Karnataka High Court

Muniyappa S/O. Hanumappa vs Sakkappa S/O. Firojappa Arer on 8 September, 2025

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                                                              RSA No. 100609 of 2023


                           HC-KAR




                       IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
                         DATED THIS THE 8TH DAY OF SEPTEMBER, 2025
                                              BEFORE
                           THE HON'BLE MR. JUSTICE G BASAVARAJA
                      REGULAR SECOND APPEAL NO. 100609 OF 2023 (POS)

                           BETWEEN:

                           MUNIYAPPA S/O. HANUMAPPA
                           AGE: 60 YEARS, OCC. AGRICULTURE,
                           R/O. BUDAGUMPA,
                           TQ. AND DIST. KOPPAL 583231.
                                                                          ...APPELLANT
                           (BY SRI. JAGADISH PATIL, ADVOCATE)

                           AND:

                           SAKKAPPA S/O. FIROJAPPA ARER,
                           AGE: 70 YEARS, OCC. AGRICULTURE
                           R/O: BUDAGUMPA,
                           TQ. AND DIST. KOPPAL. 583231.
                                                                         ...RESPONDENT
                           (BY SRI. MRUTYUNJAY S. HALLIKERI, ADVOCATE)
MALLIKARJUN
RUDRAYYA
KALMATH
                                THIS RSA IS FILED U/SEC.100 OF CPC 1908, PRAYING
                           THAT, THE JUDGMENT AND DECREE DATED 15.12.2022 PASSED
Digitally signed by
MALLIKARJUN
                           IN R.A.NO.10/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE
RUDRAYYA
KALMATH                    AND CHIEF JUDICIAL MAGISTRATE. AT KOPPAL, DISMISSING
Date: 2025.09.11
10:35:54 +0530             THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
                           DATED 17.04.2017, PASSED IN O.S. NO.104/2013 ON THE FILE
                           OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
                           KOPPAL, PARTLY ALLOWING THE SUIT FILED FOR POSSESSION
                           AND MESNE PROFIT.

                               THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
                           JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                            NC: 2025:KHC-D:11491
                                      RSA No. 100609 of 2023


HC-KAR




                       ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)

1. The appellant, who was the defendant before the

Trial Court, has preferred this appeal against the judgment

and decree passed by the Civil Judge and JMFC, Koppal, in

O.S.No.104/2013 dated 17.04.2017, which was confirmed

by the Senior Civil Judge and CJM, Koppal, in

R.A.No.10/2017 dated 15.12.2022.

2. The parties are referred to as per their rank

before the Trial Court.

3. Brief facts leading to this appeal are that the

plaintiff is the absolute and exclusive owner of the suit land

measuring 1.05 acres in Sy No.23/B situate at Budagumpa

Village of Koppal Taluka. Originally the land bearing

Sy.No.16 measuring 17.38 acres of Budugumpa village was

owned and possessed by Sri.Gyanappa S/o Timmappa. Due

to passing of Koppal-Gangavathi road, the said land

bifurcated into two parts as eastern and western strips. Out

of 17.38 acres of land in Sy.No.16, eastern strip measuring

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2.10 acres and western strip measuring 14.04 acres and

1.24 acres is covered by the said road. In partition between

Gyanappa and his brother Parameshwarappa, each have got

8.39 acres inclusive of road portion out of 17.38 acres.

Accordingly, the same was numbered as Sy.No.16/A and

Sy. No.16/Aa respectively.

4. It is further averred that out of western strip of

14.04 acres and eastern strip of 2.10 acres, northern

portion measuring 7.02 acres and 1.05 acres respectively

fallen to the share of Parameshwarappa and remaining

southern portion 7.02 acres and 1.05 acres fallen to the

share of Gyanapa. After the death of Parameshwarappa, his

entire land was succeeded by his four sons namely

Hanumappa, Yamanappa, Amarappa and Duragappa who

have sold the said property bearing Sy.No.16/Aa measuring

8.39 acres inclusive of road measuring 32 guntas in favour

of the plaintiff's father Phirojappa through registered sale

deed dated 03-01-1966 and also delivered the possession.

The land bearing Sy.No.16/A measuring 7.02 acres and

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1.05 acres which was fallen to the share of Gyanappa have

been renumbered as Sy.No.7/A and Sy.No.23/A

respectively by revenue authorities, excluding 32 guntas

covered by road. Similarly the land measuring 7.02 acres

and 1.05 acres in Sy.No.16/Aa purchased by the father of

the defendant which was renumbered as Sy. No.7/B and

23/B respectively by revenue authorities excluding 32

guntas covered by road.

5. It is further averred that since the date of

purchase, the father of the plaintiff, and after his demise his

sons are in exclusive ownership and possession of the land

bearing Sy.No.7/B to the extent of 7.02 acres and land

bearing Sy.No.23/B measuring 1.05 acres till date of

encroachment and illegal dispossession by the defendant. In

family partition among plaintiff and his brothers, the suit

land has fallen to the share of plaintiff.

6. It is further averred that the defendant is the

owner of adjacent land bearing Sy.No.23/A measuring 1.05

acres of Budagumpa Village and defendant has purchased

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the land from Ningappa S/o Gyanappa through the

registered sale deed dated 29-11-1996 and came into the

possession of said land. Defendant is totally stranger having

no right, title or interest over the suit land of the plaintiff.

On 21-12-2011 the defendant, all of a sudden, came along

with his henchmen, forcibly encroached and dispossessed

the plaintiff from the suit land stating that his land comes

up to road. The recitals of boundaries in defendant's sale

deed are wrong and not binding on the plaintiff. The advise

and resistance of the plaintiff and other neighboring persons

gone in vain. The plaintiff has approached the survey

authorities for measurement and sought for the Haddubast-

Phodi of his land measuring 1.05 acres and same was

surveyed in the month of May 2012 wherein it is revealed

that the defendant has encroached and is in illegal

possession of the suit land bearing Sy No. 23/B measuring

1.05 acres. The surveyor has prepared report with sketch

showing encroachment of the defendant. Hence the

defendant has illegally encroached the suit land and is in

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illegal possession thereof. Hence the defendant is liable to

pay mesne profit. The defendant has filed objection to the

Tahasildar Koppal by fabricating the ROR of his land bearing

Sy.No.23/A as 2.10 acres and refused to vacate the suit

land, as such Tahasildar passed the order on 09-08-2012

directing to parties to approach Civil Court. Thereafter, the

plaintiff requested defendant to handover, the possession of

the sult land, which is illegally encroached.

7. After service of summons, the defendant

appeared through his counsel and filed the written

statement and also counter claim. The plaint averments are

denied as false. It is contended that the contents of Para

No.1 is within the knowledge of the plaintiff except the fact

that the plaintiff is the owner of the suit land. But the

defendant is in possession of the suit land and it is well

within the knowledge of the plaintiff. As a matter of fact the

defendant is in possession suit land since the date of

purchase of his land bearing Sy.No.23/A measuring 1.05

acres since 1996 till today and is in possession and

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cultivation of his land including extent of 45 guntas out of

suit land and it is within the knowledge of the plaintiff. It is

admitted that he is the owner of land bearing Sy.No.23/A

measuring 1.05 acres of Budagumpa Village and he has

purchased the same from Ningappa S/o Gyanappa. It is

contended that since 1996 he is in actual possession and

enjoyment of the extent of 45 guntas out of suit land along

with his land bearing Sy. No.23/A. The plaintiff knowing all

the facts, did not resist. As a matter of fact, the defendant

is in possession of the suit land since 1996 and in spite of

knowledge, the plaintiff kept mum. The defendant has

cultivated the suit land and grown various crops and the

plaintiff is residing in the Budagumpa Village and he knew

all these facts. Now the plaintiff filed this false suit by giving

false information.

8. Further the defendant filed the counter claim U/o

8 Rule 6-A of CPC and contended that since the date of

purchase of land bearing Sy.No.23/A, he is in possession of

his land and also the suit land is adjacent to each other. The

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plaintiff knew that, defendant is in possession and

enjoyment of the suit land but he did not do anything to get

the possession of the suit land, hence the defendant has

perfected his title by adverse possession. The defendant is

in possession of suit land along with his land since 15 years

and the same is within the knowledge of the plaintiff. Hence

the defendant is owner in possession of the suit land. The

cause of action for filing the counter claim arose when the

plaintiff has filed this suit. On all these grounds, sought for

decreeing the counter claim and dismissal of suit with costs.

9. Based on the pleadings, the Trial Court framed

seven issues.

10. To substantiate the case of the plaintiff, three

witnesses were examined as PW-1 to PW-3 and 19

documents were marked as Ex.P-1 to Ex.P-19. On closure of

the plaintiff's side evidence, the defendant examined

himself as DW-1, and two other witnesses were examined

as DW-2 and DW-3, and 16 documents were marked as

Ex.D-1 to Ex.D-16.

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11. After hearing the arguments of both sides, the

Trial Court decreed the suit in favour of the plaintiff. Being

aggrieved by the said judgment and decree of the Trial

Court, the defendants preferred R.A.No.10/2017 before the

Senior Civil Judge and CJM, Koppal, which came to be

dismissed on 15.12.2022.

12. Being aggrieved by the judgment and decree, the

appellant has preferred this appeal.

13. Learned counsel for the appellant submits that

the judgment and decree passed by both the Courts are

illegal, arbitrary, capricious, and not sustainable in the facts

and circumstances of the case. It is further contended that

the findings are contrary to the evidence and material on

record and are not based on settled legal principles.

14. It is further urged that the Courts below have

failed to consider that the defendant has been in possession

of the suit land since 1996 and has been cultivating the

same by growing various crops, which fact was within the

knowledge of the plaintiff. In spite of such knowledge, the

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plaintiff did not take any steps and remained silent.

Therefore, the possession of the suit land by the defendant

has been continuous since 1996, without interruption by the

plaintiff. Hence, the defendant has established his

ownership over the suit land by way of adverse possession.

On all these grounds, learned counsel for the appellant

prays for admission of the appeal by framing substantial

questions of law as set out in the appeal memorandum.

15. I have examined the materials placed before me.

16. In paragraphs 61 to 63, the First Appellate Court

has observed as under:

"61. Instant case the DW-1 in his cross-examination at page No.7 clearly admitted that, he has no malafide intention to grab the property stands in the name of plaintiff. It is worth to extract the portion of the cross- examination of DW-1 at page No.7 as under:

"ªÁ¢AiÀÄ ºÉ¸Àj£À°ègÄÀ ªÀAvÀºÀ d«ÄÃ£À£ÄÀ ß ®¥ÀmÁ¬Ä¸À¨ÉÃPÉA§ AiÀiÁªÀÅzÉÃ zÀÄgÀÄzÉÝÃ±À EgÀÄªÀÅ¢®è JAzÀgÉ ¸Àj".

62. In view of the above admission made in the cross examination of DW-1, clearly reveals that he has no adverse animus. To claim the adverse possession, the open hostile and continues possession with the required animus should be proved. But instant case the defendant has not stated in the pleading and evidence that when his possession becomes adverse to the interest of the plaintiff who is the true owner of the suit property.

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63. The DW-1 in his cross examination further states that he has purchased total 02.10 acres land. Further he states that no quarrel taken place in between plaintiff and him after purchase of his land and the plaintiff never enquired him to hand over the possession of suit property. This elicitation clearly shows that there is no adverse interest. As per section 58 of, Indian Evidence Act admitted facts need not be proved. The DW-1 clearly admitted above he has no malafide intention to grab the property of the plaintiff. Hence, the defendant has failed to establish the main ingredient of the adverse possession i.e. animus possidendi which is essential to prove the adverse possession. Hence, in view of the above discussion, this Court is of the view that the defendant has failed to establish the ingredients of adverse possession."

17. Both the Courts have properly appreciated the

evidence on record in accordance with law and facts. The

defendants have failed to plead and prove the essential

ingredients of adverse possession. Accordingly, the Trial

Court decreed the suit in favour of the plaintiff, which was

confirmed by the First Appellate Court.

18. I do not find any error or legal infirmity in the

judgment and decree passed by both the Courts. No

substantial question of law arises for consideration in this

appeal. Hence, I proceed to pass the following: