S.B. Shivanna, S/o. Late S. Basavarajappa, Since Dead By His Lrs- Shilpa, (W/o. Late S.B. Shivanna) vs Kempananjappa, Since Dead By His Lrs.- Doddamma, (W/o. Late Kempananjappa)

Headnote:(A) Code of Civil Procedure, 1908 - Section 100 - Second Appeal - Scope of interference - The appellate court is not required to interfere with the findings of the First Appellate Court if those findings are based on a meticulous re-appreciation of material evidence and documents on record, unless the judgment is illegal or perverse. (Para 19)

(B) Property Law - Encroachment - Proof of - Where a party claims encroachment by a neighbor, the burden is to prove the specific area encroached; if the Court Commissioner's sketch proves that the claimant is already in possession of the total extent of land as described in their title deed, the claim of encroachment cannot be sustained. (Paras 14-17)

Facts of the case:
A suit for declaration and injunction was filed by the owner of a vacant site alleging an encroachment of 20 feet on the western side by the adjacent property owner. The plaintiff's claim was based on a title deed executed in 1948, while the defendant relied on a registered sale deed from 1983 to establish ownership of the adjacent property. A Court Commissioner was appointed to carry out a spot inspection and prepare a sketch of the properties.

Findings of Court:
The court found that the Court Commissioner's sketch clearly demonstrated that the plaintiff was in possession of the full measurement as specified in the original title deed. Consequently, the allegation that the defendant had encroached upon the plaintiff's land was not proved.

Issues: Whether the First Appellate Court was justified in reversing the Trial Court's decree by relying on the title deeds and the Court Commissioner's report to conclude that no encroachment had occurred.

Ratio Decidendi: When the actual possession of a party, as verified by an expert commissioner's sketch, aligns perfectly with the measurements specified in the party's title deed, the party cannot claim any further land or establish that a neighbor has encroached upon their property.

Result: Regular Second Appeal is dismissed.

Legal Category Hierarchy

1. Suit for declaration and injunction regarding immovable property — Alleged encroachment by adjoining owner. (Para 3 )

2. Plaintiff claimed encroachment; defendants asserted ownership and denied encroachment. (Para 5 , 6 )

3. Plaintiff failed to prove encroachment; Commissioner's report and admissions showed plaintiff in possession of his claimed land. (Para 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 )

4. A party must prove encroachment; admissions and commissioner's report prevail over unsupported allegations. (Para 15 , 16 , 17 , 18 , 19 )

5. Regular second appeal dismissed; judgment of First Appellate Court affirmed. (Para 20 )

6. What is the standard of proof for establishing encroachment in a suit for declaration and injunction?

The plaintiff must prove encroachment by evidence; admissions in cross-examination and the commissioner's report are material evidence. (Para 15 , 16 , 17 , 18 , 19 )

7. What is the role of a court commissioner's report in a boundary dispute?

The commissioner's report and sketch are crucial evidence; if they do not show encroachment, the plaintiff's claim fails. (Para 17 , 18 , 19 )

8. Can a plaintiff claim more land than what is described in his title deed?

No, a plaintiff is limited to the land described in his title deed and cannot claim more than that. (Para 15 , 16 , 17 )

9. What is the effect of admissions made by a party in cross-examination?

Admissions in cross-examination are binding and can defeat a party's claim if they contradict the pleaded case. (Para 11 , 12 , 13 , 14 , 15 )

10. What is the standard of review in a second appeal under Section 100 CPC?

The High Court interferes only if the first appellate court's judgment is perverse or based on misreading of evidence. (Para 19 , 20 )

JUDGMENT :

V. SRISHANANDA, J.

1. Heard Sri. P. Mahesha, learned counsel for the appellant and Sri. Basavanna K.M., learned counsel for the respondents.

2. Plaintiff is the appellant in the second appeal challenging the judgment of the First Appellate Court reversing the decreeing of the suit in O.S. No.67/2007.

3. Facts of the case which are germane for disposal of the case are as under:

3.1. A suit in O.S. No.67/2007 came to be filed by the plaintiff seeking the relief of declaration and injunction against the defendants in respect of the following immobile property (hereinafter referred to as the suit property).

SCHEDULE

The Vacant site bearing Assessment No.491/375 measuring 45X45 feet (15 Gaja X 15 Gaja) situated at 2nd Ward, Near Government primary school Somawarpete Extension, Chamarajanagar and bounded on the East by Vacant site of Guruswamy, West by House of defendants, South by Road and North by House of Guru.

3.2. Plaintiff contended that grandfather of the plaintiff by name, Siddalingappa was the original owner and was in lawful possession and enjoyment of the suit property.

3.3. During his lifetime, said Siddalingappa purchased the suit property from Chennabasavaiah for a valuable consideration of Rs.10/- on 15.05.1948. Siddalingappa had three sons, namely Basavarajappa, Kumaraswamy and Raju.

3.4. Grandfather of the plaintiff died about 29 years earlier, leaving behind his three sons as legal heirs. There was no division among the three children. After demise of Siddhalingappa, three sons continued to be in joint possession of the suit property and other properties.

3.5. Subsequently Basavarajappa, Kumaraswamy and Raju divided their ancestral properties through Panchayathi Parikattu dated 10.08.1990 and in said Panchayathi Parikattu, the suit property had fallen to the share of father of the plaintiff namely Basavarajappa.

3.6. After death of Basavarajappa, plaintiff and his brother S.B. Nagendra divided the suit properties and other properties through Palpatti dated 17.01.2000 and in said Palpatti, suit property fell to the share of plaintiff.

3.7. Plaint averments further reveal that suit property having fallen to the share of the plaintiff, he intended to construct a house and obtained approved plan and license from the Chamarajanagara Urban Land Development Authority and City Municipality, Chamranagara.

3.8. When the plaintiff commenced the construction and started digging the foundation on 17.04.2007, at the time of digging the foundation, defendants who are totally strangers to the suit property try to interfere with the suit property.

3.9. Defendants caused obstructions to the ongoing construction and plaintiff advised the defendants to restrain from their obstruction, but they continued to interfer with the suit property.

3.10. It is further contended that a Panchayat was convened locally to resolve the dispute. Panchayatdars advised the defendants not to obstruct the construction work of the plaintiff. But defendants did not heed to the advice of the Panchayatdars as well.

3.11. It is further contented that defendant No.1 encroached the suit property on the Western side to the extent of 20 feet including the portion of RCC building constructed by the defendants and fenced stone pillars on the vacant land even though defendants did not have any right, title or interest. Therefore, suit was necessitated.

3.12. Pursuant to the suit summons, defendants entered appearance and defendant No.1 opposed the suit claim by contending that he is owner in possession of the landed property having katha Assessment No.484/371 measuring East to West : 45 Yards and North to South :15 Yards having purchased the same under the registered sale deed dated 11.04.1983.

3.13. It is also contented that no encroachment has taken place and defendants are in possession of the property by fencing the same and thus sought for dismissal of the suit.

3.14. Learned Trial Judge raised necessary issues and after recording of the evidence, a Court Commissioner wa