Maya and Others vs The Union of India and Others

S.N. Satyanarayana, J.—Plaintiff Nos. 1 to 3 in O.S. No. 108/2004 on the file of the Additional Civil Judge (Sr.Dn.) Gadag have come up in this second appeal impugning the concurrent findings of both the Courts below in declining the relief of declaration and possession to plaintiffs in the suit schedule property bearing Sy. No. 130 of Gadag measuring 1 acre 12 guntas, which is said to have encroached by defendant Nos. 2 and 4 for the purpose of laying pipeline and also for a water meter gauge shed constructed thereon. In the original suit, the first prayer is for declaration of title to the entire Sy. No. 130 of Gadag town. The second prayer is with reference to the alleged encroachment of defendant No. 4 to an extent of 1 acre 12 guntas within the boundaries shown in letters ABEA and BCDB in the plaint sketch, which is appended to the plaint in the original suit. The third prayer is for mesne profits.

In the said suit, defendant No. 4 namely, Karnataka Urban Water Supply and Drainage Board, which had taken up the work of laying pipeline and as well as constructing shed filed its written statement and along with that, defendant No. 2-National Highways authorities also filed written statement. Based on the pleadings, issues were framed. The first one is with reference to the title of the plaintiffs to Sy. No. 130, which measures totally 2 acres 13 guntas. The second issue is with reference to the possession of the plaintiffs in respect of the said land and issue Nos. 3, 4, 5 and 6 are with reference to the alleged encroachment into the suit schedule property to an extent of 1 acre 12 guntas by defendant Nos. 2 and 4. The other issues i.e., issue Nos. 7 to 10 are with reference to the defence which are raised by the defendants in the original suit.

The location of suit property i.e., Sy. No. 130 is not in dispute. It is an agricultural land situated on the western side of the Karwar Gooti national highway and consequently the national highway is on the eastern side of the suit schedule property. Between the suit property and the national highway, a pipeline is laid by respondent No. 4 to provide water supply to Gadag town. Incidentally, the disputed land is in the outskirts of Gadag town and particularly in a place where the bypass to Gadag town from national highway is provided. It is also not in dispute that respondent No. 4 herein while laying pipeline on the western side of the national highway has constructed a shed for providing water meter gauge to the pipeline on the eastern side of the suit schedule property and on the western side of the national highway, which is the disputed portion of the property.

The suit of the plaintiffs is seeking possession of an extent of 1 acre 12 guntas on the premise that the said extent is part of Sy. No. 130 belongs to them and the same is encroached by defendant Nos. 2 and 4 at the time of laying pipeline adjacent to the suit property. In that behalf, the plaintiffs relied upon Ex. P11 PT sheet, which is prepared by P.W.2- Taluk Surveyor, which is also marked as Ex. P21 in the said proceedings. It is seen that, in the said sketch, P.W.2 has shown the said portion, as if the defendants have encroached into the property of the plaintiffs to an extent of 1 acre 12 guntas in the land bearing Sy. No. 130, while laying the pipeline and also constructing the shed. On the basis of this, the entire suit is built and evidence is adduced by plaintiff No. 1, who is examined as P.W.1 and supported by P.W.2 the author of Exs.P11 and 21. In the said proceedings, on behalf of the defendants, an official of defendant No. 2 was examined as D.W.1 and the officer of defendant No. 4 has adduced evidence as D.W.4. This evidence would indicate that, both of them are not certain what is the width of the road, but they are certain that the pipeline which is laid adjacent to the national highway is within the boundary of the land belonging to the national highway and the shed is also built within the land belonging to the national highway. Though there is confusion regarding width of the land, from the evidence of D.W.2, it is clearly seen that the width is 20 meters minimum from the center of the road. If that is taken into consideration, the admitted location of the shed is at a distance of 19.5 meters from the center of the road, which should be considered as well within the limits of national highway boundaries. In the entire pleadings and evidence, plaintiffs have failed to demonstrate the encroachment.

As could be seen from the judgment of the trial Court, while discussing issue Nos. 2, 3 and 4 and as well as 6, it is clearly observed that the preparation of Ex. P11 by P.W.2 is without looking into the boundaries of national highway and without issuing notices to the officials of the national highway authorities and also defendant No. 4-Karnataka Urban Water Supply and Drainage Board. It is further seen that, while preparing the disputed sketch, no notice was given to the owners of the adjacent lands. In the entire pleadings and evidence, there is nothing on record to demonstrate that there is encroachment to an extent of 1 acre 12 guntas by defendant Nos. 2 and 4 into the suit schedule property bearing Sy. No. 130. In that view of the matter, the trial Court proceeded to dismiss the suit of the plaintiffs, so far as encroachment is concerned. However, the title of the plaintiffs over the suit schedule property bearing Sy. No. 130 is accepted on the basis of the revenue records, which were produced. Sofar as the survey sketch, which the plaintiffs relied upon to substantiate the encroachment is concerned, it is not believed as the basis for second relief i.e., giving direction to the defendants to surrender possession of 1 acre 12 guntas on the basis of Exs.P11 and 21 and hence the same was declined.

As against the judgment and decree passed by the Court below, the plaintiffs have filed an appeal in R.A. No. 55/2006 on the file of the District and Sessions Court, Gadag, wherein, the lower appellate Court after framing relevant points for consideration, re-appreciated the oral and documentary evidence available on record. While re-appreciating the pleading and evidence, the lower appellate Court reiterated that documents at Exs.P11 and 21, which are PT sheets prepared by P.W.2 cannot be accepted for the reason that the same was not prepared in the presence of the parties to the dispute. It is further seen that the relevant records are not looked into by P.W.2 while preparing the PT sheet, as admitted by him in his evidence.

In that view of the matter, the lower appellate Court also disbelieved the claim of the plaintiffs that there is encroachment into their property bearing Sy. No. 130 to an extent of 1 acre 12 guntas by defendant Nos. 2 and 4 and consequently, dismissed the appeal of the plaintiffs, thereby confirmed the judgment and decree passed by the Court below. As against the concurrent findings of both the Courts below, the plaintiffs have come up in this second appeal.

Heard the learned counsel for the appellants Sri. M.G. Naganuri and Smt. Veena Hegde, learned Government Pleader appearing for respondent No. 3 and perused the lower Court records with reference to the pleadings and evidence available on record. On going through the same, it is seen that the finding of both the Courts below in disbelieving the encroachment of 1 acre 12 guntas into suit schedule property bearing Sy. No. 130 of Gadag town appears to be just and proper, inasmuch as the survey sketch Exs.P11 and 21 is not properly established. However, at the time of argument, the learned counsel appearing for the appellants tried to substantiate that, in the absence of any document produced by the defendants to show that there is open space available on the western side of the national highway up to the boundary of the plaintiffs suit schedule property bearing Sy. No. 130, the boundaries of Sy. No. 130 should be accepted as it is up to the boundary of national highway and the open area within which the pipeline is laid by defendant Nos. 2 and 4 and also the shed which is constructed by them should be accepted as the land belonging to the plaintiffs and the same should be considered as encroached area is not accepted, for the reason that, no acceptable oral and documentary evidence are produced to substantiate the same.

In the light of aforesaid discussions, this Court find that no grounds are made out to admit this second appeal, inasmuch as no substantial question of law arises for consideration in this second appeal. Accordingly, this second appeal is dismissed.