheet, which is prepared by the revenue department on 13.6.2012, wherein it is observed that a portion of land bearing Sy. No. 344/1 of Hukkeri village, Hukeri taluka, Belagavi district is encroached by the owner of the land bearing Sy. No. 345, situated on the western side of the said land, to demonstrate that the encroachment pleaded by the plaintiff in the original suit can be established through this document.

On going through the grounds of appeal with reference to the findings of the Courts below in the judgments impugned, it is seen that the suit in O.S. No. 68/2005 is filed by the appellant herein seeking possession and mesne profits from the defendant. Admittedly the plaintiff is owner of land bearing R.S. No. 344/2 of Hukkeri village, Hukkeri taluka, Belagavi district. The land which is under the ownership and possession of plaintiff is said to be measuring 4 acres 34 guntas. According to him, the defendant is owner of the land bearing Sy. No. 344/1, which is situated adjacent to his property on its western side. The case of the plaintiff is that the defendant has removed the bund between the property bearing Sy. No. 344/1 belonging to him and Sy. No. 344/2 belonging to the plaintiff and in the process encroached into the property of the plaintiff to an extent of 4 1/2 guntas. To establish the same, he has relied upon the PT sheet, which is prepared by the revenue department and copies of records of rights.

In the trial Court the defendant denied the allegation of encroachment and also correctness of the PT sheet, which was relied upon by the plaintiff on the ground that the plaintiff is an employee of Revenue Department and therefore by utilizing his influence in the office he has got the said document prepared without notice to him. Based on said defence, issues were framed and parties were called upon to adduce evidence. Though the plaintiff adduced evidence as PW.1, he did not examine the author of the PT sheet on which he relied upon and did not produce any document to demonstrate the alleged encroachment by the defendant and in the absence of acceptable evidence and also in view of the fact that he is a person from the revenue department and that there being no proof of notice to defendant before conducting survey and drawing of PT sheet relied upon by the plaintiff, the trial Court did not believe the document relied upon by him and consequently dismissed the suit of the plaintiff, which was confirmed by the lower appellate Court in R.A. No. 19/2008. Thereafter this present appeal is filed impugning the concurrent findings of both the Courts below.

In this second appeal at the stage of admission, an application in I.A. No. 1/2012 is filed producing an additional document, which is a PT sheet dated 13.6.2012, issued by the revenue department, based on an application filed by the respondent in this proceedings who is defendant in the trial Court.

The learned counsel for the appellant tries to rely upon the said document to demonstrate that even according to the PT sheet which is prepared pursuant to an application filed by respondent, there is an encroachment to his own property by the owner of the land situated adjacent to his property on the western side. Therefore if all the documents are looked into, the averments of the appellant herein that his land is encroached by the defendant who is owner of the land bearing Sy. No. 344/1 cannot be disbelieved.

Heard the learned counsel for the appellant regarding admission and also the learned counsel for the respondent, who is defendant in the trial Court and perused the grounds urged with reference to the findings of the Courts below in both the judgments.

On going through the same, it is seen that though a serious allegation is made by the appellant regarding encroachment of his land and he tried to rely upon the PT sheet prepared by the revenue department, he was not able to establish the correctness of the same by adducing the evidence of the author of PT sheet, when he himself is an employee of the Revenue Department. It is further seen that he has failed to establish that there is indeed encroachment and dehors the sketch, which is produced by him, by examining the owners of the adjacent land to demonstrate that the defendant in the original suit physically damaged the bund existing between his property and defendant''s property and consequently, defendant has encroached into his property. In the absence of acceptable evidence, the finding of the trial Court in dismissing the suit appears to be just and proper. Further, on going through the judgment and decree passed by the lower appellate Court it is seen that the lower appellate Court on re-appreciation of the pleading and evidence and as well as finding of the trial Court has rightly rejected the appeal filed by the plaintiff in the original suit.

In that view of the matter, this Court find no justifiable grounds are made out either to receive additional documents to reopen the case of the plaintiff in the original suit or to decide about his right based on the said additional document, which is pertaining to the property of the defendant in the original suit. In that view of the matter, this court find no justifiable grounds are made out to admit this appeal to consider the correctness or otherwise of the judgment of both the Courts below, in as much as no substantial question of law arises for consideration in this second appeal. Accordingly this second appeal is dismissed. Consequently, the application, which is filed seeking to produce additional document is also dismissed.