IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA FATED THIS THE’ 21ST DAY OP AUGUST, 2009 BEFOR:E THE HON’BLE MRJUSTICE RAM MOHAN REDDY P. 1LM•. ..SE•00ND... APPEM.. No.... 14 19/20.08 BETWEEN: 1. Channappa S/c Budeppa Kallarnani Age: about 37 years, 0cc: Govt. Employee, R/o Kollwade, Yadgiri City, Dist GuIhaa 585 201 (Fititionei1 (By SitVeeresh B.Patil, Advocate) c&nctt \ Gomb DAda AND 1. Peer Ahrned S/o Jalal Sab Age: about 32 years, 0cc: Business, R/o Kol1wade Yadgri City DiaL Gulbarga 585 201 .Respondents (By Sri, P.S. Malipatil, Advocate) RSA PILED U/S 100 CPC PRAYING ALLOW THE RSA AND TO SET ASIDE THE JUDGMENT AND DECREE DATED 15.3.2008 PASSED BY THE CIVIL JUDGE (SR.DNJ AT YADG IN R.A,No, 18/2007 AND ALSO JUDGMENT AND DECREE DATED 3.7.2007 PASSED BY THE CIVIL JUDGE (JR.DNJ AT YADGIR IN O.S, No.199/2004 ETC. THIS APPEAL COMING ON FOR ADMISSION THIS DPY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT The plaintiff in O.S.No. 199/2004 on the file of the Civil Judge (Jr.Dn) Yadgir, aggrieved by the judgment and decree dated 3rd Jniy 2007 preferred RA.No, 18/2007 on the file of the Civil Judge (Sr.Dn.) Yadgir, which when dismissed by order dated 15-’ March 2008, having suffered concurrent findings of fact has filed this second appeal, under SectIon 100 of the Code of Civil Procedure. 2. Facts in brief are: The plaintiff instituted the suit to declare is title to the suit property and consequential relief of injunction to restrain the defendants from constructing any building on the open site bearing Municipal No.2-13-76, renumbered as 2-13-88, measuring 45x49 feet, situated at Koliwada, Yadgir town, alleging that the suit property was purchased by his grandfather from one Gulmn Maheboob S/o Haji Abdril Rasool Sab Badal in t.he year 1963 and since he did riot put up a constn.iction cver the plot, the defendant took advantage and encroached upon the open plot. That suit was resisted by filing written statement denying that there existed a open plot bearing a municipal number arid measurement as claimed in the plaint, in the premise of pleadings of the parties, the Trial Court framed issues, recorded the oral testimony of P,Ws. 1 and 2, marked 15 documents Ex. P1 to P15 while the defendant was examined as DW I and 7 documents marked as Ex,D1 to D7. 3. The Trial Court having regard to the material on record both oral and documentary, on an elaborate consideration, extracting relevant portions of the deposition of the parties, the plaintiff and their witnesses, heki that the plaintiff failed to prove that Yenkappa S/o Mallappa Sethcb, the ai]cged vendor-in- title purchased tie suit property under Ex,Pl, sale deed, on the premise that the boundaries as disclosed in ExD 1(d) and Ex.P5(a) being the copy of assessir cut and approved map, respectively, were at variance with the boundaries in Ex.Pi, sale deed executed in favour of the plaintifi’s alleged vendor-in-title by name Yar kappa. The plaintiff in cross-examination stated that Yankappa, transferred the said property to his wife by name Neelamma dunng his lifetime who inturn transferred the property to the plaintiff as her adopted son. This claim of adoption was not a plaint avennent, nevertheless, the plaintiff did not establish that fact. Yet another admission in the testimony of the alleged ad.optive father of the plaintiff examined as PW. 2 that the defendant was the owner in possession of the house bearing No. 2-13-90/1 sun’ounded by a compound wall existing on the northern side of the suit. property, led the Trial Court to disbelieve the claim of the riaintiff and accordingly dismissed tt.e suit. 4. The App:iiate Court having regard to tie material on record observed that in the plaint averments the suit propeily i.s described as an open site while the schedule house property and therefore a contradiction. The boundaries of the suit property both in the plaint and in the oral testimony of the plaintiff being at variance; in the absence of relevant material to establish the fact that the plaintifi’s grandfather had purchased the plot in question muchless that the grandfather was one Yankappa S/o Mnkappa Sahcb, purchaser of the property under F.x.D 1, sale deed; the admission in the cross examination of the plaintiff, PW I, that his grandfather’s name was Narasrppa having two brothers by name Khandappa arid Yenkappa and is not aware of the partition between them; the revenue records of the suit property, more appropriately ExP3 & P4 said to be ç 0- the assessment extract d.isciosing the name of one Chenn ppa Sb F3oodeppa, though ftc name of the father of the plaintiff is one Sugappa as entered in the petitioner’s service record in the State Government; the absence of specific pleadings in the plaint that the plaintiff was the son of Chcnnappa S/o l3oodappa or adopted by Nceiamma W/o Yenkappa; the Appellate Court was justified in recording a finding of variance between pleadings and proof. 5. The appellate court held as perverse the finding on Issue No.3 that the defendant was the owner of the suit property, on the basis of municipal records and accordingly negatived the said issue. 6. Although the learned counsel for the appellant contends that despite the concurrent findings of fact, there is non consideration of the evidence on record by the Court below, I am not impressed by that submission. 7) N a—, 7. It is i cli settled that this Court in second appeal is (ntitled to interferu w ith the concurrent findings on fact if the said finding of fact are based on non conside ration of important piece of evklenee in the nature of admission of one of the parties to the suit, over looked b the Courts below. It is equally well settled that under Section 100 of the Code of Civil Procedure, the Trial Court cannot interfere with the concurrent findli igs of the fact of the Courts below without sufficient and just reasons As observed by the Apex Cmiii in the case of Saveda Akthar Vs. Abdul Ahad reported hi 2003 (7) SCC. So also this Court is not entitled to set. aside the concurrent finding of fact by suhstitati 1 ’g its own finding contrary to the evidence on i ecord as observed h the pcx Court hi Sanswathi Vs. SUanapati, reported in 2001 (4) SCC 694. 8. In in considered opinion, the orders of the Courts hc1n’ are not shown to suffer from findings whch arc 8.. pervrsc or not based on evidence ot sound reasons so as to call for interference in a second appeal, No substantial question of law arises for decision making. The appeal is accordingh dismissed. Sd/ JUDGE N