Karnataka High Court
Mr Babu Mera vs Guruva Mera on 17 February, 2022
Bench: M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO.1122 OF 2014
BETWEEN:
MR.BABU MERA,
S/O KORAGA MERA,
AGED ABOUT 59 YEARS,
R/O MUNDELU HOUSE,
THOTATHADY VILLAGE,
BELTHANGADY TALUK,
D.K. - 575 001.
... APPELLANT
(BY SRI.VINOD KUMAR, M., ADVOCATE)
AND:
1. GURUVA MERA,
AGED 69 YEARS,
S/O BOGRA MERA,
2. KARIYA MERA,
AGED 67 YEARS,
S/O BOGRA MERA,
3. ANGRA MERA,
AGED 55 YEARS,
S/O BOGRA MERA,
4. BABU MERA,
AGED 63 YEARS,
S/O BOGRA MERA,
2
5. KUNJIRA MERA,
AGED 61 YEARS,
S/O BOGRA MERA,
ALL ARE RESIDING AT
SHANTY GUDDE HOUSE,
NERIYA VILLAGE,
BELTANGADI TALUK,
D.K. DISTRICT - 575 001.
...RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 ORDER 41
RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED
05.06.2014 PASSED IN R.A.NO.22/2007 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., AT BELTHANGADY,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 12.01.2007 PASSED IN O.S.NO.271/2005
ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC.,
BELTHANGADY, D.K.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second regular appeal is filed by the
appellant/plaintiff aggrieved by the concurrent
findings and conclusions rendered in the judgment
and decree dated 12/01/2007 passed in
OS.No.271/2005 on the file of the Civil Judge (Junior
Division), Belthangady (for short hereinafter referred
to as 'the trial court') and the judgment and decree
dated 05/06/2014 passed in RA.No.22/2007 on the
file of the Senior Civil Judge and JMFC, Belthangady
(for short hereinafter referred to as 'the first appellate
court').
2. The parties are referred to as per their
original rankings before the trial court.
3. The plaintiff filed the above suit seeking
relief of declaration that he is the absolute owner in
possession of the schedule property being land
Sy.No.15/3 measuring 1 acre 35 cents situated at
Thotathady village, Belthangady Taluk, D.K. having
perfected his title over the same by adverse
possession. That the suit schedule property was
granted in favour of the defendants by the Tahsildar,
Belthangady under SDR No.145/30/28-08-1960. That
though the suit schedule property was granted in
favour of the defendants, the plaintiff has been in
actual possession and enjoyment of the same since
1960. That he has made lot of improvements in the
plaint A schedule property by spending huge amount.
That though the defendants are residing near by
village having knowledge of plaintiff's possession had
not objected in any manner. That the plaintiff has
been in khas possession and enjoyment of the
schedule property for more than 12 years in his own
right openly, peacefully and to the best of the
defendants. As such, he has perfected his right, title
and interest over the suit schedule property. Hence,
sought for relief of declaration.
4. Defendant Nos.1 to 5 appeared through
their counsel, but did not file written statement.
5. The plaintiff examined himself as PW.1 and
exhibited 38 documents marked as Exs.P1 to 38. No
evidence was let in by the defendants.
6. On appreciation of evidence, the Trial
Court, by its judgment and decree dated 12/01/2007
dismissed the suit of the plaintiff on the premise that
the plaintiff had not produced any evidence to show
that he has been enjoying the suit schedule property
since 1960 adverse to the interest of the defendants.
Aggrieved by the same, the plaintiff filed regular
appeal in RA.No.22/2007 on the file of the first
appellate court.
7. On re-appreciation of the pleading and
material evidence, the first appellate court dismissed
the appeal confirming the judgment and decree.
Being aggrieved and dissatisfied with the same, the
plaintiff is before this Court.
8. Sri Vinod Kumar M., learned counsel for the
appellant/plaintiff reiterating the grounds urged in the
appeal memorandum submitted;
(i) That the courts below grossly erred in
dismissing the suit of the plaintiff without
appreciating the material evidence
produced.
(ii) That though no written statement was
filed by the defendants denying case of the
plaintiff and no evidence was led in on
behalf of defendants, the courts below
erred in not decreeing the suit in favour of
the plaintiff. Thus, he submits that the
same has led to mis-carriage of justice
giving rise to substantial question of law.
9. Heard learned counsel for the plaintiff.
10. Plaintiff filed the suit for declaration of his
title having perfected the same by way of adverse
possession being in possession of the suit schedule
property openly and exclusively since 1960. The trial
court referring to Ex.P1 which is RTC extract in
respect of schedule property for the year 2004-05 has
noted that the names of the defendants have been
reflected therein as owners. Even in the khatha
documents the property has been mutated in the
names of the defendants and that the plaintiff has not
produced any documents disclosing of his possession
and enjoyment over the suit schedule property since
1960 as claimed. As noticed by the courts below the
plaintiff at para-4 of plaint has pleaded that cause of
action for the suit arose in the year 1960. No details
are furnished. The suit is of the year 2005 and in the
plaint age of the plaintiff is shown in the cause title of
the suit as 50 years. If the claim of the plaintiff to be
in possession of the property since 1960 is to be
considered the age of the plaintiff must have been 4
years when he allegedly came in possession of the
property. The trial court has also taken note of these
aspects of the matter and has rightly negated the
plea.
11. The requirement of the claim for adverse
possession is that the possession was open,
uninterruptedly, exclusive, continuous and hostile to
the knowledge of the true owner. As rightly noted by
the trial court and the first appellate court there is no
whisper with regard to these requirements in the
plaint. The plaintiff has neither pleaded nor proved
anything with regard to his possession being hostile to
the knowledge of the true owners being defendants.
As such, the plea of adverse possession would not
arise.
12. As regards other contentions of the plaintiff
that since the defendants had not contested the suit,
the same ought to have been decreed in his favour
would not stand scrutiny of law. Merely because the
defendants have not contested the suit, the plaintiff
would not be entitled for the decree unless he pleads,
proves and establishes his case in the manner known
to law. In the instant case, the trial court and the first
appellate court having taken into consideration the
evidence of the plaintiff, material evidence and
position of law applicable to the facts and
circumstances of the case, have rightly dismissed the
same and thus no substantial question of law arise
requiring consideration. In the result, the following:
ORDER
i) Regular Second Appeal No.1122/1014
filed by the appellant/plaintiff is
dismissed.
ii) The judgment and decree dated
12/01/2007 passed in
OS.No.271/2005 by the trial court
and the judgment and decree dated
05/06/2014 passed in RA.No.22/2007
by the first appellate court are
confirmed.
Sd/-
JUDGE
Mkm
