IRAWWA Vs. KRISHNAJI VENKATESH NAIK DEAD

JUDGEMENT

(1.) This is defendants second appeal from the judgment and decree dated 10-12-1980 delivered by the I Additional District Judge, Belgaum (Sri Syed Fazlulla Razvi) in Regular Civil Appeal Ho. 138 of 1980, whereby the Lower Appellate Court (the learned Additional District Judge) allowed the plaintiffs appeal and set aside the judgment and decree dated 27-10-1978 passed by the learned Munsiff, Ramdurg, dismissing the plaintiffs claim in the suit (O.S. No. 85 of 1972) on the basis of finding on Issue No. 2 to the effect that defendants had proved accrual of title by adverse possession. The Lower Appellate Court after having set aside the Trial Court decree has decreed the plaintiffs claim in the above mentioned suit O.S. No. 85 of 1972 for possession of the property in dispute.

(2.) According to the plaintiffs case, Survey No. 25 of Halagatti village situated in Ramdurg Taluk in the District of Belgaum, belongs to the plaintiff-respondent. The plaintiff further alleged that Survey No. 24/1A measuring 6 acres belongs to the defendant. According to plaintiff this Survey No. 24 has been situated on the eastern side of Survey No. 25. The plaintiff further alleged in the plaint that defendants constructed a channel on the western side of their land which lies to the east of the plaintiffs land and plaintiff having suspected that the said channel had been constructed by defendants by encroaching on the plaintiffs land, namely, Survey No. 25 in the year 1972. So the plaintiff got the land measured by the Survey Authorities in February, 1972 and there upon it was found that the defendantsappellants by constructing the channel over 6 guntas of land of the plaintiff committed an encroaching of 6 guntas of land belonging to the plaintiff-respondent. The plaintiff further alleged that the said encroachment is mentioned in blue colour in the P.T. sheet prepared by the Survey Authorities. The plaintiff further alleged that plaintiff asked defendants-appellants to remove the encroachment and to hand over possession of the plaintiffs land but the same was without any avail and the defendants failed to remove their possession from the land which they had encroached. So the plaintiff got cause of action for filing the suit for possession which the plaintiff filed for the reliefs mentioned in the plaint.

(3.) The defendants-appellants filed their written statement and denied the plaint case and alleged that so far as the channel in dispute is concerned, it was running in between the lands of plaintiff-respondent and defendants-appellants, but the land on which it did exist belongs to the defendants and the defendantsappellants had been irrigating their land from the water of the channel. The defendants denied the plaint allegation that the defendants had encroached upon any portion of the plaintiffs land. In alternative the defendants asserted that the channel to be on their own land, but in alternative took the plea that in case it is found that the water channel exists on the land belonging to the plaintiff-respondent, the defendants-appellants on account of their use of the land of the channel openly and adversely to the plaintiff, perfected their right and title over the said portion of six guntas of land by way of adverse possession. The defendants further alleged that the measurement had been got done by the plaintiff behind the back of the defendants-appellants and the said measurement had got no value. The defendants further alleged that the suit of the plaintiff was not maintainable in view of the provisions of the Karnataka Land Revenue Act, 1964 and as such the Court has no jurisdiction to try the same and prayed for the suit being dismissed.