RANGANATH RAMCHANDRA SURYAVANSHI Vs. MOHAN

JUDGEMENT

(1.) THIS second appeal gives rise to an occasion to interpret Section 83 of the Indian Evidence Act, 1872 ('the Act' for short ). The defendant before the Trial Court is the appellant herein and he is aggrieved by the lower Appellate Court reversing the judgment of the trial Court inasmuch as though the Trial Court had dismissed the suit of the plaintiff for declaration and consequential injunction, the lower appellate Court allowed the appeal preferred by the plaintiff and decreed the suit of the plaintiff and hence this second appeal by the defendant.

(2.) THE facts which fall within a very narrow compass are to the effect that the plaintiff, being the owner of plot No. 11 of R. S. No. 224 of bagalakote, filed the suit in question by contending that the appellant herein, who was the defendant and being the owner of the adjacent plot no. 12, had encroached upon the plaintiffs property and the portion encroached is described as GBC in the sketch annexed to the plaint and, therefore, the relief was sought for declaring the plaintiff as the owner of the GBC portion and for consequential order of injunction restraining the defendant from interfering with the said GBC portion.

(3.) THE defendant, on the other hand, contested the said suit by taking up the stand that, while the plaintiff is the owner of plot No. 11, the defendant had purchased plot No. 12 on 2. 9. 1993 and the defendant's plot measured 61' east-west and 82' north-south and, therefore, the question of the defendant encroaching upon the plaintiffs property will not arise. Another contention taken was that no survey was conducted and no notice was issued to the defendant and, therefore, the report of the surveyor was not binding upon him.