ORAL JUDGMENT

Challenging judgment and decree dated 15.01.2023 passed by Addl. District Judge, Chikkamagalur, in R.A.no.21/2007 and judgment and decree dated 22.02.2007 passed by Civil Judge (Sr.Dn.) & Prl. JMFC., Tarikere, in O.S.no.108/2005, this appeal is filed.

2. Brief facts as stated are that, O.S.no.108/2005 was filed by plaintiff seeking for declaration. In plaint, it was stated he was owner in possession and enjoyment of suit properties named in schedule which were ancestral properties belonging to one Maheshwarappa son of Rudrappa. In family partition, they were allotted to share of plaintiff and his name mutated in revenue records. It was further stated during time of Maheshwarappa, there were objections about encroachment of tank-bed area of Kammaranakatte in Sy.no.14 of Duglapura. Defendant no.1 i.e., Tahsildar, Tarikere taluk had ordered eviction from encroached area. Said order was challenged before Assistant Commissioner in R.A.no.29/87-88. Appeal was dismissed, but questioned before Deputy Commissioner, Chikkamagaluru, in RA no.24/88-89 which was allowed by remanding matter back to Assistant Commissioner with directions. Thereafter Assistant Commissioner once again dismissed appeal on 04.06.1990. Appeal before Deputy Commissioner in RA.no.6/1991 was allowed and order passed by Assistant Commissioner was set-aside.

3. It was further stated that order passed by Deputy Commissioner was questioned before Revenue Appellate Authority, but dismissed on 14.05.1993. Thus, finding about there being no encroachment of government property had attained finality. It was stated that suit property consisting of areca nut and coconuts trees were aged about more than 45 years and plaintiff was enjoying fruits. It was stated there was no encroachment on Government land and properties were fenced. It was further stated that land in Sy.no.14 contained tank with two sluices gates and waste water channel and boundary of same was marked with trench. Under such circumstances, public auction notice issued by defendant no.1- Tahsildar on 20.9.2005 for cutting and selling away of crops on alleged encroached area by plaintiff was illegal. Hence, suit for declaration was filed.

4. On service of suit summons, defendants appeared and filed written statement generally denying plaint averments, but specifically admitting plaintiff's statement that when lands were standing in name of Maheshwarappa son of Rudrappa, there was some objection about khatedar in Sy.no.14, that plaintiff had encroached tank-bed of Kumaranakatte, for which eviction notice was issued and auction was conducted on 29.09.2005, therefore suit was not maintainable.

5. Based on pleadings, trial court framed following issues:

1. Whether the plaintiff proves that he has not encroached any portion in Sy.No.14 of Duglapura as alleged in notification dated 20.09.2005 of the defendants?

2. Whether the plaintiff proves that he is an lawful possession and enjoyment of the suit schedule properties?

3. Whether the plaintiff proves the interference made by the defendants into his lawful possession and enjoyment of the suit schedule properties?

4. To what decree or order, the parties are entitled to?

6. Plaintiff examined himself and another witness as PWs

1 and 2 and got marked ExsP1 to P.11. On rebuttal, defendant examined one witness as DW1 and got marked Exs.D1 to 4.

7. On consideration, trial Court answered issues no.1 to

3 in negative and issue no.4 by dismissing suit. Aggrieved, plaintiff filed R.A.no.21/2007 on several grounds including contentions that trial Court erred in holding that suit was bad for non-joinder of necessary parties as plaintiff arrayed tahsildar and revenue inspector as defendants. It was contended that there was improper appreciation of oral and documentary evidence as per which it was established that plaintiff was in possession of suit properties, but, nevertheless proceeded to dismiss suit.

8. Based on contentions, first appellate Court framed following points for co