The courts upheld the factual determination regarding a minimal encroachment of 0.30 acres, emphasizing the sufficiency of evidence in resolving possession disputes under the Limitation Act.

JUDGMENT :

H.P. Sandesh, J.

This matter is listed for admission. Heard the learned counsel for the appellant and the learned counsel for the caveator/respondent.

2. This appeal is filed against the concurrent finding of the Trial Court.

3. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and possession is that he is the absolute owner of the ‘A’ schedule property by virtue of the grant by the Land Grant Committee of Madikeri Taluk. It is the specific case that ‘A’ schedule property was the granted land and the defendant is in illegal possession of ‘B’ schedule property without any right, title or interest and also sought for the relief of possession in respect of ‘B’ schedule property, which is in illegal occupation of the defendant. The defendant appeared and filed the written statement contending that he is not in encroachment of any property and contended that the suit is barred by limitation and the plaintiff is not entitled for any relief of declaration and possession as sought.

4. The plaintiff in order to prove his case examined himself as P.W.1 and also got marked the documents at Exs.P.1 to 10 and also examined P.W.2. On the other hand, the defendant examined himself as D.W.1 and got marked the documents at Exs.D.1 and 2. The Commissioner was also appointed before the Trial Court and the Commissioner went and inspected the property and gave the report in terms of Ex.C.1 and both the advocates have filed the memo of instructions before conducting the spot inspection. The Commissioner report Ex.C.1 is very clear that there was an encroachment to the extent of only 0.30 cents of land. The Trial Court having considered the report as well as the evidence available on record, in paragraph No.15 while answering issue No.2 comes to the conclusion that the plaintiff has established the encroachment by the defendant to the extent of 0.30 acres belonging to him. While answering issue No.4 i.e., in respect of limitation, the pleadings of the parties and the plaintiff is claiming possession of schedule ‘B’ property on the basis of his title and Article 65 of the LIMITATION ACT is taken note of. Having considered the material on record, while answering issue No.5 taken note of the property granted in favour of the plaintiff is schedule ‘A’ property measuring 2.84 acres in Sy.No.155/579 and also answering issue No.3 comes to the conclusion that it is the total extent of the land granted to him. The Trial Court also taken note of that the Surveyor has submitted Exs.C.2 and 3 and on the basis of Exs.C.2 and 3, the Commissioner has filed his report as per Ex.C.1. The answer elicited from the mouth of the Commissioner as well as the report is extracted in paragraph No.21 of the order and discussed in detail that the plaintiff is in possession of only 1.74 acres in Sy.No.155/579 and total possession of the plaintiff is 2.54 acres, including the portion of the property which is in his occupation and cultivation. As per Ex.P.1, the total extent is 2.84 acres and measurement shown in Ex.P.5 saguvali chit is also the same. The Trial Court also taken note of Ex.C.3, wherein the Surveyor marked the area of 0.30 acres in green colour, which is in the possession of the defendant and to disprove this fact, the defendant neither led oral or documentary evidence before the Trial Court with regard to he has been in possession to the extent of 0.30 acres and no documents are produced before the Trial Court to claim that 0.30 acres of land belongs to him. Hence, the Trial Court granted the relief as sought, in respect of only portion of the property declaring that the ‘A’ schedule property belongs to the plaintiff and the pl