The courts affirmed that encroachment claims must be substantiated by factual evidence, and that any claim of adverse possession must be clearly demonstrated over a specific duration, aligning with statutory provisions.

JUDGMENT :

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

Being aggrieved by the concurrent findings of the Trial Court in O.S.No.207/2007 and First Appellate Court in R.A.No.18/2010, whereby, the suit came to be decreed, the defendant is in appeal before this Court under Section 100 of Code of Civil Procedure (for short, ‘C.P.C’).

2. The factual matrix of the case that is relevant for the purpose of this appeal may be summarized as below:

a. The plaintiff filed a suit in O.S.No.207/2007 seeking recovery of possession of the property bearing Survey No.15/1+2+3+4, measuring 24 guntas out of a total of 10 acres 3 guntas situated at Akkur village of Haveri Taluka. It is the case of the plaintiff that the suit schedule property totally measuring 10 acres 3 guntas was allotted to the share of plaintiff in a partition dated 15.11.2002 between himself and his father. Accordingly, his name was appearing in respect of the said property in revenue records.

b. The property of the defendant bearing R.S.No.14/1+2+3 was situated on the eastern side of the property of the plaintiff. During the year 2002 to 2003, the defendant encroached the suit schedule property. The defendant was requested to hand over the possession of the encroached portion in favour of the plaintiff and a Panchayat was also convened and the defendant was advised to deliver the possession.

c. A measurement was done through the surveyor and he confirmed that there was encroachment of the suit schedule property by the defendant. Even then, the defendant refused the report of the surveyor and as such, the plaintiff was constrained to file the suit for recovery of possession of the encroached portion.

3. On service of summons, the defendant appeared and contended that the suit schedule property is not properly described by the plaintiff and there is no such encroachment of 24 guntas by the defendant. He denied the other contentions of the plaintiff including the partition in the year 2002 and he also denied the possession of the plaintiff over the suit schedule property.

4. However, the defendant admitted that his land in Survey No.14/1+2+3 is on the western side of the land of the plaintiff. He denied that there was strained relationship between the plaintiff and his father and as a result of which, certain portion was left without cultivation, resulting in defendant's encroachment in the suit schedule property

5. He contended that he has been in possession and enjoyment of the property that lies adjacent to the alleged pipeline shown by letters ‘BC’ in the sketch. It was contended that plaintiff has tried to create facts in order to bring the suit within the limitation by putting-forth the alleged partition between the plaintiff and his father. There was no such survey as contended by the plaintiff and no sketches were prepared by the survey authorities.

6. It is contended that though the father of the plaintiff contended that he was in possession of 10 acres 3 guntas as per records, but in fact, it measures 9 acres 29 guntas. In other words, it is his contention that there was a pipeline when the irrigation facility was made by taking the water from Varada river along the pipeline shown as ‘BC’ in the sketch and the land on the western side of the said pipeline was in possession and enjoyment of the defendant since the year 1974. Therefore, it was contended that the suit filed by the plaintiff was not sustainable in law.

7. Based on the above contentions, the Trial Court framed the following issues:

“ISSUES

1. Whether plaintiff proves his title and possession over suit schedule property?

2. Whether plaintiff proves the encroachment in suit schedule property?

3. Whether plaintiff proves the validity of P.T sheet dat