Sri Jinnappa Gowda vs Smt Saraswathi
2022 Latest Caselaw 345 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

   DATED THIS THE 10TH DAY OF JANUARY, 2022

                          BEFORE

  THE HON'BLE MR. JUSTICE N.S. SANJAY GOWDA

   REGULAR SECOND APPEAL NO.1891 OF 2017 (POS)


BETWEEN:

SRI JINNAPPA GOWDA
AGED ABOUT 53 YEARS
S/O SOORAPPA GOWDA,
R/AT ANIYOOR,
NERIYA VILLAGE,
BELTHANGADY TALUK,
D.K DISTRICT - 574 214.
                                     ... APPELLANT
(BY SRI. KESHAVA BHAT A., ADV.)


AND:

1 . SMT SARASWATHI
AGED ABOUT 77 YEARS
R/A KONKODU HOUSE,
P.O.HIREBAIL,
MUDIGERE TALUK -577 132

2 . SMT DAMAYANTHI
AGED ABOUT 74 YEARS
W/O VENKAPPA GOWDA,
VEDA SADANA, PREM NAGAR,
P.O.KULASHEKAR,
MANGALORE-575 005
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3 . SMT NALINI
AGED ABOUT 69 YEARS
W/O PRABHAKAR MELNOD,
CHETHANA,PARLADKA,
P.O PUTTUR,
PUTTUR TALUK - 574 201.

4 . SMT SHAKUNTHALA A
AGED ABOUT 63 YEARS
PROJECT OFFICER,
WOMEN AND CHILDREN DEV.
PROJECT,
URUVA STORE,
MANGALORE -575 006.

5 . SRI KRISHNAKUMAR
AGED ABOUT 70 YEARS
S/O A SHESHAPPA GOWDA,
R/AT ANIYOOR VILLAGE OF
NERIA VILLAGE,
BELTHANGADY TALUK -574 214

6 . SRI A GOPALAKRISHNA
AGED ABOUT 70 YEARS
S/O A SHESHAPPA GOWDA,
R/AT ANIYOOR VILLAGE OF
NERIA VILLAGE,
BELTHANGADY TALUK -574 214

7 . SRI A RAGHUPATHI
AGED ABOUT 67 YEARS
S/O A SHESHAPPA GOWDA,
R/AT ANIYOOR VILLAGE OF
NERIA VILLAGE,
BELTHANGADY TALUK -574 214

8 . SRI NANDA KUMAR
AGED ABOUT 65 YEARS
S/O A SHESHAPPA GOWDA,
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R/AT ANIYOOR VILLAGE OF
NERIA VILLAGE,
BELTHANGADY TALUK -574 214

9 . SRI A RAMESH
AGED ABOUT 61 YEARS
S/O A SHESHAPPA GOWDA,
R/AT ANIYOOR VILLAGE OF
NERIA VILLAGE,
BELTHANGADY TALUK -574 214

10 . SRI A JAYADEV
AGED ABOUT 58 YEARS
S/O A SHESHAPPA GOWDA,
R/AT ANIYOOR VILLAGE OF
NERIA VILLAGE,
BELTHANGADY TALUK -574 214
                                  ...   RESPONDENTS

(SMT.ARCHANA MURTHY, ADV., FOR C/R10)


     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 05.07.2017 PASSED IN R.A.NO.75/2007 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC,
AT BELTHANGADY AND RESTORE THE JUDGMENT AND
DECREE DATED 08.06.2017 PASSED IN O.S.NO.25/2000
ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND JMFC,
BELTHANGADY, D.K., IN THE INTEREST OF JUSTICE.


     THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                           JUDGMENT

This is a second appeal by the defendant - Shri.

Jinnappa Gowda.

2. One Smt. Kaveramma instituted the suit

seeking for possession of suit property which was land

bearing Survey No.40/1P measuring 60 cents in which

there was a residential house situated. It was her case

that she had constructed the house and had permitted the

defendant to occupy the house and accordingly the

defendant was in possession as a licensee from 1990. She

contended that since the beginning of February, 1999, the

defendant had started acting adversely to the interest of

the plaintiff and hence she had decided to seek for his

eviction and had also issued a lawyer's notice in that

regard. It was stated that defendant had sent a frivolous

reply to the notice and had refused to handover possession

and therefore she was constrained to file suit seeking for

possession.

3. The defendant entered appearance and denied

the suit averments. He specifically denied the title of the

plaintiff and also the assertion that she had constructed

the residential house. Defendant setup the plea that his

maternal grandfather one Shivappa Gowda had

constructed a residential house over the plaint A schedule

property more than fifty years ago and after his

grandfather's death, his daughter Lokamma i.e. the

mother of defendant had succeeded to the said property

and thereafter the defendant along with his siblings had

succeeded to the property and were in possession. The

defendant contended that they were in possession of the

suit property since 1955. He also setup the plea that they

were in possession peacefully, continuously and without

any interruption of any kind from anybody.

4. The defendant also setup the plea that he and

his two brothers had perfected their title over the suit

schedule property adversely to that of the plaintiff and

contended that even though the plaintiff were title holders

of the suit schedule property, they had lost their title and

interest, in favour of the defendant by virtue of adverse

possession.

5. The Trial Court on consideration of the

evidence adduced before it, came to the conclusion that

the plaintiff had not proved that she had constructed

residential house and also recorded a finding that as per

the RTC there was no mention of her house. The Trial

Court also recorded a finding that as per the admission of

P.W.1, the suit property belonged to one Shantappa

Gowda, Son of Sri. Shivappa Gowda and Kaveramma and

this indicated that Shantappa Gowda also had right over

the property and the plaintiff having not impleaded the

wife and children of Shantappa Gowda was not entitled to

seek for a declaration. The Trial Court accordingly

dismissed the suit.

6. In appeal, the Appellate Court took note of the

fact that the defendant had setup the plea of adverse

possession and having regard to the said plea, it was of

the view that the plaintiff admitted the title of the plaintiff.

The Appellate Court also took note of the fact that there

was no plea that the ancestors of the defendant had taken

possession of the suit property to the knowledge of the

plaintiff and had setup title in themselves. The Appellate

Court recorded a finding that mere possession of the

defendant or his ancestors for any number of years could

not be considered as sufficient to establish the plea of

adverse possession. The Appellate Court recorded a clear

finding that the defendant had failed to prove that he had

clear title by way of adverse possession.

7. The Appellate Court also recorded a finding

that no document had been produced to establish that the

grandfather of the defendant had constructed the plaint

schedule property. It noticed that the Assessment

Register and tax paid receipt produced by the defendant

did not indicate that they were in relation to the house

situated at Survey No.40/1 and therefore there was no

evidence to establish that either the defendant or his

grandfather had constructed the residential house.

8. Ultimately the Appellate Court having recorded

a finding that plea of adverse possession had not been

established, proceeded to come to the conclusion that the

title of the plaintiff was not in serious dispute and

proceeded to allow the appeal and directed possession to

be handed over to the plaintiff.

9. It is against this divergent finding this second

appeal has been preferred.

10. Learned counsel for the appellant

Shri A. Keshava Bhat contended that the defendant had

specifically denied the title of the plaintiff and since there

was no document of title produced to establish the title of

the plaintiff, the Appellate Court could not have decreed

the suit. He also contended that the Trial Court had not

framed any issue regarding adverse possession and

therefore any finding recorded by the Appellate Court in

that regard cannot be sustained. He ultimately submitted

that the evidence on record clearly established that the

defendant was in possession of house for more than fifty

years and therefore the reversal of the Trial Court's

Judgment by the Appellate Court was improper.

11. It is to be stated here that the defendant

though denied the title of the plaintiff, did not setup title in

himself independently. In fact, the plea setup by the

defendant was that he and his two brothers had perfected

the title over the suit property by way of adverse

possession against the plaintiff. The defendant, in fact,

went on to state that even if the plaintiffs were the title

holders of the suit schedule property, they had lost title to

the suit property in favour of the defendant and his

brothers.

12. This plea of the defendant, by itself,

tantamounts to an admission that the plaintiff had title

over the suit schedule property.

13. The defendant merely stated in his written

statement that his grandfather had constructed the house

and they were residing in the suit property for more than

fifty years. However, no evidence has been produced

before the Trial Court or before the Appellate Court to

establish that the grandfather of the defendant constructed

the house on the suit schedule property. If, as a matter of

fact, the defendant or his grandfather were in possession

for more than fifty years, their possession would have

been evidenced by some documentary evidence. A mere

assertion that they were in possession for more than fifty

years will not entitle them to setup the plea of adverse

possession.

14. In order to succeed in a plea of adverse

possession, essentially the defendant had to first admit the

title of the plaintiff and clearly state the date from which

he setup a title in himself and adverse to that of the

plaintiff.

15. In the instant case, there is a clear admission

that the defendant had setup title against the plaintiff.

However, the date on which the title was setup against the

plaintiff is not forthcoming and hence the plea of adverse

possession would have to fail. The consequential inference

would be that the defendant was in permissive possession

as held by the Appellate Court and the Appellate Court was

therefore right in decreeing the suit as prayed for. I find

no substantial question of law in this second appeal and

accordingly the same is dismissed.

Sd/-

JUDGE

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