Full Judgment
(Prayer: This Regular Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated: 07.04.2011 passed in R.A. No.44/2008 on the file of the Senior Civil Judge at Basavakalyan (Camp at Humnbad), dismissing the appeal and confirming the judgment and decree dated 15.10.2008 passed in O.S. No.26/2006 on the file of the Additional Civil Judge (Jr.Dn.,) and JMFC at Humnabad.)
1. This appeal is preferred; by the appellant/ defendant being aggrieved by the judgment and decree dated 7.4.2011 passed by the Senior Civil Judge, Basavakalyan, camp at Humnabad dismissing R.A. No.44/2008 and confirming the judgment and decree dated 15.10.2008 passed by the Additional Civil Judge (Jr.Dn), Humnabad in O.S.No.26/2006.
2. Heard the arguments of learned counsel for the appellant/defendant and also the learned counsel appearing for the Respondent/plaintiff on admission.
3. Learned counsel for the appellant taken this Court to the judgment and decree passed by the Courts below and submitted that so far as the contention of the appellant/defendant before the Trial Court that the suit of the plaintiff is barred by time in view of the document Ex.D-3 as the plaintiff was having clear knowledge about the said alleged encroachment of 5 feet towards southern side and 15 feet towards eastern side of the house of the defendant. He made the submission regarding this pleading of the appellant/defendant both the Courts below were not taken correctly the pleadings nor the correct issue has been framed. Hence, the learned counsel submitted that in view of these materials it clearly goes to show that the suit of the plaintiff clearly barred by law of limitation and this aspect has been completely ignored by the Courts below. Hence it is substantial question of law to be considered in this Regular Second Appeal. Hence, the learned counsel submitted that the appeal be admitted and the substantial question of law on the said aspect is to be framed by this Court.
4. Per contra the learned counsel appearing for the respondent/plaintiff made the submission that regarding this limitation aspect is concerned the Court has already considered and held that the suit is within time and it is not barred by law of limitation as contended by the appellant/defendant herein. In this connection the learned counsel for the respondent/ plaintiff also draw attention of this Court to page Nos. 14 and 15 of the Trial Court judgment in O.S.No.26/2006 recorded on issue No.3 and additional issue Nos. 1 and 2 and he made the submission that in view of the reasoning given by the Trial Court as well as its confirmation by the 1st appellate Court, it clearly goes to show that the suit filed by the plaintiff is well within time. Therefore, the contention of the other side is not correct. Hence, the counsel submitted that there are concurrent findings of the Courts below and there is no substantial question of law involved in this appeal. Hence, he submitted that the appeal be dismissed at the admission stage itself.
5. I have perused the grounds urged in the appeal memorandum, judgment and decree passed by the Trial Court in the suit decreeing the suit of the plaintiff for declaration and also issuing mandatory injunction as against the appellant/defendant to remove the suit A,B wall constructed on the suit property. I have also perused the judgment and decree passed by the 1st appellate Court confirming the judgment of the Trial Court and dismissing the appeal.
6. The brief facts leading to filing of the suit before the Trial Court, that the plaintiff is the owner and possessor of the non suit house bearing Gram Panchayat No.4-95 and 4-96 towards the southern side of the house of the plaintiff and there is seri in between the house of defendant is 4-97. The defendant turned dishonest against the plaintiff and other local residing persons and illegally encroached over a public way on a road in front of the house of plaintiff and defendant. The defendant has encroached east-west 19 feet and north- south 12 feet in order to grab the public property and illegally constructed a wall measuring 19 feet east-west which is adjacent to touching to the south eastern corner wall of the house of the plaintiff which is shown as A,B wall in the plaint sketch map. Therefore, it is the contention of the plaintiff that because of the construction of that A,B wall, the plaintiff as well as persons of that locality were prevented from making use of the said road and also they were prevented to bring their carts, bullocks, cattle which they were using since time immemorial. Hence, the plaintiff sought the relief of declaration, so also the relief of injunction as against the defendant.
7. The appellant/defendant herein appeared in the said suit and he filed the written statement contending that there is no such encroachment of public road as alleged by the plaintiff. It is also his contention that he has constructed his house in the year 2002 by obtaining necessary permission from Gram Panchayat Nirna. The defendant has not disputed the existence of the way in front of the house of the plaintiff and defendant and he has contended that sketch map produced by the plaintiff is wrong. It is also his contention that he has constructed the house in the year 2002 by obtaining necessary permission from Gram Panchayat Nirna and at that time also plaintiff raised various objections before the Gram Pancahyat. The defendant contended that the plaintiff has encroached upon the public way, therefore, himself and other villagers have filed a suit in O.S.No.70/2005 against the plaintiff. Hence, the suit of the plaintiff is not maintainable and it is bad for non-joinder of necessary parties. It is also his contention that the suit of the plaintiff is barred by law of limitation.
8. On the basis of the pleadings presented by the parties the Trial Court has framed the following six issues and two additional issues.
(1) Whether the plaintiff proves that the defendant encroached over public way east-west; 19 feet and north-south 12 feet as shown in the yellow colour in plaint sketch?
(2) Whether plaintiff proves that the defendant has encroached the way by constructing the A,B wall as shown in the plaint hand sketch? (3) Whether defendant proves that the suit is not maintainable for non-joinder of necessary party to the suit?
(4) Whether the plaintiff proves that he entitled for prayer of declaration as prayed for?
(5) Whether the plaintiff further proves that, he entitled for relief of mandatory injunction as sought for?
(6) What order or decree?
Additional Issues:
(1) Whether the suit of the plaintiff is barred by law of limitation as pleaded in para No.12 of written statement?
(2) Whether the defendant proves that the suit is not maintainable without seeking the proper relief as pleaded in para 10 of the written statement?
9. The parties have led their evidence and after hearing both the sides and after evaluation of the entire materials both oral and documentary, the Trial Court decreed the suit of the plaintiff and directed the appellant/defendant herein to remove A,B wall within thirty days of the said order of the Trial Court, failing which the plaintiff was at liberty to take steps to remove A,B wall by due process of law.
10. Being aggrieved by the judgment and order of the Trial Court the appellant herein preferred the appeal before the 1st appellate Court in R.A. No. 44/2008 and the appellate Court after re-appreciating entire materials by its judgment dated 7th April 2008 dismissed the appeal and confirmed the judgment passed by the Trial Court.
11. Being aggrieved by the judgment and decree of both the Courts below the appellant is before this Court challenging the validity and correctness of the judgment and decree of the Courts below on the ground as mentioned in the appeal memorandum.
12. So far as the point that has been canvassed by the learned counsel for the appellant/defendant herein he fairly conceded that factual aspects of the matter is concerned there are concurrent findings of the Courts below, but there is one substantial question of law which is not at all appreciated by the Courts below i.e., regarding the limitation aspect. About which I have already made my reference in the beginning of this judgment. Looking to the said contention it is necessary to refer the judgment of the Trial Court on page Nos. 14 and 15, wherein it is discussed by the Trial Court. DWs 1 to 3 in their cross examination admitted Ex.P-7 the map. DW 2 admitted that on 30.7.2005 the house of the plaintiff and defendant were shown in Ex.D-1 and suit A.B wall map. Hence it is clear that suit wall in Ex.D-1 is not shown in the map along with the Ex.D-7 map. It is further observed by the Trial Court that counsel for the defendant argued on perusal of Ex.D-1, the defendant has obtained permission for construction of his house on 27.8.2002. The defendant has made construction in the year 2002 itself. But on perusal of the document Ex.D-2 it shows that the defendant obtained permission for the first floor and not for the ground floor. The said counsel further argued that on perusal of Ex.D-3 petition filed by the plaintiff before the Gram Panchayat in the year 2002 which shows that the defendant has encroached 5 feet towards southern side and 15 feet towards eastern side and made construction which also shows that the defendant has made construction in the year 2002 itself. On perusal of Ex.D- 3 which shows that the plaintiff has filed the petition before the Gram Panchayat stating that the defendant has encroached 5 feet towards southern side and 15 feet towards eastern side of the house of the defendant. The further observation of the Trial Court that in this suit it is not the case of the plaintiff that the defendant encroached 5 feet towards southern side and 15 feet towards eastern side. If as per the arguments of the counsel for the defendant, the defendant has encroached 15 feet towards eastern side of his house and made any construction, it ought to have shown in the map annexed with Ex.D-7 and Ex.D-6. It is the specific case of the plaintiff that defendant has encroached 19 feet towards east-west and 12 feet north- south towards eastern side of the house of the plaintiff and public way and the defendant has constructed 19 feet A,B wall on the public road. The Trial Court observed that it is clear that the defendant has constructed A,B wall by encroaching the public way only after filing of the suit in O.S.No.70/2005 i.e., after 30.7.2005 and in between filing of the suit in O.S.No.26/2006. Hence on this ground the Trial Court held that the suit is not barred by law of limitation. The Trial Court recorded sound and cogent reasons to hold that the suit of the plaintiff is in time. Further in this case the Court Commissioner was appointed and he submitted the report and the factual situation at the spot is as per the map submitted by the Court Commissioner which is also taken note by the Trial Court as well as the 1st appellate Court. Looking to these materials placed on record I am of the clear opinion that the contention of the learned counsel for the appellant/ defendant herein that the matter involves the substantial question of law regarding limitation aspect cannot be accepted at all. There are concurrent findings of the Courts below. Both the Courts below have extensively considered each and every aspect of the matter and rightly comes to the conclusion in decreeing the suit of the plaintiff. No illegality has been committed nor there is perverse or capricious view taken. No grounds to interfere. Hence, there is no merit in the appeal.
The appeal is dismissed at the admission stage itself.