Basappa S/O. Hanumanthappa vs Poojari Konkappanavara ...
2023 Latest Caselaw 3233 Kant

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                                                                  RSA No. 5119 of 2011



                             IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                  DATED THIS THE 14TH DAY OF JUNE, 2023

                                                   BEFORE
                               THE HON'BLE MR JUSTICE RAJENDRA BADAMIKAR
                                REGULAR SECOND APPEAL NO. 5119 OF 2011

                        BETWEEN:
                        1.   BASAPPA S/O. HANUMANTHAPPA,
                             AGE: ABOUT 42 YEARS,

                        2.     BASAPPA
                               SINCE DEAD BY HIS LR.S

                        2.A    SMT. ANASUYA W/O. LATE BASAPPA,.
                               AGED ABOUT 32 YEARS,

                        3.     NANJUNDAPPA S/O. NANJAPPA,
                               (DEAD BY HIS LRS)

                        3.A    SHANTAMMA W/O LATE NANJUNDAPPA
                               (DEAD BY HER LRS)

                        3.A(1) AJJAPPA SON OF LATE NANJUNDAPPA
                               AGED ABOUT 45 YEARS,

                        3.A(2) KARIYAPPA S/O LATE NANJUNDAPPA,
                               AGED ABOUT 40 YEARS,
           Digitally
YASHAVANT  signed by
NARAYANKAR YASHAVANT
           NARAYANKAR

                        3.A(3) KOTRESHI S/O LATE NANJUNDAPPA,
                               AGED ABOUT 30 YEARS,
                               3A(1) TO (3) ARE R/O. KUDLIGI VILLAGE,
                               TQ: KUDLIGI, BELLARY DISTRICT.

                        3.B    SMT. REVAKKA W/O MALIYAPPA,
                               AGED ABOUT 47 YEARS,
                               R/P GEDDALAGATTE VILLAGE,
                               TQ: KUDLIGI-583135, BELLARY DISTRICT.

                        3.C    SMT. SIDDAMMA W/O. MALLAPPA,
                               AGED ABOUT 32 YEARS,

                        3.D    SMT. KOTRAMMA W/O. MARUTHI,
                               AGED ABOUT 30 YEARS,
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                                               RSA No. 5119 of 2011



      NO.3(C) & 3(D) ARE R/P: HARAVVANAHALLI,
      HOSPET TALUK, BELLARY DISTRICT.

4.    NAGAPPA S/O. KOTRABASAPPA,
      AGED ABOUT 50 YEARS,

5.    NANJAPPA S/O. KOTRABASAPPA,
      AGED ABOUT 51 YEARS,

6.    VENKATESH S/O. KOTRESHAPPA,
      AGED ABOUT 35 YEARS,

7.    KOTRESHI S/O. KOTRABASAPPA,
      AGED ABOUT 30 YEARS,

8.    DEVANNA S/O. KOTRABASAPPA,
      AGED ABOUT 25 YEARS,

      ALL ARE HINDUS, AGRICULTURISTS,
      APPELLANT NO.1, 2, 4 TO 8 ARE
      RESIDENTS OF CHIRBI VILLAGE,
      KUDLIGI TALUK-583135,
      BELLARY DISTRICT.
                                                         ...APPELLANTS

(BY SRI. S.B.HEBBALLI, ADVOCATE)

AND
      POOJARI KONKAPPANAVARA
      BHEEMAPPA S/O HANUMANTHAPPA,
      AGED ABOUT 62 YEARS, HINDU,
      AGRICULTURIST, R/O: CHIRIBI VILLAGE,
      KUDLIGI TALUK-583135,
      BELLARY DISTRICT.
                                                         RESPONDENT

(BY SRI. MADAN MOHAN M KHANNUR, ADVOCATE )

      THIS   RSA   IS   FILED   U/S.100   OF    CPC.,   AGAINST   THE
JUDGMENT AND DECREE DTD: 30-11-2010 PASSED IN R.A.NO.03/
2009 ON THE FILE OF THE SENIIOR CIVIL JUDGE AT KUDLIGI,
PARTLY   ALLOWING       THE   APPEAL      BY   SETTING    ASIDE   THE
JUDGMENT DTD: 16-12-2008 PASSED IN O.S.NO.137/1998 ON THE
FILE OF THE CIVIL JUDGE (JR.DN) KUDLIGI, DISMISSING THE SUIT
FILED FOR DECLARATION AND PERMANENT INJUNCTION.
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                                             RSA No. 5119 of 2011



     THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
05.06.2023 COMING ON FOR PRONOUNCEMENT, THIS DAY, COURT
DELIVERED THE FOLLOWING:

                             JUDGMENT

This appeal is filed under Section 100 of CPC by

defendants challenging the judgment and decree in

O.S.No.137/1998 passed by the Civil Judge (Jr.Dn), Kudligi

and confirmed in R.A.No.3/2009 by the Senior Civil Judge,

Kudligi, vide judgment dated 30.11.2010.

2. For the sake of convenience, parties herein are

referred with the ranks occupied by them before the Trial

Court.

3. The plaintiffs filed a suit for declaration and

injunction. It is asserted by the plaintiffs that they are

absolute owners of the suit property bearing Survey

No.250/B measuring 5 acres 27 guntas situated in Chirabi

village of Kudligi Taluk. That the plaintiffs have inherited the

suit property from their ancestors and the plaintiffs are

uneducated and they do not know about the measurements

and entries in revenue records. On 10.10.1998, when the

plaintiffs were working in the suit property, the defendants

obstructed them and they did not allow the defendants to

RSA No. 5119 of 2011

enter the suit land. On enquiry, the plaintiffs came to know

that the Patta has been changed in the name of defendants.

Neither the plaintiffs nor their ancestors have alienated the

suit property, but the defendants have got changed the title

illegally without there being any document of title. Hence,

the plaintiffs have filed suit and prayed for injunction against

the defendant.

4. The defendants appeared before the Trial Court

and filed their written statement denying the allegations and

assertions made in the plaint. The defendants contended that

the suit is bad for non-joinder of necessary parties and the

ancestors of Nanjappa purchased the property about 70

years back by an oral agreement and as such, the name of

the seller came to be deleted. It is asserted that by taking

undue advantage of absence of registered sale deed, the

plaintiffs have played a fraud and falsely asserting right over

the suit property and they have no document of title. It is

asserted that the plaintiffs are not in possession of the suit

property and suit property was fallen to the share of Gollar

Hanamantappa and according to Palu Patti of 1946 which

was reduced into writing and subsequently the suit property

is inherited by the defendants. It is asserted that the

RSA No. 5119 of 2011

plaintiffs are not in possession and the defendants all along

in possession in the suit property. The defendants further

alternatively contended that they have perfected their title

by adverse possession against the plaintiffs in case of

plaintiffs are able to prove their title over the suit property.

Hence, they have sought for dismissal of the suit.

5. On the basis of the pleadings, the Trial Court

framed the following eight issues:

1. Whether plaintiffs prove that they are the owners of the suit schedule property as contended?

2. Whether plaintiffs prove that they are in lawful possession of the suit schedule property?

3. Whether plaintiffs prove the illegal interference by the defendants as contended?

4. Whether Court fee paid on the plaint is proper and correct?

5. Whether defendants prove that this Court has no pecuniary jurisdiction to try the suit?

6. Whether the defendants prove that they have perfected their title over the suit schedule property by way of adverse possession as contended in para No.12 of the written statement?

7. Whether the defendants are entitled for exemplary costs as pleaded?

RSA No. 5119 of 2011

8. What order or decree?

6. The plaintiff No.1 was examined as PW1 and two

witnesses were examined as PW2 and PW3 and six

documents were relied by the plaintiffs as per Ex.P1 to

Ex.P6. Defendant No.1 was examined as DW1 and four

witnesses were examined as DW2 to DW5 and the

defendants placed reliance on Ex.D1 to Ex.D46. After hearing

the arguments, the Trial Court has answered all the issues in

negative and ultimately dismissed the suit filed by the

plaintiffs. However, the Trial Court has allowed the counter-

claim on the part of the defendants by granting permanent

injunction in favour of the defendants against the plaintiffs.

7. Being aggrieved by this judgment, the plaintiffs

filed an appeal before the Senior Civil Judge, Kudligi in

R.A.No.3/2009 and the learned Senior Civil Judge after re-

appreciating the oral as well as documentary evidence has

allowed the appeal in part and set aside the granting of

injunction in favour of the defendants. However, the other

findings were confirmed.

8. Being aggrieved by this judgment, the defendants

are before this Court.

RSA No. 5119 of 2011

9. Heard the arguments and perused the records.

10. It is asserted by the learned counsel for the

appellants that the suit of the plaintiffs is dismissed and

defendants claimed counter claim of title and counter claim

came to be partly decreed pertaining to injunction and the

relief of adverse possession was given up. He would also

contend that the First Appellate Court confirmed the finding

on issues but the injunction came to be denied. He would

contend that the records disclose the defendants' possession

over the suit schedule property and the Court ought to have

dismissed the entire appeal without reversing the finding of

the Trial Court regarding injunction in view of the finding

recorded by the Trial Court as well as the Appellate Court.

Hence, he would seek for allowing the appeal by setting

aside the impugned order of the Appellate Court and to

restore the judgment and decree of the Trial Court.

11. Per contra, learned counsel for the respondent

would contend that the title of the defendants itself is not

proved and defendants have not produced any documents to

prove their title. Even the counter-claim now alleged is not in

proper form under Order VIII Rule 6A of CPC and no Court

RSA No. 5119 of 2011

fee is paid and no cause of action is pleaded. Hence, the

question of granting relief in favour of the defendants by way

of counter-claim does not arise at all. Hence, he would seek

for dismissal of the appeal.

12. Having heard the arguments and after perusing

the oral as well as documentary evidence, this Court by

order dated 04.06.2014 framed the following substantial

question of law:

"Whether the 1st Appellate Court has committed a serious error in setting aside the relief of permanent injunction granted by the trial Court to the defendants in their counter claim, by ignoring the material evidence placed on record and thus, the judgment of the 1st Appellate Court is perverse and illegal?"

13. Admittedly, the plaintiffs have filed suit for

declaration of title and possession over the suit property. The

said suit came to be dismissed by the Trial Court. The Trial

Court has answered all the issues in negative including the

issue regarding perfection of title by the defendants by way

of adverse possession. Hence, the Trial Court has dismissed

the suit. The said dismissal of suit was challenged by the

plaintiffs in R.A.No.3/2009. The First Appellate Court allowed

RSA No. 5119 of 2011

the appeal in part and only set aside the injunction granted

in favour of the defendants. Being aggrieved by this

judgment, the defendants are before this Court.

14. All along it is argued that the defendants have

claimed counter claim. However, on perusal of the written

statement, the defendants went on denying the case of the

plaintiffs and ultimately in paragraph No.XV, a prayer is

made that plaintiffs are not entitled for declaratory relief and

further it is claimed that the defendants are entitled for

declaration of title against the plaintiffs and grant of

injunction. On the basis of these pleadings, it is asserted that

the defendants have claimed counter claim. But on perusal of

the written statement, it is evident that no counter claim is

made specifically and no pleadings regarding cause of action,

jurisdiction of court, payment of court fee etc., are pleaded.

The counter claim can be made under Order VIII Rule 6A of

CPC, which reads as under:

"6A. Counter claim by defendant.- (1) A defendant in a suit may, in addition to his right of pleading a set off under rule 6, set up, by way of counter claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either

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RSA No. 5119 of 2011

before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter claim is in the nature of a claim for damages or not:

Provided that such counter claim shall not exceed the pecuniary limits of the jurisdiction of the court.

(2) Such counter claim shall have the same effect as a cross suit so as to enable the court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the counter claim of the defendant within such period as may be fixed by the court.

(4) The counter claim shall be treated as a plaint and governed by the rules applicable to plaints."

15. Hence, the provisions of Order VIII Rule 6A of

CPC specifies that the counter claim is required to be

treated as a plaint and governed by the rules applicable to

the plaint. But in the instant case, the defendants have

neither paid court fee nor pleaded cause of action

including jurisdiction. A simple prayer is made in the

written statement in their favour for declaring their title

and for grant of permanent injunction. Both the Courts did

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RSA No. 5119 of 2011

not consider this aspect and only have considered the plea

of adverse possession set up by the defendants. No doubt,

both the Courts have held that the plaintiffs have failed to

prove their possession and defendants' possession is

upheld, but however defendants are claiming declaratory

relief without paying Court fee and without specific

pleadings regarding cause of action and the counter claim

can not be made in this way. Hence, the question of grant

of any relief in favour of defendants by the Trial Court

does not arise at all. The Trial Court has erroneously

granted injunction in favour of the defendants against the

plaintiffs, which itself is erroneous.

16. The First Appellate Court has rectified the said

mistake though not on ground of counter claim but other

relevant documents regarding non-pleading of relevant

factors and not proving the title also. Apart from that, the

defendants have also specifically asserted that they have

set up title by way of adverse possession in their written

statement. No specific pleadings have been made as to

from which date the possession became adverse to the

knowledge of the plaintiffs is not at all pleaded. Further to

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RSA No. 5119 of 2011

plead adverse possession, the defendants are required to

admit the title of the plaintiffs, but in the instant case,

they are disputing the title of plaintiffs. As such, both the

Courts below have rightly held that the acquisition of title

by way of adverse possession is not established by the

defendants.

17. The learned counsel for the appellants would

contend that during arguments the claim of adverse

possession was given up. But on perusal of the records, it

is evident that the claim was not given up by filing any

specific memo and only it was submitted by the counsel

stating that in the event the relief being granted in favour

of the plaintiffs, the defendants are prepared to give up

the claim of adverse possession. The defendants ought to

have taken proper steps to put it in writing but that was

also not done. Even to grant an injunction, they have not

specifically pleaded the cause of action and no court fee is

paid and no counter claim is also made. Without there

being any counter claim, the question of granting relief of

injunction in favour of the defendants does not arise at all.

The Appellate Court has only reversed the finding to that

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RSA No. 5119 of 2011

effect but the suit of the plaintiffs was dismissed. Both the

Courts are justified in holding that the essential

ingredients to grant relief of adverse possession are not

pleaded and hostile animus and possession adverse to the

knowledge of the true owner is not established. Further, as

observed above, the defendants have not got amended

their written statement by deleting adverse possession

pleading in order to claim counter claim. Looking to these

facts and circumstances of the case, though suit of the

plaintiffs is dismissed, the Trial Court has erroneously

granted the decree of injunction in favour of the

defendants in view of their possession. Merely because the

defendants are in possession, an injunction cannot be

granted unless there is a specific plea by the defendants in

this regard by seeking a particular relief. Looking to these

facts and circumstances, the defendants having failed to

seek any relief before the Trial Court itself, the question of

entertaining this appeal by granting relief of injunction in

favour of the defendants does not arise at all. Hence, the

substantial question of law is answered in the negative

against the appellants-defendants. Hence, the appeal

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RSA No. 5119 of 2011

needs to be dismissed and accordingly, I proceed to pass

the following:

ORDER

The regular second appeal stands dismissed.

In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

Sd/-

JUDGE

YAN