Karnataka High Court
Smt. Vijayalaxmi W/O Venkanagouda ... vs Shri. Kashinath S/O Rudragouda Inamdar on 4 November, 2025
Author: R.Devdas
Bench: R.Devdas
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RFA No. 100278 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 4TH DAY OF NOVEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
R.F.A. NO.100278 OF 2022 (PAR/POS)
BETWEEN:
1. SMT. VIJAYLAXMI
W/O. VENKANGOUDA INAMDAR,
AGE: 62 YEARS, OCC: HOUSE HOLD WORK,
R/O. NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI.
2. SHRI AMIT
S/O. VENKANGOUDA INAMDAR,
AGE: 47 YEARS, OCC: AGRICULTURE WORK,
R/O. NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI.
3. ROOPA
VINAYAKA
BV D/O. VENKANGOUDA INAMDAR,
AGE: 44 YEARS, OCC: HOUSE HOLD WORK,
Digitally signed by
VINAYAKA B V R/O. NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI.
Location: HIGH COURT
OF KARNATAKA
DHARWAD BENCH
Date: 2025.11.10 10:03:58
+0530 4. SHRI AJAY
S/O. VENKANGOUDA INAMDAR,
AGE: 42 YEARS, OCC: AGRICULTURE,
R/O. NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI.
5. ANURADHA
D/O. VENKANGOUDA INAMDAR,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI.
...APPELLANTS
(BY SRI. A. B. NESARGI, ADVOCATE)
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RFA No. 100278 of 2022
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AND:
SHRI KASHINATH
S/O. RUDRAGOUDA INAMDAR,
AGE: 70 YEARS,
OCC: AGRICULTURE WORK,
R/O. CTS NO.4539, SHETTY GALLI, BELAGAVI.
...RESPONDENT
(BY SRI. C. S. SHETTAR, ADV. FOR
SMT. KAVYA C. SHETTAR, ADVOCATE)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 1 OF CPC., PRAYING TO
SETTING ASIDE THE JUDGMENT AND DECREE DATED 8TH DAY
OF DECEMBER 2021 PASSED IN ORIGINAL SUIT NO.217/2013
BY THE PRINCIPAL SENIOR CIVIL JUDGE COURT AND CJM,
BELAGAVI TOP NUMBERED APPEAL MAY KINDLY BE ALLOWED
AND CONSEQUENTLY TO DISMISS THE SUIT OF THE PLAINTIFF
TO MEET THE ENDS OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
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RFA No. 100278 of 2022
HC-KAR
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.DEVDAS)
This Regular First Appeal is filed under Section 96 of
the CPC by the legal heirs of the defendant, being aggrieved
of the impugned judgment and decree dated 08.12.2021
passed by the learned Principal Senior Civil Judge and CJM,
Belagavi in O.S.No.217/2013.
2. For the purpose of convenience, the parties
would be referred to in terms of their ranking before the
trial court.
3. The plaintiff, being the brother of the defendant
sought for partition and separate possession of his half
share in the suit schedule property bearing CTS No.4539
measuring 516.4/9 sq.mts, situated at Shetti Galli,
Belagavi. The plaintiff contended that the suit schedule
property was purchased by their grandmother
Smt.Gangubai in the name of the plaintiff and the
defendant who were minors, under a registered sale deed
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dated 22.04.1961, for valuable sale consideration of
Rs.24,000/-. It was contended that the cause of action for
the suit arose a week before the suit was instituted, since
the defendant flatly refused to effect partition and allot
legitimate share to the plaintiff.
4. The defendant filed a written statement
contending that though the suit schedule property was
purchased under a registered sale deed dated 22.04.1961,
nevertheless, at that point of time, the plaintiff and the
defendant were minors and the property was purchased by
their paternal grandmother. It was contended that their
paternal grandmother Smt.Gangubai sold her property at
Bhandiwad village and purchased the suit schedule property
by paying the consideration amount of Rs.24,000/- to the
previous owner. It was contended that the paternal
grandmother acted as a minor guardian and she took
possession of the suit schedule property from the time
when it was purchased and on 01.01.1980, their
grandmother handed over the property to the defendant
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alone, and the defendant continued to be in actual
possession and enjoyment of the suit schedule property to
the exclusion of the plaintiff. It was contended that the
defendant was paying the house tax to the Corporation of
the City of Belagavi and that he was paying electricity and
water bills to the concerned authorities regularly. It was
contended that the defendant spent about Rs.22,00,000/-
for renovating the house, out of his own earnings. It was
contended that the plaintiff never claimed his right over the
suit schedule property and by efflux of time, the plaintiff
had lost his right in the suit schedule property. It was
contended that the defendant and his family members are
in exclusive use and enjoyment of the suit schedule
property. As an alternative, it was also contended by the
defendant that he had acquired title over the property by
way of adverse possession, and his possession has been
perfected.
5. Additional written statement was also filed by the
defendants after the legal representatives of the defendant
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come on record, while pointing out to the fact that the
plaintiff had also instituted a suit in O.S.No.93/2018 against
the defendants before the Senior Civil Judge, Bailhongal and
the suit schedule property was not included in the said suit.
6. Based on the pleadings and the materials
available on record, the trial court framed the following
issues and additional issues.
1) Whether the plaintiff proves that himself and defendant
jointly purchased suit property on 22.4.1961, as such
he is entitled ½ share?
2) Whether the defendant proves that his paternal
grandmother purchased suit property after selling her
property situated at Bandiwad?
3) Whether he further proves that his grandmother
handed over possession of suit property to him on
01.01.1980, since then he is in possession and
enjoyment of same without interruption by anybody,
as such he is perfected his title by way of adverse
possession?
4) Whether he further proves that suit is improperly
valued and court fee paid is improper?
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5) Whether the plaintiff is entitled for suit relief?
6) What order or decree?
Additional issue:
1) Whether the suit is suffers from non inclusion of all
the properties in common hotch-potch?
7. Having regard to the fact that the defendant did
not deny the fact that under a registered sale deed dated
22.04.1961, the suit schedule property was purchased in
the name of the plaintiff and the defendant by their paternal
grandmother Smt.Gangubai, the trial court however, held
that the defendant had not adduced any oral and
documentary evidence to show that the grandmother
Smt.Gangubai had purchased the property by selling her
property at Bhandiwad village. It was held that the
defendant has not produced any sale deed which shows that
before purchasing the suit property, the grandmother of the
parties had sold any other property. It was therefore, held
that the intention of Smt.Gangubai clearly shows that the
property was purchased in the joint name of the plaintiff
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and the defendant with an intention that the minor grand
children shall own and possess the property purchased
under the sale deed dated 22.04.1961. Issue No.1 was
answered in the affirmative holding that the suit property is
a joint property of the plaintiff and the defendant. The trial
court decreed the suit declaring one half share in favour of
the plaintiff.
8. Learned counsel for the defendant however
contended before this court that there is an admission at
the hands of the plaintiff during the cross-examination that
the plaintiff was a minor at the time when the property was
purchased in the year 1961, and therefore, the trial court
could not have held that the plaintiff proved that he along
with the defendant jointly purchased the suit schedule
property under a registered sale deed dated 22.04.1961.
Learned counsel further contended that the plaintiff has not
denied the fact that he was never in joint possession of the
suit schedule property. The plaintiff admitted in the cross-
examination that he was residing in Neginahal village of
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Bailhongal Taluk, and he never resided in the suit schedule
property. Therefore, when there being a clear admission
that it was defendant alone who was in exclusive possession
of the suit schedule property, the alternative stand taken by
the defendant that he had perfected his title by way of
adverse possession had to be accepted by the trial court.
9. In this regard, the trial Court has held that the
defendant has not shown ouster of the plaintiff from the suit
schedule property and there is no evidence in that regard.
Reliance placed on Jivakka and Others v. Ramappa
Yallappa Mutgi, reported in ILR 1961 Kar 133, AIR 1961
Kant 244 by the defendant was rejected since the
defendant failed to plead and prove adverse possession.
10. Insofar as the contention of defendant that in a
subsequent suit filed by the plaintiff in O.S.No.93/2018,
which was also for partition and separate possession of
other immovable properties, which did not include the
subject matter of the suit in O.S.No.217/2013, the trial
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Court held that the suit schedule property is claimed by the
plaintiff to be the exclusive property belonging to the
plaintiff and the defendant, therefore the plaintiff has
consciously not included the subject matter of the dispute in
O.S.No.217/2013 in the subsequent suit i.e.,
O.S.No.93/2018.
11. Learned counsel for the plaintiff has drawn the
attention of this Court to a decision of the Hon'ble Apex
Court in the case of Govindammal v. R Perumal Chettiar
and Others, reported in (2006) 11 SCC 600, where several
earlier decisions of the Hon'ble Apex Court including Md.
Mohammad Ali v. Jagadish Kalita, reported in (2004) 1 SCC
271 was noticed, where it was held that in a series of
decisions on the question of adverse possession, it was
concluded that mere long and continuous possession by
itself would not constitute adverse possession. Even non-
participation in the rent and profits of the land by a
co-sharer does not amount to ouster so as to give title by
prescription. A co-sharer, as is well settled, becomes a
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constructive trustee of other co-sharer and the right of a
person or his predecessors-in-interest is deemed to have
been protected by the trustees.
12. It was noticed that in T.P.R. Palania Pillai v.
Amjath Ibrahim Rowther, reported in AIR 1942 Mad 622
(FB), it was held that in order to constitute adverse
possession, the possession must be adequate in continuity,
in publicity and in extent to show that the possession is
adverse to the competitor. Therefore, in cases of adverse
possession also their Lordships have said that the
possession should not only be for longer period, it should be
known to the competitor that it is held adverse and to his
knowledge. Their Lordships further held that in cases of
usufructuary mortgage granted by one of several co-
sharers, if a person remains in possession of the land and
cultivates it for years, the requirement of continuity,
publicity and extent for adverse possession are fully
complied with. In another decision of the Calcutta High
Court in the case of Nirmal Chandra Das v. Mohitosh Das,
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reported in AIR 1936 Cal 106, their Lordships has held that
there can be no adverse possession by one co-sharer as
against others until there is an ouster of or exclusion; and
the possession of a co-sharer becomes adverse to the other
co-sharer from the moment there is ouster. Therefore, what
is ouster and what is adverse to the interest of the claimant
depends upon each case. The learned counsel therefore
submitted that the trial Court had rightly come to
conclusion that the claim of the defendant that he was in
adverse possession and had perfected title over the suit
schedule property cannot be accepted. Learned counsel
further submitted that the trial Court has rightly come to
conclusion, on the basis of material available on record that
the suit schedule property was purchased by the paternal
grandmother of the plaintiff and defendant at an undisputed
point of time when both the plaintiff and the defendant were
minors. That being the position, the defendant cannot claim
exclusive rights over the suit property merely because he
was in long and continuous possession of the suit schedule
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property. The right of the plaintiff cannot be denied by the
defendant.
13. Having heard the learned counsel for the
defendant as well as plaintiff and having perused the appeal
memo and the original records, this Court finds that there
are two contentions raised by the defendant. One that
although the suit schedule property was purchased under a
registered Sale Deed dated 22.04.1961 in the name of
plaintiff and the defendant by their paternal grandmother,
nevertheless the plaintiff started residing at Neginahal
Village, Bailhongal Taluk from his childhood days and it was
only the defendant, who resided in the suit schedule
property along with the paternal grandmother. It is
contended that in the year 1980 the paternal grandmother
gave exclusive possession of the suit schedule property to
the defendant alone to the exclusion of the plaintiff.
Secondly, it is contended that the defendant has perfected
title over the suit schedule property and therefore the
defendant seeks a declaration that he is in adverse
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possession of the suit schedule property to the exclusion of
the plaintiff.
14. Having regard to the admitted fact that in the
year 1961 when the suit schedule property was purchased
in the name of plaintiff and the defendant by the paternal
grandmother Smt.Gangubai, the plaintiff and the defendant
were minors cannot be disputed. No other material is placed
on record by the defendant to show how and from what
point of time the suit schedule property was exclusively
given to the possession of the defendant. A mere contention
in the written statement that from 01.01.1980, the
defendant was put in exclusive possession of the suit
schedule property by Smt.Gangubai would not be sufficient
to come to conclusion that there is ouster of the plaintiff
from the possession of the suit schedule property. The
learned counsel for the plaintiff is therefore right in pointing
out to the decision of the Hon'ble Apex Court in the case of
Govindammal (supra), where the Hon'ble Apex Court has
also noticed a decision of the Privy Council in the case of
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Hardit Singh v. Gurmukh Singh, reported in AIR 1918 PC 1,
where it is held as under:
"If by exclusive possession of joint estate is
meant that one member of the joint family alone
occupies it, that by itself affords no evidence of
exclusion of other interested members of the family.
Uninterrupted sole possession of such property,
without more, must be referred to the lawful title
possessed by the joint holder to use the joint estate,
and cannot be regarded as an assertion of a right to
hold it as separate, so as to assert an adverse claim
against other interested members. If possession may
be either lawful or unlawful, in the absence of
evidence, it must be assumed to be the former. The
evidence of actual user is not sufficient to establish
abandonment or exclusion."
15. The decision cited by the learned counsel for the
defendant in Jivakka (supra), which was rendered by the
division bench of this Court also notices the decision of the
Hon'ble Supreme Court of India in the case of P.Lakshmi
Reddy v. L.Lakshmi Reddy, reported in 1957 SCR 195,
where it was held; when one co-heir is found to be in
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possession of the properties it is presumed to be on the
basis of joint title. The co-heir in possession cannot render
his possession adverse to the other co-heir not in
possession merely by any secret hostile animus on his part
in derogation of the other co-heir's title. The trial Court was
therefore right in rejecting the contention of the defendant
that the plaintiff was ousted from the suit schedule
property. In order to buttress such a contention raised by
the defendant, no material is available on record. Merely
because the defendant has paid the property tax, electricity
charges, water charges and etc., it does not bestow on the
defendant exclusive title to the exclusion of the plaintiff,
when admittedly, the title deed namely the Sale Deed dated
22.04.1961 is in the name of the plaintiff and the
defendant. It is also to be noticed that the payment of
property tax, electricity charges and water charges are
made on the basis of the Khata registered before the local
authority namely the City Corporation, Belagavi and it is
well settled position of law that Khata does not declare the
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title of the property. It is a mere document to show that
who is required to pay the property tax, etc., to the local
authority.
16. This Court should also notice that the Hon'ble
Supreme Court of India in the case of D.N.Venkatarayappa
and Another v. State of Karantaka and Others, reported in
(1997) 7 SCC 567 has once again noticed the decision of
the Hon'ble Supreme Court of India in the case of
P.Lakshmi Reddy (supra) and the decision of the Privy
Council in the case of Secretary of State v. Debendra Lal
Khan, reported in AIR 1934 PC 23, where it was held that
the ordinary classical requirement of adverse possession is
that it should be nec vi, nec clam, nec precario and the
possession required must be adequate in continuity, in
publicity and in extent to show that it is possession adverse
to the competitor. Unless, these three requirements are
made out, there cannot be a declaration made by the Court
regarding adverse possession. The trial Court has rightly
held that the defendant has failed to place on record any
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material to show the ouster of the plaintiff from the suit
schedule property. Therefore, mere long and continuous
possession of the defendant in the suit schedule property
without there being an ouster of the plaintiff from the suit
schedule property, in manner known to law, there cannot
be a declaration in favour of the defendant that he is in
exclusive possession and has perfected his title over the suit
schedule property.
17. Viewed from any angle, this Court does not find
any infirmity in the impugned Judgment and Decree passed
by the trial Court. Consequently, the regular first appeal
stands dismissed.
Sd/-
(R.DEVDAS)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
MBS/CKK
CT-AN
