The court emphasized the necessity of proper evidence assessment in land encroachment disputes, directing a re-survey to ascertain the facts.

ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH)

This appeal is filed by the plaintiffs challenging the judgment and decree dated 29.08.2018 in R.A.No.11/2014 on the file of the Additional Senior Civil Judge and JMFC, Jamakhandi (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 22.01.2014 on the file of the Principal Civil Judge and JMFC, Jamakhandi (for short “the Trial Court”).

2. For the sake of convenience, the parties are referred to as per their rank before the Trial Court.

3. It is the case of the plaintiff that the plaintiff is the owner in possession of the land bearing Survey No.247/1 measuring 5 Acres 39 Guntas and land bearing Survey No.247/2 measuring 6 Acres of Bidari village and the defendants are the owners of the land bearing Survey No.248/1 measuring 11 Acres 2 Guntas of Bidari village. It is the case of the plaintiffs that after purchasing the schedule properties, the plaintiff got surveyed the schedule property and came to know that the defendants have encroached an extent of 18 Guntas of land bearing Survey No. 247/2 towards southern side. Hence, the plaintiff has filed O.S.No.85/2011 seeking relief of possession in respect of the land which is said to have been encroached by the defendant. After service of notice, the defendants entered appearance and filed a detailed written statement denying the averments made in the plaint. The defendants took up a specific contention that the land in question has not been surveyed by the competent surveyor and no notice relating to survey has been issued to the defendants and accordingly sought for dismissal of the suit.

4. Based on the pleadings on record, the Trial Court framed issues for its consideration. In order to establish their case, the plaintiff has examined himself as PW1 and got examined the surveyor as PW2 and produced 6 documents, which were marked as Ex.P1 to Ex.P6. The defendants have examined two witnesses as DW1 and DW2 and got marked 8 documents as Ex.D1 to Ex.D8. The Trial Court, after considering the material on record, by its judgment and decree dated 22.01.2014 dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred appeal in R.A.No.11/2014 before the First Appellate Court and same was resisted by the defendants. The First Appellate Court, based on material on record, by its judgment and decree dated 29.08.2018 dismissed the appeal, consequently, confirmed the judgment and decree passed by the Trial Court in O.S.No. 85/2011. Hence, this second appeal is filed.

5. This Court vide order dated 31.01.2025 framed the following substantial question of law:

”Whether both the Courts below have committed an error in not assessing the evidence of PW2?”

6. I have heard Sri. M.C.Hukkeri, learned counsel appearing for the appellant and Sri. Mrityunjaya Tata Bangi, learned counsel appearing for the respondents.

7. Sri. M. C. Hukkeri, learned counsel appearing for the appellant invited the attention of this Court to the evidence on record, particularly evidence of PW1 and PW2 and contended that the plaintiff came to know about the encroachment of the land by the defendant only after purchasing the same and survey made by the competent surveyor. Accordingly, he sought for interference of this Court. It is also submitted by the learned counsel appearing for the appellant that Ex.P5 has not been properly appreciated by both the Courts below and as such, he sought for interference.

8. Per contra, learned counsel appearing for the respondents justifies the impugned judgment and decree.

9. Having heard the learned counsel appearing for the parties and taking into consideration the factual aspects on record, it is not in dispute that the plaintiff had purchased the land bearing Survey No.247/1 and Survey No.247/2 measuring 5 Acres 39 Guntas and 6 Acres, respectively, of Bidari village from its erstwhile owner Sri. Shantaveerappa as per sale deed dated 28.04.2008. It is the case of the a