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IN THE HIGH COURT OF , DHARWAD BENCH DATED THIS THE 27 TH DAY OF JANUARY, 2016 BEFORE THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA R.S.A. NO.3008/2006 (INJ)

BETWEEN

1. KARNATAKA ELECTRICITY BOARD NOW KARNATAKA POWER TRANSMISSION CORPORATION LTD., REP BY ITS GENERAL MANAGER (ADMN AND HRD), CAUVERY BHAVAN BANGALORE 560 009.

2. THE CHIEF ENGINEER (ELE), NOW KARNATAKA POWER TRANSMISSION CORPORATION LTD., FORMERLY KARNATAKA ELECTRICITY BOARD, NAVANAGAR, HUBLI-581 110. DHARWAD DISTRICT.

3. THE EXECUTIVE ENGINEER (ELE)., CONSTRUCTION AND MAINTENANCE DIVISION, NOW KARNTAKA POWER TRANSMISSION CORPORATION LTD., FORMERLY KARNATAKA ELECTRICITY BOARD, SIRSI UTTARA DISTRICT 581 401.

4. THE ASST EXECUTIVE ENGINEER (ELE) MAJOR WORKS SUB DIVISION NO 3, NOW KARNATAKA POWER TRANSMISSION 2

CORPN LTD., FORMERLY KARNATAKA ELECTRICITY BOARD, TALUK-581 329. DISTRICT

5. THE ASST EXECUTIVE ENGINER (ELE) MAJOR WORKS SUB DIVISION NO 3, NOW KARNATAKA POWER TRANSMISSION CORPN LTD., FORMERLY KARNATAKA ELECTRICITY BOARD, AMBIKANAGAR, HALIYAL TLAUK UTTARA KANNADA DISTRICT-581 329. ... APPELLANTS (BY SRI.B.S.KAMATE, ADV. FOR APPELLANT NOS.2 TO 5, SRI N.KRISHNANANDA GUPTA, ADV.)

AND

1. KUNJI AYASHA MULLA KOYA AGED ABOUT 72 YEARS W/O LATE SRI KUNNIKOT PARAMULLA KOYA R/O AMBEWADI HALIYAL TALUK UTTARA KANNADA DISTRICT

2. MOHAMMAD MULLA KOYA AGED ABOUT 52 YEARS S/O LATE SRI KUNNIKOT PARAMULLA KOYA R/O AMBEWADI DANDELI HALIYAL TALUK UTTARA KANNADA DISTRICT

3. ABDUL MULLA KOYA AGED ABOUT 50 YEARS S/O LATE SRI KUNNIKOT PARAMULLA KOYA R/O AMBEWADI DANDELI 3

HALIYAL TALUK UTTARA KANNADA DISTRICT

4. IBRAHIM MULLA KOYA AGED ABOUT 34 YEARS S/O LATE SRI KUNNIKOT PARAMULLA KOYA R/O AMBEWADI DANDELI HALIYAL TALUK UTTARA KANNADA DISTRICT

5. FATHIMA KUNJA MOHAMMED AGED ABOUT 54 YEARS D/O LATE SRI KUNNIKOT PARAMULLA KOYA R/O AMBEWADI DANDELI HALIYAL TALUK UTTARA KANNADA DISTRICT

6. SABEENA KUNJA MAHAMMAD AGED ABOUT 42 YEARS D/O LATE SRI KUNNIKOT PARAMULLA KOYA R/O AMBEWADI DANDELI HALIYAL TALUK UTTARA KANNADA DISTRICT

7. KHATIJA HYDER AGED ABOUT 37 YEARS S/O LATE SRI KUNNIKOT PARAMULLA KOYA R/O AMBEWADI DANDELI HALIYAL TALUK UTTARA KANNADA DISTRICT

8. SULEEKH UMMADI AGED ABOUT 32 YEARS D/O LATE SRI KUNNIKOT PARAMULLA KOYA R/O AMBEWADI DANDELI 4

HALIYAL TALUK UTTARA KANNADA DISTRICT... RESPONDENTS

(BY SRI. RAVI.G.SABHAHIT & SRI PRAKASH B. ANGADI, ADV. FOR R.1, R.4 AND R.6, R.2, R.3, R.5, .R7 & R.8 SERVED & UNREPRESENTED)

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED: 26.8.2006 PASSED IN R.A.NO.90/1994 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), SIRSI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED:7.9.1994 PASSED IN OS.NO.158/1990 ON THE FILE OF THE MUNSIFF, HALIYAL, AND ETC.

THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

Defendants in O.S.No.158/1990 have preferred this

Second Appeal, assailing Judgment and Decree of the Civil Judge at Sirsi, passed in R.A.No.90/1994 dated 26.08.2006, by which, judgment and decree passed by the Munsiff’s Court at Haliyal in

O.S.No.158/1990 dated 07.09.1994, has been confirmed.

2. For the sake of convenience, the parties shall be referred to, in terms of their status before the Trial Court. 5

3. The 1 st respondent/plaintiff filed a suit against the defendants seeking reliefs of possession and permanent injunction. Other respondents have been legal representatives.

According to plaintiff, suit schedule properties are agricultural land bearing Block No.7 measuring 11 acres 1 gunta, situated at

Ambewadi-Dandeli Road in Haliyal Taluk. The plaintiff has averred that he is the owner of the suit property as he purchased it from its previous owner under a registered sale deed dated

12.10.1978 and he has been in actual possession over the property from the date of its purchase. The defendant/Karnatake

Electricity Board (herein after referred to as the ‘Board’), has been granted certain lands on lease from the Forest Department at

Ambewadi which is adjoining the suit property on the Eastern side wherein defendant No.4 is having its Office. In the month of

August, 1985, plaintiff became aware that defendant No.4 had encroached on a portion of the suit property. He made a representation to defendant No.5 on 21.08.1985 seeking removal of the encroachment. By letter dated 21.11.1985 defendant No.5 6

requested plaintiff to furnish the relevant documents and the same were produced by plaintiff on 26.11.1985. Thereafter, defendant No.5 by letter dated 21.3.1986 forwarded the matter to defendant No.3 to initiate suitable action in the matter since the original lease deed of the Board was available in that office. But no response was received from defendant-3. Hence, the plaintiff got issued a legal notice issued to defendant No.4 on 11.06.1987 calling upon defendant No.4 to vacate and hand-over encroached area to plaintiff.

4. On receipt of legal notice, defendant No.4 filed a caveat petition in the court on 25.6.1987 making false averments against plaintiff, by contending that plaintiff was attempting to trespass into the land in possession of the Board. Disappointed with the conduct of defendant No.4, plaintiff made a representation to the

Prime Minister of , forwarding a copy of the same to the

Chief Minister of Karnataka, Minster of Agriculture, Karnataka, and also to other concerned officers. He also made a representation to the Assistant Commissioner, Uttar Kannada, 7

Karwar, who was pleased to pass an order on 28.04.1988 directing the Assistant Director of Land Records, Karwar, (herein after referred to as ADLR), to conduct a survey of the land and accordingly survey was conducted on 11.05.1988 in the presence of the representatives of Forest Department and the report was submitted.

5. Thereafter, plaintiff requested Assistant Commissioner to remove encroachment made by defendant No.5 over the suit property and to deliver vacant possession thereof. He also made representation to defendant No.2 on 21.11.1988 enclosing a copy of survey map with a request to take suitable action in the matter.

In response, defendant No.2 by letter dated 02/03/1989 informed plaintiff, without holding any enquiry that suit property of plaintiff was 40 meters away from the western side of the road.

6. Later, Tahasildar, Haliyal, made an enquiry. In the said enquiry Forest Department was furnished the map on behalf of the Board and it was reported that there was no encroachment.

But the survey map of the ADLR, Karwar, revealed that the 8

Board had encroached an area of 16 guntas 12 annas in the suit property of plaintiff. In view of that fact, the Tahasildar, Haliyal, by his letter dated 16.12.1989 requested Deputy Conservator of

Forests, Haliyal Division, Haliyal, to conduct a joint survey by the

Forest Department and the ADLR, Karwar and to report. The

Deputy Conservator of Forests, Haliyal Division, Haliyal, by his letter dated 21.03.1989 admitted that the Board had encroached an area of 16 guntas 12 annas over the suit property belonging to plaintiff by putting wire fencing and also requested defendant

No.4 to settle the matter.

7. Subsequently, Deputy Tahasildar, Nadakacheri, Dandeli, in response to letter of Deputy Conservator of Forest, Haliyal

Division, Haliyal, dated 21.03.1990 and letter of Tahasildar,

Haliyal, dated 23.4.1990 by his letter dated 15.5.1990 requested defendant No.4 to be present in the spot on 22.05.1990 to deliver possession of the encroached portion of the suit property to the plaintiff. But defendant No.4 failed to do so, as such the Deputy

Tahasildar, Nadakacheri, Dandeli, once again by his letter dated 9

11.6.1990 to the defendant No.4 requested him to be present on the spot on 15.6.1990 to deliver possession of the encroached area to the plaintiff. Thereafter, defendant No.4 queried plaintiff as to whether he opted for vacant possession of encroached portion or compensation. The plaintiff made it clear to defendant

No.4 that he wanted vacant possession of the encroached land.

Inspite of it, the defendant No.4 requested the Deputy Tahasildar,

Nadakacheri, to postpone the date of delivery of possession on the pretext that plaintiff had requested fifteen days time to exercise his option. But plaintiff informed Deputy Tahasildar,

Dandeli, in writing that the vacant possession of the encroached portion be delivered to him and accordingly, the Deputy

Tahasildar, Nadakacheri, Dandeli, by his letter dated 28.06.1990 finally requested defendant No.4 to be present on 03.07.1990 for the purpose of delivery of possession. But the said request of the

Deputy Tahasildar went in vain. Thereafter, Deputy Tahasildar informed the plaintiff to take up the matter with the Board. 10

Under the circumstances, plaintiff issued a legal notice dated

8.9.1990 to defendants and said notice has been received by them.

According to the plaintiff, defendants are interfering with peaceful possession and enjoyment of the area of 3 guntas of land shown in letter ‘C’ in the survey map and other area of the suit property on the Eastern side of Ambewadi-Ganeshgudi Road, with an intention to cause hardship to the plaintiff. Therefore, the instant suit was filed. When the defendants encroached an area of

16 guntas 12 annas shown in letter ‘D’ in the survey map, plaintiff requested defendants to remove the encroachment and finally the suit seeking aforesaid reliefs was filed.

8. On service of notice and suit summons from the trial court, Defendant Nos. 2, 3 and 5 appeared before court by engaging a Counsel and defendant No.5 filed his written statement and other defendants adopted the same. Defendant

No.5 contended that the suit filed by plaintiff was not maintainable. He denied that the plaintiff was in possession, cultivation and enjoyment of the entire property from the date of 11

purchase till the date of filing the suit. The defendant admitted the averments made in para-3 of the plaint and official correspondence and receipt of legal notice from the plaintiff. But he denied that in August, 1985, plaintiff had noticed that defendant No.4 had encroached a portion of suit property.

According to defendant No.5, plaintiff had filed the suit with an ulterior motive to grab some barren land situated on the Eastern side of Dandeli-Barchi road. The defendants denied the alleged survey on 11.5.1988 conducted by the ADLR, Karwar, as it was not proper and correct. The defendants challenged the survey map. While denying any encroachment on 16 Guntas 12 Annas belonging to the plaintiff, they contended that the suit be dismissed.

9. It was further contended that Tahasildar, Haliyal and

Deputy Tahasildar, Dandeli had no power to initiate any enquiry or to take steps to hand-over possession of the encroached area to the plaintiff, which had been done on account of political pressure. While denying the correspondence made with Forest 12

Authorities, the 5 th defendant sought for dismissal of the suit by contending that the plaintiff’s land is on the Western side of the

Ambewadi-Ganeshgudi Road and the Forest lands are situated on the Eastern side of the said road and the Forest Department had given on lease in favour of the Board, land measuring 57 acres situated on the Eastern side of the said road and that defendants are in possession and ‘vahiwat’ of the said area. On the above pleadings, defendant No.5 sought for dismissal of the suit and on the basis of the aforesaid pleadings the trial court framed the following issues for its consideration:

1. Whether the plaintiff proves that defendants have encroached an area to the extent of 0-16- 12 in the suit property as contended by him? 2. Whether suit is bad for non-joinder of necessary parties? 3. Whether plaintiff is entitled for possession of the alleged encroached portion claimed by him in para-10(a) of the plaint? 4. Whether plaintiff is entitled for permanent injunction sought in the plaint? 13

5. Whether plaintiff is entitled for mesne

profits?

6. What Decree or Order?

10. In support of his case, plaintiff examined himself as

PW.1. He produced 28 documents, which were marked as Ex.P.1 to P.28. The fourth defendant examined one witness, namely,

Assistant Executive Engineer as D.W.1. They produced three documents which were marked as Ex.D.1, D.2 and D.2(a).

On the basis of the said evidence, the Trial Court answered issue Nos.1, 3 to 5 in the affirmative and decreed the suit of the plaintiff, by directing defendants to vacate and hand-over vacant possession of the encroached portion of the suit land which is shown in the survey sketch by letter “D”, to the plaintiff within three months. The defendants were restrained by way of permanent injunction from interfering with peaceful possession and enjoyment of the area of 3 gunatas shown with letter ‘C’ in the survey map and also the area of the suit property on the 14

Eastern side of Ambewadi-Ganeshgudi Road. A direction for an enquiry into mesne profits under Order XX Rule 12 of Code of

Civil Procedure (CPC) was given.

11. Being aggrieved by the judgment and decree of the trial court dated 7.9.1994, defendants preferred R.A.No.90/1994 before the I Appellate Court, which on hearing the Counsel for the respective parties framed the following points for its consideration:

1. Whether the plaintiff proves the alleged

encroachment of 16 guntas 12 annas of land in the

suit property by the defendants?

2. Whether the findings of the court below on

various issues stated supra are in accordance with

law?

3. Whether the judgment and decree of the trial

court calls for interference by this Court?

4. What order? 15

It answered point Nos. 1 and 2 in the affirmative and point

No.3 in the negative and dismissed the appeal.

12. Being aggrieved by the judgment and decree of the courts below defendants have preferred this Second Appeal.

13. I have heard learned Counsel for the appellants.

14. He contended that the courts below were not right in placing reliance on Ex.P.2-survey map for the purpose of coming to conclusion that defendants have encroached upon the

Eastern portion of the suit land. He contended that the plaintiff relied upon Ex.P.1 sale deed to prove that he had purchased the suit land, but that document does not have any boundaries. The defendants, on the other hand, relied upon Ex.D.1 i.e. photostat copy of the lease deed and also Ex.D.2 which is certified copy of sale deed dated 24.01.1986. Ex.D.2 would clearly indicate that the portion sold by plaintiff to a third party is the land beyond the road in question i.e., Dandeli-Ganeshgudi Road. Thus, no 16

portion of the land beyond the said road belongs to the plaintiff.

That the appellants are in possession of the land which has been leased by the Forest Department which includes the portion marked by letter ‘D’ in the survey map. They have not encroached any land which is stated to belong to the plaintiff in that area. In fact whatever land might have been purchased by plaintiff by Ex.P.1 sale deed is beyond the road in question. He, therefore, contended that the courts below have committed an error in granting relief to the plaintiff and that the substantial questions of law would arise in this appeal and the appeal may be admitted for a detailed hearing.

15. Having heard learned Counsel for the plaintiff and on perusal of the material on record and also original records, it is noted that the appellant/defendants in the suit relied upon Ex.D.1 to show that portion of the land which has been leased to them.

On perusal of Ex.D.1, it is noted that a sketch has been annexed to that document showing the actual portion leased to the defendant. On observing the same it becomes apparent that 17

Dandeli - Ambewadi road or Dandeli - Ganeshgudi road is not a boundary to the land granted to the Board by the Forest

Department. But the case of the plaintiff is that in the middle of the suit land purchased by him under a registered sale deed the said road passes. It is the specific case that his land is situated on both sides of the said road. What he had sold under Ex.D.2 is the land on one side of the said road i.e., western side but the case of the plaintiff is that the encroachment is on the land of the plaintiff which is on the other side of the road i.e., eastern side. In that context, he has placed reliance on Ex.P.2-Survey Map and also

Ex.P.3 which is the application given by plaintiff to defendant

No.5; Ex.P.4-letter sent by defendant No.5 to plaintiff; Ex.P.5 which is letter relating to documents sent; Ex.P.6 is postal acknowledgment receipt; Ex.P.7 is office copy of letter written by defendant No.5 to defendant No.3; Ex.P.8 is lawyers notice to 4 th defendant; Ex.P.11 is office copy of the Plaint submitted by plaintiff to the Assistant Commissioner, Karwar; Ex.P.12 is office copy of petition produced by plaintiff to defendant No.2; Ex.P.13 18

is letter addressed to the plaintiff by defendant No.2; Ex.P.14 is copy of letter addressed by the Tahasildar to Deputy Conservator of Forests, Haliyal Division, Haliyal; Ex.P.15 is the letter addressed to defendant-4; Ex.P.16 to Ex.18 are the office copy of letters addressed to defendant-4 by the Deputy Tahasildar,

Dandeli; Ex.P.19 is the office copy of the letter written by defendant-4 to the Deputy Tahasildar, Dandeli; Ex.P.20 and 21 are photostat copies of the letter addressed to defendant No.4 by the Deputy Tahasildar, Dandeli; Ex.P.22 is office copy of lawyer’s notice issued by plaintiff to defendants and Ex.P.28 is the hand-sketch map of Block No.7 of Ambewadi village. On going through these documents, it becomes clear that plaintiff’s land is on both sides of the road in question. The contention of the appellant that plaintiff’s land is only towards one side of the road in question (western side) and no land of the plaintiff was on the other side of the road, is incorrect. The aforesaid documents have been considered by the courts below to come to a conclusion that indeed there has been encroachment made by 19

defendants with regard to the land situated on eastern side of the road belonging to the plaintiff. The land sold by plaintiff vide

Ex.D.2 is on the western side of the road. The portion which is sold is not the encroached portion. But the portion shown by letter ‘D’ in the survey map is encroached portion and also the portion shown by letter ‘C’ in the survey map is the vulnerable portion sought to be interfered with by defendants. In the circumstances, the trial court on a conspectus consideration of the aforesaid documents granted the relief sought by the plaintiff.

First Appellate Court has reconsidered the evidence on record and has answered points raised in favour of the plaintiff.

16. In the circumstances, both the courts have concurrently held that there was encroachment made by the defendants in the plaintiff’s portion of the suit property. The said finding of fact given by the courts below is based on legal evidence. I do not find infirmity in the judgments of the courts below. No substantial question of law would arise in this appeal.

Appeal is dismissed. 20

In view of dismissal of the appeal,

Misc.Cvl.No.105054/2009 for vacating stay would not survive for consideration and it is ordered to be filed.

Parties to bear their respective costs.

Sd/- JUDGE

Sub/