Karnataka High Court
Sri Narayana Poojary vs Sri Balakrishna on 19 November, 2025
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RSA No. 268 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR SECOND APPEAL NO. 268 OF 2019 (POS)
BETWEEN:
SRI NARAYANA POOJARY
S/O LATE JOGAYYA POOJARY,
AGED ABOUT 51 YEARS,
R/AT NADAYI HOUSE,
SULKERIMOGRU VILLAGE,
BELTHANGADY TALUK,
D.K.DISTRICT-574 211
...APPELLANT
(BY SRI. SACHIN B.S, ADVOCATE)
AND:
SRI BALAKRISHNA
S/O LATE SADASHIVA RAO,
Digitally signed AGED ABOUT 44 YEARS,
by PANKAJA S
R/AT KORADKA HOUSE,
Location: HIGH
COURT OF SULKERIMOGRU VILLAGE,
KARNATAKA BELTHANGADY TALUK,
D.K.DISTRICT-574 211
...RESPONDENT
(BY SRI. N.SUKUMAR JAIN, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC., 1908 AGAINST
THE JUDGEMENT DECREE DTD 23.10.2018 PASSED IN R.A.NO.
9/2018 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE
AND JMFC., BELTHANGADY, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD
16.12.2017 PASSED IN OS.NO.166/2013 ON THE FILE OF THE
CIVIL JUDGE AND JMFC., BELTHANGADY.
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RSA No. 268 of 2019
HC-KAR
THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 17.11.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
CAV JUDGMENT
1. This is the defendant's appeal.
2. The plaintiff filed a suit for recovery of possession of
'B' schedule property inter alia contending that 'B'
schedule property is the part of 'A' schedule property
which belonged to his father late Sadashiva Rao and the
defendant's father late Jogayya poojary was put in
possession of 'B' schedule property along with residential
house by the plaintiff as a licensee and thereafter he was
allowed to use the house and surrounding land in all
measuring 30 cents.
3. It is the further case of the plaintiff that in the first
week of February, 2013, he requested the defendant to
make alternative arrangement and to vacate 'B' schedule
property. However, the defendant denied and disputed the
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plaintiff's ownership over 'B' schedule property. Left with
no other option, he filed the suit for possession.
4. On service of suit summons, the defendant appeared
through his counsel and denied the plaint averments by
filing the written statement and contending that in the
year 1970, the father of defendant late Jogayya Poojary
trespassed into 'B' schedule property and taken possession
of the same and started cultivating the land. Subsequently
in the year 1971, he had constructed a thatched roof
house and ever since, he has been residing in the said
house. The Grama Panchayat also allotted the door
number to his house. Later, in the year 1986, the father of
defendant re-constructed the house and the Grama
Panchayat re-allotted the door number as 69. In the year
1996, the father of defendant died and thereafter, the
defendant continued with possession and enjoyment of 'B'
schedule property by perfecting his title by way of adverse
possession.
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5. The Trial Court, after considering the rival pleadings
framed the relevant issues and after assessing the oral
and documentary evidence, dismissed the suit with costs
on the ground that the plaintiff failed to prove the jural
relationship of licensor and licensee and in turn, the
defendant has proved that he has been in possession and
enjoyment of 'B' schedule property adverse to the interest
of the owner i.e., plaintiff.
6. On appeal by the plaintiff, the First Appellate Court
on re-assessment of evidence and documents on record,
set-aside the judgment and decree passed by the Trial
Court and thereby decreed the suit by directing the
defendant to vacate and deliver possession of 'B' schedule
property to the plaintiff within three months from the date
of said judgment.
7. Aggrieved by the same, the defendant is before this
Court.
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8. I have heard Sri Sachin B.S, learned counsel for the
appellant/defendant and Sri N.Sukumar Jain, learned
counsel for the respondent/plaintiff.
9. The primary contention of the learned counsel for the
appellant/defendant is that, the suit of the plaintiff is
barred by limitation, as the defendant and his father have
been staying in 'B' schedule property ever since 1970 and
their possession over 'B' schedule property is a settled
possession. However, the suit is initiated in the year 2013
i.e., after lapse of 43 years, as such the suit is barred by
limitation under Article 65 of the Limitation Act.
10. He also contended that the First Appellate Court has
grossly erred while allowing the appeal observing that
though the defendant in his written statement contended
that during 1970 his father trespassed into 'B' schedule
property and taken a forcible possession, however, there
is no iota or oral or documents to prove the said aspect.
According to the learned counsel, the defendant in his oral
evidence categorically stated the said aspect and he also
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placed the tax paid receipts as per Ex.D1 dated
31.03.1980 and as per Ex.D21 and D22 - the other
receipts dated 26.02.1984. He also contended that the
Trial Court has rightly held that the plaintiff though
claimed that the defendant is the licensee of the plaintiff's
father in respect of 'B' schedule and along with residential
house thereon, there is no iota of evidence placed by the
plaintiff to prove the same. In such circumstance, the
defendant unequivocally established that he perfected his
title by way of adverse possession and he has been in
continuous possession and enjoyment of 'B' schedule
property. Accordingly, he prays to allow the appeal.
11. Per contra, learned counsel for the
respondent/plaintiff submits that the First Appellate Court
has rightly passed the impugned judgment by setting
aside the judgment and decree of the Trial Court in view of
the evidence on record that the defendant has failed to
prove the adverse possession by placing relevant
document in respect of date from which he came into
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possession, the nature of possession and the duration of
possession and finally whether the said possession was
open and undisturbed. According to the learned counsel,
since the defendant claimed adverse possession, there is
no need to the plaintiff to prove his title. It is the specific
contention of the plaintiff that the defendant was a
licensee of the plaintiff's father and the defendant has
admitted in his evidence that the plaintiff is the owner of
'B' schedule property. Accordingly, legal notice was also
issued by the plaintiff to the defendant to hand over
possession of 'B' schedule property. Despite, he failed to
hand over possession. He further contended that the
defendant has failed to produce any document to prove
that his father had trespassed into 'B' schedule property
and taken forcible possession of the same. Further, the
defendant did not deny the suggestion made to him in his
cross-examination that his father took permissive
possession of 'B' schedule property from the plaintiff. In
such circumstance, the defendant has failed to prove the
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adverse possession and accordingly, the First Appellate
Court has rightly allowed the appeal by decreeing the suit.
Accordingly, he prays to dismiss the appeal.
12. I have given my anxious consideration to the
submissions made by the learned counsel for the
respective parties and perused the materials on record.
13. This Court while admitting this appeal, has framed
the following substantial questions of law:
i. Whether the suit filed by the
plaintiff was barred by the law of
limitation?
ii. Whether the defendant was
successful in establishing that he was in
adverse possession of the suit 'B'
schedule property?
14. As could be gathered from records, there are two
schedules in the suit, wherein 'A' schedule property
belongs to the plaintiff comprising of Sy.Nos.93/1C and
93/3 in all measuring 1 acre 50 guntas. The 'B' schedule
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property is part of 'A' schedule property i.e., Sy.Nos.93/1C
and 93/3 in all measuring 0.30 cents. The plaintiff filed the
suit seeking recovery of possession of 'B' schedule
property. Undisputedly, 'B' schedule property originally
belonged to the father of the plaintiff and the defendant
was put in possession of the same in the year 1970.
According to the plaintiff, the defendant is a licensee of the
plaintiff's father in respect of 'B' schedule land along with a
residential house thereon. To prove the said aspect,
except the pleading in the plaint, the plaintiff has not
placed any iota of documents. Whereas, the defendant
claims that his father entered into 'B' schedule property in
the year 1970 and by the end of 1971, constructed a
thatched roof house and started to reside in the said
house by cultivating 'B' schedule land. To prove the
possession in respect of 'B' schedule property, the
defendant has produced the tax paid receipts as per Ex.D1
dated 31.03.1980 and as per Exs.D21 and D22 - the other
receipts dated 26.02.1984. These documents corroborates
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to the testimony of the defendant-DW.1 that ever since
1971, himself and his father were residing in 'B' schedule
property.
15. As per the settled position of law decided by this
Court and the Hon'ble Apex Court in catena of judgments,
to prove the adverse possession, the party in possession
has to prove that he is in hostile possession to the title of
the true owner and his possession is peaceful, open and
continuous.
16. As per the law laid down by the Hon'ble Apex Court
in the case of Karnataka Board of WAKF vs.
Government of India and Others - (2004) 10 SCC
779, a person who claims adverse possession should
show-
(a) on what date he came into possession,
(b) what was the nature of his possession,
(c) whether the factum of possession was known to
the other party,
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(d) how long his possession has continued, and
(e) his possession was open and undisturbed.
17. Thus, a person pleading adverse possession has no
equities in his favour. Since he is trying to defeat the
rights of the true owner, it is for him to clearly plead and
establish all facts necessary to establish his adverse
possession.
18. In the instant case, applying the above guidelines to
the facts and circumstances of this case, as per the
evidence of the defendant-DW.1, he categorically stated in
his evidence that his father trespassed into 'B' schedule
property and taken possession of the same in the year
1970 and he constructed a thatched roof house by the end
of 1971 and ever since, he had been living in the said
house and the Gram Panchayat has allotted a house
number to the same. Subsequently, in the year 2006, he
also obtained electricity supply to the house and residing
thereon. On careful perusal of evidence of the plaintiff-
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PW.1, he categorically admitted that out of 30 cents in 'B'
schedule property, 5 cents where house is situated had
been given to the defendant and the remaining 25 cents
property had been encroached by the defendant and thus,
he is in possession of 30 cents. This admission of the
plaintiff clearly proves that the defendant is not a licensee
in respect of 'B' schedule property.
19. As rightly contended by the learned counsel for the
defendant, the plaintiff has failed to prove the jural
relationship of licensor and licensee between the plaintiff
and defendant in respect of 'B' schedule property. As such,
the question of termination of license of the defendant by
the plaintiff does not arise.
20. Further, the defendant also proved that the factum of
possession was very much within the knowledge of the
plaintiff since the plaintiff-PW.1 himself admitted in the
cross-examination about defendant's possession and also
his consent for supply of electricity to the house of the
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defendant. On perusal of the evidence and documents
placed by the defendant, it clearly establishes that the
defendant has been in possession since 1970 till the
issuance of legal notice by the plaintiff i.e., till the year
2013. The plaintiff also miserably failed to place any
document to show that the possession of the defendant
was disturbed by the plaintiff till the year 2013. On the
other hand, the defendant has categorically established
that his possession was open and undisturbed by the
defendant and he was in settled possession. The evidence
of the plaintiff and the defendant clearly established that
the defendant was in undisturbed possession in respect of
30 cents of land ever since 1970. The only contention of
the plaintiff that the defendant was a licensee under him
has not been proved by placing any document to that
effect. In such circumstance, in my considered view the
defendant has proved that he has been in possession and
enjoyment of suit 'B' schedule property adverse to the
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interest of the plaintiff. Accordingly, I answer the
substantial question No.2 in the "affirmative".
21. Since the defendant proved his possession is adverse
to the interest of the defendant and he has been in
possession and enjoyment of the suit schedule property
ever since 1970-71 and the plaintiff has failed to prove the
jural relationship between himself and the defendant as
that of licensor and licensee in respect of suit 'B' schedule
property, the suit of the plaintiff is barred by limitation as
per Article 65 of the Limitation Act, as the period of
limitation prescribed for possession of immovable property
or any interest therein based on title must be filed within
12 years when the possession of the defendant becomes
adverse to the plaintiff. In the case on hand, since the
defendant proves that himself and his father has been in
possession ever since 1970-71 and the suit was filed in the
year 2013, the same is barred by limitation. Accordingly, I
answer substantial question No.1 also in the "affirmative".
In that view of the matter, I proceed to pass the following:
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ORDER
i) The appeal is allowed.
ii) The judgment and decree dated 23.10.2018
passed by the First Appellate Court in R.A.No.9/2018
is set aside.
iii) The judgment and decree dated 16.12.2017
passed by the Trial Court in O.S.No.166/2013 is
affirmed.
SD/-
(RAJESH RAI K)
JUDGE
PKS
