(Prayer: This RSA is filed under Section 100 of CPC, against the judgment and decree dated 05.08.2025 passed in R.A.no.2/2024 on the file of senior civil judge and JMFC, Channagiri, dismissing the appeal and confirming the judgment and decree dated 31.10.2023 passed in o.s.no.168/2010 on the file of principal civil judge and JMFC, Channagiri.)

Oral Judgment:

1. This matter is listed for admission. Heard the learned counsel for the appellants and also the learned counsel for the respondents.

2. This appeal filed is against the concurrent finding. The factual matrix of case of plaintiff before the Trial Court while seeking the relief of declaration and possession that the plaintiff is the owner of the suit ‘A’ schedule property and ‘B’ schedule property is the part and parcel of ‘A’ schedule property and the plaintiff specifically pleaded that defendants encroached the suit ‘B’ schedule property to the extent of 35 guntas of land and also contend that defendant interfering with peaceful possession and enjoyment of the suit schedule property. The defendants have appeared and filed written statement contending that suit is bad for non-joinder of necessary parties and also contend that suit is barred by limitation and  also  contend  that  the  plaintiffs  only  based  on  the private survey, seeking for the possession and the same cannot be considered. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence before the Court and also taken note of the material available on record and Court Commissioner also appointed before the Court even though earlier there was a private survey and the same was challenged before the Deputy Commissioner and Deputy Commissioner set-aside the same.

3. The Trial Court having taken note of the pleadings as well as arguments canvassed by both the parties, taken note of admitted facts which are culled out from the pleadings. The plaintiff’s claim over the suit property on the basis of partition deed 15.12.1957 with regard to the partition, either of parties have no dispute and there is an admission also. The claim of the plaintiff that his father was allotted with an area measuring 6 acres 35 guntas in Sy.No.4. It is also further contention that portion  allotted  to  their  father  is  eastern  most  part  of Sy.No.4 and to west of it, the share of defendant's father is situated, this assertion is also admitted by the defendants. In this regard, the suggestions that are posed to P.W.1 and the admissions given by D.W.1 during the course of cross-examination with regard to the location of the property is concerned, there is no dispute.

4. It is also not in dispute that father of the plaintiff had alienated 4 acres of land in Sy.No.4/P1 to one Mohammed Sab, later, it is finally vested with Komal Chand as per sale deed of the year 1986. The said portion was southern part of his holding and retained 2 acres 35 guntas on northern side. It is the specific case of the plaintiff that he is having only the possession of 2 acres and remaining areas with the defendant and he had encroached the same. The Trial Court having considered the report of the Court Commissioner, comes to the conclusion that property can be identifiable with regard to the 30 acres 35 guntas of land is concerned and also taken note  of  admission  on  the  part  of  D.W.1  in  the  cross- examination in paragraph No.49 that total measurement of land is 30 acres 35 guntas and it was partitioned among the five brothers. In the partition, the father of the plaintiff was allotted 6 acres 35 guntas and the same is not disputed and other brothers have got 6 acres of land each. He also admitted the western, southern and northern boundaries of the said allotted property. The D.W.1 also admitted that eastern land holder of suit property had not been encroached. He also admitted that no survey was conducted after the partition and no such sub-division had taken place inconsonance with partition deed Ex.P.1. He further admitted that sale transaction of all five brothers including father of plaintiffs, defendant to various persons in the integral period from 1957-2010 and sub-divisions of alienated portions. The D.W.1 also admitted as on the date of suit, the entire extent of Sy.No.4 is 30 acres 35 guntas, having considered this, the Trial Court comes to the conclusion that there is no dispute at all as to the total extent of 30 acres 35 guntas in the year 1957 and the same stand still to the entire extent covering Sy.No.4/1A to Sy.No.4/3D. He also admits eastern owner of the property and has not encroached and also clear that encroached portion if any is in between the plaintiffs and defendants. He categorically admits that if any encroachment, if any, in suit ‘B’ property would be in between the plaintiffs and defendant's property alone, this admission of D.W.1 takes away the case of plaintiff and defendant that the property is not correctly identified. The Trial Court taken note of the document of Ex.D.1 to Ex.D.33 and particularly Ex.D.1 to Ex.D.6 and Ex.D.26 are the representations of the plaintiff No.3 to the survey and revenue authorities as to the difference of measurement in survey records as well as RTC of respective properties which includes the application for measurement and correction of records in consonance with the actual area and the registered documents, particularly Ex.D.7, Ex.D.8 and Ex.D.27 are the endorsement of the Tahasildar, order of Tahasildar insofar as the application of plaintiffs are concerned.

5. It is the specific case that the plaintiffs property which was encroached by the defendants and the defendants are not ready to hand over the same to the plaintiffs. Even the Trial Court also taken note of admission on the part of D.W.1. He categorically admits that if any excess land is going to deliver the said, but in paragraph No.80, taken note of the survey maps produced by the ADLR, DDLR and the Tahasildar of Chennagiri are starting from the year 1934 and thereafter also. The entire extent of Sy.No.4 reduces therein as 30 acres 35 guntas and even the same can be gathered from Ex.D.228 to Ex.D.230, which are the survey maps of Sy.No.4. The Akarbandh also discloses the total extent of 30 acres 35 guntas, Index of RTC also taken note of in Ex.D.209 discloses the partition of said entire 30 acres and no dispute with regard to the property was allotted in favour of the plaintiff to the extent of 6 acres 35 guntas and also revenue records came into existence subsequent to the partition and also taken note of 4 acres was sold and also taken note of cross-examination of D.W.1 in paragraph No.83 with regard to the sale is concerned and also in paragraph  No.86,  taken  note  of  survey  conducted  by P.W.2 prior to filing of the suit, another survey namely Thippeshappa as per Ex.P.11 have categorically come to conclusion that the said land is available in Sy.No.4/1A and the Court also appointed a Commissioner vide order dated 04.08.2014 in pursuance of the application filed by the plaintiffs and report is also submitted along with the sketch prepared during the course of commission work as per Ex.C10 and Ex.C.11. The Ex.C11 is the map prepared by the Court Commissioner who examined as C.W.1 in the case. He categorically comes to the conclusion that the defendant's extent as per Aakarbandh is 3 acres 17 guntas as against they are in possession of 4 acres 2 guntas. The plaintiff's extent as per records is 2 acres 35 guntas are in possession of 2 acres. This was also taken note of and particularly in paragraph No.87, taken note of even though D.W.1 stated in his cross-examination that he is ready to give up the excess land, if it is in his possession, the defendant  not  co-operated  for  commission  work.  The D.W.1 has also stated in the cross-examination that he has got troublesomeness, if Commissioner is appointed and measure the property. The D.W.1 has admitted that entire extent of 30 acres still available and this also extracted in paragraph No.87 and categorically admitted that ‘B’ schedule property is in his possession. The very claim of the plaintiff is that ‘B’ schedule property is the extent of 35 guntas which is in possession of the defendant.

6. The Trial Court also in detail considered both oral and documentary evidence, both the evidence of plaintiff, D.W.1 and Court Commissioner and also Court Commissioner entered into witness box at the instance of the defendant's application only and nothing is elicited from the cross-examination of C.W.1 with regard to the possession which is excess with the defendant as per the report and hence, the Trial Court comes to the conclusion that the plaintiffs have established the ownership of the suit schedule property through unchallenged interminable mutation entries in partition. The Trial Court having considered both oral and documentary evidence placed on record, comes to the conclusion that the defendant is in excess possession of the property which has been claimed and also the defendant categorically admitted that he is in possession of ‘B’ schedule property and claim is also made by the plaintiff in respect of the ‘B’ schedule property which is a part and parcel of the ‘A’ schedule property and also the extent of 6 acres 35 guntas allotted in favour of the plaintiff’s father is also not disputed by the defendant and hence, granted the relief of possession in respect of the encroached portion which is in excess of land of the defendant, the same is challenged before the Appellate Court and Appellate court also considering the grounds which has been urged in the appeal memo, formulated the point with regard to consideration of the material available on record by the Trial Court, whether the Trial Court committed an error in granting the relief of the plaintiff that he is the owner and also the defendant has encroached the suit schedule property i.e., particularly ‘B’ schedule property and whether it is capricious. The First Appellate Court having re-assessed the material on record taken note of the extent of land allotted to the plaintiff’s father to the extent of 6 acres 35 guntas and remaining all other five brothers allotted with 6 acres each. The Trial Court taken note of the same is not admitted and D.W.1 in the cross-examination admitted with regard to the encroachment and the encroachment portion possessed by the defendants. Hence, the Trial Court held that plaintiffs have proved their ownership over the suit schedule property and further observed that plaintiffs are entitled for the relief and no evidence is produced to show that said mutation and the revenue entries came to pass without the knowledge of the defendants.

7. The Trial Court having considered both oral and documentary evidence available on the record, particularly the evidence of D.W.1 who has categorically admitted that he is in possession of the ‘B’ schedule property and the specific case of the plaintiff also the same and even the evidence of Commissioner also very clear that he is in excess possession of the property. When such being the case, First Appellate Court also taken note of the evidence available on record and even discussed with regard to the perfecting of possession by adverse possession since there is no such pleading and apart from that they are the family members and they got divided the property and hence, comes to the conclusion that even adverse possession also cannot be claimed and particularly in paragraph No.37 taken note of total extent of 6 acres 35 guntas in Sy.No.4 allotted in favour of the plaintiff and also sold 4 acres of land and retained 2 acres of 35 guntas and he is in shortfall of 35 guntas and he is in possession only to the extent of 2 acres and hence, confirmed the judgment of the Trial Court.

8. Being aggrieved by the same, the present second appeal is filed before this Court. The main contention of the counsel appearing for the appellants before this Court is that both the Courts are not right in decreeing the suit of the plaintiff. Further, counsel would vehemently contend that the property was not properly surveyed by the Surveyor and survey report is not as per the actual measurements of the holdings of the persons and revenue records are also secondary documents and not reflect the actual measurement of the lands in question. The counsel also vehemently contend that both the Courts failed to take note of the material available on record.

9. Per contra, the counsel appearing for the respondents would vehemently contend that even though there was a earlier survey and the same was challenged and the same is set-aside and even Court itself appointed the fresh Commissioner and fresh Commissioner also given the report and specific report is also taken note of and particularly the admission on the part of D.W.1 that he is in possession of ‘B’ schedule property was also taken note of and Commissioner report is also clear that he is in excess of the property what he has having and all these factors would taken note of and hence, not a case to interfere with the findings of the Trial Court and frame substantive question of law.

10. Having heard the learned counsel for the appellants and also the learned counsel for the respondents, it is a specific case of the plaintiff that his father was allotted to the extent of 6 acres 35 guntas and the family was having 30 acres of land and the same was divided among the brothers is also not in dispute. It is also admitted by the defendant that 6 acres of each land is allotted in favour of other brothers and also not disputes the extent of 6 acres 35 guntas was allotted in favour of the  father.  It  is  also  emerged  during  the  course  of evidence, 4 acres of land was sold and remaining 2 acres 35 guntas was retained by the plaintiff. It is also important to note that before filing a suit, private survey was also conducted and the same is disputed and an appeal was filed before the Deputy Commissioner and the Deputy Commissioner passed an order. When the issue involved between the parties, Court Commissioner was appointed and Court Commissioner was examined and he has given the report and in terms of the report, more than the extent what the defendant is having is in possession.

11. It is important to note that D.W.1 has categorically admitted that he is in possession of the ‘B’ schedule property. The case of the plaintiff is also that ‘B’ schedule property is the part and parcel of the ‘A’ schedule property.  When  the  categorical  admission  is  given  by D.W.1 in his cross-examination and in one breath he says that he is ready to give up the land which is in excess, but, again he says that he is not ready to give up that property and also he admitted that the plaintiff was aware of he is in possession of excess land and all these answers takes away the contention of the counsel appearing for the appellants that no proper measurement was done by the Commissioner and nothing is elicited from the cross- examination of Court Commissioner who has been examined before the Court and his report is also very clear with regard to ‘B’ schedule property is in possession of the defendant and also D.W.1 categorically admits that he is in possession of the said land. When such finding is given by the Trial Court and Appellate Court considering both oral and documentary evidence and also considering the report of the Commissioner as well as the admission on the part of D.W.1 and the counsel for appellants cannot argue against the admission on the part of D.W.1 who categorically admitted that he is in possession of the ‘B’ schedule property and direction is also given to the defendant to hand over the vacant possession of the property to the plaintiff in respect of the ‘B’ schedule property which he is in his possession which is excess land. When such being the case, I do not find any perversity in the finding of Trial Court and Appellate Court. Both the Trial Court and Appellate Court taken note of question of fact and question of law and hence, not a case to invoke Section 100 of CPC.

12. In view of the discussions made above, I pass the following:

                  ORDER

                  i)        Second appeal is dismissed.

                  ii)       In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.