Karnataka High Court
Smt Rukmini vs Shri Manohar on 28 January, 2025
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RSA No. 63 of 2007
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 28TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 63 OF 2007 (INJ-)
BETWEEN:
SMT. RUKMINI
W/O. PURANDHAR MASTI,
AGE: 52 YEARS,
OCC: AGRICULTURIST,
R/O. CHIKODI,
DIST BELGAUM.
...APPELLANT
(BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
AND:
MANOHAR
S/O SHIVAPUTRA KATTIMANI
SINCE DECEASED BY HIS LR'S
1a. ANURADHA WD/O. MANOHAR KATTIMANI,
AGE: 48 YEARS,
OCC: HOUSEHOLD WORK,
MANJANNA
E R/O. ANKALLIKHOT, MATANKERI,
Digitally signed by
MANJANNA E
CHIKODI, TALUK: CHIKODI,
Location: High Court of
Karnataka, Dharwad Bench
Date: 2025.02.01 11:43:12
+0530 DIST: BELAGAVI - 591201.
1b. POOJA D/O. MANOHAR KATTIMANI,
AGE: 28 YEASRS, OCC: ADVOCATE,
R/O. ANKALLIKHOT,
MATANKERI, CHIKODI,
TAL: CHIKODI,
DIST: BELAGAVI - 591201.
1c. NAGESH
S/O. MANOHAR KATTIMANI.
AGE: 25 YEARS,
OCC: BUSINESS,
R/O. ANKALLIKHOT,
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RSA No. 63 of 2007
MATANKERI, CHIKODI,
TAL: CHIKODI,
DIST: BELAGAVI - 591201.
...RESPONDENT
(BY SRI. GANAPATI M. BHAT, ADVOCATE)
-----
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF
CIVIL PROCEDURE, PRAYING TO ALLOW THIS APPEAL BY SETTING
ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT OF THE
ADDL. CIVIL JUDGE (JR.DN), CHIKODI IN O.S.NO.54/1996 DATED
10.06.2003 AND THE JUDGMENT AND DECREE PASSED BY THE
COURT OF THE CIVIL JUDGE (SR.DN), CHIKODI AT CHIKODI IN
R.A.NO.27/03 DATED 14.09.2006 BY ALLOWING THE ABOVE APPEAL
ALONG WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is filed by the defendant challenging the
judgment and decree dated 14.09.2006 passed in RA No.27 of
2003 on the file of the Civil Judge (Sr.Dn.), Chikodi (for short,
hereinafter referred to as 'First Appellate Court'), dismissing the
appeal and confirming the judgment and decree dated
10.06.2003 passed in OS No.54 of 1996 on the file of the Civil
Judge (Jr.Dn.), Chikodi (for short, hereinafter referred to as
'Trial Court'), decreeing the suit of the plaintiff.
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2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and ranking
before the trial Court.
3. The plaint averments are that; it is the case of the
plaintiff before the Trial Court is that, the suit property
comprising TMC No.243 of Chikkodi was the ancestral property
of the plaintiff. The original propositus of the suit schedule
property-Ramappa Malagar, had four children namely,
Malleshappa, Shankar, Sadashiva and Gangadhar. After the
demise of Ramappa Malagar, his children have partitioned the
suit schedule properties and as such, the TMC No. 243 was sub
divided into TMC No.243, TMC No.243-A and TMC No.243-B.
TMC No.243 has been allotted to Malleshappa Malagar, TMC
No.243-A was allotted to Shankar and TMC No.243B was
allotted to Sadashiva Malagar. It is also stated in the plaint that
TMC No.243 and 243-B were sold by Malleshappa Malagar and
Sadashiv Malagar in favour of defendant as per registered Sale
Deed dated 10.09.1979 and thereafter, revenue records stands
in the name of the defendant. However, the share of Shankar-
TMC 243-A was sold in favour of plaintiff as per registered Sale
Deed dated 27.05.1991. It is the case of the plaintiff that, the
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plaintiff is in possession of the partition of the purchased suit
schedule property and the defendant is interfering with the
peaceful possession and enjoyment of the suit schedule
property and as such, the plaintiff has filed suit in OS No.54 of
1996 seeking relief of injunction against the defendant and
thereafter, amended the plaint and sought for recovery of
possession from the defendant.
4. After service of summons, the defendant entered
appearance and filed detailed written statement denying the
averments made in the plaint. It is the case of the defendant
that, the defendant had purchased TMC No.243 from
Malleshappa Malagar, as per registered Sale Deed dated
10.09.1979 and also property bearing TMC No.243-B from
Sadashiva as per registered Sale Deed dated 16.09.1979. It is
also stated in the written statement that the defendant is in
possession of the property having purchased the same referred
to above. It is further stated in the written statement that
Shankar Malagar has filed OS No.120 of 1980 against the
defendant seeking relief of declaration with consequential relief
of permanent injunction which came to be dismissed on
09.08.1985 and also the said judgment and decree confirmed
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in RA No.96 of 1985. Therefore, it is the contention of the
defendant that, the suit filed by the plaintiff has reached finality
even against the vendor of the plaintiff. The defendant, after
allowing the amendment sought for by the plaintiff seeking
relief of possession, has amended the written statement
seeking relief of adverse possession against the interest of the
plaintiff by claiming counter claim and stated that, the
defendant is in possession of the portion of the property sought
in the suit openly, continuously to the knowledge of plaintiff or
more than 20 years and as such, perfected the possession and
therefore sought for dismissal of the suit inter-alia allowing the
counter claim seeking relief of declaration.
5. On the basis of the rival pleadings, the Trial Court
has formulated issues and additional issues for its
consideration.
6. In order to establish the case, the plaintiff has
examined three witnesses as PW1 to PW3 and got marked 06
documents as Exs.P1 to P6. On the other hand, defendant
herself examined as DW1 and produced 10 documents which
were marked as Exs.D1 to D10.
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7. The Trial Court, after considering the material on
record, by its judgment and decree dated 10.06.2003 decreed
the suit partly and restrained the defendant from interfering the
peaceful possession of the suit schedule property of the plaintiff
and being aggrieved by the same, the defendant preferred RA
No.27 of 2003 on the file of First Appellate Court and the said
appeal was resisted by the plaintiff. The First Appellate Court
after re-appreciating the facts on record, by its judgment and
decree dated 14.09.2006 dismissed the appeal and confirmed
the judgment and decree passed by the Trial Court in OS No.
54 of 1996.
8. Being aggrieved by the dismissal of RA No.27 of
2003 by the First Appellate Court the appellant/defendant has
preferred this Regular Second Appeal under Section 100 of
CPC. This Court vide order dated 29.03.2011 formulated the
substantial question of law which reads as under:
"(1) Whether courts below are right in law in
granting decree for injunction when the plaintiff and
defendant being purchasers of a property which
was earlier a property of the joint family and which
had been shared amongst the brothers but when
there was nothing to indicate it had been
partitioned by metes and bounds and therefore the
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purchasers also virtually being in a position of joint
owners whether suit by one co-owner for restraint
order against another co-owner is maintainable?
(2) Whether the suit for injunction had any
cause of action at all, in as much as, if the
defendant wanted to pull down a wall in the portion
occupied by him, that cannot constitute a cause of
action for the plaintiff to seek a restraint order
against the defendant in the position of a co-owner,
but on the other hand, having pleaded that the
defendant is obstructing enjoyment of the property
by the plaintiff when in view of the admitted
temporary common wall interference is
impossible?"
9. I have heard Sri. Sangram S. Kulkarni, learned
counsel for the appellant and Sri. Ganapati M. Bhat, learned
counsel appearing for the respondents.
10. Sri. Sangram S. Kulkarni, learned counsel
appearing for the appellant submits that both the Courts below
have misconstrued the factual aspects on record as the plaintiff
has filed suit seeking relief of declaration and thereafter sought
for recovery of possession and on the other hand, the
defendant has amended the written statement seeking relief of
declaration, declaring that the defendant has perfected the title
by possession. It is also the submission made by the learned
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counsel appearing for the appellant that both the Courts below
have not considered the judgment and decree in OS No.120 of
1980 which came to be confirmed in RA No.96 of 1985 and
therefore, both the courts below have committed an error in
respect of the facts on record.
11. Sri. Ganapati M. Bhat, learned counsel appearing
for the respondents submits that since, the concurrent finding
of facts was held against the defendant / appellant herein and
therefore, no interference is called for under Section 100 of
CPC. He further contended that the plaintiff had purchased the
suit schedule property as per registered sale deed dated
27.05.1991 and therefore, the finding recorded by both the
Courts below requires to be confirmed.
12. Heard the learned counsel appearing for both the
parties and perused the records.
13. On careful examination of the finding recorded by
both the Courts below, it is not in dispute that the suit schedule
property was originally belongs to one Ramappa and as per the
registered partition deed dated 01.06.1971, the schedule
property under the partition deed was apportioned amongst the
sons of Ramappa. The first son - Malleshappa got TMC No.243,
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the second son Shankar got TMC No.243-A, the third son -
Sadashiva got TMC No.243-B and the fourth son-Gangadhar
died without leaving behind the legal representatives. It is also
not in dispute that the defendant had purchased TMC No.243 as
per registered sale deed dated 10.09.1979 and also TMC
No.243-B as per registered sale deed dated 16.09.1979. The
said fact makes it clear that two sons of late Ramappa i.e.,
Malleshappa and Sadashiva had sold entire extent of their
share in favour of the defendant as per registered sale deeds
referred to above and thereby the defendant is in possession
and enjoyment of the same. On the other hand, the plaintiff
had purchased TMC No.243-A from Shankar (second son of late
Ramappa and brother of Malleshappa and Sadashiva) as per
registered sale deed dated 27.05.1991. At this juncture, it is
relevant to mention that, the vendor of the plaintiff - Shankar
had filed suit against the defendant in OS No.120 of 1980
seeking declaratory relief which came to be dismissed by the
Trial Court on 09.08.1985 (Ex.D.9) and same came to be
confirmed by the First Appellate Court by its judgment and
decree dated 24.06.1991 in RA 96 of 1985 and as such same
has reached finality. It is also to be noted that, during the
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pendency of the aforementioned proceedings plaintiff
purchased TMC No.243-A from Shankar as per registered sale
deed dated 27.05.1991. Taking into account the
aforementioned aspect, it is an undisputed fact that originally
suit was filed seeking relief of permanent injunction against the
defendant and thereafter, the plaint was amended to
incorporate the relief of recovery of possession. On the other
hand, the defendant after amendment of the plaint regarding
seeking recovery of possession, amended the written statement
by incorporating relief of declaration as perfecting the title by
adverse possession in respect of the portion of the schedule
property as mentioned in the sketch annexed to the plaint.
14. Taking into account the finding recorded by the
Trial Court that, nothing is stated by the plaintiff in the plaint
regarding when he lost the possession of the schedule property
and also no acceptable evidence has been adduced as to when
the plaintiff was dispossessed from the schedule property as he
sought for recovery of possession. In that view of the matter,
taking into consideration the undisputed evidence of DW1
wherein, the assessment register extracts as per Exs.D6 and
D7, the defendant has proved the relief sought for in the
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counter claim that defendant has perfected title by adverse
possession.
15. At this juncture, it is relevant to deduce the
declaration of law made by the Hon'ble Supreme Court in the
case of Ravinder Kaur Grewal and Others Vs. Manjit Kaur
and Others1 wherein, the Hon'ble Supreme Court at paragraph
Nos.59 to 63 held as under;
"59. Possession is the root of title and is
right like the property. As ownership is also of
different kinds of viz. sole ownership, contingent
ownership, corporeal ownership, and legal
equitable ownership. Limited ownership or
limited right to property may be enjoyed by a
holder. What can be prescribable against is
limited to the rights of the holder. Possession
confers enforceable right under Section 6 of the
Specific Relief Act. It has to be looked into what
kind of possession is enjoyed viz. de facto i.e.,
actual, 'de jure possession', constructive
possession, concurrent possession over a small
portion of the property. In case the owner is in
symbolic possession, there is no dispossession,
there can be formal, exclusive or joint
possession. The joint possessor/coowner
possession is not presumed to be adverse.
Personal law also plays a role to construe nature
of possession.
60. The adverse possession requires all the
three classic requirements to coexist at the same
time, namely, necvi i.e. adequate in continuity,
necclam i.e., adequate in publicity and nec-
precario i.e. adverse to a competitor, in denial of
title and his knowledge. Visible, notorious and
peaceful so that if the owner does not take care
(2019) 8 SCC 729
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to know notorious facts, knowledge is attributed
to him on the basis that but for due diligence he
would have known it. Adverse possession cannot
be decreed on a title which is not pleaded.
Animus possidendi under hostile colour of title
is required. Trespasser's long possession is not
synonym with adverse possession. Trespasser's
possession is construed to be on behalf of the
owner, the casual user does not constitute
adverse possession. The owner can take
possession from a trespasser at any point in
time. Possessor looks after the property, protects
it and in case of agricultural property by and the
large concept is that actual tiller should own the
land who works by dint of his hard labour and
makes the land cultivable. The legislature in
various States confers rights based on
possession.
61. Adverse possession is heritable and
there can be tacking of adverse possession by
two or more persons as the right is transmissible
one. In our opinion, it confers a perfected right
which cannot be defeated on reentry except as
provided in Article 65 itself. Tacking is based on
the fulfillment of certain conditions, tacking
maybe by possession by the purchaser, legatee
or assignee, etc. so as to constitute continuity of
possession, that person must be claiming
through whom it is sought to be tacked, and
would depend on the identity of the same
property under the same right. Two distinct
trespassers cannot tack their possession to
constitute conferral of right by adverse
possession for the prescribed period.
62. We hold that a person in possession
cannot be ousted by another person except by
due procedure of law and once 12 years' period
of adverse possession is over, even owner's right
to eject him is lost and the possessory owner
acquires right, title and interest possessed by the
outgoing person/owner as the case may be
against whom he has prescribed. In our opinion,
consequence is that once the right, title or
interest is acquired it can be used as a sword by
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the plaintiff as well as a shield by the defendant
within ken of Article 65 of the Act and any person
who has perfected title by way of adverse
possession, can file a suit for restoration of
possession in case of dispossession. In case of
dispossession by another person by taking law in
his hand a possessory suit can be maintained
under Article 64, even before the ripening of title
by way of adverse possession. By perfection of
title on extinguishment of the owner's title, a
person cannot be remediless. In case he has
been dispossessed by the owner after having lost
the right by adverse possession, he can be
evicted by the plaintiff by taking the plea of
adverse possession. Similarly, any other person
who might have dispossessed the plaintiff having
perfected title by way of adverse possession can
also be evicted until and unless such other
person has perfected title against such a plaintiff
by adverse possession. Similarly, under other
Articles also in case of infringement of any of his
rights, a plaintiff who has perfected the title by
adverse possession, can sue and maintain a suit.
63. When we consider the law of adverse
possession as has developed visàvis to property
dedicated to public use, courts have been loath
to confer the right by adverse possession. There
are instances when such properties are
encroached upon and then a plea of adverse
possession is raised. In Such cases, on the land
reserved for public utility, it is desirable that
rights should not accrue. The law of adverse
possession may cause harsh consequences,
hence, we are constrained to observe that it
would be advisable that concerning such
properties dedicated to public cause, it is made
clear in the statute of limitation that no rights
can accrue by adverse possession."
16. Applying the principle to the case on hand, both the
Courts below have committed an error in arriving at a
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conclusion as to appreciate the evidence of PW1 to PW3 with
regard to date of dispossession of the plaintiff from the suit
schedule property. In that view of the matter, I am of the
opinion that the plaintiff has failed to establish his case before
the Trial Court, and as once the right is extinguished by the
plaintiff in favour of defendant, who acquires prescriptive rights
which cannot be defeated by restoring possession of the
plaintiff as observed by both the Courts below. It is also to be
noted that the First Appellate Court has not re-appreciated the
factual aspect on record as required under Order 40 Rule 31 of
CPC and taking into account the pleadings and evidence on
record, the defendant has proved that he was in possession of
the portion of the schedule property in open, clear, continuous
and the knowledge of the claim of the plaintiff and therefore, I
find force in the submission made by learned counsel appearing
for the appellant and accordingly answered the substantial
question of law referred to above in favour of the
defendant/appellant herein. Both the Courts below have
committed an error in decreeing the suit despite the fact that
the plaintiff has failed to establish his case when he was
dispossessed from the suit schedule property. Accordingly, the
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relief of counter claim made by the defendant in the amended
written statement is accepted subject to the payment of Court
Fee, if any, under the circumstances of the case. In the event,
if any, deficit of Court Fee is to be payable by the defendant
claiming relief of counter claim and same has to be made good
before the Trial Court. In the result I pass the following;
ORDER
(i) Appeal is allowed.
(ii) Judgment and decree in RA No.27 of
2003 dated 14.09.2006 on the file of Civil
Judge (Sr.Dn.), Chikodi, and the judgment and
decree dated 10.06.2003 in OS No.54 of 1996
on the file of Civil Judge (Jr.Dn.), Chikodi, are
hereby set aside.
(iii) Suit of the plaintiff is dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SB-para 1 to 6
SMM-para 7 to till end
