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Judgment
K.N. Keshavanarayana
This second appeal by the defendant nos. 1(sic), 1(o), 1(d) and defendant no.2 is directed against the concurrent judgment and decree passed by the Court Below, decreeing the suit of this respondents/plaintiffs for possession of Schedule ''B'' property measuring 9 cents in survey no.96/ 1A-4A of Kavredy Village Kundapura Taluk.
The plaintiffs filed suit for the relief of possession Interest contending that the lead bearing survey No. 96/ 1A-4A measuring 37 cents of Kavrady Village, Kundapura Taluk was granted in favor of the lather of Khalifa Ahamed Saheb in the year 1964 by the Tahsildar, Kundapura under Exhibit -P1 and subsequently in the year 1972-73, 40 cents of land came to be acquired by the Government for widening the highway; that the remaining extent of land was in their possession; that in the year 1992, the defendants encroached land to an extent of 9 cents. The said land measuring 9 cents was described as ''B'' Schedule to the plaint, while the entire land was described as ''A'' Schedule.
Defendant No. 1 died during the pendency of the suit and his legal representatives wore brought en record. Defendant no.2 filed written statement, which came to he adopted by the legal representatives of defendant no.1. Defendant no.2 in his written statement denied all the plaint averments. He further contended that. ''B'' Schedule property has been in his possession from the rime of his predecessor for over 80 years and that at the time of the alleged grant, ''B'' Schedule property was not available for grant, therefore, this plaintiffs have not derived any title to the said property, as such, they are not entitled for the relief of possession. They alto contended that since they have been enjoying ''B'' Schedule property for over 80 years, they have perfected their title by adverse possession.
The Trial Court by its judgment dated 19.01.2002 answered the material issues in favor of the plaintiffs and held that the defendant have failed to prove the plea of advance possession. In the light of the same, the Trial Court held that the plaintiffs being the owners of ''B'' Schedule property ere entitled for possession of ''B'' Schedule property and since the defendants have encroached ''B'' Schedule, they are not entitled to remain in possession of the same.
The appeal filed by the defendants / appellants came to be rejected by the Lower Appellate Court The two applications filed by them under Order 41, Rule 27 seeking production, of additional evidence also came to be dismissed. As against these concurrent judgments of the Court below, the appellants are in appeal
I have heard the learned counsel for the appellants and the Learned counsel for the respondents / defendants.
On perusal of the judgment of the Court below, it is noticed that the defendants have not disputed the fact with regard to the grant of the land by the Tahsildar. In that view of the matter, the Courts below have held that the plaintiffs have proved title to the property. The defendants during the ''trial, as noticed by the Court below have not challenged the evidence of PW-1 with regard to grant of land in favor of their father, The only defense put forth was that at the time of grant, 9 cents of land was not available far grant, as according to the defendants, the said 9 cents of land was in their possession from the time of their predecessor.
Both the Courts below hove noticed that the defendants have not produced any documentary evidence or any other acceptable evidence to establish that they have been in possession of 9 cents of food from the time of their predecessor for over 80 years.
Before the Lower Appellate Court, it was sought to be contended on behalf of the defendants that there is & road in ''B'' Schedule property and the said road is the only access to the property of the defendants. However, the said contention has been negative by the Lower Appellats Court, since no such defance had been raised in the written statement.
Perusal of the judgment of the Courts below clearly indicates that both the Courts on proper appreciation of documentary and oral evidence have recorded a finding that the plaintiffs have proved title to the suit schedule property and that the defendants have encroached the suit schedule property to an extent of 9 cents. Therefore, the courts below have decreed the suit and directed the defendants to hand over the encroached portion of the land to the plaintiffs.
Having regard to the facts and circumstances of the case, I find no question of law, much lose, substantial question of law involved in this appeal, The entire case rests purely on facts and appreciation of evidence. Appreciation of evidence by the Court below is in accordance with law and facts. It is not open to this Court sitting in second appeal to depreciate the evidence and record a different finding.
in this view of the matter, I find no ground to entertain this appeal Hence- the appeal is devoid of merits and the same is dismissed.