Sri Iyyappa vs Sri Thayappa @ Ravi
2024 Latest Caselaw 3229 Kant

Karnataka High Court

Sri Iyyappa vs Sri Thayappa @ Ravi on 2 February, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                  RSA No. 518 of 2019




               IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 2ND DAY OF FEBRUARY, 2024

                                     BEFORE
                      THE HON'BLE MR JUSTICE M.G.S. KAMAL
                REGULAR SECOND APPEAL NO. 518 OF 2019 (DEC)
               BETWEEN:
                      SRI. IYYAPPA
                      S/O LATE KANDAPPA
                      AGED ABOUT 75 YEARS,
                      R/AT VENKATALA VILLAGE,
                      YELAHANKA HOBLI
                      BENGALURU NORTH TALUK
                      BENGALURU
                      SINCE DECEASED BY LR'S

               1(A)   ASHWATHAIAH A.,
                      S/O SRI. IYYAPPA
                      AGED ABOUT 52 YEARS
                      HOUSE NO.1, 29 A CROSS
                      IYAPPA BADAVANE
Digitally             NEAR BRINDAVAN APARTMENTS
signed by
SUMA B N              MARUTHI NAGAR 1ST MAIN
Location:             YELAHANKA, BENGALURU -560 064.
High Court
of Karnataka   1(B)   RAJANNA V.I
                      S/O SRI. IYYAPPA
                      AGED ABOUT 51 YEARS
                      HOUSE NO.5, 29 A CROSS
                      IYAPPA BADAVANE
                      NEAR BRINDAVAN APARTMENTS
                      MARUTHI NAGAR, 1ST MAIN
                      YELAHANKA, BENGALURU - 560 64.
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                                   RSA No. 518 of 2019




1(C)   MUNIKRISHNA V.I
       S/O SRI. IYYAPPA
       AGED ABOUT 49 YEARS
       HOUSE NO.3, 29 A CROSS
       IYAPPA BADAVANE
       NEAR BRINDAVAN APARTMENTS
       MARUTHI NAGAR, 1ST MAIN
       YELAHANKA, BENGALURU - 560 064.

1(D)   MANJUNATH A.,
       S/O SRI. IYYAPPA
       AGED ABOUT 48 YEARS
       HOUSE NO.6, 29 A CROSS
       IYAPPA BADAVANE
       NEAR BRINDAVAN APARTMENTS
       MARUTHI NAGAR, 1ST MAIN
       YELAHANKA, BENGALURU - 560 064.

1(E)   LOKESH A.,
       S/O SRI. IYYAPPA
       AGED ABOUT 46 YEARS
       HOUSE NO.8, 29 A CROSS
       IYAPPA BADAVANE
       NEAR BRINDAVAN APARTMENTS
       MARUTHI NAGAR 1ST MAIN
       YELAHANKA, BENGALURU - 560 064.

1(F)   LATE MR. SRINIVAS
       S/O SRI. IYYAPPA
       REPRESENTED BY LR'S

1(F)(a) MANJULA V.,
        W/O MR. SRINIVAS
        AGED ABOUT 36 YEARS
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                                      RSA No. 518 of 2019




1(F)(b) CHETAN S.,
        S/O MR. SRINIVAS
        AGED ABOUT 20 YEARS

1(F)(c)   KUSHAL S.,
          S/O MR. SRINIVAS
          AGED ABOUT 13 YEARS
          REPRESENTED BY GUARDIAN
          SMT. MANJULA V.,

1(F)(d) KAVANA S.,
        D/O MR. SRINIVAS
        AGED ABOUT 13 YEARS
        REPRESENTED BY GUARDIAN
        SMT. MANJULA V.,

          HOUSE NO.1, 29 A CROSS
          IYAPPA BADAVANE
          NEAR BRINDAVAN APARTMENTS
          MARUTHI NAGAR, 1ST MAIN
          YELAHANKA
          BANGALORE - 560 064.

                                             ...APPELLANTS
(BY SRI. UNNIKRISHNAN M., ADVOCATE)

AND:
1. SRI THAYAPPA @ RAVI
   S/O LATE PACHAMUTAPPA
   AGED ABOUT 60 YEARS,

2.   SRI SUBRAMANI
     S/O LATE PACHAMUTAPPA
     AGED ABOUT 54 YEARS
     BOTH ARE R/AT NO.555 KALLIBHAVI ROAD,
     YELAHANKA BENGALURU NORTH TALUK
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                                  RSA No. 518 of 2019




     BENGALURU.

3.   SRI DAYANANDA PAI
     S/O LATE NARASIMHA PAI
     RESIDING AT NO.10/1,
     LAKSHMINARAYANA COMPLEX
     PALACE ROAD
     VASANTHANAGAR
     BENGALURU-560 052.

4.   SRI SATISH PAI
     S/O LATE NARASIMHA PAI
     RESIDING AT NO.10/1,
     LAKSHMINARAYANA COMPLEX
     PALACE ROAD, VASANTHNAGAR
     BENGALURU-560 052.

5.   SRI A. RAMAKRISHNA
     S/O SRI ANJANEYACHAR
     OPP TO SRIRAMA TEMPLE
     BYATARAYANAPURA
     BENGALURU-BELLARY ROAD
     BENGALURU-560 092.

6.   SMT LAKSHMAMMA
     W/O LATE KRISHNAPPA
     AGED ABOUT 60 YEARS,

7.   SRI K NAGARAJ
     S/O LATE KRISHNAPPA
     AGED ABOUT 47 YEARS,

8.   SRI K KUMAR
     S/O LATE KRISHNAPPA
     AGED ABOUT 42 YEARS,
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9.   SHEELAMMA @ KAVYA
     W/O R NAVEEN KUMAR
     D/O LATE KRISHNAPPA
     AGED ABOUT 38 YEARS,

     RESPONDENTS NOS. 6 TO 9 ARE
     RESIDING AT NO.114 VENKATALA VILLAGE
     YELAHANKA HOBLI
     BENGALURU NORTH TALUK
     BENGALURU.

                                           ...RESPONDENTS
(BY SRI. H.R. ANANTHA KRISHNA MURTHY, ADVOCATE FO R3
TO R5;
SRI. SURESH M. CHARAMAGOL, ADVOCATE FOR R6 TO R9;
NOTICE TO R1 & R2 IS HELD SUFFICIENT VIDE ORDER
DATED:20.12.2023)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT & DECREE DATED:21.12.2018
PASSED IN R.A.NO.06/2017 ON THE FILE OF THE IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT BENGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE ORDER DATED 01.12.2016 PASSED IN
O.S.NO.1222/2007 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT
BENGALURU,

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:



                       JUDGMENT

This appeal is by the plaintiff No.1 (since deceased

by his legal representatives aggrieved by the Judgment

and decree dated 01.12.2016 passed in O.S.No.1222/2007

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on the file of II Additional Senior Civil Judge, Bengaluru

Rural District, Bengaluru by which trial court has

dismissed the suit of the plaintiffs which Judgment and

decree has been confirmed by Judgment and order dated

21.12.2018 passed in regular appeal in R.A.No.6/2017 on

the file of IX Additional District and Sessions Judge,

Bengaluru Rural District, Bengaluru. Being aggrieved by

the same the plaintiffs are before this Court.

2. The above suit in O.S.No.1222/2007 has been

filed seeking following reliefs:

"a. Judgment and decree of Declaration declaring plaintiffs title to the schedule land by way of adverse possession and the sale deed executed by the defendant in favour of the defendant no. 5 pertaining to the suit property bearing Reg. No. BNG(U)YLNK/192/2009- 10/1-9 by rounding up pending registration is not binding on the plaintiffs.

b. For the judgment and decree or permanent injunction restraining the defendants from alienating and encumbering the suit land in any manner, by themselves, their agents or anybody working under their directions.

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c. For the judgments and decree of permanent injunction restraining the defendants 3 and 4 interfering with the plaintiffs possession and enjoyment of the suit land in any manner, either by themselves, their agents or anybody working under their directions.

d. For any other relief or relief's as this Hon'ble Court deems fit to grant on the facts and circumstances of the case".

3. Defendants filed an application under Order VII

Rule 11(d) of CPC seeking rejection of plaint contending in

principle that a plea of adverse possession was not

available to the plaintiffs.

4. The trial Court accepted the application rejecting

the plaint by impugned order holding that the plea of

adverse possession to claim ownership is available only

when the person in the adverse possession is arrayed as a

defendant in the suit filed against him and that adverse

possession has to be used as a shield and not as a sword.

Aggrieved by the same plaintiff No.1 preferred regular

appeal in R.A.No.6/2017. First appellate Court dismissed

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the appeal confirming the Judgment and decree of the trial

court. Being aggrieved by the same appellants are before

this Court.

5. This appeal was admitted by order dated

28.01.2021 to consider the following substantial question

of law:

"a) Whether the finding recorded by the both the Courts below is justified in view of the law declared by the Hon'ble Supreme Court in the case of Krishnamurthy S.Setlur (D) by Lrs V/s. O.V.Narasimha Setty (D) by Lrs reported in 2019 SCC 9 488?

b) Whether the suit filed by the plaintiff/appellant is maintainable in view of the dictum of the Hon'ble Supreme Court stated supra?

c) Whether the finding recorded by the Trial Court on the application made by the defendant No.5 under Order VII Rule 11(a) and (d) CPC is justifiable? "

6. Learned counsel for the appellants referred to the

Judgment of the Apex Court in the case of Krishnamurthy

S.Setlur (d) by Lrs VS O.V.Narasimha Setty (D) by Lrs Vs

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O.V.Narasimha Setty (D) by Lrs reported in (2019) 9 SCC

488 followed in Ravinder Kaur Grewal and others Vs

Manjit Kaur and others reported in (2019) 8 SCC 729

wherein at paragraph 53 the Apex Court has held as

under:

"53. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated".

7. Referring to the above learned counsel for

appellants submit the trial Court and first appellate Court

were in error in rejecting the plaint holding a view contrary

to the law laid down by the Apex Court warranting

interference at the hands of this Court by answering

substantial question of law in favour of the appellants.

Learned counsel for appellants further submit that since

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these aspects of the matter have not been considered by

the trial Court and first appellate Court matter be

remanded for fresh consideration.

8. Learned counsel for the respondents does not

dispute the above settled position of law. He however

submits that trial court be directed to consider the

application afresh and all contentions of the parties be

kept open.

9. Submissions taken on record.

Appeal is allowed. Judgment and Order dated

21.12.2018 passed in R.A.No.6/2017 and Judgment and

decree dated 01.12.2016 passed in O.S.No.1222/2007 are

set aside. Plaint in O.S.No.1222/2007 is restored. Matter

is remitted to trial Court.

Trial court after affording opportunity to the plaintiffs

and defendants shall dispose of the application afresh

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within an outer limit of two months from the date of

receipt of certified copy of this order.

All contentions are kept open.

Sd/-

JUDGE

SBN