Karnataka High Court
Yarraguntappa vs Avaneerappa on 18 November, 2025
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NC: 2025:KHC:47321
RSA No. 918 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 918 OF 2019 (INJ)
BETWEEN:
YARRAGUNTAPPA
S/O DODDA CHITHAPPA,
AGED ABOUT 50 YEARS,
AGRICULTURIST,
RESIDENT OF K.T HALLI VILLAGE
NIDAGAL HOBLI, PAVAGADA TALUK,
TUMKUR DISTRICT-572 116
...APPELLANT
(BY SRI. GANGADHARAPPA A.V, ADVOCATE)
AND:
AVANEERAPPA
S/O BADEERAPPA,
Digitally signed
by PANKAJA S AGED ABOUT 68 YEARS
Location: HIGH AGRICULTURIST,
COURT OF RESIDENT OF K.T HALLI
KARNATAKA
NIDAGAL HOBLI, PAVAGADA TALUK,
TUMKUR DISTRICT-572 116
...RESPONDENT
(BY SRI. HARISH H.V, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 18.03.2019
PASSED IN RA NO 137/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, PAVAGADA ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
22.04.2016 PASSED IN OS NO 431/2009 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, PAVAGADA.
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NC: 2025:KHC:47321
RSA No. 918 of 2019
HC-KAR
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 07.11.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
1. This is defendant's second appeal.
2. The plaintiff filed a suit for permanent injunction against the defendant in respect of suit schedule property.
3. It is the case of the plaintiff that he is the lawful owner in possession and enjoyment of land measuring 13 acres 6 guntas including kharab in Sy.No.20/1 situated at K.T.Halli Village, Nidgal Hobli, Pavagada Taluk, (for brevity, "the suit schedule property") and the same was acquired by him by virtue of compromise decree passed in O.S.No.29/1992. After the said compromise, he dug a borewell in the suit schedule property and also obtained electrical supply for lifting water from the said borewell. By using water from the said borewell, he developed his property.
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR
4. It is the further case of the plaintiff that the defendant, who is an adjacent landowner towards eastern side of the suit schedule property, without having any right, interest or possession over the suit schedule property, unnecessarily denied the plaintiff's title by making unlawful attempts to interfere with the plaintiff's possession. Further, the defendant had made unlawful claim over the suit schedule borewell and installed pump set. It is also alleged by the defendant that the plaintiff had encroached upon the property of the defendant and got the borewell dug. Even if the borewell was dug in the property of the defendant by encroaching the same, the defendant had lost the right over the said portion and the plaintiff had perfected his title over the suit schedule property by virtue of adverse possession. Thus, the plaintiff filed the suit seeking permanent injunction restraining the defendant from interfering and obstructing with the plaintiff's peaceful possession and enjoyment of the suit schedule property.
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5. The defendant contested the suit by filing the written statement denying plaint averments by contending that the defendant is the owner in possession of land bearing Sy.No.21/1A3 and the borewell was dug in his land including tube well and installed pump set and that there is no borewell in plaintiff's land i.e., Sy.No.20/1 and that the land in Sy.No.21/1A3 is situated in the eastern side of the suit schedule land.
6. It was the further case of the defendant that the plea of plaintiff for adverse possession cannot be sustainable under law, since the plaintiff has failed to plead hostile to the interest of owner and failed to mention specific date of commencing of adverse possession. Further, since the plaintiff averred in the plaint that defendant had denied plaintiff's title, the plaintiff ought to have filed a declaratory suit against the defendant instead of permanent injunction as the possession itself was doubtful. As such, the defendant prayed to dismiss the suit.
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7. The Trial Court, after considering the rival pleadings, framed relevant issues and after examining the evidence in detail, dismissed the suit on the ground that the plaintiff has failed to establish the existence of bore`well in the suit schedule property and also failed to establish that defendant had interfered with the possession of the same.
8. On appeal by the plaintiff, the First Appellate Court, upon re-appreciation of evidence, has observed that the documents produced by the plaintiff were sufficient to hold that the plaintiff was in possession of the suit schedule property as on the date of the suit and that the statement of defendant denying the title of plaintiff itself was sufficient to hold that he was interfering with the possession of the plaintiff in the suit schedule property. Further, Ex.D4 - the survey sketch clearly reveals that the plaintiff has encroached the schedule property which belongs to the defendant and had dug the borewell in the said property and was in possession of the same. In such circumstances, the remedy available for the defendant to -6- NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR recover the same by due process of law. Accordingly, the First Appellate Court allowed the appeal by setting aside the judgment and decree of the Trial Court.
9. Aggrieved by the same, the defendant is before this Court.
10. I have heard Sri Gangadharappa A.V., learned counsel for the appellant/defendant and Sri Harish H.V., learned counsel for the respondent/plaintiff.
11. The primary contention of the defendant/appellant is that the First Appellate Court has erred in allowing the appeal by reversing the judgment and decree passed by the Trial Court. The First Appellate Court has failed to notice that the dispute between the parties was only with regard to 0.03 guntas of land in Sy.No.21/1A3 and that the defendant got his land surveyed and thereafter hudbasth was fixed in the presence of the plaintiff as per Exs.D2 to D4, which was not disputed by the plaintiff, which clearly establishes that the defendant is the owner -7- NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR of disputed 0.03 guntas of land in Sy.No.21/1A3 where the borewell is existing. The First Appellate Court has also failed to notice that when the plaintiff pleaded adverse possession, he ought to have filed the suit for declaration of his title against the defendant and that the decree of permanent injunction cannot be used to perfect his title when the possession and title are doubtful. Accordingly, he prays to allow the appeal.
12. Per contra, the learned counsel for the plaintiff/respondent contends that the Trial Court has totally erred while dismissing the suit on the ground that the plaintiff has failed to establish the existence of borewell in the suit schedule property and also failed to establish that defendant had interfered with the possession of the same, although the plaintiff established that he was the owner in possession of suit schedule property by virtue of a compromise decree passed in OS.No.29/1992 and that he dug a borewell in the same. According to him, the plaintiff has established the -8- NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR interference of defendant with his peaceful possession of suit schedule property by way of encroachment. As such, the First Appellate Court has rightly observed that if the defendant proves the alleged encroachment, the remedy available to him is to file a suit for possession. He also contended that, Ex.P1 to P7 clearly established the plaintiff's possession in the suit schedule property and Ex.P5 further establishes that there is no encroachment by the plaintiff in the land of defendant. Even otherwise, if the defendant establishes that the borewell situated in his land, it is admitted that the plaintiff is in possession of the said land. As such, the plaintiff's possession has to be protected from the illegal interference of the defendant. This aspect of the matter is rightly dealt by the First Appellate Court. Accordingly, he prays to dismiss the appeal.
13. I have given my anxious consideration to the contentions of learned counsel for both the parties, so also -9- NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR to the impugned judgments and decrees passed by both the Courts.
14. This Court while admitting this appeal, has framed the following substantial questions of law:
i) Whether the First Appellate Court committed an error in granting the relief of permanent injunction without seeking the relief of declaration when the title is denied by the defendant in view of judgment of ANATHULA SUDHAKAR Vs. P.BUCHI REDDY's case?
ii) Whether the First Appellate Court committed an error in reversing the finding of the Trial Court ignoring the material available on record, particularly the admission of P.W.1 and whether the same amounts to perversity?
15. As could be gathered from records, the plaintiff is the absolute owner of land measuring 13 acres 6 guntas including kharab in Sy.No.20/1 situated at K.T.Halli Village, Nidgal Hobli, Pavagada Taluk and acquired the
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR same by virtue of compromise decree in O.S No.29/1992. The defendant is owner in possession of land bearing Sy.No.21/1A3, which is situated on the eastern side of the plaintiff's property. According to the plaintiff, he has dug a borewell in his property i.e. Sy.No.20/1 in the year 1994 and defendant without any right, title, interest or possession is unnecessarily denying plaintiff's title making unlawful interference with the plaintiff's peaceful possession and enjoyment. According to the plaintiff, the defendant had made an unlawful claim over the suit schedule borewell and I.P set and also obstructing the plaintiff to bail out the water.
16. It is the further case of the plaintiff that, even if the place of suit schedule borewell comes in any piece of defendant's land, he has lost his right or claim over the same, since the plaintiff has been in actual, physical, continuous and uninterrupted possession, as such, he perfected his title by way of adverse possession. The Trial Court while dismissing the suit observed that PW.1 in his
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR evidence clearly admitted that he has not encroached 0.03 guntas of land of the defendant and dug the borewell. Further, PWs.2 to 4 also admitted the presence of borewell in the suit schedule property and the possession of the plaintiff over the same.
17. However, Ex.D4-survey sketch, which was conducted subsequent to Ex.P5, depicts there is encroachment to an extent of 0.03 guntas by the plaintiff, but Ex.P5 relied on by the plaintiff does not reveal the presence of borewell, as such according to the Trial Court, the borewell was dug subsequently by the plaintiff in the encroached property. According to the Trial Court, though the plaintiff is in possession of the suit schedule property to an extent of 0.02 guntas, the borewell is not situated in the said property. The said findings of the Trial Court is not accepted by the First Appellate Court for the reason that Ex.D4 clearly reveals the encroachment to an extent of 0.03 guntas by the plaintiff and the borewell is also situated in the said area. Ex.D5 - survey was conducted
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR subsequent to Ex.P5. As such, the presumption is that the borewell must have dug by the plaintiff, not by the defendant. According to the First Appellate Court, the Trial Court ought to have decreed the suit to protect the possession of the plaintiff until he was dispossessed by following due process of law. As such, the remedy available for him is to recover the same.
18. On careful perusal of the evidence, documents and the judgments of both the Courts, it is categorically clear that the disputed 0.03 guntas of the property belongs to the defendant and the plaintiff had encroached the same and dug a borewell in the said encroached area and that he is in possession of the same. At the same time, the plaintiff failed to prove the adverse possession of the same since his possession was not settled possession due to the intervention of the defendant. In such circumstance, as per the judgment of the Co-ordinate Bench of this Court in RSA.No.2681/2007 & connected matter disposed of on 27.06.2025, in a suit not only the right and liability of
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR the plaintiff/s are to be adjudicated, but also the right and liability of the defendant/s are adjudicated. If the plaintiff found to be in possession without title and the defendant is held to be owner without possession, there is complete adjudication of rights and liabilities of both sides by following due process of law by a Competent Court that the plaintiff is in unauthorized possession of the property. The Co-ordinate Bench further observed that in such circumstance, filing of a separate suit by the defendant is wholly unwarranted and it serves no purpose other than burdening the already overburdened system and dragging the person, whose right are already adjudicated, into one more litigation, despite the declaration by the Court that the plaintiff is not the owner, but in possession and the defendant is the owner without possession. The Co- ordinate Bench in the aforesaid judgment in paragraphs 23 to 35 has held as under:
"23. Learned Counsel of the plaintiffs would urge that if title is not established, at least injunction should be granted till plaintiffs are evicted in due
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR process of law. Granting a decree for injunction till plaintiffs are evicted through a "due process of law"
is one way of looking at it. In such an event, the defendants need to file a suit seeking possession and to execute the decree for possession.
24. The above theory contains a fallacy. It proceeds on the premise that only the plaintiffs claim has undergone the test of 'due process', and adjudication of the defendants' title is yet to undergo the 'due process' test. Such interpretation is impermissible. 25. In a suit, many a time, if not all the time, not only are the right and liability of the plaintiff/s decided, but also the right and liability of the defendants are adjudicated. This is one such suit. Plaintiffs' relief for declaration of title is declined and the plaintiffs are found to be in possession without title. At the same time defendants' claim of ownership is also adjudicated and defendants are held to be the owners without possession. This adjudication is by a competent court, in a manner contemplated under law. Thus, there is complete adjudication of rights and liabilities of both sides by following a due process. What logically flows from the said adjudication is the plaintiffs are in unauthorised possession of the property.
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26. Assuming that the defendants need to file a suit to seek possession despite the declaration by the Court that the plaintiffs are not the owners but in possession, and the defendants are the owners without possession; the question is what is that the Court is required to adjudicate in the said suit? The answer is 'nothing'. There is no lis at all. Reason is that the defendants in the said suit (plaintiffs of this proceeding) will have no defence left. Such a second suit is wholly unwarranted, and it serves no purpose other than burdening the already overburdened system and dragging the person whose rights are adjudicated into one more litigation. 27. At this juncture, reference to some of the judgments would be apposite. 28. In Thomas Cook India Limited vs.Hotel Imperial (2006) 88 DRJ 545, Delhi High Court, in deciding an interlocutory application seeking an injunction by a person, in permissive possession, under a settlement in Court, against the real owner held as under.
27. This brings me to the second aspect of 'due process of law'. It was urged by Mr Kaul that even if the plaintiff was in unlawful possession, it could only be evicted by due process of law, and therefore, the plaintiff was entitled to an order of injunction preventing the defendants from removing the plaintiff from the said two rooms
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR except through due process of law. It must be made clear that this argument fails in the context of this case because the plaintiff was never in possession and therefore there is no question of dispossession in the sense usually understood. The plaintiff had a mere right to use; such right was revocable, it has been revoked, and the plaintiff is entitled under section 63 of the Indian Easements Act, 1882, to a reasonable time to leave the premises and take away its goods. The argument also fails because by rushing to court the plaintiff has indeed invited a judicial determination of its status. If it got an order of injunction it would enure to its benefit. But, if it did not, then it can't be heard to say that this court has to grant an injunction all the same because otherwise it would give a licence to the defendants to forcibly throw out the plaintiff without filing a suit for possession,
28. Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.
29. In paragraph No. 79 in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira,
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR (2012) 5 SCC 370 : the Apex Court has held as under. Due process of law 79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.
30. Further in paragraph No. 80 of the said judgment the Apex Court has approved the ratio in Thomas Cook supra. It is also noticed that the suit property is a vacant agricultural land. This being the position, this Court is of the view that the plaintiffs should vacate the land consequent to the dismissal of this appeal, as the plaintiffs have no title over the suit property. 31. The above noted two judgments are rendered in a context where the plaintiff in permissive possession filed the suit, probably after the licence/permission was revoked seeking protection against forcible eviction. 32. On similar lines, the coordinate bench of this Court in Sri Babagouda Lakhamgouda Patil and Smt. Dundhawwa and others granted a decree for
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR possession, in favour of the defendant, in a suit for specific performance after declining the relief of specific performance and recording a finding that the plaintiff is in possession under the agreement for sale.
33. If the ratio in the aforementioned judgments is borne in mind, in a case of this nature, the decree for possession in favour of the defendants who are held to be the owners without possession, and the plaintiffs whose claim relating to ownership both under a sale deed and by way of adverse possession is answered in negative, is a judicial compulsion and just a formality. 34. The right to pass such a decree for possession in favour of the defendants in a suit for declaration and injunction filed by the plaintiffs, after adjudication of the rights of the parties is indeed traceable to inherent power of the Court which is not conferred by statute, but which is recognised and saved in Section 151 of the Code of Civil Procedure, 1908.
35. The only technical aspect would be the payment of Court Fee by the defendants in whose favour the decree is passed. The suit property is an agricultural land assessed to land revenue. The market value for the purpose of payment of Court fee would be 25 times of the revenue payable on the suit land which is Rs.43/-. Thus, valuation for
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR Court Fee would be Rs.1,075/-. Defendants are required to pay Court Fee of Rs.27/- which is far less than the expenditure that would be incurred by the Court towards the stationery in deciding the suit, if initiated by the defendants. Nevertheless to complete the formality, the defendants shall pay Rs.27/- towards Court Fee to enable the Registry to draw the decree for possession."
19. The findings of the Co-ordinate Bench in the aforesaid judgment are apposite to the facts and circumstances of the present case. The Trial Court and First Appellate Court have observed that the plaintiff is in possession of disputed property (i.e., encroached portion of defendant's property) and drawing water from the borewell dug by him. Ex.D4 - the survey sketch also depicts that the plaintiff encroached 0.03 guntas of defendant's land and the borewell is situated in the said encroached area. As discussed supra, the plaintiff though claimed adverse possession, has failed to establish that he was in settled possession of said portion. In such circumstance, I am of the considered view that in the
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NC: 2025:KHC:47321 RSA No. 918 of 2019 HC-KAR present case, though the defendant has not filed any counter claim for possession, he need not have to file a separate suit for possession i.e., 'due process of law', since the rights of the parties are adjudicated by the Trial Court and First Appellate Court. Accordingly, the defendant shall pay requisite court fee to enable the registry to draw the decree for possession. Thus, in view of the evidence and documents already placed and analyzed by the Trial Court and the First Appellate Court, in this appeal itself the defendant is entitled for the relief of possession subject to payment of necessary Court fee for the said relief. Accordingly, the substantial questions of law are answered and I proceed to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree dated 18.03.2019 passed by the First Appellate Court in R.A.No.137/2016 is set aside.
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(iii) Consequently, three months time is granted to the plaintiff i.e., on or before 18.02.2026 to hand over possession of the disputed area of 0.03 guntas of land mentioned in the suit schedule property to the defendant, failing which the defendant is entitled to execute this decree of possession.
(iv) Till then, the plaintiff shall not be disturbed.
(v) Office to draw the decree accordingly.
SD/-
(RAJESH RAI K) JUDGE PKS List No.: 1 Sl No.: 1