Karnataka High Court
Kalu S/O Gemu Rathod vs Mahanand W/O Nagaraj Hebbal on 14 June, 2023
Bench: N.S.Sanjay Gowda
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RSA No. 7335 of 2009
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 7335 OF 2009 (DEC/INJ)
BETWEEN:
1. KALU S/O GEMU RATHOD
AGE: MAJOR OCC:AGRICULTURE
R/O:KODLI TANDA, TQ:CHINCHOLI
DIST:GULBARGA
2. GEMU S/O KSU RATHOD
SINCE DECEASED BY HIS LEGAL REPRESENTATIVES:
DHANABAI W/O TARU,
OCC:HOUSEHOLD R/O:CHENGATA THANDA,
TQ:CHINCHOLI
DIST:GULBARGA
...APPELLANTS
Digitally signed by (BY SRI. SHARANABASAPPA K. BABSHETTY, ADVOCATE)
RAMESH
MATHAPATI
Location: HIGH
COURT OF AND:
KARNATAKA
1 MAHANAND
W/O NAGARAJ HEBBAL
AGE: MAJOR, OCC:AGRICULTURE
R/O:KODLI, TQ:CHINCHOLI-585307
DIST:GULBARGA
2 BASAVARAJ
S/O NAGARAJ HEBBAL
AGE: 18 YEARS,
R/O:KODALI TQ:CHINCHOLI
DIST:GULBARGA
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RSA No. 7335 of 2009
3 ANITA
D/O NAGARAJ HEBBAL
AGE: 16 YEARS,
4 SUNITA
D/O NAGARAJ HEBBAL
AGE: 15 YEARS,
5 VIJAYKUMAR S/O NAGARAJ HEBBAL
AGE: 14 YEARS,
(RESPONDENT NO: 3 TO 5 ARE MINORS
REPRESENTED BY THEIR
NATURAL MOTHER I.E. RESPONDENT NO:1
MAHANDA W/O NAGARAJ HEBBAL)
ALL ARE R/O KODALI,
TQ: CHINCHOLI,
DIST: GULBARGA-585307.
...RESPONDENTS
(BY SRI. B D. HANGARKI, ADVOCATE FOR R1 TO R5)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 16.9.2009
PASSED IN R.A.NO.68/2008 ON THE FILE OF THE FAST TRACK
NO.I, GULBARGA, ALLOWING THE APPEAL AND DECREEING
THE JUDGEMENT AND ORDER DATED 01.03.2008 PASSED IN
O.S.NO.1/2006 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
CHINCHOLI.
THIS APPEAL, COMING ON FOR ARGUMENT, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
1. This is a second appeal by the defendants.
2. The plaintiffs filed a suit seeking for declaration and
for injunction in respect of land bearing Sy.No.259(B)
measuring 3 acres 26 guntas situate at Kodli contending
that the suit property was their ancestral property and on
the death of the 1st plaintiff's husband and father of
plaintiffs 2 to 4, they had succeeded to the said property
and were the owners in possession of the said property.
3. They stated that the 1st defendant who was the son
of the 2nd defendant who had no concern with the suit
property was interfering with their possession and hence,
they were constrained to file a suit.
4. The defendants entered appearance and contested
the suit. It was admitted that the suit property belonged
to the father-in-law of the 1st plaintiff - Hanumanth Rao
and he had sold the said property to the 2nd defendant
under an Agreement of Sale dated 24.04.1989 by
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receiving the entire sale consideration of Rs.12,000/- and
had also handed over possession. It was stated that this
Agreement of Sale was executed in the presence of three
witnesses and on the basis of this Agreement of Sale, they
were in possession.
5. It was stated that the 2nd defendant had requested
Hanumanth Rao to execute the Sale Deed, but he expired
and hence, the Sale Deed could not be executed. It was
also stated that after the death of Hanumanth Rao, the 2nd
defendant had requested his son Nagaraj to execute the
Sale Deed, but he had also passed away. It was also
stated that they had thereafter approached the 1st
plaintiff, who was the wife of Nagaraj and had requested
her to execute the Sale Deed, but instead of executing the
Sale Deed, she had chosen to file a suit. It was, therefore,
stated that the defendants were in possession and this
possession could not be interfered with.
6. It was also contended that they were in possession of
suit property since 24.04.1989 and their possession was
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continuous, hostile to the knowledge of the true owner for
more than 12 years and they had consequently perfected
the title by way of adverse possession.
7. The Trial Court, on consideration of pleadings and
evidence adduced before it, came to the conclusion that
the plaintiffs had proved they were the owners of the suit
property, but they had failed to prove that they were in
possession of the same.
8. The Trial Court also held that the defendants had
failed to prove that Hanumanth Rao had executed an
Agreement of Sale and they had requested Hanumanth
Rao and thereafter, his son and the 1st plaintiff to execute
the Sale Deed.
9. The Trial Court took the view that since the plaintiffs
failed to prove their possession of the suit property, the
suit which had been filed by them seeking for declaration
and injunction could not be entertained and it proceeded
to dismiss the suit in its entirety.
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10. Being aggrieved, both the plaintiffs and the
defendants preferred regular appeals.
11. The Appellate Court, on re-appreciation of evidence,
came to the conclusion that the Trial Court could not have
dismissed the suit after holding that the plaintiffs were the
owners of the suit property. It also took the view that the
plaintiffs had proved their possession and the defendants
could not be held to be in possession on the basis of a
document produced by them.
12. The Appellate Court, insofar as the appeal preferred
by the defendants, as against the finding that no
Agreement of Sale had been executed, came to the
conclusion that the Trial Court was justified in coming to
the conclusion that no Agreement of Sale had been
executed by Hanumanth Rao. It, therefore, proceeded to
allow the appeal filed by the plaintiffs and dismissed the
appeal filed by the defendants.
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13. As against the judgment and decree allowing the
appeal of the plaintiffs, the present second appeal has
been preferred by the defendants.
14. The defendants have not chosen to challenge the
dismissal of their appeal which had been filed challenging
the findings recorded by the Trial Court that no Agreement
of Sale had been executed in their favour. Thus, the
finding that no Agreement of Sale had been executed in
favour of the defendants has been accepted by the
defendants and has attained finality.
15. This second appeal was admitted to consider the
following substantial question of law:
"Whether the appellate Court erred in not
considering possession of the appellants being
protected by Section 53(A) of the Transfer of
Property Act and also in not considering the
question of limitation to file the suit as plaintiff
had proved adverse possession of the property for
a period more than 12 years prescribed by Article
65 of the Limitation Act."
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16. At the outset, it is to be stated here that in the light of
the fact that both the Courts have recorded a clear finding of
fact that no Agreement of Sale had been executed by
Hanumanth Rao in favour of defendant No.2, the question of
defendants' possession being protected under Section 53(A) of
the Transfer of Property Act would not at all arise. Therefore,
this question of law is answered against the
appellants/defendants.
17. As far as the other portion of the substantial question of
law relating to considering the question of limitation on the
ground that the defendants had proved adverse possession is
concerned, it is to be stated here that once the defendants
contended that they were inducted into the possession of the
suit property lawfully under an Agreement of Sale, the question
of defendants putting forth the plea that they had perfected
their title by adverse possession would never arise. Therefore,
this question of law is also answered against the defendants.
18. In my view, having regard to the fact that the defendants
admit that the suit property belonged to the father-in-law of
the 1st plaintiff and the grandfather of the other plaintiffs, the
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title of the property was in fact admitted and since the
Appellate Court, on re-appreciation of evidence, has recorded a
finding of fact that the defendants have not been able to
establish their possession, the decree granting declaration that
the plaintiffs were the owners and were in possession cannot be
found fault with. Accordingly, the second appeal is dismissed.
Sd/-
JUDGE
PKS
