2019 Supreme(Kar) 1588

IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
P.G.M.PATIL, J.
Sri Vishwanath S/o Govind Rao and Ors - Appellant
Versus
Sri Howgiappa S/o Gundayya - Respondent
Regular Second Appeal No.1289 of 2007
Decided On : 26-04-2019

Headnote:

Karnataka Land Revenue Act - Section 145 – Civil Procedure Code - Order XXVI - Rule 9 - Possession and enjoyment of said land - Permanent injunction - Whether plaintiffs further prove that they are entitled for relief of injunction sought for against defendant - Whether plaintiffs prove that they are exclusive owners in possession of suit land - Whether defendant is entitled for recovery of possession of an area acre guntas from plaintiffs - Whether Courts below were justified in granting decree based on counter claim when counter claim did not relate to subject matter of suit and counter claim was with reference - Whether courts below were justified in granting decree based on counter claim though suit property - Plaintiffs averred that their father was exclusive owner in possession and enjoyment of said land - He died - After death of their father plaintiffs are in joint possession and ownership of suit land - Name of father of plaintiffs was appearing in record of rights in respect of suit land - Though plaintiffs have filed application for mutation same was pending - Defendant is owner of land bearing situated towards eastern side of suit land and being adjacent owner was intending and encroaching upon suit land with help of anti social elements and intended to dispossess the plaintiffs from possession of suit land - Therefore in pursuance of such illegal acts and malafide intention defendant filed application before Assistant Director of Land Records for survey and demarcation of his land and in collusion with taluka surveyor got wrong report showing that plaintiff No.3 is in possession of an area of acre belonging to defendant – Held, In present suit defendant is entitled to raise counter claim in suit of plaintiffs for very reason that plaintiffs filed suit alleging that defendant is trying to encroach upon their land and accordingly in order to restrain defendant from encroaching in their land they sought for declaration and permanent injunction against defendant - It is admitted that owned by defendant is situated on eastern side of suit land - Counter claim raised by defendant is to effect that plaintiffs have encroached upon his land to extent of acre and therefore he sought for relief of possession of encroached area from plaintiffs by way of counter claim - Therefore it is crystal clear that claim of plaintiffs and claim of defendant is in respect of an area of acre guntas which is admittedly part and parcel and as such though counter claim relates which is not subject matter of suit counter claim was very much maintainable and Trial Court was very much competent to decide counter claim of defendant - Arguments advanced on behalf of plaintiffs/appellants that survey records produced by defendant cannot be looked into and that plaintiffs had filed application before Assistant Director of Land Records for resurvey of land belonging to plaintiffs and defendant and that pending said application passed an order directing plaintiffs to deliver possession of encroached land to defendant cannot be accepted at all - These matters being question of facts first appellate Court has recorded finding that defendant has proved by producing necessary and cogent evidence that plaintiffs have encroached upon his land to extent of acre and therefore he is entitled for recovery of possession of said land from plaintiffs - Plaintiffs have not at all proved that survey of land of defendant and documents issued by survey department are false and got up by defendant - Trial Court and first appellate Court have recorded concurrent finding that defendant has proved that plaintiffs have encroached upon land of defendant to extent of acre and therefore defendant is entitled for recovery of possession of said land from plaintiffs - Arguments advanced on behalf of appellants that plaintiffs had filed under order XXVI Rule 9 of CPC for appointment of surveyor as Court commissioner and that said application was illegally rejected by Trial Court cannot be accepted - Admittedly filed under Order XXVI Rule 9 of CPC was for appointment of Court commissioner for local inspection of suit property and not for appointment of surveyor for conducting survey of land - Under these circumstances court hold that Courts below were justified in granting decree based on counter claim of defendant though it did not relate to subject matter of suit - Second Appeal is hereby dismissed