Shri Laxman Revappa Tolamaradi vs Shri Laxman Laxman Sunkad
2022 Latest Caselaw 8514 Kant

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                                     RSA No. 1098 of 2006


IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 10TH DAY OF JUNE, 2022

                         BEFORE
         THE HON'BLE MR JUSTICE M.G.S. KAMAL
     REGULAR SECOND APPEAL NO. 1098 OF 2006 (RES)


BETWEEN:

1.     SHRI LAXMAN REVAPPA TOLAMARADI
       SINCE DECEASED BY HIS LRS.1(A) TO 1(D)

1(A) SMT. SIDDALINGAVVA
     W/O. LATE LAXMAN TOLAMARADI,
     AGED ABOUT 69 YEARS,
     OCC. HOUSEHOLD WORK,

1(B) SRI.SANNAREVAPPA
     S/O. LATE LAXMAN TOLAMARADI,
     AGED ABOUT 45 YEARS,
     OCC. ADVOCATE,

1(C) SRI.SHANKAR S/O. LATE LAXMAN TOLAMARADI,
     AGED ABOUT 43 YEARS,
     OCC. AGRICULTURE,

1(D) SRI.GOPAL S/O. LATE LAXMAN TOLAMARADI,
     AGED ABOUT 40 YEARS,
     OCC. AGRICULTURE,

       APPELLANTS 1(A) TO 1(D) ARE ALL
       R/O. VADERAHATTI 591224,
       TQ. GOKAK, DIST. BELAGAVI.

                                            ...APPELLANTS

(BY SRI. ASHOK R. KALYANASHETTY, ADVOCATE)
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                                    RSA No. 1098 of 2006


AND:

1.     SHRI LAXMAN LAXMAN SUNKAD
       SINCE DECEASED BY HIS LRS.1(A) TO 1(J)

1(A) SMT. HANAMAVVA
     W/O. LATE LAXMAN SUNKAR,
     AGE: MAJOR,
     OCC. HOUSEWIFE,

1(B) SRI.SIDDAPPA
     S/O. LATE LAXMAN SUNKAD,
     AGE: MAJOR,
     OCC. AGRICULTURE,

1(C) SRI.BASAPPA S/O. LAXMAN SUNKAD,
     AGE: MAJOR,
     OCC. AGRICULTURE,

1(D) SRI.KRISHNAPPA S/O. LATE LAXMAN SUNKAD,
     AGE: MAJOR,
     OCC. AGRICULTURE,

1(E)   SRI.BANAPPA S/O. LATE LAXMAN SUNKAD,
       AGE: MAJOR,
       OCC. AGRICULTURE,

1(F)   SRI.SHIVANAND S/O. LATE LAXMAN SUNKAD,
       AGE: MAJOR,
       OCC. AGRICULTURE,

1(G) SRI.MARUTI S/O. LATE LAXMAN SUNKAD,
     AGE: MAJOR,
     OCC. AGRICULTURE,

1(H) SRI.NAGAPPA S/O. LAXMAN SUNKAD,
     AGE: MAJOR,
     OCC. AGRICULTURE,

1(I)   SMT. YALLAWWA D/O. LAXMAN SUNKAD
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                                            RSA No. 1098 of 2006


        AGE: MAJOR,
        OCC. HOUSEHOLD WORK,

1(J)    SMT. HEMA D/O. LAXMAN SUNKAD,
        AGE: MAJOR,
        OCC. HOUSEHOLD WORK,

        R1(A) TO R1(J) ARE ALL
        R/O. VADERAHATTI 591224,
        TQ. GOKAK, DIST. BELAGAVI.

2.      SRI BALAPPA ADIVEPPA KAPPALGUDDI
        AGED ABOUT 57 YRS,
        OCC AGRICULTURE,
        R/AT VADERATTI, TQ GOKAK.

                                                 ...RESPONDENTS

(BY SRI.LOKESH HEGDE, ADV. FOR R1(A) TO R1(J),
 SRI.G.BALAKRISHNA SHASTRY, ADV. FOR R2)


       THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 12.01.2006
PASSED IN R.A. NO.5/2000 ON THE FILE OF THE ADDL. CIVIL
JUDGE (SR.DN), GOKAK, ALLOWING THE APPEAL AND SETTING
ASIDE    THE   JUDGMENT   AND      DECREE    DATED   29.11.1999
PASSED IN O.S. NO.282/1992 ON THE FILE OF THE ADDL.
CIVIL JUDGE (JR.DN), GOKAK.

       THIS RSA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT       ON   27.05.2022,    THIS     DAY,   THE   COURT
PRONOUNCED THE FOLLOWING:
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                                                RSA No. 1098 of 2006


                               JUDGMENT

1. This Regular Second Appeal is filed by the

plaintiff aggrieved by the judgment and order dated

12.01.2006 passed in R.A. No.5/2000 on the file of the

Additional Civil Judge (Sr. Dn.), Gokak (hereinafter

referred to as the "first appellate Court") by which the

first appellate Court allowed the aforesaid regular

appeal filed by the defendants by setting aside the

judgment and decree dated 29.11.1999 passed in

favour of the p laintiff in O.S. No.282/1992 on the file

of Additional Civil Judge (Jr. Dn.) Gokak (hereinafter

referred to as "Trial Court") and dismissed the suit of

the plaintiff.

Brief facts:

2. Plaintiff filed the above suit in O.S.

No.282/1992 against the defendants before the Trial

Court for the relief of possession 18 guntas of land in

R.S. No.60/1 + 2A forming part 8 acres 11 guntas

contend ing inter alia that;

RSA No. 1098 of 2006

acres 9 guntas situated at Vaderhatti village, Gokak Taluk belonged to a family of one Sri.Angadi. That out of the aforesaid land, plaintiff purchased an area of 8 acres 24 guntas, defendant No.1 purchased an area of 4 acres while defendant No.2 purchased an area of 8 acres 10 guntas under three separate registered deeds of sale of even dated 27.06.1966. The names of the p laintiff, defendant Nos.1 and 2 were mutated in Revenue Records vide M.E. Nos.1687, 1685 and 1686 respectively and that ever since then, they have been in absolute possession and enjoyment of their respective portions of lands. The lands of the defendant Nos.1 and 2 are lying towards the southern side of the land of the plaintiff.

b. That subsequently the State Government had acq uired 14 guntas of land from and out of the land of the plaintiff for the purpose of GLBC (Ghataprbha Left Bank Canal), which passes through the land of the plaintiff. Thus the plaintiff has been in actual possession of the remaining extent of 8 acres 11 guntas of his land .

c. The State Government had conducted a survey and measurements in the year 1975-76 in which lands of the plaintiff and defendants were

RSA No. 1098 of 2006

surveyed and measured as per their respective possession and enjoyment. The plaintiff was found to be in possession of 8 acres 11 guntas, defendant No.1 was found in possession of 4 acres while defendant No.2 was found in possession of 8 acres 23 guntas. In terms of M.E. No.3120 which was effected on the report of the survey measurement, the land of the plaintiff was assigned with R.S. No.60/1+2A. The land of defendant No.1 was assigned with Sy. No.60/1+2B and the land of defendant No.2 was assigned with R.S. No.60/1+2C. Boundary stones were fixed in terms of the said measurement thereby demarcating the respective lands of the p laintiff and defendant Nos.1 and 2.

d. That in the year 1982, defendants tried to remove the boundary stones and attemp ted to re-fix them by encroaching an extent of 18 guntas of land on the southern side of the land of the p laintiff and attemp ted to illegally trespass thereupon constraining the plaintiff to file the suit in O.S. No.228/1982 for permanent injunction. The said suit was however dismissed on the ground that the plaintiff was not in possession of the suit property on the date of filing of the suit. Aggrieved by the same, plaintiff preferred regular appeal in R.A. No.20/1988 which was also d ismissed constraining the plaintiff to file regular second appeal in R.S.A.

RSA No. 1098 of 2006

No.93/1990 which was also dismissed confirming the find ings of the subordinate Courts. Therefore, the plaintiff who was dispossessed from the suit property in the year 1982 filed the present suit in O.S. No.282/1992 against the defendants for relief of possession and mesne profit.

e. Plaintiff has annexed a rough/hand sketch along with the plaint delineating and earmarking the respective portions of the lands and the portion of 18 guntas of land which is purportedly encroached upon by the defendants.

3. Defendants filed the written statement;

a. Admitting they purchasing 4 acres and 8 acres 10 g untas of land respectively under deeds of sale dated 27.06.1966. However, they denied that their land is lying on the southern side of the land of the plaintiff.

b. They also admitted that after the sale transaction, the State Government had acq uired 14 guntas of land of the plaintiff for the purpose of GLBC canal and that the plaintiff remained in actual possession of land measuring 8 acres 11 guntas. They have also admitted that there was a government measurement conducted in the year

RSA No. 1098 of 2006

1975-76 in which pot-hissa measurement and assignment of the survey numb ers and fixation of boundaries was carried out as pleaded in the plaint. They also admitted the measurements of their respective portions of the land as mentioned in the plaint.

c. The defendants however denied that in the year 1982 they tried to remove the boundaries, stones and tried to encroach upon the land belonging to the plaintiff as claimed. They further contended that issue of encroachment hav ing already been decided in O.S. No.228/1982 and having attained finality by dismissal of R.S.A. No.93/1990, the present suit was hit by princip le of res judicata.

d. It is contended that in between the land of the plaintiff and defendant No.1, there is a bund at point 'EF' of the hand sketch produced along with the plaint. The land measuring 8 acres 23 guntas of the defendant No.2 is situated on the south of the house of the defendant No.1. Therefore, it is contended that defendant No.2 cannot encroach upon the land of the plaintiff.

e. Alternatively the defendants have contended that ever since the date of purchase and which has been confirmed by pot-hissa measurement done in

RSA No. 1098 of 2006

the year 1975-76, they have been in possession of suit property openly and continuously without any obstruction by the plaintiff for more than 12 years, as such they have perfected their title by way of adverse possession. That since the plaintiff has not challenged the hissa measurement of the year 1975-76, he is d ebarred from claiming possession of an area of 18 guntas and since the plaintiff has been put out of possession of the suit property from the year 1966 the suit is barred by limitation. Hence sought for dismissal of suit.

4. Based on the above pleading, the Trial Court

framed the following issues:

1. Does plaintiff prove that he is the owner of the suit property?

2. Does plaintiff prove that defendants illegally encroached the suit property during 1982?

3. Whether the plaintiff is entitled for the possession of suit property from the defendant?

4. Whether plaintiff is entitled for the mesne profits of the suit property since 1982?

5. Do defendants prove that suit of the plaintiff is hit b y the principles of res judicata?

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RSA No. 1098 of 2006

6. Do defendants prove that they are in peaceful possession of suit property for a period of more than 12 years openly, continuously as of right to the knowledge of plaintiff and they have perfected their title to the suit property by way of adverse possession?

7. Whether this Court has not no jurisdiction to try the present suit as contended in Para No.13 of the written statement?

8. Whether the suit of plaintiff is barred by limitation for the relief of possession?

9. What order or decree?

5. The plaintiff examined himself as PW.1 and

another witness as PW.2 and exhibited 28 documents

as marked as Exs.P1 to P28. The defendant No.1

examined himself as DW.1 and exhibited 7 documents

marked as Exs.D1 to D7. The Trial Court on

appreciation of the evidence, answered issue Nos.1 to

4 in the affirmative and issue Nos.5 to 8 in the

negative and consequently decreed the suit of the

plaintiff by its judgment and decree dated 29.11.1999

hold ing that the plaintiff is entitled for 15 guntas of

land from the defendant No.1 and directed the

defendant No.1 to deliver possession of suit land

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RSA No. 1098 of 2006

measuring 15 guntas to the p laintiff and dismissed the

suit as against the defendant No.2.

6. Being aggrieved by the aforesaid judgment

and decree, the defendants filed regular appeal in R.A.

No.5/2000 before the first appellate Court. The first

appellate Court based on the grounds urged in the

memorandum of appeal framed following points for its

consideration;

1. Whether the plaintiff has proved the alleged encroachment over the suit land by the defendants. If so, is he entitled for possession of the same?

2. Whether the suit is hit by the principles of res judicata and also Sec.61 of the Karnataka Land Revenue Act?

3. Whether the suit is barred by law of limitation and whether the defendant has perfected his title to the suit land by adverse possession?

4. Whether the find ings of the Trial Court are illegal, erroneous, capricious and perverse and hence require the interference?

5. What order?

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RSA No. 1098 of 2006

7. The first appellate Court answered point

Nos.1 and 2 in the negative, point No.3 partly

affirmative and point No.4 in the affirmative and

consequently allowed the appeal by its judgment and

order dated 19.01.2006 setting aside the judgment

and decree dated 29.11.1999 passed by the Trial

Court in the aforesaid suit in O.S. No.282/1992.

Aggrieved by the same, the plaintiff is before this

Court by way of this Regular Second Appeal.

8. This Court by order dated 21.02.2008

admitted this appeal to consider the following

substantial question of law:

"Whether the first appellate Court was justified in dismissing the suit of the plaintiff when both the Courts have held defendant had not established his case of adverse possession?"

9. Learned counsel for the appellant Sri.Ashok

R. Kalyanashetty reiterating the grounds urged in the

memorandum of appeal submitted that;

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RSA No. 1098 of 2006

a. The first appellate Court grossly erred in allowing the appeal of the defendants and dismissing the suit of the p laintiff on the premise of the present suit filed by the plaintiff on 28.07.1992 was barred by limitation, as the plaintiff had the knowledge of he being in possession only in respect of 7 acres 34 guntas even prior to the year 1975-76, which is contrary to the pleadings and material evidence made available on record;

b. That even though the first appellate Court fully concurred with the reasoning and the findings arrived at by the Trial Court while negating the claim of the defend ants for adverse possession ought not to have dismissed the suit of the plaintiff;

c. That appellate Court lost sight of the fact that admitted ly the government survey was conducted in the year 1975-76 demarcating the areas of the parties taking into consideration of their actual p hysical possession over their respective portions of the land in which the plaintiff was found to be in possession of ex tent of 8 acres 11 guntas after reduction of 14 guntas of land acquired for GLBC canal;

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RSA No. 1098 of 2006

d. That the defendants having unsuccessfully raised plea of adverse possession have admitted the ownership and title of the plaintiff over the suit property as such the first appellate Court ought not to have been allowed the defendants to retain the land of the p laintiff.

Hence, sought for allowing of the appeal.

10. Per contra, the learned counsel for the

defendants supporting the impugned judgment and

order passed by the first appellate Court submitted

that;

a. The suit of the plaintiff is barred by limitation as rightly held by the first appellate Court as he is in possession of only 7 acres 34 guntas of land even prior to 1975-76.

b. That the defendant Nos.1 and 2 have been in possession of 13 acres 1 gunta of land and that the p laintiff has not specifically pleaded as to which of the defendants has encroached upon the suit land.

c. That the plaintiff not hav ing questioned the mutation entries of the year 1976 is estopped from seeking relief of possession. Thus he

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RSA No. 1098 of 2006

submits that no infirmity can be attrib uted to the findings given by the first appellate Court. Hence, seeks for dismissal of the appeal.

11. Heard the learned counsel for the parties.

Perused the records.

12. From the p leadings of the parties, as

extracted hereinabove, it is clear that the plaintiff had

purchased 8 acres 24 guntas of land while defendant

Nos.1 and 2 had purchased 4 acres and 8 acres 10

guntas respectiv ely under deeds of sale of even dated

27.06.1966. That subsequent to the sale transaction

admittedly there was acquisition of 14 guntas of land

belonging to the plaintiff by the government for the

purpose of formation of a canal which now runs

through his land. That in terms of government survey

conducted in the year 1975-76, portions of the lands

in actual possession of the plaintiff, defendant Nos.1

and 2 were measured and separate R.S. numbers were

assigned as noted hereinabove. Defendants in their

joint written statement have categorically admitted

that the plaintiff after the acquisition as above and

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RSA No. 1098 of 2006

after the survey and measurement conducted in 1975-

76 has been in possession and enjoyment of his

property measuring 8 acres 11 guntas. To this extent,

there is no dispute amongst the parties. However, the

defendants as an alternate plea in their defence have

contended that title in respect of suit schedule

property found in their possession has been perfected

by them by way of adverse possession and that the

plaintiff having earlier failed in his suit for injunction

to estab lish the encroachment by the defendants is

estopped from re-agitating the matter, as the same is

hit by principles of res judicata. As far as this defence

of the defendants is concerned, both the Trial Court

and the first appellate Court have concurrently held

that the present suit of the p laintiff is neither hit by

the principle of res judicata nor the defendants have

perfected any title in respect of any portion of the

land belonging to the plaintiff by way of ad verse

possession and have thus thereby negated the case of

the defendants. This finding of the Trial Court and the

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RSA No. 1098 of 2006

first appellate Court has not been challenged by the

defendants.

13. Contrary to the admission as noted above,

the defendant No.1 who has been examined as DW1 in

his deposition recorded on 21.09.1999 and 05.10.1999

has sought to contend that even prior to 1966 himself

and defendant No.2 together have been in possession

of an extent of 13 acres 1 gunta of land on the

southern side of the land belonging to plaintiff.

14. As noted above, during the survey

conducted in 1976, the possession of the defendants

No.1 and 2 is shown to be 4 acres and 8 acres 23

guntas respectiv ely, which adds up to a total extent of

12 acres 23 guntas. However, DW.1 in his deposition

has attempted to stake a claim for an extent of 13

acres 1 gunta. Thus, the defendants are admittedly

claiming an excess of 18 guntas of land.

15. It is pertinent to note that a Court

Commissioner had been appointed in the earlier suit in

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RSA No. 1098 of 2006

O.S.No.228/1982 filed by the p laintiff, who has been

examined as PW.2 in the present suit and the said

report along with the survey conducted by the

Commissioner has been marked as Ex.P22, wherein

the area measuring 15 guntas belonging to the

plaintiff is shown to be in possession of the

defendants. The Trial Court and the first appellate

Court have taken the said report into consideration to

identify the extents of the lands belonging to the

parties. The parties have not disputed this position.

Therefore, as rightly observed by the Trial Court, the

extent of the land of the plaintiff in possession of

defendants can be held to be 15 guntas and not 18

guntas.

16. The DW.1 in his deposition has admitted

that there was no disp ute between the plaintiff,

defendant No.1 and defendant No.2 until the year

1982. The plaintiff is claiming that the defend ants

have encroached upon his land in the year 1982 by

shifting the boundary lines on the southern side of his

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RSA No. 1098 of 2006

land (on the northern side of the land of the defendant

No.1). Read in the light of the claim being made by

the DW1 in his deposition, that the defendant Nos.1

and 2 to be in joint possession of 13 acres 1 gunta,

which is in excess of their entitlement, are liable to

handover 15 guntas of land to the plaintiff.

17. It is nobody's case that the plaintiff's

entitlement of land is only 7 acres 34 guntas even

prior to his p urchase in the year 1966 and that the

plaintiff had the knowledge of this extent of land even

during the year 1975-76 as observed by the first

appellate Court at paragraph 25 of its judgment. The

extent of land of the plaintiff after acquisition is

shown as 8 acres 11 guntas which fact is specifically

admitted by the defendants. Therefore, the first

appellate Court erred in observing that the plaintiff

cannot claim to be in possession of the land in terms

of the deeds of sale but would be entitled as per the

possession as a tenant prior to the execution of d eeds

of sale. The reasoning of the Trial Court is in

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RSA No. 1098 of 2006

consonance of the material evid ence which ought not

to have been interfered with by the first appellate

Court on an erroneous assumption.

18. In view of the specific finding of the Trial

Court confirmed by the first appellate Court negating

the claim of the defendants to have perfected their

title over the land of the plaintiff by way of adverse

possession, the plaintiff cannot be deprived of his

rightful entitlement over the suit property. As rightly

taken note of by the Trial Court it is settled law that

once the title is estab lished, unless defendant proves

adverse possession, the plaintiff cannot be non-suited

(Indira vs. Arumugam and another reported in ILR

1998 Kar 1422).

19. It is necessary to note at this juncture that

the learned counsel for the defendants had contended

that since the plaintiff is not clear as to who has

encroached upon the suit land, no effective decree can

be passed against the defendants. From the tenor and

contents of written statement and the deposition of

DW.1, it is clear that defendant Nos.1 and 2 are in

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RSA No. 1098 of 2006

joint possession and are cultivating 13 acres 01 gunta

of land. Both are aware of this factual aspect of the

matter. Therefore, in order to do complete justice

between the parties, it is necessary that the defendant

Nos.1 and 2 who claim to be in joint possession of the

land shall make necessary re-adjustment in

accordance of their entitlement of 4 acres and 8 acres

23 guntas of land admittedly in their possession as

found during the survey conducted in the year 1975-

76.

20. For the aforesaid reasons and analysis, the

substantial question of law is answered in the negative

and consequently , the appeal is allowed confirming the

decree passed by the Trial Court in O.S. No.282/1992.

21. Accordingly, the following order:

ORDER

Appeal is allowed .

The judgment and order dated 12.01.2006 passed

in R.A. No.5/2000 on the file of the Additional Civil

Judge (Sr. Dn.) Gokak is set aside. The judgment and

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decree dated 29.11.1999 passed in O.S. No.282/1992

on the file of Additional Civil Judge (Jr. Dn.), Gokak, is

modified to the extent d irecting the defendant Nos.1

and 2 to deliver the possession of 15 guntas of the

land to the plaintiff with the cost. The order regarding

mesne profit is maintained .

Sd/-

JUDGE

RSH/KGK