SHRI. DEEPAK v. SHRI. SACHIN

ORAL ORDER (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL)

#1. This appeal is by the defendant aggrieved by the judgment and decree dated 07.02.2022 passed O.S.No.171/2014 on the file of IV Additional Civil Judge and JMFC, Belagavi, which is confirmed by the judgment and decree dated 05.08.2023 passed in R.A.No.42/2022 on the file of I Additional Senior Civil Judge and CJM, Belagavi.

#2. The above suit in O.S.No.171/2014 is filed by the plaintiff/respondent herein seeking relief of permanent injunction against the defendant from causing disturbance or interference in peaceful possession and enjoyment of the suit property by the plaintiff.

#3. Case of the plaintiff is that he is the owner in possession and enjoyment of land measuring 10 guntas forming part of southern side of land bearing RS No.444/1 which totally measures 7 acres 34 guntas situated at Machhe village, District Belagavi bounded on east by: Nemanna Genu Navgekar's land, west by: 5 feet road and thereafter - 3 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR land of Kallappa M Chougale, north by: Appaji Mahadev Lad’s land and south by: Kartudakar’s land having purchased the same in terms of a registered deed of sale dated

07.08.2010. That the Revenue documents are in consonance with the property acquired by the plaintiff. The defendant who claims to be the owner or purchaser of land bearing RS No.444/17, which is no way connected to the suit land, under the guise of asserting his rights has uprooted the boundary poles fixed by the plaintiff threatening to encroach upon the suit land. Hence, the suit for injunction.

#4. Written statement is filed by the defendant denying the plaint averments. It is contended that the defendant is the absolute owner in exclusive possession of property bearing RS No.444/17 of Machhe village, Belagavi, having acquired the same in terms of a registered deed of sale by its erstwhile owners and his name being reflected in the revenue records. That the plaintiff taking undue advantage of alleged map got prepared by him from the competent authority Belagavi, has illegally encroached upon - 4 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR the property of the defendant by fixing the boundary poles. Thus, the plaintiff is trying to make wrongful gain by grabbing the property of the defendant. That the plaintiff has no right over the property belonged to the defendant. Hence, seeks for dismissal of the suit.

#5. Trial Court framed the following issues: “ISSUES

#1. Whether the plaintiff proves that he is in lawful possession of suit property?

#2. Whether the plaintiff further proves the alleged interference and obstructions by the defendant?

#3. Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

#4. What order or decree?”

#6. Plaintiff examined himself as PW.1 and exhibited 11 documents marked as Ex.P.1 to P.11. Defendant examined himself as DW.1 and exhibited 1 document marked as Ex.D.1. On appreciation of evidence, the Trial Court answered issue No.1 to 3 in affirmative consequently decreed the suit as sought for. - 5 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR

#7. Being aggrieved by the same, the defendant filed regular appeal in RA No.42/2022, in which the following points were framed for consideration:

#1. Whether the plaintiff has proved his actual possession and enjoyment and enjoyment over the suit property?

#2. Whether the impugned judgment and decree under appeal is opposed to law, facts, evidence and probabilities of the case and it is liable to be interfered by this Court?

#3. What order of decree?

#8. On re-appreciation of the evidence, the First Appellate Court answered the point No.1 in the affirmative and point No.2 in the negative and consequently, dismissed the appeal confirming the judgment and decree passed by the Trial Court. Being aggrieved by the same, the present appeal by the defendant is before this Court.

#9. Sri. Ashok R. Kalyanashetty, learned counsel appearing for the appellant/defendant, at the outset refers to the document at Ex.P4, which is 11E sketch, which is apparently submitted by the plaintiff at the time of registration of his sale deed under which he purchased the - 6 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR suit property. He refers to the description on southern boundary of the said sketch wherein, there is a mention of land bearing Sy.No.444/17. He also refers to page No.2 of Ex.P4 wherein, on the southern portion of the property of the plaintiff is a mention of land bearing Sy.No.444/17. Thus, referring to these documents, learned counsel vehemently submits that contrary to the aforesaid documents in the deed of sale produced at Ex.P1 under which the plaintiff claimed to have purchased the property, instead of showing land in Sy.No.444/17 on the southern boundary, the land of one Kartudakar is shown. Thereby, the plaintiff has attempted to grab/encroach upon the property belonging to the defendant. He submits that plaintiff has purchased 10 guntas of land while defendant has purchased 20 guntas of land in the terms of sale deed dated

20.03.2012 produced at Ex.P6.

#10. He submits that on the northern side of the property purchased by the defendant, there is a reference to land in Sy.No.444/1, which is the property of the plaintiff. - 7 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR He also refers to PT sheet produced at Ex.P5 and submits that the said PT sheet is brought up by the plaintiff for the purpose of his case wherein, existence of Sy.No.444/17 on the southern side has not been shown. He also points out that the appellant/defendant herein had filed an application in IA No.8 before the Trial Court seeking to bring on record a proper and correct PT sheet which reflected existence of land in Sy.No.444/17 on the southern side. However, due to inadvertence, the said document has not been marked.

#11. Thus, he submits that the Trial Court and the First Appellate Court without appreciating these material evidence placed on records, have committed error in granting the relief of injunction without adverting the location of the property as claimed by the plaintiff and as clarified by the defendant giving rise to substantial question of law to be considered by this Court.

#12. Per contra, Sri. Krishnakumar Joshi, learned counsel for the plaintiff at the outset submits that the - 8 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR plaintiff himself has categorically mentioned in his plaint at paragraph No.4 that the plaintiff has no concerned with regard to the land bearing Sy.No.444/17 which is claimed to have been purchased by the defendant. He submits that the plaintiff has filed a suit specifically with respect to 10 guntas of land forming part of southern portion of land bearing Sy.No.444/1 and he is not making any claim whatsoever in respect of any portion of the land being claimed by the defendant.

#13. Learned counsel also draws attention of this Court to the deposition of defendant recorded on 09.02.2021 wherein, at paragraph No.8 of the deposition, the defendant has categorically admitted to plaintiff not encroaching upon any portion of his property. He also refers to paragraph Nos.22 and 23 of the judgment of the First Appellate Court and submits that the First Appellate Court has taken note of these factual aspects of the matter and granted the relief of injunction which cannot be found fault with.

#14. Heard and perused the records. - 9 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR

#15. Plaintiff claims to have purchased the property described in the schedule to the plaint in terms of deed of sale dated 07.08.2010 produced at Ex.P1 having description and boundaries already extracted hereinabove. While the defendant claimed to have purchased 20 guntas of land forming part of Sy.No.444/17 in terms of deed of sale dated

20.03.2012 as per Ex.P6 within the boundaries mentioned therein.

#16. The dispute and controversy appears to be with regard to description of southern boundary of the plaintiff’s property, where according the counsel appellant/defendant, instead showing Sy.No.444/17 as mentioned in the 11E sketch, the plaintiff has given a description as land belonging to Kartudakar. His contention is that the Trial Court and the First Appellate Court ought to have clarified this aspect of the matter, putting at rest the dispute between the parties.

#17. As rightly pointed out by the learned counsel for the respondent/plaintiff, plaintiff himself at paragraph No.4 - 10 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR of the plaint has pleaded that land bearing Sy.No.444/17 being claimed by the defendant has no connection whatsoever, with the suit land belonging to the plaintiff.

#18. Learned counsel for the respondent/plaintiff fairly submits that the plaintiff would not seek to take any advantage of the judgment and decree of injunction granted in his favour to claim any benefit or advantage over and above 10 guntas of land which he has purchased under Ex.P1.

#19. He makes this submission with reference to the averments made at paragraph No.4 of the plaint as well as the observation made by the First Appellate Court at paragraph Nos.22 and 23 in its judgment and order.

#20. Though the defendant in his cross-examination at paragraph No.8 recorded on 09.02.2022 has deposed that the plaintiff has not encroached upon his Sy.No.444/17, the counsel for the appellant seeks to clarify that the said admission shall not be construed to mean that the property belonging to the plaintiff and defendant are not - 11 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR situated adjacent to each other. This aspect of the matter is not denied by the defendant though in the very same deposition at paragraph No.8, he has stated that the land of the plaintiff and the land of the defendant are separate and distinct.

#21. In view of the aforesaid admitted possession of the fact and location of the property, this Court do not find any reason to interfere with the judgment and decree passed by the Trial Court confirmed by the First Appellate Court. No substantial question of law would arise for consideration.

#22. However, in view of apprehension being expressed by the parties, it may require to be clarified that the judgment and decree of permanent injunction granted in favour of the plaintiff shall be read, used and restricted only to the extent of 10 guntas of land, which the plaintiff has purchased in terms of the deed of sale at Ex.P1 to be read along with the 11E sketch produced at Ex.P4 by the plaintiff himself, which reflects the existence of land bearing - 12 - NC: 2025:KHC-D:8815 RSA No. 101064 of 2023 HC-KAR Sy.No.444/17 on the southern side of its boundary. While the land purchased by the defendant in terms of sale deed at Ex.P6 dated 20.03.2012 reflect existence of land bearing Sy.No.444/1 on the northern side.

#23. The judgment and decree of injunction granted by the Trial Court shall be read with reference to these documents without giving any scope for either of the parties to take any undue advantage of the judgment and decree passed.

#24. With the above observation, the appeal disposed off. Sd/- (M.G.S. KAMAL) JUDGE SH-para 1 to 6 SMM-para 7 to till end CT-ASC / List No.: 1 Sl No.: 4