DECREE

DATED

10.10.2013 PASSED IN O.S.NO.18/2010 ON THE FILE OF

THE JUDGE AND JMFC, KOPPA AND ETC.

THIS REGULAR SECOND APPEAL COMING ON FOR

FURTHER HEARING THIS DAY, THE COURT DELIVERED THE

FOLLOWING:

JUDGMENT

The captioned second appeal is filed by the plaintiff

feeling aggrieved by the concurrent findings of the Courts

below.

2. For the sake of brevity, the parties are referred

as they are ranked before the Trial Court.

3. The plaintiff instituted a suit in O.S.No.18/2010

seeking declaration that she is an absolute owner of the

suit

schedule

property

and

consequently,

relief

of

possession was sought thereby directing defendant to

handover the encroached portion. The plaintiff claimed

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that she is the absolute owner of the property bearing Sy.

No.152 situated at Koppa Village. It is specifically pleaded

that towards southern side of the suit schedule property,

the defendant owned property bearing Sy. No.41. It is

specifically contended that in the year 2008, the plaintiff

submitted an application to the Tahasildar to fix the

boundaries between Sy. No.152 and property owned by

the defendant. The plaintiff further pleaded that the Taluka

Surveyor issued notice to plaintiff and defendant and

having measured the property, fixed the boundary and

demarked the sketch indicating that 21 guntas of land

owned by the plaintiff is being encroached by the

defendant. Hence, the present suit.

4. Defendant on receipt of summons contested the

proceedings by stoutly denying the entire averments made

in the plaint. The defendant claimed that defendant

seriously disputed survey done by the Authorities. The

defendant alleged that he was waiting at the spot on

26.04.2008 up to 1.30 p.m. It is contended that Taluka

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Surveyor never turned up on the date fixed for survey. The

defendant alleged that no survey work was conducted on

26.04.2008. Therefore, seriously disputed the sketch on

which the present suit is filed.

5. At para No.6, the defendant claimed that he has

purchased land in Sy. No.41 of Koppa Village in the year

1994. The defendant claimed that as on the date of

purchase, the fence was already in existing, which is

demarcates in Sy. Nos.152 and 41. It is further pleaded

that fence is in existence for more than 50 years and

therefore, defendant contended that 21 guntas, which is

now found to be in possession of the defendant is in

exclusive possession of the defendant and thereby, he has

perfected his right over the suit schedule property by way

of adverse possession.

6. The plaintiff to substantiate his claim has led

evidence by examining herself as P.W.1 and has also

examined Surveyor as P.W.2 and adduced documentary

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evidence vide Exs.P.1 to 11. The defendant examined

himself as D.W.1 and did not choose to led any rebuttal

documentary evidence.

7. The Trial Court, though answered issue Nos.1 and

2 in the affirmative, however, while examining issue No.3,

has come to the conclusion that defendant has succeeded

in proving that he has perfected his title over the suit

schedule property by way of adverse possession. The Trial

Court was of the view that there is a fence between suit

schedule property and the property owned by plaintiff.

The Trial Court was of the view that this fact is admitted

by the plaintiff. It is in this background, the Trial Court

was of the view that at the time of purchase of land

bearing Sy. No.152, her vendor was not in possession of

the present suit schedule property measuring 21 guntas.

Possession was never delivered to the plaintiff. Therefore,

Trial Court was of the view that defendant would found to

be in possession of the suit schedule property and this was

clearly known to the plaintiff since the date of purchase

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i.e., on 12.03.1981 and therefore, the Trial Court was of

the view that defendant has succeeded in proving that he

has perfected his title by way of adverse possession.

Consequently, plaintiff was non-suited by answering issue

No.3 in the Affirmative.

8. Feeling aggrieved by jud