Karnataka High Court

Sri Arechandrappa vs Smt Venkatalakshmamma on 26 November, 2025

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                                                          NC: 2025:KHC:49064
                                                         RSA No. 328 of 2019


                   HC-KAR



                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                       DATED THIS THE 26TH DAY OF NOVEMBER, 2025

                                           BEFORE
                            THE HON'BLE MR. JUSTICE RAJESH RAI K
                      REGULAR SECOND APPEAL NO. 328 OF 2019 (PAR)


                   BETWEEN:

                   SRI ARECHANDRAPPA
                   S/O NAGANNA
                   AGED ABOUT 58 YEARS
                   RESIDENT OF CHATTENAHALLI
                   HOLAVANAHALLI HOBLI
                   KORATAGERE TALUK
                   TUMKUR DISTRICT-572 121.
                                                                ...APPELLANT
                   (BY SRI. J. ARAVIND BABU, ADVOCATE)


                   AND:

                   SMT. VENKATALAKSHMAMMA
                   W/O LATE MUTHANNA
Digitally signed
by PANKAJA S       AGED ABOUT 52 YEARS
Location: HIGH     R/A CHATTENAHALLI VILLAGE
COURT OF           HOLAVANAHALLI HOBLI
KARNATAKA
                   KORATAGERE TALUK
                   TUMKUR DISTRICT-572 121.
                                                              ...RESPONDENT
                   (RESPONDENT SERVED - UNREPRESENTED)
                        THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
                   JUDGMENT AND DECREE DATED 27.10.2018 PASSED IN
                   R.A.NO.54/2009 ON THE FILE OF THE ADDITIONAL SENIOR
                   CIVIL JUDGE AND JMFC MADHUGIRI DISMISSING THE APPEAL
                   AND CONFIRMING THE JUDGMENT AND DECREE DATED
                   12.03.2009 PASSED IN OS.NO.95/2006 ON THE FILE OF THE
                   CIVIL JUDGE (JR.DN) AND JMFC KORATAGERE.
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                                           NC: 2025:KHC:49064
                                         RSA No. 328 of 2019


HC-KAR



     THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 24.11.2025 COMING ON FOR PRONOUNCEMENT THIS DAY,
THE COURT DELIVERED THE FOLLOWING:


CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

                     CAV JUDGMENT

1. This second appeal is by the defendant.

2. The plaintiff has filed the suit for declaration and

permanent injunction against the defendant seeking to

declare the plaintiff as the absolute owner of the suit

schedule property and restraining the defendant from

interfering with the plaintiff's peaceful possession and

enjoyment of the suit schedule properties.

3. It is the case of the plaintiff that, the propositus

Arechandarappa had five sons namely Beeranna,

Chikkanna, Naganna (father of defendant), Adavanna and

Kariyanna. Beeranna had two sons namely Muttanna and

Doddaiah. Chikkanna had two sons namely

Arechandarappa (defendant) and Naganna. Adavanna had

a son namely Muttanna (husband of plaintiff) who was

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mentally retarded person and wandering in the village.

After death of Arechandarappa, his sons divided the suit

schedule properties orally and subsequently, a Palupatti

dated 19.04.1981 came into existence. In the partition,

the suit schedule properties along with other properties

were allotted to fourth son Adavanna i.e., father-in-law of

the plaintiff. During the time of division, Adavanna was not

alive, hence his share was given to Naganna i.e. the third

son of Arechandrappa. In the meantime, Muttanna s/o

Adavanna was unheard due to his mental weakness and

there was also a recital in the partition that, if Muttanna

returns to the village, he has to be put in possession of the

property allotted to his share. With such understanding,

the possession of the suit schedule properties was given to

defendant's father - Naganna by way of permissive

possession.

4. After, couple of years, said Muttanna returned to the

village and his share of properties were handed over to

him. Since then, he is in possession and enjoyment of the

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property. Later, the said Muttanna died in the year 1995

leaving behind his wife (plaintiff) as his sole legal heir.

5. Things stood thus, the plaintiff after her marriage

with Muttanna came to know that a Will has been

executed by her husband on 24.08.1981 in respect of suit

schedule properties in favour of the defendant. However,

the same was cancelled on 08.08.1990 and the plaintiff is

in possession and enjoyment of the same. Subsequently,

after the death of her husband, the defendant has got

changed the revenue entries with respect to suit schedule

properties on the strength of the Will dated 24.08.1981,

though the same was cancelled subsequently. Hence, the

plaintiff filed the suit.

6. On service of summons, defendant appeared and

filed his written statement denying the averments of the

plaint by contending that at the time of partition,

Muttanna (husband of the plaintiff) was sound and was not

in the village, as such, his share was given to the

defendant on condition that the same shall be handed over

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to Muttanna once he returns to the Village. Accordingly,

when Muttanna returned to the village, the suit schedule

properties were handed over to Muttanna. The plaintiff

though married Muttanna, was not living with him and she

left the company of Muttanna. Thereafter, the father of the

defendant was taking care of Muttanna and hence, he

executed a registered Will dated 24.08.1981 and

bequeathed the suit schedule properties in favour of the

defendant. As such, the plaintiff has no manner of right,

title, much less possession of the suit schedule properties.

The defendant was in settled possession of the suit

schedule properties for more than 27 years. Accordingly,

he perfected his title over the suit schedule properties by

way of adverse possession. Accordingly, defendants

prayed to dismiss the suit.

7. The Trial Court, after considering the rival pleadings,

framed the relevant issues and after examining the

evidence in detail, decreed the suit.

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8. On appeal by the plaintiff, the First Appellate Court,

upon re-appreciation of evidence, affirmed the judgment

and decree of the Trial Court and dismissed the appeal.

Challenge to the same is lis before this Court.

9. I have heard Sri.J.Aravind Babu, learned counsel for

the appellant/defendant. Respondent though served,

remained unrepresented.

10. The primary contention of the learned counsel for the

appellant/defendant is that the Trial Court and the First

Appellate Court have grossly erred while decreeing the suit

without appreciating the fact that ever since from the date

of partition, the husband of the plaintiff was mentally

retarded person and wandering in the village and the suit

schedule properties were in the possession and cultivation

of the defendant. Though the said Muttanna married the

plaintiff, at no point of time, they lived together. The

plaintiff left the company of her husband in the year 1991

itself. Ever since, the defendant is in possession and

enjoyment of the suit schedule properties. In such

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circumstance, the plaintiff filed the suit only for declaration

and injunction without claiming possession. Thus, the suit

was barred by Section 34 of the Specific Relief Act, 1963.

11. Further contended that to prove the possession of

the suit schedule properties by the defendant, DWs.1 to 3

have categorically stated to that effect and the Will-Ex.D1

and RTC extracts clearly establish that the defendant is in

possession of the suit schedule properties. In such

circumstance, the suit is liable to be dismissed on this

ground alone. Accordingly, he prays to allow the appeal.

12. To buttress his arguments, he has relied on the

following judgments.

1. UNION OF INDIA V/s IBRAHIM UDDIN AND ANOTHER - (2012) 8 SCC 148.

2. EXECUTIVE OFFICER, ARULMIGU CHOKKANATHA SWAMY KOIL TRUST, VIRUDHUNAGARA V/s CHANDRAN AND OTHERS - AIR 2017 SC 1034

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13. I have given my anxious consideration to the

contentions of learned counsel for the appellant and

perused the impugned judgments and decrees passed by

both the Courts.

14. As could be gathered from records, the relationship

between the parties and the partition of the properties

belonging to the propositus - Arechandrappa vide Palupatti

dated 19.04.1981 are not in dispute. The allotment of suit

schedule properties to the share of plaintiff's husband -

Muttanna is also not in dispute.

15. It is the case of the defendant that, immediately

after partition, on 24.08.1981 the plaintiff's husband

executed a Will in favour of the defendant in respect of

suit schedule properties and thereafter, though the

plaintiff married said Muttanna, she was not living with

him and left his company. As such, the defendant

continued in possession and enjoyment of the suit

schedule properties.

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16. However, according to the plaintiff, the Will dated

24.08.1981 executed by said Muttanna in favour of the

defendant was cancelled vide registered Deed dated

08.08.1990 as per Ex.P14. Thereafter, the plaintiff and

her husband continued in possession of the suit schedule

properties by cultivating the same. To substantiate the

said aspect, the plaintiff examined herself as PW.1 and

deposed to said effect. She has categorically stated in her

cross-examination that the suit schedule properties are in

her possession. She specifically denied the suggestion that

the suit schedule properties are in the possession of the

defendant. Though the defendant raised a contention that

the suit schedule properties are in his possession ever

since 1981 by virtue of the Will, the said contention of the

defendant was nullified by the plaintiff by placing reliance

on Ex.P14 - Cancellation Deed, which clearly depicts that

in the year 1990, the husband of the plaintiff cancelled the

Will dated 24.08.1981 and he was put in possession of the

same. Further, the recital in Ex.P14 clearly reveals that

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the defendant did not look after said Muttanna by

providing him basic necessities. As such, it could be

presumed that, except for that reason, there was no

reason for him to cancel the Will.

17. Further, the defendant did not dispute the marriage

of plaintiff with said Muttanna. Thus, it is clear that in the

year 1981-82, said Muttanna returned to the village and

he was in put in possession of the suit schedule properties

and thereafter, he cancelled the Will in the year 1990.

DW.1 in his cross examination pleaded ignorance in

respect of cancellation of the Will and categorically

admitted that, till the year 1985, he was on treatment and

he was cultivating his share of the property. This portion

of the evidence corroborates the testimony of PW.2 who is

none other than the cousin of defendant and deceased

Muttanna who categorically stated that the said Muttanna

was cultivating his share of properties and he was in good

terms with his wife i.e. the plaintiff and also he was

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present at the time of cancellation of the Will. The relevant

portion of the cross examination of PW.2 reads as under:

"ªÀÄÄvÀÛtÚ¤UÉ ¸ÉÃjzÀ D¹ÛUÀ¼À£ÀÄß ªÉÆzÀ°¤AzÀ®Æ EA¢UÀÆ ¸ÀºÀ ¥ÀæwªÁ¢AiÉÄÃ C£ÀÄ¨sÀ«¸ÀÄwÛzÁÝgÉ JAzÀgÉ ªÀÄÄvÀÛtÚ DvÀ£À D¹ÛUÀ¼À£ÀÄß ¥ÀævÉåÃPÀªÁV ¸Áé¢üÃ£À ºÉÆA¢zÀÝ. 10/12 ªÀµÀð ¥ÀævÉåÃPÀªÁV ªÀåªÀ¸ÁAiÀÄ ªÀiÁrzÁÝgÉ JAzÀÄ ºÉÃ¼ÀÄvÁÛgÉ."

18. By plain reading of the above portion of the evidence

it is clear that the plaintiff and her husband were in

possession of the suit schedule properties till the death of

her husband and thereafter, she continued in possession

of the same.

19. Further, on perusal of the evidence on record, it is

unequivocally established that the husband of the plaintiff

cancelled the Will executed in favour of the defendant and

continued in possession of the suit schedule properties.

Since the partition and the relationship of the plaintiff with

said Muttanna is not disputed, the judgments relied upon

by the learned counsel for the appellant are