Karnataka High Court
Yarraguntappa vs Avaneerappa on 18 November, 2025
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RSA No. 918 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 918 OF 2019 (INJ)
BETWEEN:
YARRAGUNTAPPA
S/O DODDA CHITHAPPA,
AGED ABOUT 50 YEARS,
AGRICULTURIST,
RESIDENT OF K.T HALLI VILLAGE
NIDAGAL HOBLI, PAVAGADA TALUK,
TUMKUR DISTRICT-572 116
...APPELLANT
(BY SRI. GANGADHARAPPA A.V, ADVOCATE)
AND:
AVANEERAPPA
S/O BADEERAPPA,
Digitally signed
by PANKAJA S AGED ABOUT 68 YEARS
Location: HIGH AGRICULTURIST,
COURT OF RESIDENT OF K.T HALLI
KARNATAKA
NIDAGAL HOBLI, PAVAGADA TALUK,
TUMKUR DISTRICT-572 116
...RESPONDENT
(BY SRI. HARISH H.V, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 18.03.2019
PASSED IN RA NO 137/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, PAVAGADA ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
22.04.2016 PASSED IN OS NO 431/2009 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, PAVAGADA.
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RSA No. 918 of 2019
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THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 07.11.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
1. This is defendant's second appeal.
2. The plaintiff filed a suit for permanent injunction
against the defendant in respect of suit schedule property.
3. It is the case of the plaintiff that he is the lawful
owner in possession and enjoyment of land measuring 13
acres 6 guntas including kharab in Sy.No.20/1 situated at
K.T.Halli Village, Nidgal Hobli, Pavagada Taluk, (for
brevity, "the suit schedule property") and the same
was acquired by him by virtue of compromise decree
passed in O.S.No.29/1992. After the said compromise, he
dug a borewell in the suit schedule property and also
obtained electrical supply for lifting water from the said
borewell. By using water from the said borewell, he
developed his property.
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4. It is the further case of the plaintiff that the
defendant, who is an adjacent landowner towards eastern
side of the suit schedule property, without having any
right, interest or possession over the suit schedule
property, unnecessarily denied the plaintiff's title by
making unlawful attempts to interfere with the plaintiff's
possession. Further, the defendant had made unlawful
claim over the suit schedule borewell and installed pump
set. It is also alleged by the defendant that the plaintiff
had encroached upon the property of the defendant and
got the borewell dug. Even if the borewell was dug in the
property of the defendant by encroaching the same, the
defendant had lost the right over the said portion and the
plaintiff had perfected his title over the suit schedule
property by virtue of adverse possession. Thus, the
plaintiff filed the suit seeking permanent injunction
restraining the defendant from interfering and obstructing
with the plaintiff's peaceful possession and enjoyment of
the suit schedule property.
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5. The defendant contested the suit by filing the written
statement denying plaint averments by contending that
the defendant is the owner in possession of land bearing
Sy.No.21/1A3 and the borewell was dug in his land
including tube well and installed pump set and that there
is no borewell in plaintiff's land i.e., Sy.No.20/1 and that
the land in Sy.No.21/1A3 is situated in the eastern side of
the suit schedule land.
6. It was the further case of the defendant that the plea
of plaintiff for adverse possession cannot be sustainable
under law, since the plaintiff has failed to plead hostile to
the interest of owner and failed to mention specific date of
commencing of adverse possession. Further, since the
plaintiff averred in the plaint that defendant had denied
plaintiff's title, the plaintiff ought to have filed a
declaratory suit against the defendant instead of
permanent injunction as the possession itself was
doubtful. As such, the defendant prayed to dismiss the
suit.
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7. The Trial Court, after considering the rival pleadings,
framed relevant issues and after examining the evidence
in detail, dismissed the suit on the ground that the plaintiff
has failed to establish the existence of bore`well in the
suit schedule property and also failed to establish that
defendant had interfered with the possession of the same.
8. On appeal by the plaintiff, the First Appellate Court,
upon re-appreciation of evidence, has observed that the
documents produced by the plaintiff were sufficient to hold
that the plaintiff was in possession of the suit schedule
property as on the date of the suit and that the statement
of defendant denying the title of plaintiff itself was
sufficient to hold that he was interfering with the
possession of the plaintiff in the suit schedule property.
Further, Ex.D4 - the survey sketch clearly reveals that the
plaintiff has encroached the schedule property which
belongs to the defendant and had dug the borewell in the
said property and was in possession of the same. In such
circumstances, the remedy available for the defendant to
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recover the same by due process of law. Accordingly, the
First Appellate Court allowed the appeal by setting aside
the judgment and decree of the Trial Court.
9. Aggrieved by the same, the defendant is before this
Court.
10. I have heard Sri Gangadharappa A.V., learned
counsel for the appellant/defendant and Sri Harish H.V.,
learned counsel for the respondent/plaintiff.
11. The primary contention of the defendant/appellant is
that the First Appellate Court has erred in allowing the
appeal by reversing the judgment and decree passed by
the Trial Court. The First Appellate Court has failed to
notice that the dispute between the parties was only with
regard to 0.03 guntas of land in Sy.No.21/1A3 and that
the defendant got his land surveyed and thereafter
hudbasth was fixed in the presence of the plaintiff as per
Exs.D2 to D4, which was not disputed by the plaintiff,
which clearly establishes that the defendant is the owner
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of disputed 0.03 guntas of land in Sy.No.21/1A3 where the
borewell is existing. The First Appellate Court has also
failed to notice that when the plaintiff pleaded adverse
possession, he ought to have filed the suit for declaration
of his title against the defendant and that the decree of
permanent injunction cannot be used to perfect his title
when the possession and title are doubtful. Accordingly, he
prays to allow the appeal.
12. Per contra, the learned counsel for the
plaintiff/respondent contends that the Trial Court has
totally erred while dismissing the suit on the ground that
the plaintiff has failed to establish the existence of
borewell in the suit schedule property and also failed to
establish that defendant had interfered with the
possession of the same, although the plaintiff established
that he was the owner in possession of suit schedule
property by virtue of a compromise decree passed in
OS.No.29/1992 and that he dug a borewell in the same.
According to him, the plaintiff has established the
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interference of defendant with his peaceful possession of
suit schedule property by way of encroachment. As such,
the First Appellate Court has rightly observed that if the
defendant proves the alleged encroachment, the remedy
available to him is to file a suit for possession. He also
contended that, Ex.P1 to P7 clearly established the
plaintiff's possession in the suit schedule property and
Ex.P5 further establishes that there is no encroachment by
the plaintiff in the land of defendant. Even otherwise, if
the defendant establishes that the borewell situated in his
land, it is admitted that the plaintiff is in possession of the
said land. As such, the plaintiff's possession has to be
protected from the illegal interference of the defendant.
This aspect of the matter is rightly dealt by the First
Appellate Court. Accordingly, he prays to dismiss the
appeal.
13. I have given my anxious consideration to the
contentions of learned counsel for both the parties, so also
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to the impugned judgments and decrees passed by both
the Courts.
14. This Court while admitting this appeal, has framed
the following substantial questions of law:
i) Whether the First Appellate Court
committed an error in granting the relief of
permanent injunction without seeking the
relief of declaration when the title is denied
by the defendant in view of judgment of
ANATHULA SUDHAKAR Vs. P.BUCHI
REDDY's case?
ii) Whether the First Appellate Court
committed an error in reversing the finding
of the Trial Court ignoring the material
available on record, particularly the
admission of P.W.1 and whether the same
amounts to perversity?
15. As could be gathered from records, the plaintiff is the
absolute owner of land measuring 13 acres 6 guntas
including kharab in Sy.No.20/1 situated at K.T.Halli
Village, Nidgal Hobli, Pavagada Taluk and acquired the
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same by virtue of compromise decree in O.S No.29/1992.
The defendant is owner in possession of land bearing
Sy.No.21/1A3, which is situated on the eastern side of the
plaintiff's property. According to the plaintiff, he has dug a
borewell in his property i.e. Sy.No.20/1 in the year 1994
and defendant without any right, title, interest or
possession is unnecessarily denying plaintiff's title making
unlawful interference with the plaintiff's peaceful
possession and enjoyment. According to the plaintiff, the
defendant had made an unlawful claim over the suit
schedule borewell and I.P set and also obstructing the
plaintiff to bail out the water.
16. It is the further case of the plaintiff that, even if the
place of suit schedule borewell comes in any piece of
defendant's land, he has lost his right or claim over the
same, since the plaintiff has been in actual, physical,
continuous and uninterrupted possession, as such, he
perfected his title by way of adverse possession. The Trial
Court while dismissing the suit observed that PW.1 in his
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evidence clearly admitted that he has not encroached 0.03
guntas of land of the defendant and dug the borewell.
Further, PWs.2 to 4 also admitted the presence of borewell
in the suit schedule property and the possession of the
plaintiff over the same.
17. However, Ex.D4-survey sketch, which was conducted
subsequent to Ex.P5, depicts there is encroachment to an
extent of 0.03 guntas by the plaintiff, but Ex.P5 relied on
by the plaintiff does not reveal the presence of borewell,
as such according to the Trial Court, the borewell was dug
subsequently by the plaintiff in the encroached property.
According to the Trial Court, though the plaintiff is in
possession of the suit schedule property to an extent of
0.02 guntas, the borewell is not situated in the said
property. The said findings of the Trial Court is not
accepted by the First Appellate Court for the reason that
Ex.D4 clearly reveals the encroachment to an extent of
0.03 guntas by the plaintiff and the borewell is also
situated in the said area. Ex.D5 - survey was conducted
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subsequent to Ex.P5. As such, the presumption is that the
borewell must have dug by the plaintiff, not by the
defendant. According to the First Appellate Court, the Trial
Court ought to have decreed the suit to protect the
possession of the plaintiff until he was dispossessed by
following due process of law. As such, the remedy
available for him is to recover the same.
18. On careful perusal of the evidence, documents and
the judgments of both the Courts, it is categorically clear
that the disputed 0.03 guntas of the property belongs to
the defendant and the plaintiff had encroached the same
and dug a borewell in the said encroached area and that
he is in possession of the same. At the same time, the
plaintiff failed to prove the adverse possession of the same
since his possession was not settled possession due to the
intervention of the defendant. In such circumstance, as
per the judgment of the Co-ordinate Bench of this Court in
RSA.No.2681/2007 & connected matter disposed of
on 27.06.2025, in a suit not only the right and liability of
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the plaintiff/s are to be adjudicated, but also the right and
liability of the defendant/s are adjudicated. If the plaintiff
found to be in possession without title and the defendant
is held to be owner without possession, there is complete
adjudication of rights and liabilities of both sides by
following due process of law by a Competent Court that
the plaintiff is in unauthorized possession of the property.
The Co-ordinate Bench further observed that in such
circumstance, filing of a separate suit by the defendant is
wholly unwarranted and it serves no purpose other than
burdening the already overburdened system and dragging
the person, whose right are already adjudicated, into one
more litigation, despite the declaration by the Court that
the plaintiff is not the owner, but in possession and the
defendant is the owner without possession. The Co-
ordinate Bench in the aforesaid judgment in paragraphs 23
to 35 has held as under:
"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
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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.
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.
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
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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,
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
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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
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,
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(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.
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
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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.
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
the suit land which is Rs.43/-. Thus, valuation for
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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."
19. The findings of the Co-ordinate Bench in the
aforesaid judgment are apposite to the facts and
circumstances of the present case. The Trial Court and
First Appellate Court have observed that the plaintiff is in
possession of disputed property (i.e., encroached portion
of defendant's property) and drawing water from the
borewell dug by him. Ex.D4 - the survey sketch also
depicts that the plaintiff encroached 0.03 guntas of
defendant's land and the borewell is situated in the said
encroached area. As discussed supra, the plaintiff though
claimed adverse possession, has failed to establish that he
was in settled possession of said portion. In such
circumstance, I am of the considered view that in the
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present case, though the defendant has not filed any
counter claim for possession, he need not have to file a
separate suit for possession i.e., 'due process of law',
since the rights of the parties are adjudicated by the Trial
Court and First Appellate Court. Accordingly, the defendant
shall pay requisite court fee to enable the registry to draw
the decree for possession. Thus, in view of the evidence
and documents already placed and analyzed by the Trial
Court and the First Appellate Court, in this appeal itself the
defendant is entitled for the relief of possession subject to
payment of necessary Court fee for the said relief.
Accordingly, the substantial questions of law are answered
and I proceed to pass the following:
ORDER
(i) The appeal is allowed.
(ii) The impugned judgment and decree
dated 18.03.2019 passed by the First
Appellate Court in R.A.No.137/2016 is set
aside.
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(iii) Consequently, three months time is
granted to the plaintiff i.e., on or before
18.02.2026 to hand over possession of the
disputed area of 0.03 guntas of land
mentioned in the suit schedule property to the
defendant, failing which the defendant is
entitled to execute this decree of possession.
(iv) Till then, the plaintiff shall not be
disturbed.
(v) Office to draw the decree accordingly.
SD/-
(RAJESH RAI K)
JUDGE
PKS
