Karnataka High Court
Shamrao S/O Nagappa Myakal Ors vs Meghu S/O Kalu on 25 July, 2024
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RSA No. 7009 of 2011
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.7009 OF 2011 (DEC/INJ)
BETWEEN:
1. SHAMRAO S/O NAGAPPA MYAKAL,
AGE: 65 YEARS, OCC: AGRI.,
R/O. TOWN CHINCHOLI,
2. ANANTHKUMAR S/O SHAMRAO MYAKAL,
AGE: 29 YEARS, OCC: AGRI.,
3. SRINIVAS S/O SHAMRAO MYAKAL,
AGE: 32 YEARS, OCC: AGRI.,
ALL R/O. TOWN CHINCHOLI,
DIST: GULBARGA.
...APPELLANTS
Digitally signed (BY SRI S.B. HANGARKI, ADVOCATE)
by SWETA
KULKARNI
Location: HIGH AND:
COURT OF
KARNATAKA
1. MEGHU S/O KALU,
SINCE DECEASED BY HIS LR'S.
(A) BIKIBAI W/O MEGHUNAYAK,
AGE: 65 YEARS, OCC: HOUSEHOLD.
(B) GOVIND S/O MEGHUNAYAK,
AGE: 40 YEARS, OCC: AGRI.,
(C) MOHAN S/O MEGHUNAYAK,
AGE: 38 YEARS, OCC: AGRI.,
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RSA No. 7009 of 2011
(D) VIJAYKUMAR S/O MEGHUNAYAK,
AGE: 36 YEARS, OCC: AGRI.,
(E) RAJU S/O MEGHUNAYAK,
AGE: 30 YEARS, OCC: AGRI.,
(F) RUKMABAI D/O MEGHUNAYAK,
AGE: 55 YEARS, OCC: HOUSEHOLD.
(G) BICHAMMA,
W/O DECEASED SHANKER S/O MEGHUNAYAK,
AGE: 45 YEARS, OCC: HOUSEHOLD
(H) SRIKANTH,
S/O DECEASED SHANKER S/O MEGHUNAYAK
AGE: 25 YEARS, OCC: AGRI.,
(I) SUDHAK,
S/O DECEASED SHANKER S/O MEGHUNAYAK,
AGE: 23 YEARS, OCC: AGRI.,
ALL R/O. VILLAGE CHANDAPUR,
TQ. CHINCHOLI, DIST: GULBARGA.
...RESPONDENT
(BY SRI SANJEEV KUMAR C PATIL, ADV. FOR R1(B) AND R1(E);
NOTICE FOR R1(A), R1(C) AND R1(D), R1(F), R1(G) TO
R1(I)-SERVED)
THIS RSA FILED UNDER SECTION 100 OF CPC, PRAYING
TO SETASIDE THE JUDGMENT AND DECREE DATED:
27.09.2010 IN R.A. NO.20/2010 PASSED BY THE CIVIL JUDGE
(S.D.) CHINCHOLI CONFIRMING THE JUDGMENT AND DECREE
DATED: 17.03.2009 IN O.S. NO.121/2002 ON THE FILE OF THE
CIVIL JUDGE (J.D.) CHINCHOLI, IN DISMISSING THE COUNTER
CLAIM OF THE APPELLANTS. AND THE COUNTER CLAIM FOR
DECLARATION OF TITLE AND POSSESSION MADE BY THE
APPELLANTS IN THE SUIT BE ALLOWED/DECREED IN THE
INTEREST OF JUSTICE AND EQUITY.
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RSA No. 7009 of 2011
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE Mrs JUSTICE K S HEMALEKHA
ORAL JUDGMENT
(PER: HON'BLE Mrs JUSTICE K S HEMALEKHA)
The defendants are before this Court in the regular
second appeal against the judgment and decree dated
17.03.2009 in O.S No.121/2002 on the file of Civil Judge
(Jr.Dn.) and JMFC at Chincholi, whereby, the counterclaim
made by the defendants was dismissed and confirmed by
the First Appellate Court in R.A No.20/2010 dated
27.09.2010 on the file of Civil Judge (Sr.Dn.) and JMFC at
Chincholi.
2. Parties herein are referred to as per the rank
before the Trial Court for the sake of convenience.
3. Suit seeking relief of declaration and for
permanent injunction in respect of land bearing
Sy.No.40/1 measuring 20 guntas out of 5 acres of land
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towards Eastern side of the plaintiff's land (herein after
referred to as "suit property" for short).
4. The plaint avers that one Magdoomsab s/o
Omersab was the original owner of land bearing
Sy.No.40/1 totally measuring 10 acres 7 guntas situated
at Chandapur village. Magdoomsab had given the said land
to the plaintiff for the purpose of cultivation on half crop
basis about 10 to 12 years and on the basis of cultivation
made by the plaintiff, the name of the plaintiff was
entered in the cultivators column of the suit property.
After coming into force of Karnataka Land Reforms Act,
1961, Form No.7 was filed by the plaintiff before the Land
Tribunal Chincholi, seeking occupancy rights as a tenant of
Sy.No.40/1 to the extent of 10 acres 7 guntas. The Land
Tribunal granted occupancy rights in favour of the plaintiff
to the extent of 5 acres towards the Western side, the
Form No.10 was issued in favour of the plaintiff.
5. It is further stated that the defendants in the
year 1991 purchased the remaining land of Sy.No.40 to
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the extent of 5 acres 7 guntas from the previous owner
Magdoomsab under registered sale deed in favour of
defendant Nos.2 and 3. After the purchase of the land by
defendant Nos.2 and 3, survey was conducted and the
defendants came to know to an extent of 20 guntas
towards the Southern side of their land is encroached by
the plaintiff. It is the case of the plaintiff that he is in
possession of the suit area in addition to the area granted
to him by the Land Tribunal and this fact was very well
known to the defendants after they have purchased from
Magdoomsab and the defendants have not taken any steps
to take possession of the suit area from the plaintiff to the
extent of 20 guntas and contended that alternatively
perfected their right and title over the suit property by
way of adverse possession.
6. On notice, the defendants appeared and filed
their written statement on 09.03.2004, inter alia, denying
the plaint averments and contending that the Land
Tribunal has granted occupancy right in favour of the
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plaintiff to the extent of Western portion 5 acres 7 guntas
in land Sy.No.40 and defendant No.2 has purchased an
area of 2 acres 24 guntas under registered sale deed
dated 06.05.1991, defendant No.3 has purchased an area
of 2 acres 23 guntas through registered sale deed dated
06.05.1991 out of the said Eastern remaining area of 5
acres 7 guntas of land Sy.No.40 from its previous owner
and possessor, namely, Magdoomsab and defendant Nos.2
and 3 are in possession of their respective areas
purchased.
7. It is stated that one Shivaji began to encroach
the land Sy.No.40/2 belonging to defendant Nos.2 and 3,
during the year 1992 and as such, defendants had filed an
application to the Taluka surveyor to survey the said land,
the Taluka surveyor had surveyed the land Sy.No.40/2 on
28.05.1993 in the presence of defendant Nos.2 and 3, the
plaintiff, Vasantkumar, Bhimrao, Shivaji and the panchas,
during the said survey it was revealed that the plaintiff has
encroached an area of 20 guntas, the Western portion of
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the Sy.No.40/2 and the Shivaji encroached an area of 26
guntas, the Southern portion of Sy.No.40/2 of village
Chandapur belonging to defendant Nos.2 and 3. It is
contended that the plaintiff has encroached an area of 20
guntas of land Sy.No.40/2, stating these grounds, the
defendants sought to dismiss the suit.
8. The defendants filed application on 16.11.2004
seeking for amendment of the written statement and by
seeking for relief of possession in respect of 20 guntas of
land encroached area by the plaintiff towards Western
portion of the Sy.No.42/2 by way of counterclaim. The
plaintiff filed objections to the application filed by the
defendants under Order XI Rule 17, the Trial Court on
consideration allowed the application permitting the
defendant to amend the written statement and to
introduce the counterclaim on 03.09.2005. The
defendants amended the written statement setting up a
counterclaim seeking possession of encroached portion of
20 guntas of land in Sy.No.40/2.
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9. The Trial Court on basis of the pleading framed
the following issues:
1. "Whether the plaintiff proves that, he is owner in
possession and enjoyment of suit property?
2. Whether the plaintiff proves the interference by
the defendants?
3. Whether the plaintiff acquire the title of suit
property by way of adverse possession?
4. Whether the defendant proves that, they are
owner in possession and enjoyment of suit
property?
5. Whether the plaintiff entitled for the relief as
sought for in the plaint?
6. Whether the defendants are entitled counter
claim?
7. What order or decree?"
10. The Trial Court on the basis of pleading, oral
and documentary evidence arrived at a conclusion that:
1. The plaintiff has failed to prove that he is
owner in possession of the suit property.
2. That the plaintiff has failed to prove his
interference by the defendants.
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3. That the plaintiff has acquired the title of
the suit property by way of adverse
possession.
4. That the defendants failed to prove that
they are the owners in possession and
enjoyment of the suit property.
By the judgment and decree the suit of the plaintiff
was dismissed and the counterclaim made by the
defendants was also dismissed.
11. Aggrieved, the defendants preferred R.A
No.20/2010 before the First Appellate Court and the
plaintiff filed cross objections. The First Appellate Court
concurred with judgment and decree of the Trial Court and
dismissed the appeal as well as the cross appeal filed by
the plaintiff. Aggrieved, the defendants are before this
Court. No appeal is preferred by the plaintiff against the
dismissal of the suit.
12. This Court, while admitting the appeal, framed
the following substantial questions of law on 26.02.2018:
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1. "Were the Courts below justified in rejecting the
counter claim of the defendants, when they have
taken a specific contention that they are the
owners with regard to declaration and for
possession?
2. Were the defendants prove that they are the
owners, in possession and enjoyment of the suit
property based on oral and documentary evidence
on record?
3. Were the Courts below justified in dismissing the
counter claim as well as the relief of possession.
when they have taken a specific contention that
they are the owners of western portion of land
measuring 0-20guntas in Sy. No.40/2 of
Chandapur village and for possession?
4. Were the Courts below justified in dismissing the
counter claim as well as appeal for declaration and
possession in the facts and circumstances of the
case?"
13. Heard Sri S. B. Hangarki, learned counsel for
the appellants and Sri Sanjeev Kumar C. Patil, Learned
counsel for the respondent Nos.1(b) and 1(e) on the
substantial questions of law framed by this Court and
perused the judgment and decree of the Courts below
including the original documents.
14. The concurrent findings of facts of the Courts
below are interfered, when there is a perversity and
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illegality in the orders passed by the Courts below and
bearing in mind the settled proposition of law, the material
on records are perused. Suit seeking for declaration and
permanent injunction in respect of the suit property, the
claim of the plaintiff is that he is in possession of the suit
property by way of adverse possession, the counterclaim
introduced by the defendants by way of amendment to his
written statement is seeking relief of declaration of their
title to the suit property and for possession, the
defendants got the survey done by the Taluka Surveyor in
the year 1993 and in the year 1993, it was revealed that
the plaintiff had encroached an area of 20 guntas of land.
The plaintiff's plea is that he has perfected his title by way
of adverse possession to prove his adverse possession, the
principles and essential ingredients that are necessary are
that:
(a) Possession must be open, clear, continuous and
hostile to the claim or possession of the other party.
(b) The essential ingredients must co-exist
(i) nec vi i.e., adequate in continuity
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(ii) nec clam l.e., adequate in publicity
(iii) nec precario adverse to a competitor, in
denial of title and knowledge, which means the adverse
possession is proved only when possession is peaceful,
open, continuous and hostile, and merely a long period of
possession, does not translate into a right of adverse
possession. Merely on the basis of denial of another's title
over the property for that would be violative of the basic
rights of the actual owner.
15. When the plaintiff has taken a plea of adverse
possession invariably he admits the title of the defendants,
the plaintiff has to establish that his possession is in
adverse to the knowledge of the defendants and hostility,
both the Courts have held that the plaintiff has failed to
prove his title over the suit property by way of adverse
possession. No appeal has been preferred by the plaintiff
and the said order has attained finality.
16. The possession of the plaintiff came to the
knowledge of the defendants in the year 1993. The
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plaintiff has failed to establish as to when his possession
has become adverse to the knowledge of the defendants,
Article 65 of the Limitation Act, 1963 comes to the aid of
the defendants for seeking possession. Article 65 of the
Limitation Act reads as under:
"Description of suit Period of Time form
limitation which period
begins to run
65. For possession of Twelve When the
immovable property or any years possession of
interest therein based on the defendant
title. becomes
Explanation. For the adverse to the
purposes of this article- plaintiff
(a) where the suit is by a
remainderman, a reversioner
(other than a landlord) or a
devisee, the possession of
the defendant shall be
deemed to become adverse
only when the estate of the
remainderman, reversioner
or devisee, as the case may
be, falls into possession;
(b) where the suit is by a
Hindu or Muslim entitled to
the possession of immovable
property on the death of a
Hindu or Muslim female,
possession of the defendant
shall be deemed to become
adverse only when the
female dies;
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(c) where the suit is by a
purchaser at a sale in
execution of a decree when
the judgment-debtor was out
of possession at the date of
the sale, the purchaser shall
be deemed to be a
representative of the
judgment-debtor who was
out of possession."
17. Article 65 of the Limitation Act prescribes a
limitation of 12 years from the date the possession of the
defendants becomes adverse to the plaintiff. It is not in
dispute that the Taluka Surveyor conducted the survey in
the year 1993 and it is at that point of time the defendants
came to know about the encroachment by the plaintiff
upon the suit property, the defendants filed his written
statement on 09.03.2004, counterclaim by way of
proposed amendment was sought on 16.11.2004. The
Trial Court allowed the application on 03.09.2005 and
permitted the defendants to introduce the counterclaim.
The counterclaim seeking declaration and possession was
within 12 years when the possession became adverse to
the knowledge of the plaintiff. Both the Courts have fell in
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error in dismissing the counterclaim and the judgment
suffers from illegality and perversity warranting
interference by this Court. Accordingly, the substantial
questions of law framed by this Court are answered in
favour of the appellants and against the respondents and
this Court pass the following:
ORDER
I. The regular second appeal is allowed.
II. The judgment and decree of the Courts below in
respect to counterclaim is allowed. The
plaintiff/respondent is directed to hand over the
possession of 20 guntas of land within three
months from the date of release of this order.
Sd/-
(K S HEMALEKHA)
JUDGE
AT
CT: VD
