Karnataka High Court
Smt. Geetha Naik vs Sri S Prabhakar Tholar on 10 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 558 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.558 OF 2025 (POS)
BETWEEN:
1. SMT. GEETHA NAIK
WIFE OF LATE KESHAVA NAIK
AGED ABOUT 63 YEARS
2. SMT. K. PRATHIMA NAIK
DAUGHTER OF LATE KESHAVA NAIK
AGED ABOUT 39 YEARS
3. SMT. K. PRAMILA NAIK
DAUGHTER OF LATE KESHAVA NAIK
AGED ABOUT 35 YEARS
4. SRI. NIRANJAN NAIK
SON OF LATE KESHAVA NAIK
Digitally signed AGED ABOUT 35 YEARS
by DEVIKA M
Location: HIGH 5. SMT. K. KAMALA NAIK
COURT OF
KARNATAKA DAUGHTER OF LATE KESHAVA NAIK
AGED ABOUT 33 YEARS
6. SMT. K. LAXMI
WIFE OF LATE K. RAGHAVENDRA NAIK
AGED ABOUT 71 YEARS
7. SRI. K. PUNDALIKA NAIK
SON OF LATE K. NARAYANA NAIK
AGED ABOUT 79 YEARS
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RSA No. 558 of 2025
HC-KAR
SRI. K. RAMESH NAIK
SON OF LATE K. NARAYANA NAIK
SINCE DEAD, REPRESENTED BY HIS LRS.
8. SMT. PUSHPALATHA NAIK,
DAUGHTER OF LATE K. RAMESH NAIK
AGED ABOUT 28 YEARS
9. SMT. VINAYA NAIK
DAUGHTER OF LATE K. RAMESH NAIK
AGED ABOUT 23 YEARS
10. SRI. SHASHIDHAR NAIK
SON OF LATE K. RAMESH NAIK
AGED ABOUT 20 YEARS
11. SRI. K. KRISHNA NAIK
SON OF LATE K. NARAYANA NAIK
AGED ABOUT 69 YEARS
SMT. K. SHALINI NAIK
DAUGHTER OF LATE K. NARAYANA NAIK
SINCE DEAD, LRS ARE ALREADY ON RECORD
12. SRI. K. CHANDRASHEKAR NAIK
SON OF LATE K. NARAYANA NAIK
AGED ABOUT 63 YEARS
ALL RESIDING AT NO.331
WARD NO.1, MADDUGUDDE
KUNDAPURA KASABA VILLAGE
KUNDAPURA TALUK
KUNDAPURA-576201
...APPELLANTS
(BY SRI. PURNACHANDRA M. PURANIK, ADVOCATE)
AND:
SRI. S. PRABHAKAR THOLAR
SON OF LATE B.M. SHIVARAMA SHETTY
SINCE DEAD, REPRESENTED BY HIS LRS.
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RSA No. 558 of 2025
HC-KAR
1. SRI. PRASHANTH P. THOLAR
SON OF LATE S. PRABHAKAR THOLAR
AGED ABOUT 73 YEARS
RESIDING AT NO.330
WARD NO.1, MADDUGUDDE
KUNDAPURA KASABA VILLAGE
KUNDAPURA TALUK
KUNDAPURA-576 201.
2. SRI. RAJENDRA M. THOLAR
SON OF LATE S. PRABHAKAR THOLAR
AGED ABOUT 71 YEARS
RESIDING AT NO.330
WARD NO.1, MADDUGUDDE
KUNDAPURA KASABA VILLAGE
KUNDAPURA TALUK
KUNDAPURA-576 201.
...RESPONDENTS
(BY SRI. K.CHANDRANATH ARIGA, ADVOCATE FOR
C/R1 AND C/R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 22.02.2025
PASSED IN R.A.NO.18/2024 ON THE FILE OF THE SENIOR
CIVIL JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 06.03.2024
PASSED IN O.S.NO.134/2011 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, KUNDAPURA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 558 of 2025
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellants and learned counsel
appearing for caveator-respondent Nos.1 and 2.
2. This second appeal is filed against the concurrent
finding of the Trial Court and the First Appellate Court.
3. The factual matrix of the case of the plaintiffs
before the Trial Court while seeking the relief of possession, it
is contented that 'A' schedule property belongs to Moolageni
tenancy of plaintiff No.1, who had filed an application for its
confirmation after Land Reforms Act came into force. That the
occupancy rights in respect of suit 'A' schedule property was
granted in favour of plaintiff No.1 on 21.07.1979 and
accordingly, Form No.10 was also issued. Thereby, RTCs of suit
'A' schedule property were registered in the name of defendant
No.1 as owner.
4. Defendants having no manner of right, title or
interest over the 'A' schedule property, but husband of
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defendant No.6 late Raghavendra Naik, who was working in
factory of plaintiffs, where plaintiff No.1 had allowed him to
stay for a temporary period in a small building constructed by
plaintiff No.1 in portion of said Moolageni lands. Therefore on
the basis of said permission, said late Raghavendra Naik was
staying in the building as licensee. Taking advantage of the
same, he filed an application for declaration in Form No.7
claiming false tenancy over entire property including residential
building in suit 'A' schedule property. The said claim was that
late Narayana Naik was in possession of the property and
application before Tribunal was dismissed on 21.07.1979.
Aggrieved by it, writ petition was filed and the same was also
dismissed confirming the order of Land Tribunal.
5. During the pendency of the said writ petition,
Narayana Naik died and defendants jointly continued in the said
writ petition and obtained final order dated 09.12.2010.
Defendants being legal heirs of Narayana Naik are bound by
orders of Land Tribunal and Hon'ble High Court of Karnataka.
The said orders have rejected and nullified all the claims
advanced by defendants till now over every portion of 'A'
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schedule property. House occupied by late Raghavendra Naik is
located in portion of suit 'A' schedule property where
defendants have taken unlawful possession of the said house
with some portions of land around the said house. Defendants
being legal heirs of late Narayana Naik and Raghavendra Naika
are in unlawful and unauthorized possession of the said house
with some portions of the land. The said portion is described as
suit 'B' schedule property. Therefore, defendants have no
manner of right, title or interest over any portion of suit 'B'
schedule property or building thereon as above stated.
However, defendants have continued to be in possession and
enjoyment of suit 'B' schedule property of which plaintiffs are
entitled for physical possession. Hence, filed the suit seeking
the relief.
6. Defendant No.9 has filed written statement denying
all averments made in the plaint, but particularly contend that
originally land bearing Sy.No.189/6 measuring 0.42 acres and
Sy.No.182/5 measuring 0.16 acres of Kundapura Kasaba
Village were cultivated by maternal uncle of Narayana Naika
namely, Venkataramana Mestha, Annapa Mestha, Sheshagiri
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Mestha on Chalageni tenancy right under one Maruthi Rao,
Dasappayya Garatekar, later it was given to Narayana Naik for
cultivation under Chalageni tenancy. In the same capacity, he
filed Form No.7 before the Land Tribunal for confirming his
occupancy rights. However the said claim was rejected and Writ
Appeal was also filed. Plaintiffs do not have any right to
withdraw alleged permission of defendants nor their
predecessors in title. Hence, contend that they are not entitled
for any relief.
7. The Trial Court having considered the pleadings of
parties, allowed the parties to lead evidence. The Trial Court
having considered the pleadings of the parties and also oral and
documentary evidence, answered issue Nos.1 to 7 as
'affirmative', accepting the case of plaintiffs and granted the
relief directing the defendants to vacate and deliver vacant
possession of suit 'B' schedule property to plaintiff Nos.2 and 3
within 3 months from the date of order, failing which plaintiffs
would be at liberty to get the same executed through process
of this Court.
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8. Being aggrieved by the said judgment and decree,
an appeal is filed in R.A.No.18/2024. The First Appellate Court
also having considered the grounds which have been urged in
the appeal, formulated the point whether the Trial Court has
committed an error in decreeing the suit and hence, the
impugned judgment and decree of the Trial Court requires
interference. The First Appellate Court on re-appreciation of
both oral and documentary evidence comes to the conclusion
that Trial Court has not committed any error and the very claim
of the defendants was rejected that no materials to show that
suit 'A' and 'B' schedule properties which are part of 'A'
schedule property and unless the nature of the possession
become adverse to the true owner of the land, the defendants
cannot go against the title and deny the same. Hence,
confirmed the judgment of the Trial Court. Being aggrieved by
the said concurrent finding, present second appeal is filed
before this Court.
9. The main contention of learned counsel appearing
for the appellants is that appellants are in possession of the
property for more than 60 years. The counsel would
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vehemently contend that suit for possession without seeking
declaration is maintainable has to be considered in this second
appeal. Hence, this Court has to admit and frame substantial
question of law and when the title of the plaintiffs is under
dispute, cannot seek the relief of possession. Hence, this Court
has to admit the second appeal and frame substantial question
of law.
10. Per contra, learned counsel appearing for caveator-
respondent Nos.1 and 2 would vehemently contend that main
case of the plaintiffs is that they are the Moolageni tenants and
an application was filed and the same was considered and grant
was also made on 21.07.1979 and the very claim of the
appellants is that they are Chalegeni tenants and attempt made
by the appellants was rejected. Hence, the appellants are not
entitled for possession and the very contention of the learned
counsel for the appellants that the respondents have no title
cannot be accepted when the right has already been confirmed
in the year 1979 itself in favour of the respondents.
11. Having heard learned counsel for the appellants and
learned counsel appearing for the caveator-respondent Nos.1
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and 2, it is the main contention of learned counsel for the
appellants before the Trial Court that appellants are Chalageni
tenants and on the other hand, it is the contention of learned
counsel for the caveator-respondent Nos.1 and 2 that they are
Moolageni tenants and filed an application for its confirmation
after Land Reforms Act came into force and the same was
granted on 21.07.1979. Accordingly, Form No.10 was also
issued, all the records stands in the name of the
respondents/plaintiffs and name was also entered in the
revenue records. When such being the case, though the
appellants are in possession for a longer period, the same
cannot create any right, when the claim of appellants was
already rejected and when the same was challenged before this
Court, this court also affirmed the same. When such being the
case, I do not find any substance in the contention of the
counsel that without seeking the relief of declaration as to the
title, cannot claim the relief of possession and the fact that the
respondents were Moolageni tenants and right was also
confirmed by Land Reforms Act after the Act came into force in
favour of plaintiff No.1 on 21.07.1979. When such being the
material on record, the very contention of appellants cannot be
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accepted. Hence, I do not find any ground to admit and frame
substantial question of law.
12. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
