Karnataka High Court
Sri K K Ganesh vs Sri P K Shashikanth on 13 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO.1011/2018 (POS)
BETWEEN:
1. SRI.K.K.GANESH @ K.K.POOVAIAH
S/O LATE KAYERA K.KUSHALAPPA
AGED ABOUT 56 YEARS
2. SRI.K.K.JAYANTHA @ PUTTA
S/O LATE KAYERA K. KUSHALAPPA
AGED ABOUT 46 YEARS
3. SRI.K.K. BHEEMAIAH @ RAJA
S/O LATE KAYERA K.KUSHALAPPA
AGED ABOUT 36 YEARS
4. SRI. K.K.POOVAIAH @ BOJA @ K.K.JANARDANA
S/O LATE KAYERA K.KUSHALAPPA
AGED ABOUT 46 YEARS
ALL ARE RESIDING AT
MADAPATNA VILLAGE AND POST
KUSHALANAGAR HOBLI
SOMAWARPET TALUK
KODAGU DISTRICT-571 201
... APPELLANTS
(BY SRI. L.S.CHIKKANAGOUDAR, ADVOCATE)
AND:
1. SRI.P.K.SHASHIKANTH
S/O LATE SRI. P.P.KESHAVA
AGED ABOUT 49 YEARS
MONAKOLLY ESTATE
CHETTALLI POST
2
SOMWARPET TALUK
KODAGU DISTRICT-571 201
... RESPONDENT
(BY SRI.M.M.ASHOKA, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 READ WITH ORDER
42 RULES 1, 2 AND 3 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 27.03.2018 PASSED IN R.A. NO.53/2012 ON THE
FILE OF THE PRINCIPAL DISTRICT JUDGE, KODAGU AT MADIKERI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 31.05.2012, PASSED IN O.S.NO.119/2006 ON THE
FILE OF THE SENIOR CIVIL JUDGE, MADIKERI.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a second appeal by the defendants.
2. The plaintiff-Sri.P.K.Shashikanth instituted the suit
seeking for possession of the suit schedule property. It
was his case that the suit property had been purchased
by his grandfather viz., Sri.Periyana @ M.Poovaiah and
he had employed one Kayera K.Kushalappa i.e., father of
the defendants to supervise his property and he was
permitted to occupy the portion of the residential
quarters which had been constructed by his grandfather
and which was given free of rent.
3. It was stated that said Kushalappa died during his
employment and though the services came to end, his
children i.e., defendants, were allowed to stay in the suit
schedule property on humanitarian consideration. It was
stated that the grandfather of the plaintiff passed away
on 23.01.1997 and the plaintiff had become the sole
legal heir and succeeded to the suit schedule property. It
was stated that though several requests were made to
vacate the suit schedule property, they had not acceded
to the said requests, resulting in filing of the suit.
4. This suit was resisted by the defendants on the
ground that they had perfected their title by way of
adverse possession and the plaintiff had no legal right to
seek for possession.
5. The Trial Court, on consideration of the evidence
adduced, recorded a finding that the plaintiff had proved
that his grandfather had purchased the property and had
employed the services of father of the defendants to
supervise the suit schedule property. The Trial Court
also recorded a finding that the defendants were allowed
to stay in the suit schedule property out of humanitarian
consideration. The Trial Court also recorded a finding
that the defendants had failed to prove that Kayera
K.Kushalappa, their father, was in possession and
enjoyment of the suit property, without anybody's
interference and that he had constructed the house
therein. The Trial Court also recorded the finding that the
defendants had failed to prove that they had perfected
the title by way of adverse possession.
6. The Trial Court, accordingly, decreed the suit as
prayed for.
7. Being aggrieved, the defendants preferred an
appeal.
8. The Appellate Court, on re-appreciation of the
evidence, confirmed the findings of the Trial Court and
dismissed the appeal.
9. It is against this concurrent finding the present
second appeal has been filed. Admittedly, the only plea
set up by the defendants was that they had perfected
their title by way of adverse possession.
10. In order to succeed on a plea of adverse
possession, firstly, the defendants would have to admit
the title of the plaintiff and thereafter, establish that they
had proclaim title in themselves and despite the
proclamation of this title, for a period of more than 12
years, no steps had been taken by the true owner
resulting in the extinguishment of the title of the true
owner and perfection of title by the defendants by way of
adverse possession.
11. In the instant case, admittedly, the defendants
denied the very title of the grandfather of the plaintiff. If
the defendants did not admit the title of the plaintiff,
they cannot obviously set up the plea of adverse
possession against the plaintiff and on this ground alone
their plea would have to fail.
12. Both the Courts have concurred with the finding
that the suit schedule property was purchased by
Sri.Periyana @ M.Poovaiah under a registered sale deed
dated 25.09.1961 and the plaintiff had succeeded to the
said property.
13. In view of the concurrent finding of the fact that
plaintiff had succeeded the property of Sri.Periyana @
M.Poovaiah and the defendants had failed to plead and
prove their adverse possession, it is clear that there is
no question of law, much less, a substantial question of
law arising for consideration in this second appeal and
consequently, the same is dismissed.
Sd/-
JUDGE
SKS
