Karnataka High Court

Smt. Kadadur Sathyaamma W/O Late ... vs Smt. Ayyamma D/O Late Harishchandra ... on 12 November, 2024

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                                                                 NC: 2024:KHC-D:16528
                                                               RSA No. 101044 of 2023




                                        IN THE HIGH COURT OF KARNATAKA,
                                                DHARWAD BENCH

                                   DATED THIS THE 12TH DAY OF NOVEMBER, 2024

                                                      BEFORE

                                    THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                                        RSA NO. 101044 OF 2023 (DEC/INJ)

                              BETWEEN:

                              1.    SMT. KADADUR SATHYAAMMA
                                    W/O. LATE HANAMANTAPPA,
                                    AGE: 69 YEARS, OCC. HOUSEHOLD WORK,
                                    R/O. BENAKAL VILLAGE, TALUK: BALLARI,
                                    DIST. BALLARI-583102.

                              2.  SMT. SIDDAMMA
                                  W/O. LATE KADADUR GADILINGAPPA,
                                  AGE: 64 YEARS, OCC. HOUSEHOLD WORK,
                                  R/O. BENAKAL VILLAGE, TALUK: BALLARI,
           Digitally signed
                                  DIST. BALLARI-583102.
           by VISHAL
VISHAL   NINGAPPA
NINGAPPA PATTIHAL                                                    ...APPELLANTS
PATTIHAL Date:
         2024.11.21
           10:52:37 +0530
                              (BY SRI. SHIVARAJ P MUDHOL, ADVOCATE)

                              AND:

                              SMT. AYYAMMA D/O. LATE HARISHCHANDRA GOUDA,
                              W/O. P GADILINGAPPA, AGE: 51 YEARS,
                              OCC. AGRICULTURE, R/O. BENAKAL VILLAGE,
                              TALUK: BALLARI, DIST. BALLARI-583102.
                                                                    ...RESPONDENT
                              (BY SRI. C. S. SHETTAR, ADVOCATE FOR SRI. HARSH
                              DESAI, ADVOCATE FOR C/R)
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                                            NC: 2024:KHC-D:16528
                                          RSA No. 101044 of 2023




     THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO
CALL FOR RECORDS AND TO SET ASIDE THE IMPUGNED
JUDGMENT    AND   DECREE    DATED   23.08.2023   IN
R.A.NO.18/2014 PASSED BY THE PRINCIPLE SENIOR CIVIL
JUDGE AND CJM AT BALLARI AND TO CONFIRM THE
JUDGMENT    AND   DECREE    DATED   18.12.2013   IN
O.S.NO.485/2008 PASSED BY THE III ADDITIONAL CIVIL
JUDGE AT BALLARI BY ALLOWING THE APPEAL IN THE
INTEREST OF JUSTICE AND EQUITY.

     THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:


                    ORAL JUDGMENT

(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)

The defendants are before this Court in this regular

second appeal assailing the judgment and decree dated

23.08.2023 in R.A. No.18/2014 on the file of the Principal

Senior Civil Judge and CJM., Ballari (hereinafter referred to

as the 'First Appellate Court', for short) reversing the

judgment and decree in O.S. No.485/2008 dated

18.12.2013 on the file of the III Addl. Civil Judge, Bellary

(hereinafter referred to as the 'trial Court', for short),

wherein, the First Appellate Court set aside the judgment

and decree of the trial Court and decreed the suit of the

NC: 2024:KHC-D:16528

plaintiff, declaring the plaintiff as owner of the suit

schedule property and entitled for vacant possession.

2. Parties herein are referred to as per their rank

before the trial Court, for the sake of convenience.

3. Suit for declaration that the plaintiff is the

absolute owner of the suit schedule property i.e.

agriculture land Sy.No.114-A/2B to an extent of 1.80 acres

(hereinafter referred to as the 'suit schedule property' for

the sake of convenience), for delivery of possession and

for consequential relief of permanent injunction restraining

the defendants from interfering with the peaceful

possession and enjoyment of the suit schedule property.

The case of the plaintiff is that the plaintiff's father

Harishchandra Gouda purchased the suit schedule

property in the name of his wife Durgamma for valuable

sale consideration under a registered sale deed dated

09.05.1970 from the erstwhile vendors and on the date of

the sale deed, the vendors delivered the physical

possession in favour of Durgamma, by virtue of the

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registered sale deed the name of Durgamma is entered in

the revenue records. It is the case of the plaintiff that after

the demise of Durgamma and during the lifetime of

Harishchandra Gouda, the plaintiff is cultivating and

harvesting the crops, further defendant No.2, her minor

sons and defendant No.1 instituted suit in O.S.

No.45/2001 against Harishchandra Gouda and another

seeking relief of declaration and permanent injunction in

respect of the suit schedule property. The said suit was

partly decreed, the prayer for relief of declaration was

rejected and relief of permanent injunction was granted in

favour of the defendants, holding that defendants not to

be dispossessed without following due process of law,

regular appeal filed by father of plaintiff Harishchandra

Gouda challenging the decree insofar as granting

injunction in favour of the defendants came to be

dismissed confirming the injunction in favour of the

defendants. The relief rejecting the prayer of declaration

stood unassailed by the defendants. The case of the

plaintiff is that after the death of Durgamma,

NC: 2024:KHC-D:16528

Harishchandra Gouda married Shankaramma the mother

of the plaintiff, legal heirs of Durgamma namely

Ramalingamma, Sharanagouda and Basvanagouda have

executed a relinquishment deed in her favour on

08.08.2006, relinquishing the entire share in the suit

schedule property and accordingly, her name has been

entered in the revenue records. The plaintiff claims to be

the absolute owner of the suit schedule property in lawful

possession.

4. On notice, the defendants appeared and filed

their written statement denying about the execution of the

sale deed in favor of Durgamma by Karibasappa and his

brothers, on the other hand took a plea that the suit

schedule property was mortgaged towards security with an

agreement to reconvey, the alleged document is only a

nominal document executed in favour of Durgamma never

intending to sell. The filing of the suit O.S. No.45/2001 by

the defendants and relief of declaration being rejected is

not disputed.

NC: 2024:KHC-D:16528

5. Further plea, that the defendants are in lawful

possession and enjoyment of the suit schedule property

openly, peacefully adverse to the knowledge of Durgamma

and Harishchandra Gouda, and they have perfected their

title by way of adverse possession.

6. The trial Court based on the pleadings framed

the following issues:

"1. Whether the plaintiff proves that she is absolute owner of the suit schedule property, as she being the daughter of Harishchandragouda is entitled for possession and declaration and consequential relief of permanent injunction?

2. Whether the plaintiff further proves that the defendant on 17.3.2008 had illegally occupied the portion of suit schedule property and erected the hut by such act interfered with the lawful possession and enjoyment of property?

3. Whether the defendants prove that they have perfected their title by way of adverse possession?

4. Whether the defendants prove the court fee paid is insufficient?

5. Whether the defendants further prove that the suit is hit by principles of res-judicata?

6. What order or decree?"

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7. In order to substantiate the claim of the

plaintiff, plaintiff examined herself as PW1 and marked

documents at Exs.P1 to P22. On the other hand, defendant

No.1 herself examined as DW1, three witnesses as DW2 to

DW4 and marked documents at Exs.D1 to D29.

8. The trial Court based on the oral and

documentary evidence arrived at a conclusion, that:

(i) The plaintiff has failed to prove that she is the

daughter of Harishchandra Gouda and absolute

owner of the suit schedule property.

(ii) The plaintiff has failed to prove that the

defendants on 07.03.2008 have illegally

occupied the portion of the suit schedule

property and erected a hut, further that the

defendants failed to prove that they have

perfected their title by way of adverse

possession.

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By the judgment and decree, the trial Court

dismissed the suit of the plaintiff.

9. Aggrieved, the plaintiff preferred appeal before

the First Appellate Court. The First Appellate Court while

appreciating the oral and documentary evidence reversed

the judgment and decree of the trial Court and decreed

the suit of the plaintiff holding that the plaintiff is the

absolute owner of the suit schedule property and held that

she is entitled for vacant possession from the defendants.

Aggrieved, the defendants are before this Court in this

regular second appeal.

10. Heard learned counsel appearing for the

appellants, learned counsel appearing for the respondent

and perused the material on record.

11. The undisputed fact is that in the year 1970 the

vendors of Durgamma executed a registered sale deed in

her favor on 09.05.1970. The claim of the plaintiff is under

Durgamma, the first wife of her father Harishchandra

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Gouda. The legal heirs of Durgamma namely

Ramalingamma, Sharanagouda and Basavanagouda had

executed a relinquishment deed in favor of the plaintiff on

08.08.2006. The defendants' plea is that the alleged

document dated 08.08.2006 is only sham and nominal

document executed in favor of Durgamma towards loan

transaction of Rs 1,500/- with an understanding to

reconvey the land whenever the amount is repaid, further

under the alleged document possession was not

transferred and remained with the vendors karibasappa

and others and the defendants claiming under them are in

lawful and peaceful possession, adverse to the knowledge

of Durgamma and Harishchandra Gowda.

12. Ex.P23 -Registered Relinquishment deed and

Ex.P27- Original Sale Deed dated 09.05.1970, the two

crucial documents to establish the title of the plaintiff.

Defendants had instituted a suit in O.S. No.45/2001 in

respect of suit schedule property seeking relief of

declaration and for permanent injunction and on contest,

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the suit came to be decreed in part, relief of declaration

was rejected and held that the defendants herein are not

the owners of the suit schedule property and the relief of

permanent injunction was granted with an observation

that the defendants should not be dispossessed until due

process of law. The said findings recorded in O.S.

No.45/2001 has attained finality and the prayer for

declaration has been rejected, making it more clear that

the sale deed dated 09.05.1970-Ex.P7 was an out and out

sale deed and not mortgage as contended by the

defendants, the plaintiff established that Durgamma was

the absolute owner of the suit schedule property under

Ex.P7 the registered sale deed. Plaintiff is the daughter of

Harishcahndra Gouda as evident from Exs.P3 and P26

genealogical tree, Exs.P17 to P19 Election ID card and

Ration card clearly establish that the mother of plaintiff is

Shankramma and father of plaintiff is shown as

Harishchandrappa. The legal heirs of Durgamma executed

registered relinquishment deed Dated 26.05.2014 under

Ex.P23, when the sale deed in respect of the suit schedule

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property in favor of the Durgamma is established, on her

death her legal heirs inherited, and they being the owners

have relinquished their right in favor of the plaintiff, the

execution of the relinquishment deed can be questioned by

the legal heirs of Durgamma and the defendant herein

who claims title from the vendors of Durgamma who have

lost their right over the suit schedule property in the

declaration suit i.e., O.S.45/2001 cannot question the

relinquishment in favour of the plaintiff.

13. The defendants have taken a plea of adverse

possession, defendants failed to prove as on what date

their possession becomes adverse to the knowledge of the

true owner. In order to prove a plea of adverse possession

they must establish their possession over the suit schedule

property to be open continuously, uninterrupted, and in

adverse to the knowledge of the true owner.

14. The principles and essential ingredients

necessary to establish the plea of the adverse possession

are that:

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(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

(ii) nec clam i.e., adequate in publicity

(iii) nec precario i.e., 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.

15. In the absence of the defendants establishing

that the possession of the defendants was hostile to the

knowledge of the true owner, the First Appellate Court has

rightly held that the defendants have failed to establish

their possession over the suit schedule property by way of

adverse possession.

16. The trial Court on misconstruing of the facts

and proposition of law arrived at a conclusion that the

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plaintiff has failed to prove her title over the suit schedule

property, the First Appellate Court being the last fact