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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF FEBRUARY, 2022
BEFORE
THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A.No.1994/2006(DEC)
BETWEEN:
1.
SRI.THOPEGOWDA,
AGED ABOUT 77 YEARS,
S/O CHENNEGOWDA,
R/AT YAMANUMBA VILLAGE,
HUNSUR TALUK,
MYSORE DISTRICT.
2.
SMT. GOWRAMMA,
AGED ABOUT 57 YEARS,
D/O LATE MAYAMMA,
R/AT HABBANA KUPPE VILLAGE,
HANAGODU HOBLI,
HUNSUR TALUK,
MYSORE DISTRICT.
3.
SMT. SAROJAMMA,
AGED ABOUT 52 YEARS,
R/AT KOTTEGALA VILLAGE,
HANAGODU HOBLI,
HUNSUR TALUK,
MYSORE DISTRICT.
4.
SRI. H.L.JAVARAPPA,
S/O LATE LEKKEGOWDA,
SINCE DEAD BY LRs.,
4(a) SRI.JAYARAM.H.J,
AGED ABOUT 68 YEARS,
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S/O LATE H.L.JAVARAPPA,
R/AT No.38, HOUSING BOARD COLONY,
WARD No.22, HUNSUR TOWN,
HUNSUR TALUK,MYSORE DISTRICT.
4(b) SRI.H.J.VENKATESHA,
AGED ABOUT 64 YEARS,
S/O LATE H.L.JAVARAPPA,
R/AT No.18/87, 13TH MAIN ROAD,
VIJAYANAGAR 2ND STAGE,
MYSORE.
4(c) SMT.NALINI,
AGED ABOUT 61 YEARS,
W/O B.RAJU,
D/O LATE H.L.JAVARAPPA,
R/AT HUNSUR NEW LAYOUT,
HUNSUR, MYSORE DISTRICT.
4(d) SRI.H.J.BALACHANDRA,
AGED ABOUT 60 YEARS,
S/O LATE H.L.JAVARAPPA,
R/AT No.3908, GOKUL LAYOUT,
HUNSUR, MYOSRE DISTRICT.
4(e) SMT.SHARADA,
AGED ABOUT 58 YEARS,
D/O LATE H.L.JAVARAPPA,
R/AT No.156. BASAVESHWARA NILAYA,
MANJUNATHA LAYOUT,
HUNSUR, MYSORE DISTRICT.
5.
SMT. LAKSHMAMMA,
AGED ABOUT 67 YEARS,
W/O LATE M.JAVAREGOWDA,
R/AT NAYIDAHALLY,
HEBSUR OST,
PERIYAPATANA TALUK,
MYSORE DISTRICT.
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6.
SRI.MUTHURAJU,
AGED ABOUT 63 YEARS,
S/O LATE JAVAREGOWDA,
R/AT NAYIDAHALLY,
HEBSUR POST,
PERIYAPATANA TALUK,
MYSORE DISTRICT.
… APPELLANTS
(BY SRI. B.S.NAGARAJ, ADV.)
AND:
1.
A.N.NIRANJANA RAJA URS.,
SINCE DEAD BY LRs.,
1(a) SMT.A.N.MAYADEVI,
AGED ABOUT 55 YEARS,
D/O LATE NIRANJANARAJA URS.,
R/A No.1, 10TH MAIN,
SARASWATHIPURAM,
MYSORE – 570 009.
1(b) SMT.A.N.CHAYADEVI,
AGED ABOUT 53 YEARS,
D/O LATE NIRANJANARAJA URS.,
R/AT No.304, 4TH MAIN, 3RD STAGE,
SOUTH OF KUMBARKOPALU GOKULAM,
MYSORE-570 009.
2
SRI.JAVAREGOWDA,
S/O LATE CHENNEGOWDA,
SINCE DEAD BY LRs.,
2(a) SMT GOWRAMMA,
AGED ABOUT 71 YEARS,
W/O LATE JAVAREGOWDA,
2(b) SRI.RAMAKRISHNA,
AGED ABOUT 72 YEARS,
S/O LATE JAVAREGOWDA,
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R-2(a) AND R-2(b) BOTH ARE R/AT
YAMANUMBA VILLAGE,
HUNSUR TALUK, MYSORE DISTRICT.
3.
SMT. KAMALAMMA,
AGED ABOUT 49 YEARS,
D/O LATE MAYAMMA & THIMMAPPA,
R/AT HABBANA KUPPE VILLAGE,
HANAGUDU HOBLI,
HUNSUR TALUK,
MYSORE DISTRICT.
… RESPONDENTS
(BY SRI.C.R.SUBRAMANYA, ADV., FOR R-1(a);
SRI.SHAMBU J.NAVEEN, ADV., FOR R-2(a & b);
NOTICE TO R-3 IS DISPENSEND WITH VIDE ORDER DATED
15.01.2013;
SERVICE OF NOTICE TO R-1(b) HIS HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED:28.03.2006
PASSED IN R.A.No.63/1995 ON THE FILE OF THE CIVIL
JUDGE(SR.DN.), HUNSUR, ALLOWING THE APPEAL AND
PARTLY SETTING ASIDE AND PARTLY CONFIRMING THE
JUDGMENT AND DECREE DATED:28.10.1995 PASSED IN
O.S.No.447/1989 ON THE FILE OF THE MUNSIFF AND JMFC,
HUNSUR.
THIS APPEAL COMING ON FORHEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
1.
This is a second appeal by defendant No.1, legal
representatives of defendant No.3, legal representatives of
defendant No.4 and legal representatives of defendant No.5.
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2.
The plaintiff/Niranjanaraje Urs filed a suit seeking for a
declaration that he was the owner of the suit schedule
properties and for a direction to defendants 1 and 2 to hand
over possession of A schedule property, defendant No.3 to
hand over possession of B schedule property, defendant No.4
to hand over possession of C schedule property and
defendant No.5 to hand over possession of D schedule
property.
3.
It was the case of the plaintiff that the above
mentioned A, B, C and D schedule properties were lands
which had been encroached upon by the defendant in his land
bearing Sy.No.2, old Sy.No.105/31. He stated that land
bearing Sy.No.105/31 was granted to him by the Deputy
Commissioner for Abolition of Inams on 06.10.1964 and an
endorsement to that effect was also issued to him. He stated
that the land granted to him i.e., Sy.No.105/31 was
measured and after pakka phodi work, boundaries were fixed
during October, 1966 and new Sy.No.2 was assigned to it.
4.
He stated that this land, which had been granted to
him, had been encroached upon by the defendants and
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despite several requests, defendants had failed to hand over
possession forcing him to approach the Special Deputy
Commissioner to initiate eviction proceedings. He stated that
the Special Deputy Commissioner had passed an order dated
18.08.1986 directing the Tahsildar to evict the defendants,
against which, an appeal was preferred to the Karnataka
Appellate Tribunal and the Tribunal had allowed the appeal
and directed the plaintiff to approach the Civil Court and as a
consequence, had filed the suit.
5.
Defendants 1 and 2 filed a common written statement.
They stated that the land bearing Sy.No.105/16 had been
granted to their late father Channegowda under the Inams
Abolition Act by an order of the Deputy Commissioner dated
18.07.1964 and ever since the said order, their father was in
possession till his death and thereafter, defendants had
continued in possession. They stated that after pakka phodi
work, the said land was renumbered as Sy.No.106.
6.
Defendants 3 and 4 were placed ex parte and therefore,
did not contest the suit.
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7.
Defendant No.5 stated that he had purchased 5 acres of
land
in
Sy.No.105/18
from
its
original
owner
and
Sy.No.105/15 measuring 5 acres was granted to him. He
stated that after pakka phodi work, the said lands were
renumbered as Sy.Nos.109 and 108, respectively and he was
in possession of the said lands ever since.
8.
The defendants, thus, set up a plea that they were
granted the land bearing Sy.Nos.105/16, 105/18 and 105/15.
9.
The Trial Court, on consideration of the evidence
adduced before it, came to the conclusion that the plaintiff
had proved his title to the suit properties, but the suit was
barred by time and therefore, the plaintiff was not entitled for
any decree. It accordingly dismissed the suit.
10.
In appeal, the Appellate Court, on re-appreciation of
evidence, came to the conclusion that the suit was not barred
by limitation and the plaintiff had succeeded in establishing
both title and identity of the suit properties. The Appellate
Court came to the conclusion that there had been an
encroachment by the defendants and therefore, the judgment
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of the Trial Court could not be sustained and accordingly
reversed the judgment and proceeded to decree the suit.
11.
It may be relevant to state here that while disposing off
the appeal, the Appellate Court also allowed the application to
amend the plaint by which the survey numbers were
permitted to be changed at the request of the plaintiff on the
ground that incorrect survey numbers were mentioned earlier
due to a typographical error.
12.
It is against these divergent judgments, the present
second appeal has been preferred.
13.
The following two substantial questions of law have
been formulated by this Court
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