Karnataka High Court
Abdulsab Rehemanrab Kajjuri vs Basavaneppa Irappa Tadasad on 28 March, 2025
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NC: 2025:KHC-D:5767
RSA No. 5957 of 2012
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5957 OF 2012 (DEC/INJ)
BETWEEN:
ABDULSAB REHEMANRAB KAJJURI
AGE: 36 YEARS, OCC: AGRICULTURE,
MULGUND, TQ: DIST: GADAG-582117.
...APPELLANT
(BY SRI. S.S.YADRAMI, SENIOR COUNSEL FOR
SRI. GIRISH BHAT, ADVOCATE)
AND:
1. BASAVANEPPA IRAPPA TADASAD
AGE: 36 YEARS, OCC: AGRICULTURE,
R/O. MULGUND, TQ: DIST: GADAG-582117.
2. SHANKARAPRABHAPPA IRAPPA TADASAD
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O. MULGUND, TQ: DIST: GADAG-582117.
3. DANAPPA IRAPPA TADASAD
MOHANKUMAR
AGE: 53 YEARS, OCC: AGRICULTURE,
B SHELAR R/O. MULGUND, TQ: DIST: GADAG-582117.
Digitally signed by
...RESPONDENTS
MOHANKUMAR B
SHELAR (BY SRI. G.N.NARASAMMANAVAR, ADVOCATE)
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH
THIS RSA IS FILED U/S.100 OF C.P.C., AGAINST THE
JUDGMENT AND DECREE DATED 19.07.2012 PASSED IN
RA NO.43/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACK
COURT AT GADAG, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT DATED 24.03.2009 AND THE DECREE PASSED IN O.S.
NO.119/2006, ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & CJM,
GADAG, DISMISSING THE SUIT FILED FOR DECLARATION &
INJUNCTION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
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RSA No. 5957 of 2012
ORAL JUDGMENT
This Regular Second Appeal is filed by the plaintiff,
challenging the judgment and decree dated 19.07.2012
passed in RA No.43/2009 on the file of Fast Track Court,
Gadag (for short, hereinafter referred to as 'First Appellate
Court'), dismissing the appeal and confirming the
judgment and decree dated 24.03.2009 passed in OS
No.119/2006 on the file of Civil Judge (Sr.Dn.) and CJM,
Gadag (for short, hereinafter referred to as 'Trial Court'),
dismissing the suit of the plaintiff.
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. It is the case of the plaintiff that, the plaintiff is
the owner of land bearing Sy.No.21/3 measuring 4 acres
17 guntas of Shitalhari village, Gadag taluk having
purchased the same as per registered sale deed dated
16.06.2006. It is further averred in the plaint that, the
defendant Nos.1 to 3 are the owners of land bearing
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Sy.No.21/1+2 situate towards western side of the suit
schedule property of the plaintiff.
3.1. It is the grievance of the plaintiff that, the
defendants have encroached the portion of the land in
question and as such, the plaintiff has filed OS
No.119/2006, seeking relief of declaration with
consequential relief of injunction in respect of the suit
schedule property.
4. After service of summons, the defendants
entered appearance and filed detailed written statement
denying the averments made in the plaint. It is the case
of the defendants that, dispute with regard to the property
is only to an extent of 23 guntas out of 4 acres 17 guntas
of the plaintiff. It is also stated that, the defendants were
cultivating the extent of 23 guntas of land belonging to the
plaintiff, and therefore, the defendants perfected their title
by adverse possession. Hence, the defendants sought for
dismissal of the suit.
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5. On the basis of the rival pleadings, the Trial
Court has formulated issues for its consideration.
6. In order to establish their case, plaintiff has
examined three witnesses as PW1 to PW3 and got marked
05 documents as Exs.P1 to P5. On the other hand,
defendants have examined six witnesses DW1 to DW6 and
produced 10 documents as Exs.D1 to D10.
7. The Trial Court, after considering the material
on record, by its judgment and decree dated 24.03.2009
dismissed the suit of the plaintiff and allowed the counter
claim made by the defendants. Being aggrieved by the
same, the plaintiff preferred Regular Appeal in RA
No.43/2009 on the file of First Appellate Court and the
said appeal was resisted by the defendants. The First
Appellate Court after re-appreciating the facts on record,
by its judgment and decree dated 19.07.2012 dismissed
the appeal and confirmed the judgment and decree passed
by the Trial Court in OS No.119/2006. Being aggrieved by
the same, the appellant/plaintiff has preferred this Regular
Second Appeal.
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8. This Court vide order dated 08.01.2015
formulated the following substantial question of law.
"1) Whether the trial Court was justified in
accepting the counter claim of defendants regarding
adverse possession based on Ex.D.1-survey sketch
prepared in the year 2006?
2) Whether the trial Court was justified in
rejecting the prayer for declaration which is
supported by registered sale deed - Ex.P.1?
3) Whether the concurrent findings of both the
Courts below in accepting adverse possession of
defendant Nos.1 to 3 to an extent of 23 guntas in
suit land is supported by oral or documentary
evidence and need to be confirmed in this
proceedings?"
9. I have heard Sri. S. S. Yadrami, learned Senior
counsel appearing on behalf of Sri. Girish Bhat, learned
counsel for the appellant and Sri. G. N. Narasammanavar,
learned counsel appearing for the respondents.
10. Sri. S. S. Yadrami, learned Senior counsel
appearing for the appellant submits that, both the Courts
below have committed an error in ignoring the sale deed
dated 16.06.2006 (Ex.P1) and further contended that, the
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reasons assigned by both the Courts below cannot be
accepted on the sole ground that, the vendor of the
plaintiff - PW2 has surveyed the land before selling the
suit schedule property in favour of the plaintiff and
thereafter, the plaintiff found that the defendants have
encroached the land in question to an extent of 23 guntas
and therefore, the relief of adverse possession granted by
both the Courts below requires to be interfered with as the
same is contrary to settled principle of law for granting
relief of adverse possession.
11. Per Contra, Sri. G. N. Narasammanavar,
learned counsel appearing for the respondents submits
that, as both the Courts below on concurrent facts held
that, the defendants have perfected their title by adverse
possession and same cannot be disturbed under Section
100 of CPC, hence, sought for dismissal of the appeal.
12. In the light of the submission made by the
learned counsel appearing for the parties, I have carefully
examined the finding recorded by both the Courts below
and perused the records.
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13. It is the case of the plaintiff that, the plaintiff
had purchased the land bearing Sy.No.21/3 measuring 4
acres 17 guntas of Shitalhari village, Gadag taluk as per
registered sale deed dated 16.06.2006 (Ex.P1). The title of
the plaintiff is not questioned by the defendants, however,
defendants have taken up a plea in the counter claim that,
the defendants have perfected their title by adverse
possession to an extent of 23 guntas of land bearing
Sy.No.21/3. In the backdrop of these aspects, the
evidence of PW2, who is the vendor of the plaintiff has
deposed that, before selling the suit schedule property in
favour of the plaintiff, survey has been made and
thereafter, entire extent of 4 acres 17 guntas of land was
handed over to the plaintiff. The said aspect would makes
it clear that, the defendants were not in possession of 23
guntas in the suit schedule property as contended in the
counter claim and the said aspect of the matter was not
properly appreciated by both the Courts below.
14. In order to claim relief of adverse possession by
perfecting title, it is the duty of the defendant to prove
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that, he was claiming right against the true owner and he
must be in possession of property for more than 12 years.
15. Applying the principle laid down by the Hon'ble
Supreme Court in the case Ravinder Kaur Grewal vs
Manjit Kaur1, I am of the view that, the defendants have
failed to establish that, they have perfected their title by
adverse possession since, the PW2 - vendor of the plaintiff
has deposed that, before handing over the possession of
the suit schedule property in favour of the plaintiff, the
land in question was survey and said aspect of the matter
was misconstrued by both the Courts below and
therefore, I find force in the submission made by the
learned Senior counsel appearing for the appellant.
16. Though the learned counsel appearing for the
respondent strenuously contended that, concurrent finding
of fact cannot be interfered under Section 100 of CPC,
however, the said submission cannot be accepted on the
sole ground, if both the Courts below have ignored the
material evidence and have arrived at a wrong impression
(2019) 8 SCC 729
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drawn from the wrong inferences and therefore, this Court
while exercising jurisdiction under Section 100 of CPC, is
empowered to interfere with the finding recorded by both
the Courts below, if the same is suffered from perversity.
In that view of the matter, the substantial question of law
framed above favours the plaintiff/appellant and
accordingly, I pass the following:
ORDER
i) Appeal is allowed.
ii) Judgment and decree dated
19.07.2012 in RA No.43/2009 on the file
Fast Track Court, Gadag, is hereby set
aside.
ii. Judgment and decree dated
24.03.2009 in OS No.119/2006 on the file
of Civil Judge (Sr.Dn.) and CJM, Gadag, is
hereby set aside.
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iii. Suit in OS No. 119/2006 is decreed
accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
CT-MCK
