IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28^TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1594 OF 2024 (DEC/POS)

BETWEEN:

1. SMT. PARVATAMMA, W/O LATE NAGENDRAPPA, AGED ABOUT 82 YEARS.

2. SRI. CHANDRASEKHAR, S/O LATE NAGENDRAPPA, AGED ABOUT 42 YEARS. 3. SRI. SHIVAKUMAR, S/O LATE NAGENDRAPPA, AGED ABOUT 41 YEARS.

ALL ARE AGRICULTURISTS, R/O HIRE MALALI VILLAGE, CHANNAGIRI TALUK 577213.

DAVANAGERE DISTRICT.

Digitally signed by …APPELLANTS DEVIKA M Location: HIGH (BY SRI. B.M.SIDDAPPA, ADVOCATE)

COURT OF KARNATAKA AND:

1. SRI. B. RAJAPPA, S/O LATE SANNABASAPPA, AGED ABOUT 56 YEARS, AGRICULTURIST, R/O HIRE MALALI VILLAGE, CHANNAGIRI TALUK-577213.

DAVANAGERE DISTRICT.

…RESPONDENT (BY SMT. SARITHA KULKARNI, ADVOCATE)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT AND DECREE DATED 01.08.2024 PASSED IN R.A.NO.43/2023 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.09.2023 PASSED IN O.S.NO.183/2020 ON THE FILE OF PRL.

CIVIL JUDGE AND JMFC, CHANNAGIRI.

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

This matter is listed for admission. Heard the learned counsel for the appellants and the learned counsel for the respondent.

2. This second appeal is filed against the concurrent finding.

3. The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff is the owner of the property measuring 3 acres 39 guntas with kharab of 4 guntas in Sy.No.42/2 of Chikkamalali Village. It is the specific case of the plaintiff that on the western side of the suit schedule property, the property of the defendants is situated and the defendants are the owner of the property bearing Sy.No.42/1. The specific pleading in the plaint is that when the survey was conducted, came to know that the defendants had encroached the portion of the property, which is in possession of the plaintiff and inspite of demand made to deliver the possession, the defendants did not deliver the possession of the encroached portion and hence, without any other alternative, filed the suit for the relief of possession contending that he is the absolute owner of the property and entitled for the encroached area.

4. The defendants appeared and filed the written statement denying the contention of the plaintiff. It is contented that the ancestors of the plaintiffs are enjoying the property bearing Sy.No.42/2. The defendants denied the alleged demand for survey, alleged survey work and also the alleged foundation for claiming of encroached suit property and also denied the encroachment and contended that no cause of action. It is contented that the defendants converted their land into garden land about 5 years back and while doing so, no objection was received from the plaintiff. The husband of defendant No.1 got measured the Sy.No.42/1 about 30 years back and did got fix the boundary of it. Since the time of husband of defendant No.1 and till today, the defendants are enjoying the said property without anybody's interruption and obstruction. The defendants did not encroach 5 guntas of land in Sy.No.42/2. The plaintiff did not get measure the suit property and in collusion with the survey office, the document was got created.

5. The Trial Court allowed the parties to lead evidence and the plaintiff examined himself as P.W.1 and got marked the documents at Exs.P.1 to 5 and also examined the surveyor, who conducted the survey as P.W.2. On the other hand, defendant No.3 entered the witness box as D.W.1 and got marked the documents at Exs.D.1 to 3. The Trial Court having considered both oral and documentary evidence available on record, particularly the document Ex.P.4 map, comes to the conclusion that there was an encroachment and also comes to the conclusion that notice was issued before conducting the survey. The Trial Court also ta