Karnataka High Court

Smt. Kashavva W/O Arjunappa ... vs Smt. Radhavva W/O Tippanna Ghatage on 28 June, 2024

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                                                    NC: 2024:KHC-D:9035
                                                      RSA No. 100647 of 2017




                      IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                            DATED THIS THE 28TH DAY OF JUNE, 2024

                                           BEFORE

                           THE HON'BLE MR JUSTICE C.M. POONACHA

                  REGULAR SECOND APPEAL NO. 100647 OF 2017 (DEC/INJ-)


                 BETWEEN:

                 1.   SMT. KASHAVVA W/O ARJUNAPPA
                      SANTANNANAVAR,
                       AGED ABOUT: 73 YEARS,
                      OCC: AGRICULTURE & HOUSEHOLD,
                      R/O: HARANAGERI, TQ: HANGAL,
                      DIST: HAVERI-581115.
                      (SENIOR CITIZEN NOT CLAIMED)

                 2.   NAGAPPA S/O ARJUNAPPA
                      SANTANNANAVAR, AGED ABOUT 46 YEARS,
                      OCC: AGRICULTURE, R/O: HARANAGERI,
                      TQ: HANGAL, DIST: HAVERI-581115.


Digitally signed by 3. JAGADEESH S/O ARJUNAPPA
SAROJA                 SANTANNANAVAR, AGED ABOUT 43 YEARS,
HANGARAKI
                       OCC: AGRICULTURE, R/O: HARANAGERI,
Location: HIGH
COURT OF               TQ: HANGAL, DIST: HAVERI-581115.
KARNATAKA                                                       ...APPELLANTS
DHARWAD BENCH (BY SRI B.M.PATIL, ADVOCATE)
DHARWAD

                 AND:

                 1.   SMT. RADHAVVA W/O TIPPANNA GHATAGE
                      AGED ABOUT 68 YEARS,
                      OCC: HOUSEHOLD, R/O: MOTEBENNUR,
                      TQ: BYADAGI, DIST: HAVERI-581106.
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                                                NC: 2024:KHC-D:9035
                                                   RSA No. 100647 of 2017




2.      MALLAPPA S/O FAKKIRAPPA GALI
        AGED ABOUT 40 YEARS,
        OCC: AGRICULTURE, R/O: HARANAGERI,
        TQ: HANGAL, DIST: HAVERI-581115.
                                                             ...RESPONDENTS
(BY SRI PRASHANT V. MOGALI, ADVOCATE FOR R-2;
 R1- APPEAL ABATED)

         THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO ALLOW THE
APPEAL AND SET ASIDE THE JUDGMENT AND DECREE PASSED BY
THE COURT OF THE SENIOR CIVIL JUDGE AND JMFC, HANGAL IN
R.A.NO.25/2013 DATED 06.03.2017 REJECTING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE CIVIL
JUDGE AND JMFC, HANGAL IN O.S.NO.275/2009 DATED 19.10.2013
AND FURTHER ALLOW THE SUIT BY PASSEING JUDGMENT AND
DECREE AS PRAYED FOR IN THE INTEREST OF JUSTICE AND EQYITY.

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


                                  JUDGMENT

The present second appeal is filed under Section 100

of the Code of Civil Procedure, 19081 by the plaintiffs

challenging the judgment and decree dated 06.03.2017

passed in R.A.No.25/2013 by the Senior Civil Judge and

JMFC, Hangal2 and the judgment and decree dated

19.10.2013 passed in O.S.No.275/2009 by the Civil Judge

Hereinafter referred to as the 'CPC'

Hereinafter referred to as the 'First Appellate Court'

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and JMFC, Hangal3, wherein the suit for declaration and

permanent injunction has been dismissed with cost by the

Trial Court which has been affirmed by the First Appellate

Court.

2. The parties herein are referred to as per their

ranking before the Trial Court for the sake of

convenience.

3. It is the case of the plaintiffs that the suit

property is an open site bearing No.18/B measuring 96

feet X 16.5 feet (1584 sq.ft.) situated within Haranageri

village within the limits of Kudal Gram Panchayat, Hangal

Taluk. That the suit property originally belonged to Kudal

Gram Panchayat and it was bearing No.18 and measuring

3 guntas. That it was in the joint ownership of defendant

No.1 and one Kyadareppa Arer of Haranageri village. That

the said Kyadareppa Arer sold ½ portion of the plot No.18

in favour of the husband of plaintiff No.1 on 20.05.1983

vide a registered Sale Deed. That the husband of plaintiff

Hereinafter referred to as the 'Trial Court'

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No.1 i.e. Arjunappa and plaintiffs have been enjoying the

purchased property from the date of purchase. That the

part of plot No.18 purchased was renumbered as 18/A

and the property remaining with the defendant No.1 was

numbered as 18/B. That the entire property bearing

previous plot No.18 measuring 3 guntas was in

possession of the plaintiffs without any obstruction from

anyone continuously, openly to the knowledge of the

defendants since 25 years. That they are using the said

property for storing dung and other agricultural

implements in the suit property. However, the defendants

No.1 and 2 colluding with each other created Sale Deed in

respect of the suit property on 04.11.2009 behind the

back of the plaintiffs. That it was executed by defendant

No.1 in favour of defendant No.2 without any possession

and without any consideration amount. That the Sale

Deed is created and concocted by the defendants and

hence the same is not binding on the plaintiffs. That

though the plaintiffs filed objections to the Gram

Panchayat, the Gram Panchayat hurriedly entered the

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name of the defendant No.2 on the strength of the illegal

Sale Deed without consideration and possession, on the

basis of which defendant No.2 started obstruction over

the possession and enjoyment of the plaintiffs over the

suit property. Hence, the plaintiffs filed the suit for

declaration and injunction.

4. The defendants No.1 and 2 entered appearance

through their counsel and filed separate written

statements. The defendant No.1 denied the plaint

averments and contended that the ingredients of adverse

possession were not attracted to the suit. That the

plaintiffs are not in use and occupation of the suit

property at any time. That the description of the suit

property and its boundaries are also incorrect. The other

averments made in the plaint have also been denied.

5. It is further contended that the defendant No.1

sold the suit property to defendant No.2 by a registered

Sale Deed dated 04.11.2009 in the presence of witnesses

for a total sale consideration of ₹38,000/- and put the

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defendant No.2 in actual physical possession of the same.

That the defendant No.2 is the exclusive owner in

possession of the suit property and using it for rearing

cattle and storing dung and other agricultural implements.

That the plaintiffs in order to engulf the suit property,

have filed the suit without seeking setting aside of the

Sale Deed. It is further contended that the plaintiffs have

not stated as to when they came in possession of the suit

property and when the said possession became hostile to

the title of the defendants. Hence, the question of adverse

possession does not arise.

6. The defendant No.2 in his written statement

apart from denying the plaint averments, contended that

the plaintiffs are the owners of VPC No.18/A and

defendant No.1 is owner of 18/B. That defendant No.2

after making proper enquiry purchased the suit property

for a valid sale consideration vide registered Sale Deed

dated 04.11.2009 from its vendor defendant No.1. That

after purchase of the suit property, the defendant No.2

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has been in actual possession and enjoyment of the

same. It is further denied that the plaintiffs are in

possession of the suit property. That the defendant No.2

is bonafide a purchaser. Hence, the defendants sought for

dismissal of the suit.

7. The Trial Court, consequent to the pleadings of

the parties, framed the following issues:

"ISSUES

1.Whether the plaintiffs prove that they are in actual, peaceful possession and enjoyment of entire Plot No.18 measuring 3 guntas of Kudal village as contended in Para 3A of Plaint?

2. Whether the plaintiffs prove that they are in peaceful possession of the suit property openly, peacefully with hostile animus for more that statutory period to the knowledge of defendants and thereby perfected their title to the suit property by adverse possession?

3. Whether the plaintiffs prove that the sale deed in respect of suit property dated 4-11-2009 is not binding upon them?

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4. Whether the defendant No.2 prove that he is bonafide purchaser for valuable consideration?

5. Whether the defendant No.2 proves his possession over suit property?

6. Whether valuation made and court fee paid is correct?

7. Whether plaintiffs are entitled for relief sought for?

8. What order or decree?"

8. The plaintiff No.1 examined himself as PW.1.

Two witnesses have been examined as PW.2 and PW.3.

Exs.P.1 to P.13 have been marked in evidence. Defendant

No.2 has been examined as DW.1. Two witnesses have

been examined as DW.2 and DW.3. Exs.D.1 to D.6 have

been marked in evidence. The Trial Court upon

appreciation of the oral and documentary evidence on

record, dismissed the suit with cost.

9. Being aggrieved, the plaintiffs preferred

R.A.No.25/2013. The defendants entered appearance

before the First Appellate Court and contested the same.

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The First Appellate Court framed the following points for

consideration:

"Points

1. Whether in given facts and circumstances of the case, finding of Trial Court is justified wherein it is come to conclusion that, the plaintiffs are not in possession and enjoyment of suit property, continuously, openly, without any interruption, adverse to the interest of its true owner for more than 25 years, as such the claim of plaintiffs, they have perfected their title over suit property by way of adverse possession is not tenable?

2. Whether in given facts and circumstances of the case, finding of Trial Court is justified wherein it is come to conclusion that, by virtue of sale deed dated 04-11-2009 the defendant No.2 is being owner of suit property he is in possession and enjoyment of the same?

3. Whether judgment and decree passed by trial court has to be interfered in present appeal?

4. What order?"

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10. The First Appellate Court by its judgment and

decree dated 06.03.2017 dismissed the appeal filed by

the plaintiffs with cost and confirmed the judgment and

decree passed by the Trial Court. Being aggrieved, the

present second appeal is filed.

11. Learned counsel for the appellants/plaintiffs

vehemently contends that both the Courts have

concurrently erred in discarding the material which

establishes that the plaintiffs were in peaceful possession

of the suit property. It is further contended that both the

Courts ought to have held that the plaintiffs have

perfected their title over the suit property by way of

adverse possession when the plaintiffs are in possession

of the suit property continuously, openly without any

interruption adverse to the interest of the true owner for

more than 25 years.

12. Per contra, learned counsel for respondent No.2

justifies the judgment and decree passed by the Trial

Court and the First Appellate Court and submits that both

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the Courts have concurrently held that the plaintiffs have

failed to establish their case and hence the said

concurrent findings ought not to be interfered with by this

Court in the present second appeal.

13. The submissions of both the learned counsels

have been considered and the material on record has

been perused.

14. The Trial Court while considering issue Nos.1, 2

and 5 has recorded the following findings:

i. On perusing the documents on record it

discloses that earlier the property bearing No.18

was standing in the name of Kyadareppa Arer

and Tippanna Ghatage as per Ex.D.6. That after

the death of Tippanna on 22.01.1981, his wife's

name was entered in the record to the joint

right over property No.18 and thereafter the

name of Radhavva was entered to half share in

property No.18 as could be seen from Ex.D.3;

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ii. Half share held by Kyadareppa Arer was sold in

favour of the husband of plaintiff No.1 which

was renumbered as 18/A;

iii. Property No.18/B measuring 96x16.5 ft. was

standing in the name of defendant No.1 and

later as per Sale Deed dated 04.11.2009

(Ex.D.1), the said property was sold in favour of

defendant No.2 and pursuant to the resolution

(Ex.D.4), the name of defendant No.2 has been

entered in the revenue records;

iv. Property bearing No.18/B is standing in the

name of defendant No.2. Hence, the contention

of the plaintiffs that they are in possession of

the property bearing No.18/B is baseless;

v. The documents reveal that defendant No.1 and

thereafter defendant No.2 are in possession of

property bearing No.18/B measuring 96x16.5 ft.

of Haranageri village;

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vi. In the cross-examination of DW.1, he has

denied the possession of the plaintiffs over

property bearing No.18/B. He has denied that

Kashavva and her children are in wahiwat and

enjoyment of VPC No.18/B for last 20-25 years

and are in possession of total extent of 3 guntas

in property bearing No.18/A & B. DW.1 has

denied that the sale deed in his favour was

without possession, which is against the

contents of the Sale Deed produced by

defendant No.2;

vii. The plaintiffs have not produced any document

to prove their possession over the property

No.18/B;

viii. DW.3 has deposed that the property bearing

No.18/B is in possession of defendant No.2;

ix. On reading of over all evidence on record, it is

clear that the plaintiffs have failed to prove

possession over the suit property bearing

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No.18/B. On the other hand, defendant No.2

has proved that earlier Radhavva was the owner

of the suit property and she sold it to defendant

No.2;

x. The plaintiffs have not produced any document

to show that they are in possession of the suit

property. On the other hand, the Sale Deed and

the extract of the suit property would reveal

that defendant No.2 is in possession of the suit

property. So when the plaintiffs are not in

possession of the suit property, the question of

perfecting their title to the suit property by

adverse possession does not arise. The plaintiffs

have not admitted the title of defendant No.2

over the suit property.

15. The First Appellate Court while considering the

points framed for consideration, has recorded the

following findings:

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i. Mere long standing possession over the

property may not give rise to claim adverse

possession over the same. The plaintiffs have

not placed any iota of evidence to show some

overt act, whereby they have denied title and

interest of true owner of the suit property,

thereby they openly, continuously, without any

obstruction of owner of the suit property had

continued in possession of the same beyond

statutory period;

ii. Except self-serving statement, nothing is placed

before the Court to show as on the date of

execution of Ex.P.12 dated 20.05.1983, the

plaintiffs have also put in or they have acquired

possession and enjoyment of plot No.18/B. The

plaintiffs have not produced any documents to

substantiate their claim of possession over plot

No.18/B;

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iii. PW.2 and PW.3 in their cross-examination have

deposed that they did not know on what basis

the plaintiffs are in possession and enjoyment

of the suit property;

iv. PW.3 in his cross-examination has stated that

defendant No.1 has sold plot No.18/B to the

plaintiff No.1;

v. In view of the nature of the case of the

plaintiffs, the evidence of PW.2 and PW.3 in no

way helps the plaintiffs establishing their case;

vi. Registered Sale Deed executed by defendant

No.1 in favour of defendant No.2 in respect of

suit schedule property bearing plot No.18/B

dated 04.11.2009 is produced as Ex.D.1. As per

the contents of the said document, it is very

much evident that the suit property was sold by

defendant No.1 in favour of defendant No.2 for

a total sale consideration of ₹38,000/- and on

the same day possession of the suit property

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has been handed over from defendant No.1 to

defendant No.2;

vii. Having regard to the evidence on record, the

say of the plaintiffs to the effect that defendant

No.2 was never in possession and enjoyment of

the suit property and on the other hand that

the plaintiffs continued in possession and

enjoyment of the suit property for more than

25 years adverse to the interest of its true

owner, cannot be an acceptable one and the

same is very unreasonable;

viii. On careful appreciation of the material on

record, the Trial Court has rightly come to the

conclusion that the plaintiffs have failed to

prove their claim that they have perfected title

over the suit property by way of adverse

possession.

16. It is forthcoming from the aforementioned that

both the Courts have recorded concurrent findings of fact

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that the suit property bearing No.18/B was sold by

defendant No.1 in favour of defendant No.2 vide