Karnataka High Court
Sri. Gangadharaiah vs Smt. Pathamma (Dead) on 3 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 27 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 27 OF 2018 (DEC/INJ)
BETWEEN:
1. SRI. GANGADHARAIAH,
S/O LATE CHIKKAMADAPPA,
AGED ABOUT 75 YEARS.
2. SRI. SHIVANANJAPPA,
S/O LATE CHIKKAMADAPPA,
AGED ABOUT 65 YEARS,
BOTH ARE RESIDENT OF
AMBALE VILLAGE,
YELANDUR TALUK,
CHAMARAJANAGARA DISTRICT - 571 313.
...APPELLANTS
(BY SRI. J.S. SOMASHEKAR, ADVOCATE)
Digitally signed
by SUMA B N
Location: High AND:
Court of
Karnataka SMT. PATHAMMA (DEAD)
W/O LATE VISHAKANTAIAH,
LRS ARE ALREADY ON RECORD
1. SRI. A.V.BASAVANNA,
S/O LATE SRI. A.V. VISHAKANTAIAH,
AGED ABOUT 63 YEARS.
2. SRI. MAHADEVASWAMY,
S/O LATE VISHAKANTAIAH,
AGED ABOUT 61 YEARS.
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RSA No. 27 of 2018
3. SRI .A.V. NANJUNDASWAMY,
S/O LATE VISHAKANTAIAH,
AGED ABOUT 57 YEARS.
R1 TO R3 ARE R/AT
DUGATTI VILLAGE,
YELANDUR TALUK,
CHAMARAJANAGRA DISTRICT - 571 313.
SMT. CHINNATHAYAMMA,
D/O LATE VISHAKANTAIAH,
W/O SHIVANANJAPPA,
DEAD BY LRS,
4. SMT. PARVATHAMMA,
W/O MAHADEVASWAMY,
AGED ABOUT 49 YEARS.
5. SMT. NAGARATHNAMMA,
W/O BASAVANNA,
AGED ABOUT 52 YEARS,
R4 AND R5 ARE R/AT
AMBALE VILLAGE,
YELANDUR TALUK,
CHAMARAJANAGRA DISTRICT - 571 313.
6. SMT. RAJAMMA,
W/O DODDAMALLAPPA,
AGED ABOUT 59 YEARS,
DUGATTI VILLAGE,
YELANDUR TALUK,
CHAMARAJANAGRA DISTRICT - 571 313.
SRI. A.V. NAGARAJU,
S/O LATE VISHAKANTAIAH,
DEAD BY LRS.
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RSA No. 27 of 2018
7. SMT. RAJAMMA,
W/O LATE A.V. NAGARAJU,
AGED ABOUT 62 YEARS.
8. SRI. A.N. PARASHIVAMURTHY,
S/O LATE A.V. NAGARAJU,
AGED ABOUT 42 YEARS.
9. SRI. A.N.SURESHKUMAR,
S/O LATE A.V. NAGARAJU,
AGED ABOUT 41 YEARS.
10. SMT. AMBIKA,
D/O LATE A.V. NAGARAJU,
AGED ABOUT 40 YEARS.
R7 TO R10 ARE R/AT
AMBALE VILLAGE
YELANDUR TALUK,
CHAMARAJANAGRA DISTRICT - 571 313.
...RESPONDENTS
(R1, R3 TO R10 ARE SERVED BUT UNREPRESENTED;
V/O DATED R4 IS THE ONLY LRS OF DECEASED R2)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 7.10.2017 PASSED IN RA
NO.11/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
CJM, CHAMARAJANAGAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 1.3.2010
PASSED IN OS NO.45/2004 ON THE FILE OF THE CIVIL JUDGE
(JR.DN) AND JMFC, YELANDUR,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 27 of 2018
JUDGMENT
This appeal is filed by the plaintiffs aggrieved by the
judgment and decree passed by the Trial Court in
O.S.No.45/2004 dated 01.03.2010 on the file of Civil
Judge (Junior Division) and JMFC, Yelandur, confirmed by
the First Appellate Court in RA No.11/2010 dated
07.10.2017 on the file of Senior Civil Judge and CJM,
Chamarajanagar. The suit of the plaintiffs is for the relief
of declaration that they have perfected title over the suit
schedule property by way of adverse possession.
2. The claim of the plaintiffs is that:
i. Plaintiff No.1 is the owner in actual possession
and of the suit schedule property having
inherited the same through his ancestors.
ii. That the father of the plaintiffs was in actual
possession and enjoyment of the same.
Thereafter, the plaintiffs continued to be in
possession and enjoyment of the property over
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several decades exclusively, openly,
uninterruptedly and peacefully.
iii. That defendant No.1 had filed a suit in
O.S.No.130/1979 against the plaintiffs for the
relief of permanent injunction, which was
decreed. As against the same, an appeal in RA
No.11/1982 was filed by the plaintiffs which was
allowed. As against which a Regular Second
Appeal was filed by plaintiff No.1 in RSA
No.171/2005, which was also dismissed.
Thereafter, defendants filed another suit in
O.S.No.83/1987 for the relief of permanent
injunction which was decreed. Against which
the plaintiffs herein had filed RA No.342/2002,
which was also dismissed.
iv. That not withstanding the judgment and decree
passed in O.S.No.83/1987 and dismissal of R.A.
No.342/2002, plaintiffs continued to be in
possession of the property.
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v. That the Trial Court and the First Appellate
Court while deciding the case against the
plaintiffs had held that since, the question of
possession has been decided in the earlier suit
and same could not be re-agitated.
vi. Thus, it is contended that the finding given by
the Trial Court and the First Appellate Court in
the said suit were erroneous.
vii. Further, it is contended that the plaintiffs
apprehending the interference with their
peaceful, exclusive, open and uninterrupted
possession, filed the present suit seeking
comprehensive relief of declaration declaring
that they are in settled possession of suit
schedule property exclusively, interruptedly,
openly and peacefully for over twelve years and
for consequential relief.
3. The suit is resisted by defendants by filing
detailed written statement. Defendants denied the plaint
averments contending that:
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i. the plaintiffs were never in possession of the
suit property and they are not entitled to any
relief whatsoever and the suit is hit by the
principle of res-judicata under Section 11 of
CPC.
ii. That the earlier suit in O.S.No.83/1987 which
was filed by the defendants was decreed in
favour of the defendants and same has
attained finality in which the possession of the
defendants has been up-held.
iii. That the suit of the plaintiffs was not
otherwise maintainable. Hence, sought for
dismissal of the suit.
4. Based on the pleadings, the Trial Court
framed following issues for its consideration:
"(1) Whether the plaintiffs prove that they are in
physical possession and enjoyment over the
suit schedule property?
(2) Whether the suit is hit by principles of
respondent-judicata?
(3) Whether the plaintiffs prove the alleged
interference by the defendants?
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(4) Whether the plaintiffs are entitled for the relief
of declaration?
(5) Whether the plaintiffs are entitled for the relief
of permanent injunction?
(6) What order or decree?"
5. The Trial Court has taken up issue No.2 as a
preliminary issue and has held other issues as did not
survive for consideration. While answering issue No.2,
the Trial Court has held that in the earlier suit in
O.S.No.83/1987, since, the issue with regard to the
possession has been considered and same has been held
in favour of defendants, the same was hit by principle of
res-judicata, as such, concluded the subsequent suit on
the same question cannot be gone into. Consequently,
dismissed the suit.
6. Being aggrieved by the aforesaid judgment,
plaintiffs have preferred the appeal before the First
Appellate Court. The First Appellate Court considering
the grounds urged in the memorandum of appeal,
framed the following points for its consideration:
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"Point No.1: Whether the appellants proves
that the judgment and decree of the learned
Trial Court is opposed to natural justice, law
and facts of the case?
Point No.2: Whether the appellants proved
that the learned Trial Court has not appreciated
oral and documentary evidence available on
record?
Point No.3: Whether the appellants proved
that the suit of the plaintiffs had to be decreed
by the learned Trial Court?
Point No.4: What order?"
7. On re-appreciation of the evidence, the First
Appellate Court confirmed the finding and conclusion
arrived by the Trial Court.
8. Being aggrieved by the same, the
appellants/plaintiffs are before this Court.
9. This Court by order dated 19.02.2024 framed
following substantial questions of law:
1. Whether the Trial Court and the First Appellate
Court are justified in dismissing the suit only on
the ground that the same having been barred
under Section 11 of the C.P.C. in view of the
earlier judgment and decree passed in
O.S.No.45/2004 for injunction, when the
plaintiff has filed present suit for declaration and
injunction seeking to have perfected his title by
adverse possession?
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2. Whether the Trial Court and the First Appellate
Court are justified in dismissing the suit of the
plaintiff without adverting to the pleading and
evidence produced by the plaintiff justifying his
claim for relief of declaration and possession?
10. Learned counsel for the appellants/plaintiffs
reiterating the grounds urged in the appeal
memorandum submitted that the Trial Court and the
First Appellate Court grossly erred in dismissing the suit
merely on the ground of same having been hit by the
principle of res-judicata inasmuch as the present suit is
one for declaration and not for injunction. He submitted
that the specific case of plaintiffs is that they have been
in possession and enjoyment of the suit property over
twelve years. In fact the father and the ancestors of the
plaintiffs were also in possession of the suit property. It
is his further contention that since, the cause of action,
pleading and the evidence adduced by the plaintiffs in
the present suit was not the one which was the subject
matter of the previous suit, the Trial Court and the First
Appellate Court ought not to have dismissed the suit
applying the principals of res-judicata. Thus, he submits
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that substantial question of law No.1 be answered in his
favour.
11. As regard to the relief of declaration is
concerned, he submits that since the decree that was
passed in the previous suit in O.S.No.130/1979, was set
aside upon the appeal filed by the plaintiffs, possession
of the plaintiffs was established. Thus, the said order
was noticed sufficient enough for the defendants to have
initiated the action for recovery of possession. Since,
the defendants have not chosen to seek any substantial
relief including the recovery of possession, the same
should operate as cause of action to confirm the title in
favour of plaintiffs by way of adverse possession.
Hence, seeks for allowing of the appeal.
12. Heard and perused the records.
13. In the case of Brijesh Kumar and anr Vs Sharda
Bai (dead) by Lrs and others reported (2019) 9 SCC 369
at paragraph 13 has held as under:
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13. Adverse possession is hostile possession by assertion of
a hostile title in denial of the title of the true owner as held
in M. Venkatesh [M. Venkatesh v. BDA, (2015) 17 SCC 1 :
(2017) 5 SCC (Civ) 387] . The respondent had failed to
establish peaceful, open and continuous possession
demonstrating a wrongful ouster of the rightful owner. It
thus involved question of facts and law. The onus lay on
the respondent to establish when and how he came into
possession, the nature of his possession, the factum of
possession known and hostile to the other parties,
continuous possession over 12 years which was open and
undisturbed. The respondent was seeking to deny the
rights of the true owner. The onus therefore lay upon the
respondent to establish possession as a fact coupled with
that it was open, hostile and continuous to the knowledge
of the true owner. The respondent-plaintiff failed to
discharge the onus. Reference may also be made to Chatti
Konati Rao v. Palle Venkata Subba Rao [Chatti Konati
Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 :
(2012) 1 SCC (Civ) 452] , on adverse possession observing
as follows: (SCC p. 322, para 15)
"15. Animus possidendi as is well known is a
requisite ingredient of adverse possession. Mere
possession does not ripen into possessory title
until the possessor holds the property adverse to
the title of the true owner for the said purpose.
The person who claims adverse possession is
required to establish the date on which he came
in possession, nature of possession, the factum
of possession, knowledge to the true owner,
duration of possession and that possession was
open and undisturbed. A person pleading
adverse possession has no equities in his favour
as he is trying to defeat the rights of the true
owner and, hence, it is for him to clearly plead
and establish all facts necessary to establish
adverse possession. The courts always take
unkind view towards statutes of limitation
overriding property rights. The plea of adverse
possession is not a pure question of law but a
blended one of fact and law."
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14. In view of the aforesaid settled legal principles
of law governing the claim of adverse possession,
this Court is wary to accept the said submissions of
learned counsel for the following reasons:
i. The perusal of the plaint would reveal that
except claiming that plaintiffs being in
continuous possession of the property, there
is no whisper whatsoever, as to when the
plaintiffs possession over the property
became hostile to the title and interest of the
defendants. Needless to state that animus
possidendi in other words hostile intention to
occupy the property belonging to another is
an essential ingredient in the case where the
relief of declaration of adverse possession is
sought. This essential requirement is
completely lacking in the pleading of the
plaint.
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ii. No doubt, the plaintiffs have stated about
they having filed the appeal in RA No.11/1982
against the judgment and decree passed in
O.S.No.130/1979, that by itself cannot be
construed to be pleading enough to hold that
the plaintiffs are occupying the premises
hostile to the title of the defendants.
iii. Further, even according to plaintiffs,
defendants had filed another suit in
O.S.No.83/1987 and the same was decreed
which has attained finality. Challenge to the
same by the plaintiffs herein by filing the
appeal in RA No.342/2002 was aslo
dismissed.
iv. In that view the matter, the plaintiffs cannot
claim to be in uninterrupted possession of the
property.
15. Learned counsel for the plaintiffs/appellants
insists that though there is no pleading with regard to
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the date/month/year from which the possession of the
plaintiffs became hostile, the same has to be construed
liberally. The said submission cannot be accepted.
Since, these ingredients are lacking in the suit for
declaration, no amount of evidence adduced by the
plaintiff regarding his possession would come to his aid.
As such, the suit being one for declaration, plaintiffs
ought to have pleaded and proved the same in the
manner known to the law. That not having been done,
the appeal lacks merits. The substantial questions of
law are answered accordingly, the appeal is dismissed.
Sd/-
JUDGE
KAV
