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Judgment
B. Manohar
Appellants being the plaintiffs in O.S. No. 365/ 1997 have tiled this second appeal being aggrieved by the judgment and decree dated 27-7-2006 made in R.A. No. 73/2000 passed by the Principal Civil Judge (Sr.Dn,). Udupi setting aside the judgment and decree dated 11-4-2000 made in CS. No. 365/1997 passed by the Principal Civil Judge (Jr.Dn.), Udupi.
The appellants-plaintiffs filed a suit seeking for possession of ''A'' schedule properly and other reliefs contending that they are the owners of the land bearing Sy. No. 43/2 measuring 0.98 cents situated in Shivalli village, Udupi Taluk. The defendant is the occupier of the land adjoining the land of the plaintiffs on the eastern side. The plaintiffs recently came to the know that the defendant who appears to be the adjoining owner on the eastern side has clandestinely encroached upon the land of the plaintiffs and had put up barbed wire fence adding the same to her land with a view to cause loss to the plaintiff-Mutt and to make unlawful gain for herself. The plaintiffs further pleaded that in order to ascertain the exact extent of land encroached by the defendant, the land belonging to the plaintiffs was got measured through the Surveyor after giving notice to all the adjoining owners including defendant on 16-2-1997. On measurement of the property of the plaintiffs, it was noticed that the defendant has encroached about half a cent of land out of plaintiffs'' property. The said encroached portion is described as ''A'' schedule property.
Inspite of the requesting the Tahsildar and the Police Authorities for removal of encroachment, the said authorities have not taken any action for removal of encroachment. Though the defendant agreed to remove the encroachment, she failed to do so. The authorities and the Police Officers are actively supporting the defendant. Hence, the plaintiffs filed this suit seeking for possession of the suit schedule property with costs.
In pursuance to the notice issued by the court below, the defendant entered appearance and filed written statement and denied the averments made in the plaint and also denied the ownership of the plaintiffs over the property bearing Sy. No. 143/2 to the extent of 0.98 cents of Shivalli village. The defendant denied that she has encroached on the eastern side to the extent of half a cents of land in Sy. No. 143/2 of Shivalli village. She has contended that. 3 cents of land was granted by the State Government under the Darkast Rules. Before granting 0.3 cents of land, it was measured and boundary has been fixed while granting the land. The said property was bounded by the barbed wire in order to protect her property and constructed a house and living therein. She has effected vast improvement in the said property by incurring huge expenditure. In view of that and also in order to protect her property, barbed wire fence was put up as per the demarcation made by the State Government and she has never encroached half a cent of land belonging to the plaintiffs as alleged in the plaint. She further alleges that no survey has been conducted on 16-2-1997 as alleged in the plaint and she has also not received any notice from the Surveyor. Any survey conducted and sketch prepared behind the back of this defendant is not binding on her. Further, since the State Government has granted the land, the Suite Government is a necessary party and they are not made as panics. Hence (sic) sought for dismissal of the suit.
On the basis of the pleadings of the parties, the Trial Court framed the following issues for its consideration:
(i) Whether the plaintiff proves that he is the owner of suit schedule ''A'' property as alleged in the plaint?
(ii) Whether the plaintiff further proves that the defendant clandestinely encroached upon half cent of land of plaintiff and had put up barbed wire fence adding the same to the property as alleged in the plaint?
(iii) Whether the defendant proves that the valuation made by the plaintiff for the purpose of Court fee and jurisdiction is incorrect?
(iv) Whether the defendant further proves that the Government of Karnataka is a necessary party and hence the suit is bad for ''non-joinder of necessary party?
(v) Whether the plaintiff is entitled for possession of the suit schedule property?
(vi) What decree or order?
The plaintiffs in order to prove their case, examined the Manager of the Mutt as P.W. 1 and also examined the Surveyor as P.W. 2 and got marked the documents as Ex. P.1 to Ex.P 10(A). On behalf of the defendant. Power of Attorney holder who is none other than the brother of the defendant was examined as D W. 1 and got marked the documents as Ex.D1 to Ex.D4.
The Trial Court on considering the oral and documentary evidence adduced by the parties held issue Nos.1, 2 and 5 in the affirmative and issue Nos, 3 and 4 in the negative consequently by its judgment and decree dated 11-4-2000 decreed the suit and declared that the plaintiffs are entitled for possession of suit ''A'' schedule property and directed the defendant to surrender the vacant ''A'' schedule property to the plaintiffs.
Being aggrieved by the judgment and decree dated 11-4-2000, the defendant; filed RA. No. 73/2000 contending that the judgment and decree passed by the court below is contrary to law and the material evidence on record. The court-below misunderstood and misread the case pleaded by the defendant. The specific case of the defendant is that she has never encroached upon the land belonging to the plaintiffs. Further, as per the demarcation of the boundary made by the State Government while granting 0.3 cents of land, she has put the barbed wire fencing. Without measuring the property of the defendant, the finding recorded by the Trial Court that the defendant has encroached upon the land of the plaintiffs is totally incorrect. Further, alleged survey conducted and sketch prepared by the Surveyor is not in accordance with the Survey Manual and no Notice has been given before conducting survey and sought for setting aside the judgment and decree passed by the Trial Court by allowing the appeal.
The Lower Appellate Court on considering the arguments addressed by the parties, framed the following points for its consideration:
(i) Whether the plaintiff proves that he is the owner of the suit ''A'' schedule property?
(ii) Whether the plaintiff proves that the defendant, has encroached upon half cent of land in the suit ''A'' schedule property?
(iii) Whether the judgment and decree passed by the Trial Court are sustainable?
(iv) What order?
The Lower Appellate Court after considering the arguments addressed by the parties, perusing the documentary evidence and re-appreciating the oral evidence held point No. 1 in the affirmative and point No. 2 and 3 in the negative. Consequently, by its judgment and decree dated 27-7-2006 allowed the appeal and set aside the judgment and decree dated 11-4-2000 made in O.S. No. 365/1997 and dismissed the suit filed by the plaintiffs. Being aggrieved by the judgment and decree passed by the Lower Appellate Court, the appellants have preferred this appeal.
Sri. B. Vinayak, learned counsel appearing on behalf of Ashok Haranahalli Associates contended that the Lower Appellate Conn has committed an error in reversing the judgment and decree passed by the Trial Court. The appreciation of the oral and documentary evidence by the Appellate Court is contrary to law. The reasoning of the Lower Appellate Court that (he survey conducted without issuing notice to She defendant is contrary to the facts. The Surveyor stepped into the witness box and deposed that he has served notice on the defendant. The entire approach of the Lower Appellate Court to the matter in controversy is erroneous in law. Farther the defendant has nor stepped into the witness box and the Power of Attorney holder is not aware of the correct and full focus and sought for setting aside the judgment and decree passed by the Lower Appellate Court by allowing this appeal.
On the other hand, Sri. N. Shantkumar, learned counsel appearing on behalf of Sri. A. Anand Shetty argued in support of the judgment and decree passed by the bower Appellate Court and contended that on the basis of the exparte survey conducted by the Surveyor and sketch prepared by him the Trial Court came to the conclusion that the defendant has encroached half a cent of the land. The Appellate Court on re-appreciating the documentary evidence came to the conclusion that no notice has been served on the defendant and sketch has been prepared behind the back of the defendant. Hence no reliance can be placed on the said document. The finding recorded by the Appellate Court is purely a question of fact and the same cannot be lightly interfered by this Court. Hence, sought for dismissal of the appeal
I have carefully considered the arguments addressed by the learned counsel for the parties and perused the oral and documentary evidence let in by the parties.
Having heard the learned counsel for the parties, the point that arise for consideration in this appeal is- Whether the appellants have made out a case to interfere with the judgment and decree passed by the Lower Appellate Court?
The records clearly disclose that the appellants/plaintiffs are in possession of 0,98 cems in Sy. No. 143/2 of Shivalli Village. It is the specific case of the plaintiffs that recently the plaintiffs came to know that the defendant has clandestinely encroached upon a portion of the land of the plaintiffs and has put up barbed wire fence with a view to make unlawful gain. In order to ascertain the said fact, the plaintiffs got measured their property through a Surveyor on 16-2-1997. The Surveyor after measuring prepared a sketch as per Ex. P3 showing that half a cent of land was encroached by the defendant and it was marked as ''A'' schedule property. Despite lodging a complaint before the Tahsildar as well as before the Police, they have not taken any action. In view of that they have filed the suit. However, the defendant denied the case of the plaintiffs and contended that 0.3 cents of land has been granted by the State Government and she fenced the said land as per the measurement shown by the State Government and she has not, encroached any portion of the said land.
The Manager of the plaintiff-Mutt, examined himself as P.W. 1. In his evidence he has deposed that on the basis of the report and sketch submitted by the Surveyor, they came to know that half a cent of land to the eastern side of their-property was encroached by the defendant. P.W. 2 who is the Surveyor in his evidence has deposed that he has conducted the survey after issuing notice to the neighbourers and he has prepared the sketch as per Ex.P3. In the cross-examination he asserted that he had served she notice Ex.P2 on the defendant. The defendant examined herself through her Power of Attorney holder and denied the allegation regarding encroachment. The Trial Court based on the sketch prepared by the Surveyor decreed the suit without critically examining whether the survey has been conducted in accordance with law and as per the Survey Manual. It is the specific case of the defendant that without nonce to the defendant who is a neighbourer to the plaintiffs property, survey has been conducted and sketch has been prepared behind her back. The Appellate Court on verification of Ex.P.2 found that notice has not been served on the defendant and survey has been conducted without notice to the defendant, Hence, the sketch prepared by the Surveyor cannot be accepted since the survey conducted is one-sided. Apart from that, the Surveyor has not surveyed the property of the defendant in order to come to the conclusion that the defendant has encroached the property of the plaintiffs. The plaintiffs have also not examined any other neighbourers to show that after issuing notice to the neighbouring owners of the land, survey has been conducted by the Surveyor. Ex.P.3, on which, the Trial Court placed its reliance for decreeing the suit cannot be acceptable Further the admission made by D.W. 1 cannot be treated as admission. He has denied the encroachment of the land and further said that if there is any encroachment, they would discuss with the authorities of the Mutt. The said portion of the statement of D.W. 1 cannot be treated as admission on his part. As held by this Court, the admission should be unqualified and should not be ambiguous. In the instant ease, it is the specific case of D.W. 1 that they have not encroached the property of the Mutt. Hence, the statement of D.W. 1 cannot be treated as admission on his part. The Trial Court placed its entire reliance on Ex.P.3 i.e. exparte sketch prepared by the Surveyor and decreed the suit which is contrary to law. Before surveying the property, it is the bounden duty of the Surveyor to issue notice to the neighbouring owners and in order to find out encroachment he has to survey both the properties and then give his findings. In the instant case, only 0.3 cents of land has been granted by the State Government to the defendant under Darkast Rules. There is no much difficulty to measure the lands of both, plaintiffs and defendant to come (o the correct conclusion.. The survey conducted by the Surveyor is contrary to law and the Trial Court ought not to have placed its reliance on Ex.P3, which is an exparte report, while decreeing the suit.. The Appellate Court on re-appreciating the entire evidence found that Ex P3 cannot be acceptable since it is the Exparte report without issuing notice to neighbouring owners and accordingly set aside the judgment and decree passed by the court below. There is no irregularity and infirmity in the judgment and decree passed by the Lower Appellate Court and the appellants have not made out a case to interfere with the judgment and decree passed by the Lower Appellate Court.
There is no substantial question of law to be decided by this Court. Accordingly, the appeal is dismissed.
Parties to bear their own costs.