Karnataka High Court

Shivanappa S/O Fakirappa ... vs Veerabhadragouda S/O ... on 30 October, 2023

Bench: K.S.Hemalekha

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                                                          NC: 2023:KHC-D:12752
                                                               RSA No. 101033 of 2016




                                      IN THE HIGH COURT OF KARNATAKA

                                             DHARWAD BENCH

                               DATED THIS THE 30TH DAY OF OCTOBER, 2023

                                                  BEFORE
                                   THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
                       REGULAR SECOND APPEAL NO. 101033 OF 2016 (DEC/INJ-)
                      BETWEEN:

                            SHIVANAPPA S/O FAKIRAPPA PASCHAPUR,
                            AGE:42 YEARS, OCC.AGRICULTURE,
                            R/O: LOKUR, TALUK AND DIST. DHARWAD-581206.

                                                                           ...APPELLANT

                      (BY SRI. V. G. BHAT, ADVOCATE)

                      AND:

                      1.    VEERABHADRAGOUDA S/O MADIWALAGOUDA PATIL,
                            AGE:MAJOR, OCC. AGRICULTURE,
                            R/O: LOKUR, TALUK AND DIST.DHARWAD-581206.

                      2.    GRAM PANCHAYAT LOKUR VILLAGE,
                            TALUK AND DIST. DHARWAD-581206.
         Digitally
         signed by
                            REPRESENTED BY ITS SECRETARY
         VISHAL
VISHAL   NINGAPPA
NINGAPPA PATTIHAL                                                      ...RESPONDENTS
PATTIHAL Date:
         2023.11.04
         12:15:46     (BY    SRI     MALLIKARJUNSWAMY     B.   HIREMATH,   ADV.   FOR
         +0530
                      CAVEATOR/RESP. NO.1)

                            THIS REGULAR SECOND APPEAL IS FILED U/SEC.100 OF CPC,
                      AGAINST THE JUDGMENT & DECREE DTD:28.11.2016 PASSED IN
                      R.A.NO.169/2015 ON THE FILE OF THE IV ADDITIONAL DISTRICT
                      AND SESSIONS JUDGE, DHARWAD, DISMISSING THE APPEAL AND
                      CONFIRMING THE JUDGMENT AND DECREE DTD: 10.06.2008,
                      PASSED IN O.S. NO. 29/2007 ON THE FILE OF THE ADDITIONAL
                      CIVIL JUDGE (JR.DN.) AND JUDICIAL MAGISTRATE FIRST CLASS,
                      DHARWAD, DISMISSING THE SUIT FILED FOR DECLARATION AND
                      PERMANENT INJUNCTION.
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                                   NC: 2023:KHC-D:12752
                                     RSA No. 101033 of 2016




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

The unsuccessful plaintiff is before this Court assailing

the concurrent findings of the Courts below, whereby, the

suit for declaration and injunction came to be dismissed.

2. The parties herein are referred to as per their

ranking before Trial Court for the sake of convenience.

3. Suit for declaration to declare that the entry of

defendant No.1's name in the property tax extract in respect

of the suit schedule property and the resolution passed by

confirming such entry by defendant No.2 is illegal and void,

that defendant No.2 be directed to correct the entries in the

property tax extract, defendants be permanently restrained

from dispossessing the plaintiff and his family members from

peaceful possession and enjoyment of the suit schedule

property by way of a decree of permanent injunction.

4. The plaint averred that the plaintiff and his family

members are enjoying the suit schedule property since more

than 60 years. The plaint avers that the plaintiff is in

NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

possession since ancestors continuously as owner of the suit

schedule property.

5. Pursuant to the suit summons issued by the Trial

Court the defendants filed written statement inter alia

denying the entire plaint allegations and the possession of

the plaintiff over the suit property since 60 years. By way of

a counter claim, defendant No.1 contended that defendant

No.1 is the owner and the plaintiff is the licensee residing in

some portion of the house constructed in RS No.16 now

renumbered as 61, which is constructed by the adopted

mother and after her death, the land and building inherited

by defendant No.1. The defendant No.1 sought for a

declaration that he is the owner of the suit property bearing

No.61 situated at ward No.2 which is registered at Sl.No.98

of Lokur village, Dharwad Taluka.

6. The plaintiff filed rejoinder to the counter claim

filed by the defendants stating that the counter claim is false

and is not in accordance with law. Plaintiff denied the entire

counter claim made by the defendant.

NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

7. The Trial Court on the basis of the pleadings

framed the issues and additional issues which reads as

under:

1. Whether plaintiff proves that he has been in possession and enjoyment of suit schedule property since 60 years ?

2. Whether plaintiff further proves that the defendant No.1 made illegal attempts to got entry of his name in property tax card maintained by defendant No.2 pertaining to schedule property ?

3. Whether defendant No.1 proves that he is the absolute owner and in possession of the schedule property ?

4. Whether plaintiff proves that the defendant No.1 has been trying to dispossess him from suit schedule property under the guise of wrong entry of his name in property tax card ?

5. Whether the plaintiff proves that alleged intereference by defendant No.1 over the suit schedule property ?

6. Whether the plaintiff is entitled to the relief of direction and injunction as sought for ?

7. What order or decree ?

ADDITIONAL ISSUES:

1. Whether defendant No.1 proves that, late late Shivanagouda Patil was in possession of suit property and handed over the same to him ?

NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

2. Further, first deft proves that, he handed over the suit property to plaintiff, at his request or residence to his family for some days as licensee ?

3. Whether defendant No.1 is entitled to the relief of counter claim as sought for ?

8. In order to substantiate their claim the plaintiff

examined himself as PW.1 and got marked documents at

Ex.Ps.1 to P.13. On the other hand, defendant No.1 got

himself examined as DW.1 and two more witnesses as DW.2

and DW.3 and got marked documents at Ex.Ds.1 to D.13.

9. The Trial Court on the basis of the pleadings, oral

and documentary evidence held that:

i) The plaintiff has failed to prove that he is in possession and enjoyment of the suit schedule property since 60 years.

ii) The plaintiff failed to prove that the defendant made illegal entry of his name in the property extract.

iii) The defendant No.1 proved that he is the

absolute owner in possession of the suit schedule property.

NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

By the judgment and decree the Trial Court dismissed

the suit and allowed the counter claim filed by the defendant

and declared the defendant as the owner of the suit schedule

property, directing the plaintiff to handover the possession of

the suit schedule property to the defendant within 15 days

from the date of the order.

10. Aggrieved by which, the plaintiff preferred appeal

before the First Appellate Court against the Judgment and

decree of the Trial Court in dismissing the suit. No appeal

was preferred against the counter claim against the decreetal

of the counter claim. The First Appellate Court on

reassessing the entire oral and documentary evidence

independently, has concurred with the judgment and decree

of the Trial Court and dismissed the appeal preferred by the

plaintiff. Aggrieved by the concurrent findings of facts of the

Courts below, the present appeal is by the plaintiff.

11. Heard Sri. V.G. Bhat, learned counsel for the

appellant and Sri. Mallikarjun Swamy B. Hiremath, learned

counsel appearing for the respondent and perused the

Judgment and decree of the Courts below.

NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

12. Defendant No.1 contended that he is the owner

and the plaintiff is a licensee temporarily in some portion of

the house constructed in R.S.No.16 measuring 7 acres 12

guntas and the property number is now given as property

No.61 as mentioned in the counter claim. The question that

needs to be answered by this Court is whether the plaintiff

was in possession of the suit schedule property as alleged in

the plaint or whether the possession of the plaintiff is with

permission of defendant as a licensee.

13. The facts reveal that the plaintiff has sought for

the declaration regarding the entry of the name of defendant

No.1 in the revenue record to be illegal and that the plaintiff

is in possession, continuous, peaceful to the knowledge of

the defendant. The pleadings of the plaintiff nowhere

establishes under what capacity the plaintiff is in possession

of the suit schedule property. Merely stating that he is in

possession cannot establish his right over the suit schedule

property, the plaintiff has to necessarily prove as to from

which date the possession of the plaintiff became hostile.

NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

14. On perusal of plaint averments, only evidences

that the plaintiff contends that he is in possession of the suit

schedule property since last 60 years and denies the title of

the defendant over the suit schedule property. The plaint

averments on the other hand establish that the plaintiff is

claiming to be in possession of the suit schedule property

continuous and in peaceful possession as owners of the suit

schedule property. The pleadings as could be seen from the

plaint is that does not in any way makes it clear as to in

what capacity the plaintiff is in possession of the suit

schedule property. In order to establish that the plaintiff is

in continuous and in peaceful possession, the plaintiff has to

show that his possession was adverse to the knowledge of

the true owner. In the instant case, the plaintiff has not

admitted the title of the defendant, and tried to contend that

neither the defendant is the owner of the suit property nor

having any interest or right over the suit property. The

material on record would evidence that the defendant

contended that the plaintiff provided the portion of the house

to the plaintiff for his residence as a licensee, where there is

NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

a permissive possession given by the owner and the plaintiff

claims that he has been in possession of the suit schedule

property peacefully and continuously, the plaintiff has to

specifically plead and prove as to when the possession

becomes adverse in order for the real owner to lose title.

The plaint averments are totally silent about the said aspect

and in what capacity the same does not find place in the

entire pleadings of the plaintiff. The defendants on the other

hand has set up a counter claim, categorically contended at

paragraph No.6, which reads as follows:

"Hand sketch map shows in detail is - ABCD shows the boundary of block no.16 which measures 7 acres 12 guntas belonging to the family of (plaintiff - defendant No.1) defendant No.1 EHJK shows the boundary of the house. EFMQ portion shows the exclusive possession of the plaintiff - defendant No.1 wherein he ties his cattle's and used to keep some of the agricultural equipments and pump set materials. It is northern side door through which the plaintiff and defendant No.1 using the portion together FHIM portion is in possession of the defendant (plaintiff). OPMIJ portion is used as passage. It is

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NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

being used by both the parties. QL is the door using by defendant No.1 plaintiff exclusively. KOPQ is a bathing point of plaintiff - defendant. Back to the house torwards north 2 neem trees and one water tank is there remaining portion using for cultivation. Towards west of the house Lokur Sahakari Bank is situated. Towards South about 10 open place which is part of the landed property. Towards east there is a common well and by the side of eastern wall of the house plaintiff - defendant No.1 stored about 9 tractors stones for construction of additional portion of the house.

15. The entire material which was placed by the

plaintiff in order to substantiate his contention was Exs.P.1

to 13. The name of defendants in the revenue records is in

view of resolution passed by the authority. Defendants claim

their right over property bearing Sy.No.16 and now

numbered as the suit schedule property. On the other hand

the plaintiff only contended that there is a house and

backyard situated in the property No.61. This possession of

the suit schedule property cannot be held is continuous and

peaceful with the knowledge of the defendants. The Trial

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NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

Court has rightly dismissed the suit of the plaintiff. The

allowing of the counter claim in favour of the defendants has

not been assailed by the plaintiff. Order VIII Rule 6A of CPC

envisages a counter claim to be filed by the defendants.

Clause (4) of Order VIII Rule 6A envisages that the counter

claim shall be treated as a plaint as governed by the Rules

applicable to the plaints. Counter claim when conclusively

adjudicated on merits and dismissed by order of the Court,

finality is attached in respect of the rights of the defendant

and such order gets status of a decree. The Apex Court in

the case of Rajni Rani and another Vs. Khairatilal and

others reported in (2015) 2 SCC 682 at paragraph No.16

has held as under:

"16. We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A court may draw up a formal decree or may not, but if by virtue of the order of the court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree. As is evincible, in the case at hand, the counterclaim which is in the nature of a cross-suit has been dismissed. Nothing else survives for the defendants who had filed the counterclaim. Therefore, we have no hesitation in holding that the order passed by the learned trial Judge has the status of a decree and the challenge to the same has to be made before the appropriate forum where appeal could lay by

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NC: 2023:KHC-D:12752 RSA No. 101033 of 2016

paying the requisite fee. It could not have been unsettled by the High Court in exercise of the power under Article 227 of the Constitution of India. Ergo, the order passed by the High Court is indefensible."

16. The counter claim to be treated as a plaint and a

separate appeal lies against the rejection or allowing of a

counter claim.

17. In the instant case, the Trial Court has

adjudicated the counter claim on merits, the plaintiff has not

preferred any appeal against allowing of counter claim,

perusal of the appeal grounds in the regular appeal does not

even state for seeking setting aside of the counter claim as

rightly contended by the learned counsel appearing for the

respondent. Though the First Appellate Court before whom

the appeal was preferred by the plaintiff failed to take into

consideration about the maintainability of the single appeal