Karnataka High Court
Smt Narayanamma vs Sri Rajappa on 27 June, 2025
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RSA No. 2681 of 2007
C/W RSA No. 2702 of 2007
R
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 2681 OF 2007 (DEC)
C/W
REGULAR SECOND APPEAL NO. 2702 OF 2007 (DEC)
IN RSA No. 2681/2007
BETWEEN:
1. SMT NARAYANAMMA,
AGED MAJOR,
W/O LATE RAMAIAH,
2. SRI SURESH, MAJOR,
S/O LATE RAMAIAH.
3. SRI GOPESH,MAJOR,
S/O LATE RAMAIAH,
ALL ARE R/AT BARGURU VILLAGE,
Digitally signed LAKKUR HOBLI, MALUR TQ
by BELUR AND ALSO: HAROHALLI VILLAGE ATTIBELE,
RANGADHAMA
NANDINI HOBLI ANEKALTQ, BANGALORE RURAL DISTRICT.
...APPELLANTS
Location: HIGH
COURT OF (BY SRI A V GANGADHARAPPA, ADVOCATE)
KARNATAKA
AND:
1. SRI RAJAPPA, MAJOR,
S/O LATE CHOKKAPPA
SINCE DECEASED BY HIS LRS
R1(a) SMT GOWRAMMA,
W/O LATE RAJAPPA,
AGED ABOUT 40 YEARS,
R1(b) KUMARI MAMATHA,
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RSA No. 2681 of 2007
C/W RSA No. 2702 of 2007
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D/O LATE RAJAPPA,
AGED ABOUT 19 YEARS,
R1(c) SMT SARASWATHAMMA,
W/O LATE RAJAPPA,
AGED ABOUT 37 YEARS,
R1(d) SRI MANJUNATHA,
S/O LATE RAJAPPA,
AGED ABOUT 17 YEARS,
R1(e) KUMARI SUMA,
D/O LATE RAJAPPA,
AGED ABOUT 15 YEARS,
2. SRI LAKSHMANA GOWDA, MAJOR,
S/O LATE CHOKKAPPA,
ALL ARE R/AT BARAGURU VILLAGE,
LAKKURU HOBLI,MALURU TALUK.
(CAUSE TITLE AMENDED AS PER THE ORDER DT 10.11.2014)
...RESPONDENTS
(BY SRI V VISWANATH SETTY, ADVOCATE FOR R1(A-E) & R2,
R1(D AND E) ARE MINORS REPRESENTED BY R1(E))
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DT.23.7.2007 PASSED IN
R.A.NO.199/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN),
MALUR, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DT.12.9.2002 PASSED IN
O.S.NO.413/98 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN)
ZMALUR.
IN RSA NO. 2702/2007:
BETWEEN:
1. SRI RAJAPPA,
S/O CHOKKAPPA,
AGED ABOUT 45 YEARS
SINCE DECEASED BY HIS LRS
1(a) SMT GOWRAMMA,
W/O LATE RAJAPPA,
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RSA No. 2681 of 2007
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AGED ABOUT 48 YEARS,
1(b) SMT MAMATHA,
D/O LATE RAJAPPA,
AGED ABOUT 20 YEARS,
1(c) SMT SARASWATHAMMA,
W/O LATE RAJAPPA,
AGED ABOUT 40 YEARS,
1(d) SRI MANJUNATHA,
S/O LATE RAJAPPA,
AGED ABOUT 20 YEARS,
1(e) KUMARI SUMA,
D/O LATE RAJAPPA,
AGED ABOUT 18 YEARS,
ALL ARE R/AT BARAGURU VILLAGE,
LAKKURU HOBLI,MALURU TALUK.
(AMENDMENT CARRIED OUT V/O/DT 10.11.2014)
2. SRI LAKSHMANA GOWDA,
S/O CHOKKAPPA,
AGED ABOUT 40 YEARS,
R/AT.BARAGUR VILLAGE,
LAKKUR HOBLI,MALUR TALUK,
KOLAR DISTRICT.
...APPELLANTS
(BY SRI V VISWANATH SETTY, ADVOCATE)
AND:
1. SMT NARAYANAMMA,
W/O RAMAIAH,
AGED ABOUT 45 YEARS,
2. SRI SURESH,
S/O RAMAIAH,
AGED ABOUT 28 YEARS,
3. SRI GOPESHA,
S/O RAMAIAH
AGED ABOUT 25 YEARS,
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RSA No. 2681 of 2007
C/W RSA No. 2702 of 2007
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ALL R/AT HAROHALLI VILLAGE,
ATTIBELE HOBLI,ANEKAL TALUK,
BANGALORE DISTRICT - 562106.
...RESPONDENTS
(BY SRI A V GANGADHARAPPA, ADVOCATE FOR R1 TO R3)
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.23.7.2007 PASSED IN
R.A.NO.200/2002 ON THE FILE OF THE CIVIL JUDGE
(SR.DN), MALUR, DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DT.12.9.2002 PASSED IN
O.S.NO.413/98 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN) AND JMFC, MALUR.
THESE APPEALS, COMING ON FOR FURTHER HEARING,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
These two Second Appeals arise from the judgment
and decree in a suit for declaration of title, based on the
registered sale deed, and in the alternative, on a plea of
adverse possession.
2. The suit is decreed in part, declining the relief of
declaration of title based on the sale deed as well as adverse
possession. A decree for injunction is granted, holding that
the plaintiffs are in possession.
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3. Both plaintiffs' First Appeal against the decree
declining relief of declaration of title and defendants' appeal
against the decree granting injunction are dismissed, and the
Trial Court judgment is affirmed. Hence, these two appeals,
one by the plaintiffs and the other by the defendants.
4. Claim for declaration of title stems under the
sale deed dated 15.07.1971, said to have been executed by
the plaintiffs' father's vendor. Alternative relief of declaration
of title, by adverse possession is also sought, in the event of
plaintiffs not establishing title under the sale deed.
5. Both Courts concurrently held that the plaintiff's
father's vendor did not have the title. Declaration based on
adverse possession is rejected for want of necessary plea
and evidence on adverse possession.
6. Both Courts concurrently held that plaintiffs' are
in possession, without title and decree for injunction is
granted against the defendants who held to be the owners.
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7. These appeals are admitted vide order dated
18.01.2016 to answer the following substantial question of
law:
"Whether both the Courts below have
committed a serious error in granting the equitable
relief of injunction by ignoring the material
evidence, i.e. Ex.D1-registered partition deed and
Ex.P1-sale deed under which the plaintiff claims to
be the owner."
8. This Court, after hearing both parties, framed
the following two substantial questions of law and heard
both counsel on all substantial questions of law.
(i) "Whether Trial Court and First
Appellate Court were justified in granting an
injunction against the defendants after
adjudicating that plaintiffs are not the owners and
defendants are the owners".
(ii) In a suit for declaration of title and
injunction, after recording the finding that the
plaintiffs are not the owners but in possession, and
defendants are the owners without possession,
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could there be a decree for possession in favour of
the defendants and against the plaintiffs?
9. Parties to the present appeals are referred to as
per their respective designation before the Trial Court.
10. The learned counsel for the plaintiffs would
contend that plaintiffs' father's vendor ('vendor') for short
who is the brother of defendants had sold the property to the
plaintiffs' father under a registered sale deed dated
15.07.1971 and since then, the plaintiffs' father was in the
exclusive possession of the property and after the death of
the plaintiffs' father, the plaintiffs are in exclusive possession
of the property and the defendants have no manner of right,
title and interest over the same.
11. It is urged that the defendants were very much
aware of the execution of the sale deed by the vendor who is
the brother of defendants, in favour of the plaintiffs' father.
Plaintiffs' father came in possession of the property under
the registered sale deed of 1971 in the year 1971 itself.
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12. Alternatively, it is urged that, assuming that the
property was allotted to the defendants under a registered
partition deed dated 13.05.1963, and not to the vendor, the
possession since 1971 is held to be proved by both Courts.
Thus, the possession through an invalid sale deed is to be
construed as adverse and hostile to the interest of the
defendants. Thus, the suit ought to have been decreed for
the alternative relief of declaration of title based on adverse
possession.
13. Learned counsel appearing for the
defendants/respondents would contend that the registered
partition deed dated 13.05.1963 in the defendants' family is
established. None of the family members, including the
vendor, has questioned the partition deed of 1963. In the
said partition, the suit property is allotted to the share of the
defendants and not the vendor under whom the plaintiffs'
father claimed. The defendants are in possession of the said
property. Vendor, i.e. defendants' brother, could not have
sold the property which is not allotted to his share and which
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is not in his possession. Thus, it is urged that the
declaration of title is rightly rejected.
14. In addition, it is also urged by the learned counsel
for the defendants that the Pw1 in his evidence has stated
that he has been dispossessed during the pendency of the
suit by the defendants, and the finding that the plaintiffs are
in possession is erroneous.
15. Learned counsel for the plaintiffs, by way of reply,
would contend that the plaintiffs' possession over the
property is very much established in view of the admission
by the defendants.
16. This Court has considered the contentions raised
at the bar and perused the records.
17. Ex.D-1 is the registered partition deed dated
13.05.1963 in the family of the vendor. The vendor is the
defendants' brother. The plaintiffs have not questioned the
partition deed, and this document is undisputed. Said
document establishes that the suit property and also the
remaining portion of the same survey number, in all
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measuring 1 acre 35 guntas, is allotted to the share of the
defendants. Vendor was not allotted any share in the said
property. Thus, the vendor could not have sold 1 acre 10
guntas in survey number 139 under the registered sale deed
dated 15.07.1971. Concurrent finding in this behalf is
justified.
18. As far as the plea relating to adverse possession
is concerned, it is noticed that in the plaint, the ingredients
of adverse possession, i.e. hostile, continuous, uninterrupted
possession to the knowledge of the defendants, denying the
title of the defendants, are missing. There is no evidence on
adverse possession. Adverse possession is claimed only by
way of an alternative relief without there being a pleading
and evidence to that effect. Thus, both Courts have rightly
held that the plea of adverse possession is not established.
19. Now the question is whether the finding relating
to possession recorded by the trial Court and upheld by the
First Appellate Court requires interference.
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20. It is noticed that the revenue records disclose the
names of the plaintiffs. The statement in the evidence
referred to by the learned counsel for the defendants reads
as under:-
"zÁªÁ¹ÛAiÀÄ£ÀÄß Rjâ¹zÀ PÀæAiÀÄ ¥ÀvÀæzÀ°è ZÉPÀÄ̧A¢AiÀÄ£ÀÄß vÀ¥ÁàV
§gÉAiÀįÁVzÉ. ¥ÀæwªÁ¢AiÀĪÀgÀÄ
zÁªÁ¹ÛUÉ CPÀæªÀÄ ¥ÀæªÉñÀ ªÀiÁrzÁUÀ°Ã ¸ÀzÀj vÀ¥ÁàVzÉ JAzÀÄ w½zÀÄ
§AvÀÄ."
The statement in the evidence of Dw-1 referred to by the
counsel for the plaintiffs reads as under:-
"£À£Àß vÀAzÉ gÁªÀÄAiÀÄå£ÀªÀgÀÄ F PÉù£À°è ¥ÀæwªÁ¢. CªÀgÀÄ ªÀÄÈvÀ ¥ÀnÖzÀÝjAzÀ £À£Àß
vÁ¬ÄAiÀÄ vÀªÀÄä ¸ÀºÉÆÃzÀgÀgÀ£ÀÄß ¥ÁnðAiÀiÁV ªÀiÁqÀ¯ÁVzÉ. ªÁ¢UÀ¼ÀÄ UÉÆvÀÄÛ.
ªÁ¢UÀ¼ÀÄ §gÀUÀÆgÀÄ UÁæªÀĸÀÜgÀÄ. zÁªÁ D¹Û UÉÆvÀÄÛ. zÁªÁ D¹ÛAiÀÄÄ Mt
¨sÀÆ«ÄAiÀiÁVzÀÄÝ. CzÀgÀ ¸ÀªÉð £ÀA.139/2 DVzÀÄÝ 1 JPÀgÉ 35 UÀÄAmÉ DVgÀÄvÀÛzÉ.
ªÁ¢UÀ¼ÀÄ F ¥ÉÊQ 1 JPÀgÉ 10 UÀÄAmÉ d«ÄäUÉ ªÀiÁvÀæ ¸Áé¢Ã£ÀzÀ°èzÁÝgÉ."
21. On considering the aforementioned statements,
this Court is of the view that the statement in examination in
chief of the plaintiffs cannot be construed as an admission
relating to possession of the property by the defendants.
Whereas, the defendant's statement, which is a statement
made on 14.03.2002 (after the plaintiffs' statement), would
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reveal that plaintiffs are in possession of the suit property.
The record of right produced before the trial Court would
reveal the names of the plaintiffs' farther. The defendants'
admission is much more categorical relating to the
possession of the plaintiffs over the property. Thus plaintiffs'
possession (without any title) is established.
22. However, the question is whether the injunction
should be granted in plaintiffs' favour when it is adjudicated
that the plaintiffs have no title over the suit property and
that too against the defendants who have established their
title before the Court.
23. Learned Counsel of the plaintiffs would urge that
if title is not established, at least injunction should be
granted till plaintiffs are evicted in due process of law.
Granting a decree for injunction till plaintiffs are evicted
through a "due process of law" is one way of looking at it.
In such an event, the defendants need to file a suit seeking
possession and to execute the decree for possession.
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24. The above theory contains a fallacy. It proceeds
on the premise that only the plaintiffs claim has undergone
the test of 'due process', and adjudication of the
defendants' title is yet to undergo the 'due process' test.
Such interpretation is impermissible.
25. In a suit, many a time, if not all the time, not
only are the right and liability of the plaintiff/s decided, but
also the right and liability of the defendants are adjudicated.
This is one such suit. Plaintiffs' relief for declaration of title is
declined and the plaintiffs are found to be in possession
without title. At the same time defendants' claim of
ownership is also adjudicated and defendants are held to be
the owners without possession. This adjudication is by a
competent court, in a manner contemplated under law. Thus,
there is complete adjudication of rights and liabilities of
both sides by following a due process. What logically flows
from the said adjudication is the plaintiffs are in
unauthorised possession of the property.
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26. Assuming that the defendants need to file a suit
to seek possession despite the declaration by the Court that
the plaintiffs are not the owners but in possession, and the
defendants are the owners without possession; the question
is what is that the Court is required to adjudicate in the said
suit? The answer is 'nothing'. There is no lis at all. Reason is
that the defendants in the said suit (plaintiffs of this
proceeding) will have no defence left. Such a second suit is
wholly unwarranted, and it serves no purpose other than
burdening the already overburdened system and dragging
the person whose rights are adjudicated into one more
litigation.
27. At this juncture, reference to some of the
judgments would be apposite.
28. In Thomas Cook India Limited vs.Hotel
Imperial (2006) 88 DRJ 545, Delhi High Court, in
deciding an interlocutory application seeking an injunction by
a person, in permissive possession, under a settlement in
Court, against the real owner held as under.
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27. This brings me to the second aspect of
'due process of law'. It was urged by Mr Kaul that
even if the plaintiff was in unlawful possession, it
could only be evicted by due process of law, and
therefore, the plaintiff was entitled to an order of
injunction preventing the defendants from removing
the plaintiff from the said two rooms except through
due process of law. It must be made clear that this
argument fails in the context of this case because
the plaintiff was never in possession and therefore
there is no question of dispossession in the sense
usually understood. The plaintiff had a mere right to
use; such right was revocable, it has been revoked,
and the plaintiff is entitled under section 63 of
the Indian Easements Act, 1882, to a reasonable
time to leave the premises and take away its goods.
The argument also fails because by rushing to court
the plaintiff has indeed invited a judicial
determination of its status. If it got an order of
injunction it would enure to its benefit. But, if it did
not, then it can't be heard to say that this court has
to grant an injunction all the same because
otherwise it would give a licence to the defendants
to forcibly throw out the plaintiff without filing a suit
for possession,
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28. Now, this 'due process' or 'due course'
condition is satisfied the moment the rights of the
parties are adjudicated upon by a court of
competent jurisdiction. It does not matter who
brought the action to court. It could be the owner in
an action for enforcement of his right to eject the
person in unlawful possession. It could be the
person who is sought to be ejected, in an action
preventing the owner from ejecting him. Whether
the action is for enforcement of a right (recovery of
possession) or protection of a right (injunction
against dispossession), is not of much consequence.
What is important is that in either event it is an
action before the court and the court adjudicates
upon it. If that is done then, the 'bare minimum'
requirement of 'due process' or 'due course' of law
would stand satisfied as recourse to law would have
been taken. In this context, when a party
approaches a court seeking a protective remedy
such as an injunction and it fails in setting up a
good case, can it then say that the other party must
now institute an action in a court of law for
enforcing his rights i.e., for taking back something
from the first party who holds it unlawfully, and, till
such time, the court hearing the injunction action
must grant an injunction anyway? I would think not.
In any event, the 'recourse to law' stipulation
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stands satisfied when a judicial determination is
made with regard to the first party's protective
action. Thus, in the present case, the plaintiff's
failure to make out a case for an injunction does not
mean that its consequent cessation of user of the
said two rooms would have been brought about
without recourse to law.
29. In paragraph No. 79 in Maria Margarida
Sequeira Fernandes v. Erasmo Jack de Sequeira,
(2012) 5 SCC 370 : the Apex Court has held as under.
Due process of law
79. Due process of law means that nobody ought
to be condemned unheard. The due process of law
means a person in settled possession will not be
dispossessed except by due process of law. Due
process means an opportunity to the defendant to file
pleadings including written statement and documents
before the court of law. It does not mean the whole
trial. Due process of law is satisfied the moment rights
of the parties are adjudicated upon by a competent
court.
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30. Further in paragraph No. 80 of the said judgment
the Apex Court has approved the ratio in Thomas Cook
supra. It is also noticed that the suit property is a vacant
agricultural land. This being the position, this Court is of the
view that the plaintiffs should vacate the land consequent to
the dismissal of this appeal, as the plaintiffs have no title
over the suit property.
31. The above noted two judgments are rendered in a
context where the plaintiff in permissive possession filed the
suit, probably after the licence/permission was revoked
seeking protection against forcible eviction.
32. On similar lines, the coordinate bench of this
Court in Sri Babagouda Lakhamgouda Patil and Smt.
Dundhawwa and others granted a decree for possession,
in favour of the defendant, in a suit for specific performance
after declining the relief of specific performance and
recording a finding that the plaintiff is in possession under
the agreement for sale.
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33. If the ratio in the aforementioned judgments is
borne in mind, in a case of this nature, the decree for
possession in favour of the defendants who are held to be
the owners without possession, and the plaintiffs whose
claim relating to ownership both under a sale deed and by
way of adverse possession is answered in negative, is a
judicial compulsion and just a formality.
34. The right to pass such a decree for possession in
favour of the defendants in a suit for declaration and
injunction filed by the plaintiffs, after adjudication of the
rights of the parties is indeed traceable to inherent power
of the Court which is not conferred by statute, but which is
recognised and saved in Section 151 of the Code of Civil
Procedure, 1908.
35. The only technical aspect would be the payment
of Court Fee by the defendants in whose favour the decree is
passed. The suit property is an agricultural land assessed to
land revenue. The market value for the purpose of payment
of Court fee would be 25 times of the revenue payable on
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the suit land which is Rs.43/-. Thus, valuation for Court Fee
would be Rs.1,075/-. Defendants are required to pay Court
Fee of Rs.27/- which is far less than the expenditure that
would be incurred by the Court towards the stationery in
deciding the suit, if initiated by the defendants. Nevertheless
to complete the formality, the defendants shall pay Rs.27/-
towards Court Fee to enable the Registry to draw the decree
for possession.
36. Further, it is to be observed that this Court has
concurred with the findings that the plaintiffs have not
acquired title over the property. The remedy for the plaintiffs
is to take action for the recovery of sale consideration
amount and/damages as advised in law against the vendor
or his successors.
37. Liberty is reserved to the plaintiffs to take such
action as advised in law, subject to just exceptions in law.
38. Hence, the following:
ORDER
(i) RSA No.2681/2027 is allowed.
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(ii) The judgment and decree dated 12.09.2002
in O.S. No.413/1998 passed by the Principal
Civil Judge (Junior Division) at Malur, as well
as judgment and decree dated 23.07.2007
passed by First Appellate Court granting
injunction in favour of the plaintiffs are set-
aside.
(iii) Consequently, suit in O.S. No.413/1998 on
the file of Principal Civil Judge (Junior
Division) is dismissed.
(iv) RSA No.2702/2007 is dismissed.
(v) Three months time granted to the plaintiffs
to handover the possession of the suit
property to the defendants, failing which the
defendants are entitled to execute this
decree for possession.
(vi) Liberty is reserved to the plaintiffs to take
such action as advised in law, subject to just
exceptions in law.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS
