Karnataka High Court
Smt. Lakshamamma vs Smt. Nagamma on 27 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1034 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1034 OF 2025 (DEC/INJ)
BETWEEN:
1. SMT. LAKSHAMAMMA
W/O LATE MAHADEVU
AGED ABOUT 66 YEARS
2. SRI. NAGESH,
S/O LATE MAHADEVU
AGED ABOUT 46 YEARS
3. SRI. SHIVU,
S/O LATE MAHADEVU
AGED ABOUT 38 YEARS
4. SRI. SIDDA,
Digitally signed by S/O JAVARAYI
DEVIKA M AGED ABOUT 64 YEARS
Location: HIGH
COURT OF
KARNATAKA 5. SRI. NANJAIAH,
S/O LATE DUNDIMADA
AGED ABOUT 75 YEARS
ALL ARE R/AT MARENAHALLI VILLAGE
KASABA HOBLI, MALAVALLI TALUK
MANDYA (D)-571430
...APPELLANTS
(BY SRI HARISH KUMAR M S, ADVOCATE)
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RSA No. 1034 of 2025
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AND:
1. SMT. NAGAMMA
W/O LATE KUNDURU SIDDA
AGED ABOUT 65 YEARS
2. SRI. MAHESH
S/O LATE KUNDURU SIDDA
AGED ABOUT 50 YEARS
3. SRI. MANJU
S/O LATE KUNDURU SIDDA
AGED ABOUT 46 YEARS
4. SRI. BASAVARAJU
S/O LATE RAMA
AGED ABOUT 49 YEARS
5. SRI. SIDDA
S/O KALAIAH
AGED ABOUT 54 YEARS
6. SRI. ANKAIAH
S/O LATE RAMA
AGED ABOUT 85 YEARS
7. SRI. D.C.MUDDAIAH
S/O SIDDAIAH
AGED ABOUT 64 YEARS
THE RESPONDENTS 1 TO 7 ARE
R/AT MAREHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK-571430
8. SMT. SUDHA
W/O VISHWANATH
AGED ABOUT 74 YEARS
R/O NEAR HOUSE OF VENKATAPPA
MALAVALLI TOWN, MALAVALLI-571430
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RSA No. 1034 of 2025
HC-KAR
9. SMT. SHANTHA,
S/O LATE MAHADEVU
AGED ABOUT 59 YEARS
R/AT MAREHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK-571430
...RESPONDENTS
(BY SRI G BALAKRISHNA SHASTRY, ADVOCATE FOR R2 & R4)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 31.01.2025 PASSED IN R.A.
NO.23/2014 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC,
MALAVALLI AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
On 12.11.2025, when this matter was listed for
admission, this Court elaborately heard the matter and when
this Court about to dictate the order, at that juncture, the
counsel appearing for the appellants seeks 10 days time to
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negotiate the matter with the respondents. Hence, this Court
granted time. Today, the counsel for the appellants submits
that the appellants made an attempt to negotiate the matter
with the respondents and the counsel for the respondents
submits that parties are not in good terms and they are
agitating this matter from 2009 and almost about 16 years has
been elapsed and no chances of settlement. Hence, this Court
heard the arguments of the learned counsel appearing for the
respective parties.
2. This second appeal is filed against the concurrent
finding of the Trial Court as well as the First Appellate Court.
3. The factual matrix of the case of the plaintiffs
before the Trial Court while seeking the relief of declaration and
permanent injunction is that they are the absolute owners of
the suit schedule property by way of adverse possession and
defendants are interfering with their peaceful possession and
enjoyment of the suit schedule property. It is mainly contented
that they have put up a Mangalore titled house and they are
residing in the said house. The plaintiffs have the property
bearing Sy.No.1/28 measuring 20 guntas which was previously
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belongs to defendant No.6. In the said property, plaintiff No.1
is in possession and enjoyment of approximately 6 guntas by
growing Bhage tree, 2 Banyan trees, 3 Neem trees and 1
Mango tree aged about 8 years. It is also the case of the
plaintiffs that since from 50 years, he is in possession and
enjoyment of the said property and also storing hay-stock,
wood, grass and waste materials. The plaintiffs are also rearing
cattle and buffalo. Plaintiff No.2 is also in possession from 50
years in the same survey number approximately 4 guntas
without any interruption from anybody and in that property he
also stored waste materials, wood and tethering is cattle and
plaintiff No.3 is in possession of 3 guntas by storing waste
materials and grass.
4. It is also contended that defendant No.4 is having 2
guntas of land in same survey number and he also stored
waste materials and having cattle shed, etc., and also put up
toilet room. Defendant No.5 is in possession of one gunta of
land before his house and he also put up cattle shed,
hullumede and stored waste materials and also put up lavatory.
Therefore, they claimed that defendant Nos.4 and 5 are in
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peaceful possession of the suit schedule property. In the month
of July 2009, the plaintiffs came to know that defendant Nos.1
to 3 in collusion with defendant No.6 tried to purchase 20
guntas of land in Sy.No.1/2B. Defendant Nos.1 to 3 and 6 were
well aware of the fact that the plaintiffs and defendant Nos.4
and 5 are in adverse position. Therefore, the plaintiffs and
defendant Nos.4 and 5 immediately issued legal notice to
defendant Nos.1 to 3 and 6. The legal notice was dully served
upon them and they have not replied to it. Subsequently, on
07.08.2009 the plaintiffs gave representation to the Tahsildar
requesting to grant the said property to them. Defendant Nos.1
to 3 tried to interfere with the suit schedule property.
Therefore, plaintiff No.1 gave complaint to the police and police
authorities gave NCR and warned defendants not to interfere.
Inspite of that, defendant Nos.1 to 3 proclaimed in the village
that they will purchase the property bearing Sy.No.1/2B
measuring 20 guntas from defendant No.6. The plaintiffs
claimed that they are poor and illiterate and defendant Nos.1 to
3 and 6 are powerful persons and hence, approached the Court
by filing a suit claiming that they are the owners of the suit
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schedule property and they acquired the property by way of
adverse possession.
5. In pursuance of the suit summons, defendants
Nos.1 to 3 and 6 appeared through their counsel and defendant
No.4 appeared through separate counsel. They have filed
separate written statement. Defendant No.4 joined with the
plaintiffs and filed written statement admitting the contents of
the plaint averments. Defendant Nos.1 to 3 and 6 denied the
plaint averments in toto. It is specifically contended that
defendant No.6 is the lawful owner in possession of the suit
schedule property. Originally, the suit schedule property
belongs to the grandfather of defendant No.6 and he executed
a registered Will dated 16.12.1974 bequeathing the suit
schedule property in favour of defendant No.6 and after the
death of his grandfather, he became the absolute owner of the
suit schedule property. It is the contention that the property
stands in the name of defendant No.6 and all revenue records
stands in the name of defendant No.6. The survey department
made durasti work. Defendant Nos.4 and 5 and the plaintiffs
have no any right over the suit schedule property. They are the
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bajudars of the suit schedule property. The suit schedule
property is situated in the prime area of Marehalli Village which
fetches good rate. Therefore, the plaintiffs and defendant nos.4
and 5 having their eyes on the suit schedule property and the
ingredients of adverse possession are not forthcoming in the
pleadings. Hence, prayed the Court to dismiss the suit.
6. The Trial Court having considered the pleadings of
the parties, framed the Issues and allowed the parties to lead
their evidence. In order to prove the case of the plaintiffs,
plaintiff Nos.1 to 3 examined as PW1 to PW3 and got marked
the documents at Ex.P1 to P20. On the other hand, PA holder
of defendant No.6 examined as DW1 and got marked the
documents at Ex.D1 to D12. The Trial Court having considered
both oral and documentary evidence placed on record comes to
a conclusion that plaintiffs have not proved that they are the
absolute owner and they are in peaceful possession and
enjoyment of the suit schedule property and hence, they are
not entitled for the relief of adverse possession since the
adverse possession ingredients have not been proved. While
dismissing the suit, in paragraph 15, considered that the
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ingredients of adverse possession was not proved by the
plaintiffs and the standard of proof in case of adverse
possession is too higher than pedestal because the person who
claims adverse possession is going to adversely lawful
possession. Therefore, the claimant of possession has to be in
possession because grant of adverse possession is based on
sound principles of justice, equity and good consonance.
7. The Trial Court also taken note of the judgment
reported in AIR 2009 SC 103 in the case of HEMAJI
WHAGAGI BHAI JAT vs V/S BHIKHABHAI KHENGARBHAI
HARJIJAN wherein also discussion was made with regard to
the adverse possession which requires strict proof of the
essential ingredients of adverse possession and detailed
discussion was made in paragraph 17 with regard to the
evidence and the admissions on the part of PW1 to PW3 and
held that plaintiffs have not produced any single document
regarding the pendency of RRT proceedings. In the cross-
examination PW1, he admitted that he has not produced any
document to show that he is aged about 67 years and plaintiff
Nos.2 and 3 are also aged about 50 and 60 years, because the
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age of plaintiffs is also important in deciding the case since
they claim that more than 50 years, they are in possession of
the property and the same has been discussed in paragraph 18.
In paragraph 20, taken note of Order 3 Rule 2 of CPC with
regard to the power of attorney holder can depose on behalf of
the principal about the facts within the knowledge. The Trial
Court also taken note that an application was filed under Order
23 Rule 1 of CPC for withdrawal of the suit when the case was
posted for judgment with liberty to file fresh suit on the same
cause of action and Trial Court held that firstly, it is the right of
the plaintiff to withdraw the suit, but he must show the formal
defects which necessarily defeat his right so as to withdraw the
suit. The Trial Court held that no such technical defects are
shown for granting permission to withdraw. Hence, comes to
the conclusion that it is not a case even for granting the
permission to withdraw the suit and rejected the application
and so also dismissed the suit.
8. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was preferred before the First Appellate
Court. The First Appellate Court having considered the grounds
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which have been urged in the appeal memo, formulated the
Points that whether the plaintiffs prove that they are the
absolute owners in lawful possession and enjoyment of the suit
schedule property as on the date of suit by way of adverse
possession and whether there was any interference by the
defendants and whether the judgment of the Trial Court
requires interference of the Court. The First Appellate Court
having reassessed both oral and documentary evidence placed
on record, answered Point Nos.1 and 2 as negative in coming to
the conclusion that burden is on the appellants to prove that
they were in adverse possession with the knowledge of the
defendants and also they have to prove the animus and
invoked Sections 101 to 103 of Indian Evidence Act and held
that the averments made in the written statement and also the
contention made by the plaintiffs taken note of and even while
considering the case of adverse possession, the First Appellate
Court in detail gone into the oral and documentary evidence
and comes to the conclusion that the very ingredients of
adverse possession is not proved since there is no any specific
pleading that they are in possession with the knowledge of the
defendants and defendants allowed them to be in their
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possession with their knowledge only and detailed discussion
was made and comes to the conclusion that when no
ingredients of adverse possession is made out, question of
granting the relief of adverse possession does not arise at all.
Ex.P9 to P11 are not reflected that from any place taken the
photographs but those photographs are not the ground to
prove that the plaintiffs are in adverse possession of the suit
schedule property. The katha of the suit schedule property not
changed into the names of the plaintiffs on the basis of adverse
possession till date. Thus, it is clear that the plaintiffs not
proved the necessary ingredients of adverse possession and
confirmed the judgment of the Trial Court. Being aggrieved by
the concurrent finding of both the Courts, the present second
appeal is filed before this Court.
9. The main contention of the counsel appearing for
the appellants before this Court is that both the Courts have
committed an error in appreciating the material on record and
despite the fact that DW1 has admitted the possession of the
plaintiffs over the suit schedule property in his cross-
examination, the Trial Court failed to grant the relief of
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permanent injunction. Even counsel would vehemently contend
that when an application is filed to withdraw the suit by the
plaintiffs with liberty to file a fresh suit, that too in absence of
any objection by the defendants, rejected the same. The Trial
Court was not justified in rejecting the application filed by the
plaintiffs seeking appointment of a court commissioner in a suit
for declaration of permanent injunction and failed to appreciate
both oral and documentary evidence. Hence, this Court has to
admit the appeal and frame substantial question of law.
10. Per contra, the counsel appearing to the
respondents would vehemently contend that both the Courts
have taken note that when the suit is filed for the relief of
declaration and permanent injunction on the ground of adverse
possession, must prove the necessary ingredients of adverse
possession. The same has not been done. The counsel brought
to notice of this Court that suit was filed in 2009 and
permission was sought to withdraw the suit in the fag end when
the matter was posted for judgment that is in 2014 and the
same was also taken note of by the Trial Court while rejecting
the application and to giving the permission also technical
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defect must be shown and the same was not shown. Hence,
rejected the same. Thus, question of admitting the appeal
framing substantial question of law does not arise.
11. Having heard the appellants' counsel and also the
counsel appearing for the respondents and also considering the
pleadings of the parties, it discloses that the plaintiffs claim the
relief of adverse possession and to declare them as owners of
the property by way of adverse possession. The Trial Court
having considered the material available on record, taken note
of the very pleading on the part of the plaintiffs which they
have pleaded, particularly in paragraph 15 and discussed with
regard to the necessary ingredients of adverse possession and
also taken note of the judgment of the Apex Court in the case
of HEMAJI WHAGAGI BHAI JAT referred supra with regard to
the adverse possession is concerned and also the principles
taken note of in the said judgment. In the light of the
contention that they are in possession for more than 50 years
as claimed by the plaintiffs was taken note of in paragraph 17
regarding the age is concerned. In the cross examination, PW1
admitted that he has not produced any document to show that
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he is aged about 67 years and so also in respect of plaintiff
Nos.2 and 3 and same was discussed in paragraph 18. If the
same is computed to the age of PW2 and PW3, according to
them, they entered into the possession of the suit property
when they are minors. At the time of entering the possession
by the plaintiffs, the defendants Nos.4 and 5 are also minors as
per the cause title of the plaint. All these factors were taken
note of when they pleaded that they are in possession from last
50 years.
12. Apart from that, the Trial Court also taken note that
defendant No.6 examined power of attorney holder on his
behalf and Order 3 Rule 2 of CPC also discussed to know that
whether the same is within his knowledge. On perusal of the
evidence of DW1, it discloses that he know each fact about the
case and about the nature of the right claimed by defendant
No.6 and his evidence also taken note of. Apart from that the
application was filed for withdrawal of the suit in 2014 at the
fag end when the case was posted for judgment that too when
they have claimed the adverse possession from 2009 and
technical defects was not shown to withdraw the suit. Hence,
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rejected the said application and reasoning was also given by
the Trial Court while rejecting the application. Even the First
Appellate Court also considered the contention of the plaintiffs
and held that the burden is on the plaintiffs to prove with
regard to the adverse possession and detailed order was
passed in coming to the conclusion that no ingredients of
adverse possession is proved. Even the appellants are also not
sure about the claim made by them with regard to the
declaration on the ground of adverse possession. When an
application was filed, the matter was posted for judgment and
the said fact was taken note of by the Trial Court as well as
First Appellate Court. When such being the case, I do not find
any ground to admit the appeal and to frame substantial
question of law.
13. The counsel appearing to the appellants would
contend that this Court can give liberty to seek for the relief of
permanent injunction by filing a fresh suit. The said submission
also cannot be accepted for the reason that when the plaintiffs
have specifically pleaded before the Trial Court seeking the
relief of declaration that they are in adverse possession of the
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suit property with the knowledge of the defendants and the
same has not been considered by both the Courts. Thus, giving
of such liberty also does not arise. Hence, I do not find any
force in the contention of the appellants' counsel to grant such
liberty. Hence, no merit in the second appeal to invoke Section
100 of CPC.
14. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any, does
not survive for consideration and the same stands dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
