Karnataka High Court
Ramappa S/O Kannappa Megalamani vs Gurushantappa S/O Doddabasappa ... on 23 February, 2022
Bench: Sachin Shankar Magadum
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 23RD DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 100762 OF 2014 (DEC & INJ)
BETWEEN
1. RAMAPPA S/O KANNAPPA MEGALAMANI,
SINCE DECEASED BY HIS LR.S.,
1A. MAHADEVAKKA
W/O RAMAPPA MEGALAMANI,
AGE:60 YEARS, OCC:AGRICULTURE,
R/O: HADRIHALLI, TQ:HIREKERUR,
DIST: HAVERI-581111
1B. SUBHASH
S/O RAMAPPA MEGALAMANI,
AGE:45 YEARS, OCC:AGRICULTURE,
R/O: GUNGARAKOPPA,
TQ:HIREKERUR,
DIST: HAVERI-581111.
1C. DEVENDRAPPA
S/O RAMAPPA MEGALAMANI,
AGE:42 YEARS, OCC:AGRICULTURE,
R/O: HADRIHALLI, TQ:HIREKERUR,
DIST: HAVERI-581111.
1D GUTTEVVA W/O RAMAPPA UPPAR,
AGE:40 YEARS, OCC:AGRICULTURE,
R/O: LINGAPUR, TQ:HIREKERUR,
DIST: HAVERI-581111.
1E BASAVANEPPA
S/O RAMAPPA MEGALAMANI,
AGE:35 YEARS,
2
OCC:AGRICULTURE,
R/O: HADRIHALLI, TQ:HIREKERUR,
DIST: HAVERI-581111.
2. MAHADEVAPPA
S/O KANNAPPA MEGALAMANI,
AGE:58 YEARS, OCC:AGRICULTURE,
R/O: HADRIHALLI, TQ:HIREKERUR,
DIST: HAVERI-581111.
...APPELLANTS
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND
GURUSHANTAPPA
S/O DODDABASAPPA MEGALAMANI,
AGE:75 YEARS, OCC:AGRICULTURE,
R/O:HADRIHALLI, TQ:HIREKERUR,
DIST: HAVERI-581111
...RESPONDENT
(BY SRI.M H PATIL, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 11.07.2014
PASSED BY THE COURT OF SENIOR CIVIL JUDGE AND JMFC,
HIREKERUR IN R.A.NO.7/2003 IN CONFIRMING THE JUDGMENT
AND DECREE DATED 16.01.2013 PASSED BY THE COURT OF CIVIL
JUDGE AND JMFC, HIREKERUR IN O.S.NO.62/2004 AND DISMISS
THE SUIT OF THE PLAINTIFF IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The captioned regular second appeal is filed by the
unsuccessful defendants questioning the concurrent
judgment and decree passed by both the Courts below in
declaring that the respondent-plaintiff is the absolute
owner and consequentially perpetual injunction is granted
by both the Courts below.
2. The facts leading to the case are as under;
The respondent-plaintiff filed a suit seeking
declaration and injunction by claiming that suit schedule
property is an agricultural land bearing Survey No.108/1
totally measuring 3 acres 25 guntas. The respondent-
plaintiff further specifically contended that to the south of
the suit land, the land owned by appellants-defendants is
situated, which is bearing Survey No.108/2. As there was
dispute in regard to boundaries, the respondent-plaintiff
moved an application to the Taluk Surveyor and after
measuring the property by surveyor, the boundaries were
fixed. The respondent-plaintiff further contended that
pursuant to survey, the appellants-defendants have
handed over the encroached portion. Though they have
handed over the encroached portion, again they started
interfering and trying to encroach upon the suit property
measuring 3 acres 25 guntas by removing the boundary
stones, which were installed after fixing the boundaries in
the land owned by the plaintiff and the land owned by the
defendants.
3. In response to summons, the present
appellant-original defendant contested the proceedings
by filing written statement. The present appellants-
defendants set up a counterclaim by contending that they
have perfected thier title by way of adverse possession.
The Trial Court having assessed the oral and
documentary evidence, has answered issue No.1 and 2 in
affirmative by holding that respondent-plaintiff has
succeeded in proving that he is owner in lawful
possession of the suit property as on the date of the suit.
While answering issue No.2, the Trial Court has held that
the plaintiff has succeeded in proving obstruction and
interference by the present appellants-defendants. While
answering issue No.4, the Trial Court has held that the
defendants having set up a counterclaim have not let in
rebuttal evidence. The Trial Court was of the view that
the foundation laid in written statement neither
corroborated nor proved by adducing documentary
evidence. On these set of reasons, the trial Court has
decreed the suit. The same is confirmed by the First
Appellate Court.
4. Heard the learned counsel appearing for the
appellants and perused the judgment under challenge.
5. The fact that the appellants-defendants have
set up a plea of adverse possession necessarily implies
that appellants-defendants admitted the title of
respondent-plaintiff over the suit property. Having raised
a defence of adverse possession, the entire burden was
on the appellants-defendants to establish and to
substantiate their claim that they have perfected their
title by way of adverse possession. Except bald
averments made in the written statement and ocular
evidence, the appellants-defendants have not produced
any documentary evidence. Both the Courts below have
concurrently held that the present appellants-defendants
have failed to establish that they have perfected their
title over the suit property by way of adverse possession.
When a suit for declaration and injunction is filed
asserting title and if defendants set up a plea of adverse
possession, then the plaintiff can be non-suited provided
defendants succeed in establishing that they have
perfected their title by way of adverse possession. Since
appellants have failed to establish the fact that they have
perfected their title over the suit property by way of
adverse possession, both the Courts below were justified
in decreeing the suit of the plaintiff. No substantial
question of law is involved in the present appeal.
Accordingly, the appeal being devoid of merits is hereby
dismissed.
6. In view of disposal of the appeal, pending
interlocutory applications, if any, do not survive for
consideration and are dismissed accordingly.
Sd/-
JUDGE
YAN
