Karnataka High Court
Sri Marihutchegowda vs Smt Nagamma on 14 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 64 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 64 OF 2023 (POS)
BETWEEN:
1. SRI MARIHUTCHEGOWDA
S/O HUTCHEGOWDA
AGED ABOUT 85 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571430
(SINCE CEAD BY HIS LRs)
1(A) SMT.PUTTA LINGAMMA
W/O LATE MARIHUCHEGOWDA,
AGED ABOUT 71 YEARS,
R/AT BANAGAHALLI VILLAGE,
Digitally signed KASABA HOBLI,
by DEVIKA M
Location: HIGH MALAVALLI TALUK,
COURT OF MANDYA DISTRICT -571430.
KARNATAKA
1(B) SRI.DEVEGOWDA
S/O LATE MARIHUCHEGOWDA,
AGED ABOUT 46 YEARS,
R/AT BANAGAHALLI VILLAGE,
KASABA HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT-571430
1(C) SMT.MANILA
W/O NAVEENA,
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AGAED ABOUT 34 YEARS,
R/AT S.HONNALAGERE VILLAGE,
CHIKKARASINAKERE HOBLI,
MADDURU TALUK,
MANDYA DISTRICT-571422
1(D) SRI.RJAESHA
S/O LATE MARIHUCHEGOWDA,
AGED ABOUT 34 YEARS,
R/AT BANAGAHALLI VILLAGE,
KASABA HOBLI,
MALAVALLI TALUK,
MANDYA DISTRICT-571430
2. SRI. CHIKKANNAOWDA
S/O HUTCHEGWODA
AGED ABOUT 83 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
LMALAVALLI TALUK
MANDYA DISTRICT-571430
(SINCE CEAD BY HIS LRs)
2(A) SMT. SHIVALINGAMMA
W/O LATE CHIKKANANGOWDA
AGED ABOUT 65 YEARS,
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571430
2(B) SRI.B.C.NAGESHA
S/O LATE CHIKKANNAGOWDA
AGED ABOUT 35 YEARS,
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571430
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2(C) SRI.B.C.ANAND
S/O LATE CHIKKANNAGOWDA
AGED ABOUT 28 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571430
2(D) SMT. NAGAMMA
W/O A.M.CHANDRAKUMAR
AGED ABOUT 37 YEARS
R/AT NO.144/1
AMRUTHESWARANAHALLI,
GOWDAGERE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571430
2(E) SMT. SHEELA
W/O DHARANESH
AGED ABOUT 30 YEARS,
R/AT MALLURU PATNA
CHANNAPATNA TALUK
RAMANGARA DISTRICT-562160
...APPELLANTS
(BY SRI. RAJESH MAHALE, SENIOR COUNSEL FOR
SRI. BASAVANNA M.D, ADVOCATE FOR A1[A TO D]
& A2 [A TO E])
AND:
1. SMT NAGAMMA
W/O LATE MADEGOWDA
AGED ABOUT 56 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571430
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2. SMT. SAVITHRAMMA
D/O LATE MADEGOWDA
AGED ABOUT 38 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571430
3. SRI. DEVEGOWDA
S/O LATE MADEGOWDA
AGED ABOUT 32 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT-571430
4. SRI. ANANDA
S/O LATE MADEGOWDA
AGED ABOUT 30 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571430
5. SMT. PAVITHRA
D/O LATE MADEGOWDA
AGED ABOUT 25 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
MALAVALLI TALUK
MANDYA DISTRICT - 571430
6. SRI. NINGARAJEGOWDA
S/O LATE MADEGOWDA
AGED ABOUT 27 YEARS
R/AT BANAGAHALLI VILLAGE
KASABA HOBLI
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MALAVALLI TALUK
MANDYA DISTRICT-571430
...RESPONDENTS
(BY SRI. MAHAMAD TAHIR A ADVOCATE FOR
SRI. VARUN J. PATIL, ADVOCATE FOR R1 TO R4 & R6;
VIDE ORDER DATED 08.01.2025 NOTICE TO R5 IS HELD
SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.09.2022
PASSED IN RA.NO.21/2020 ON THE FILE OF THE IV
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA.
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 23.03.2020 PASSED IN O.S.NO.1/2018
ON THE FILE OF THE SENIOR CIVIL JUDGE, MALAVALLI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard the
learned counsel for the appellants and the learned counsel
for the respondents.
2. The factual matrix of case of
plaintiffs/respondents before the Trial Court while seeking
the relief of possession of the suit schedule property in
view of the judgment and decree dated 18.06.2009 in
O.S.No.250/1997 and as observed in R.A.No.97/2009
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dated 29.06.2016. The main contention of the plaintiff in
the said suit that husband of the first plaintiff and father of
other plaintiffs by name Madegowda had purchased the
item Nos.1 and 2 of the schedule properties which is
morefully described in the schedule and the same was
purchased through sale deed dated 28.04.1978 from the
father and mother and the same was purchased with
common boundaries. While selling the property, instead of
mentioning the correct survey number, inadvertently, the
wrong Sy.No.91/7 and Sy.No.24/8 have been mentioned
in the sale deed. But, the extent of the properties and the
boundaries are correctly mentioned in the sale deeds of
Madegowda and his mother Mallamma. As both of them
were innocent rustic villagers were not aware of the wrong
survey numbers mentioned in the sale deeds. However,
they have exercised their right over the properties as
absolute owners. That apart, they were under the bonafide
impression that, since they have purchased the properties
under registered sale deeds, the khata would be made to
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their names automatically. The said Madegowda and
Mallamma were died leaving behind the plaintiffs as their
only legal heirs and the plaintiffs became the absolute
owners of the suit schedule properties. The defendants
have no manner of right, title or interest whatsoever in the
suit properties. But, in the year 1997, they made an illegal
attempt to interfere with the possession of the plaintiffs
which made them to file a suit in O.S.No.250/97 for
declaration of title and consequential relief of permanent
injunction against the defendants, the said suit came to be
decreed and the same is challenged before the First
Appellate Court in R.A.No.97/2009 and the Appellate Court
dismissed the appeal confirming the judgment and decree
of the Trial Court for declaratory relief and modified the
judgment to the extent of direction to the defendants to
hand over the possession of the property with an
observation that plaintiffs are at liberty to recover the
possession in due process of law and the same was
challenged before this Court in R.S.A.No.1794/2016 which
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is pending adjudication. In the meanwhile, the plaintiffs
have challenged the revenue entries of the suit properties
in the names of the defendants before the Assistant
Commissioner, Mandya in R.Mis.No.110/1996-97. But, the
said petition came to be dismissed with an observation
that the parties to get adjudication of their grievance
before the civil Court. The said order was also challenged
before the Deputy Commissioner and the same also came
to be dismissed with the same observation. Hence, the
plaintiffs are constrained to file a present suit for recovery
of possession from the defendants as their ownership was
already declared and the defendants refused to hand over
the possession of the suit schedule property despite
request. On receipt of the suit summons, the defendants
appeared and filed written statement denying the
averments of the plaint and contended that the properties
which were purchased are different properties and also
contend that suit is barred by limitation on the ground that
when the earlier suit was filed and interim order was
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sought by invoking Order 39 Rule 1 and 2 of CPC and the
same came to be dismissed. The limitation starts from that
date with regard to the possession is concerned. It is
contended that the plaintiffs ought to have filed the
present suit within 12 years from the date of purchase of
the property or from the date of dismissal of
CRP.No.497/1999 and hence, the suit is barred by
limitation.
3. The Trial Court considering the pleadings of the
parties, framed the Issues with regard to whether the
plaintiffs are entitled for possession and whether suit is
barred by limitation. The Trial Court having considered
both oral and documentary evidence, particularly the
evidence of P.W.1 and Ex.P.1 to Ex.P.4. On the other
hand, defendants failed to adduce any despite opportunity
was given and even not fully cross-examined P.W.1 and
answered the Issue No.1 as affirmative and Issue No.2 as
negative in coming to the conclusion that the plaintiffs are
entitled for the relief of possession in view of the earlier
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suit in O.S.No.250/1997 wherein the rights of the plaintiffs
have been declared that they are the owners. However,
the same is modified in the appeal and given liberty to
recovery of possession. The Trial Court having considered
the material on record, comes to the conclusion that the
very contention that the suit is barred by limitation cannot
be accepted and nothing is placed on record by adducing
any evidence in proving the contention that the suit is
barred by limitation.
4. Being aggrieved by the said judgment and
decree, an appeal is filed in R.A.No.21/2020 before the
Appellate Court. The First Appellate Court having
considered the grounds urged in the appeal framed the
point for consideration whether the suit is maintainable or
not and whether the suit is barred by limitation and
whether the Trial Court has hurriedly proceed to pass the
judgment and whether it requires interference of the First
Appellate Court. The First Appellate Court having
re-assessed both oral and documentary evidence placed
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on record, comes to the conclusion that the Trial Court has
not committed any error and appreciated the material
available on record, particularly taking into note of
documents of Ex.P.1 to Ex.P.4 and also the earlier
proceedings particularly R.A.No.97/2009. The defendants
have clearly admitted the sale deeds of the plaintiffs and
the mistake that is crept in the sale deeds and comes to
the conclusion that no grounds are made out to interfere
with the findings of the Trial Court and also while
answering point Nos.4 and 5, in detail discussed in
paragraph No.31 that they are the absolute owners and
also taken note of the reasoning given in the earlier
R.A.No.97/2009 and defendants have also failed to prove
that the suit is barred by limitation except taking the
defense that they have not led any evidence and also with
regard to the opportunity is concerned and considering the
material available on record, sufficient opportunity was
given to the defendants and therefore, they cannot
contend that no opportunity was given and answered all
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the point for consideration as negative and confirmed the
judgment of the Trial Court.
5. Being aggrieved by the finding of both the
Courts i.e., concurrent finding, the present second appeal
is filed before this Court by the defendants. The counsel
would vehemently contend that both the Courts failed to
consider the limitation. Both the Courts not framed proper
issues in pursuance to the written statement filed by the
contesting defendants and dismissed the appeal without
considering the provisions of Order 41 Rule 23 of the Code
of Civil Procedure is proper and correct and also fails to
consider Order 21 Rule 23A of Code of Civil Procedure.
6. The counsel also during his argument would
vehemently contend that the Appellate Court has not
given any liberty to seek the relief of possession. In the
absence of such liberty, question of approaching the Court
once again by filing a separate suit is not maintainable.
The counsel also brought to notice of this Court that the
proviso of Order 2 Rule 2 of Code of Civil Procedure is very
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clear that there cannot be any second suit when the earlier
suit was not filed for the relief of declaration and
possession and cannot seek the relief of possession in its
subsequent suit.
7. The counsel in support of his argument relied
upon the judgment of the Apex Court reported in (2020)
19 Supreme Court Cases 57 in case of Nazir Mohamed
V/s Kamala and Others and counsel also would
vehemently contend that the Trial Court passed an order
that the appellants has not pleaded the adverse
possession and also the finding of the Appellate Court that
liberty was given earlier to file a suit for seeking the
possession and the said observation made by the
Appellate Court is erroneous and having referred the
judgment above, brought to notice of this Court paragraph
Nos.42 to 49 and also paragraph Nos.51 with regard to the
relief of possession. It is well settled law that when a
plaintiff wants to establish that defendant's original
possession was permissive or it is for the plaintiff to prove
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this allegation and if he fails to do so, it may be presumed
that possession was adverse, unless there is evidence to
the contrary. The counsel referring this judgment would
contend that there is no need to plead the adverse
possession, if adverse possession is proved. The very
approach of both the Courts is erroneous.
8. Per contra, the counsel appearing for the
respondents brought the notice of this Court the liberty
given in the earlier appeal in R.A.No.97/2009 and copy of
earlier judgment passed by the Principal District Judge at
Mandya in terms of Ex.P.4 operative portion, it is very
clear that plaintiffs are given at liberty to get the
possession of suit schedule Item Nos.1 and 2 properties
from the defendants with due process of law and hence
the very contention of the appellants' counsel that no such
liberty was given is against the material on record. The
counsel also brought to notice of this Court that in the
earlier round of litigation, at the first instance, the Trial
Court granted the decree of declaration and injunction was
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rejected and directed to deliver the possession and the
same is modified in the appeal. Since, there was no any
relief is sought for possession, question of granting the
relief of possession doesn't arise and hence, when the
liberty was given, the present second suit is filed and there
is no any bar to file a second suit for the relief of
possession is concerned when the liberty is given. Hence,
the appellants cannot find fault with the relief of the
possession ordered by the Trial Court and confirmed by
the First Appellate Court and hence it does not requires
any interference.
9. Having heard the learned counsel for the
appellants and also the learned counsel for the
respondents, it is not in dispute that the
respondents/plaintiffs earlier filed the suit for the relief of
declaration and injunction. It is also not in dispute that
suit was decreed and the relief of permanent injunction
was dismissed, but possession was ordered. It is also not
in dispute that in the earlier appeal, the same was
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modified, confirming the judgment of granting the relief of
declaration in favour of the respondents/plaintiffs, but,
set-aside the order of delivery of possession and given the
liberty to file a suit and get the possession under due
process of law.
10. The main contention of the counsel appearing
for the appellants before this Court is that no such liberty
is given, but, on perusal of the order passed by the
Appellate Court earlier in R.A.No.97/2009 on the file of
Principal District Judge at Mandya, vide ordered dated
29.06.2016, allowing the appeal partly, liberty was given
to the plaintiffs to get the possession of the suit schedule
Item Nos.1 and 2 that is the issue with regard to Item
Nos.1 and 2 with due process of law. Hence, the first
contention of the appellants' counsel that no liberty was
given is against the material on record. The document at
Ex.P.4 is very clear that such liberty was given to get the
possession of the suit schedule property particularly Item
Nos.1 and 2 from the defendants with due process of law.
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Accordingly, the suit is filed for the relief of possession.
The Trial Court framed the Issue No.1 in view of the
observation made by the earlier R.A.No.97/2009 regarding
possession as claimed by the plaintiff. The second
contention of the counsel that under Order 2 Rule 2 of
CPC, there cannot be a second suit and waiving of right
when the earlier suit was filed. It is not in dispute that
earlier filed the suit by the plaintiffs for the relief of the
declaration to declare that they are the absolute owner in
possession of the suit schedule property, but specifically
they have pleaded in the earlier suit that they were in
possession as well as they are the owners. But, they have
not sought for any relief of possession earlier. But, during
the trial only, the Court comes to the conclusion that the
plaintiffs are not in possession. But, the Trial Court
granted the relief of possession without the relief of the
possession they have sought and hence the same is
modified in the subsequent appeal in R.A.No.97/2009.
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11. The very contention of the appellants' counsel
that when the application filed under Order 39 Rule 1 and
2 of CPC was rejected, limitation starts, cannot be
accepted and interim order merges with the final order
and that too only after consideration of material during the
course of trial, comes to the conclusion that possession
was not proved. When the order was passed by the Trial
Court directing to deliver the possession, the same has
been challenged by the appellants herein before the
Appellate Court in R.A.No.97/2009 and the appellants
have succeeded in part. But, the liberty which was given
to file a separate suit was not challenged and the same
has attained its finality. Now, the appellants cannot blow
hot and cold that there was no such liberty and the same
is not as attained finality. Hence, the very contention of
the appellants that there was no such liberty and also
Order 2 Rule 2 of CPC pressed into service cannot be
accepted.
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12. It is also important to note that though the
appellants participated in the Trial Court proceedings and
filed the written statement, but not led any evidence and
though raised the issue of limitation, but not led any
evidence before the Trial Court also. But, only ground
urged is that no opportunity was given. The Trial Court
also given an opportunity, but not utilized the opportunity.
The Appellate Court while considering the grounds which
was urged with regard to the opportunity is concerned, it
is observed that an opportunity was given, but opportunity
was not utilized.
13. It is also important to note that the sale deed
was taken place in the year 1978 and when the suit was
filed in the year 1997, the respondents/plaintiffs are
fighting for the recovery of possession from last almost 27
years to get back the possession from the plaintiffs. When
the possession is ordered under due process of law,
without contesting the matter before the Trial Court, the
appellants adopted the method of delaying the possession
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in filing the second appeal. The Court has to take note of
the conduct of the appellants also. Instead of delivering
the possession as directed by the Trial Court, filed an
appeal without even contesting the matter before the Trial
Court.
14. The Appellate Court also considered both oral
and documentary evidence available on record and
considered the material on record with regard to the
question of fact and question of law. Hence, I do not find
any error on the part of the Trial Court in granting the
relief of possession and also the Appellate Court indeed
had discussed with regard to the material available on
record in confirming the judgment of the Trial Court.
Hence, no ground is made out to admit the second appeal
and frame substantive question of law and hence there is
no any merit in the second appeal.
15. The judgment relied upon by the counsel
appearing for the appellants reported in (2020) 19
Supreme Court Cases 57 and principles laid down in the
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judgment in paragraph Nos.42 to 49 as well as 51, no
dispute with regard to the principle is concerned. Other
contention of the appellants' counsel is that Trial Court
made an observation that no adverse possession pleading
was pleaded. But, when the title is declared by the Trial
Court that the plaintiffs are the absolute owners of the
property, first while seeking the relief of adverse
possession, the defendant must admit the title of the
plaintiffs while pressing the contention of adverse
possession. But, in the case on hand, not admitted the
title of the plaintiffs, but disputed the title, only after the
declaration made by the Trial Court that the plaintiffs are
the absolute owners. Now, pleaded the adverse
possession. Hence, the judgment relied upon by the
counsel appearing for the appellants will not comes to the
aid of the appellants. Hence, I do not find any error on the
part of the Trial Court in coming to the conclusion that no
adverse possession pleading before the Trial Court. The
Appellate Court also having considered the material on
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record, on account of liberty was granted to the plaintiffs
to file a suit for the recovery of possession under due
process of law and accordingly under due process of law,
sought for the relief of possession and the same is
considered by the Trial Court and Appellate Court and
hence, no merit.
16. In view of the discussions made above, I pass
the following:
ORDER
Second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
