of Irappa and Shivu son of Gadigeppa, succeeded to their
fathers, and continued to be in joint possession and enjoyment
of the family properties along with the first shareholder Iravva.
When this being the situation, the said Irava, Siddappa and
Shivu effected oral partition between themselves, in which 34
guntas of Sy.No.224, 1.30 acres of Sy.No.181 of Pala village and
4.07 acres of Sy.No.54 of Bhadrapur, had fallen to the share of
first sharer Iravva. Likewise, 1.09 acres of Sy.No.250; 30
guntas of Sy.No.207 of Pala village, 2.16 acres Sy.No.52 and
4.03 acres of Sy.No.27 of Bhadrapur village had fallen to the
share of third sharer Siddappa. Similarly, the land measuring 33
guntas in Sy.No.32, 1.12 acres in Sy.No.214 and 30 guntas in
Sy.No.222 of Pala village and 1.15 acres in Sy.No.53 of
Bhadrapur village had fallen to the share of third sharer Shivu.
The land in Sy.No.9 of Pala village measuring 2.14 acres
consisting of residential houses were in enjoyment of all the
shareholders. Since the low valuable and unfertile lands were
allotted to the share of Siddappa, the entire land of suit
property, even though more in extent was allotted to his share.
Thereby the second sharer Siddappa was in possession and
enjoyment of suit schedule property. Defendants 1 to 7 being
- 13 -
the wife and children of second sharer Siddappa, were in position
and enjoyment of suit schedule property as it had fallen to their
share in the oral partition. After the death of Siddappa, they
continued to be in possession and enjoyment of the same by
incorporating their names in the revenue records. Thus
defendants 1 to 7 have been in continuous physical possession of
the suit schedule property to the knowledge of other two original
sharers, and after their death to the knowledge of their sons and
daughters as well as the plaintiff and his wife, without any
interference. Thereby their position is more than statutory
period of 12 years and as such, they perfected their title over the
suit schedule property by way of adverse possession against the
plaintiff, his wife and any other defendants. Defendants 1 to 7
further contended that during the year 1936, the second sharer
Siddappa @ Siddanagouda, who is none other than the father of
defendants 1 to 7, had handed over his movable properties to
the third sharer Shivu with a condition to return the same after
his return to the village, under a written agreement.
Accordingly, the second sharer Siddappa demanded the third
sharer Shivu to return his movable properties and also to delete
his name from the revenue records of the suit schedule property.
- 14 -
But the third sharer declined to do so on one or the other
pretext. In pursuance of this, second sharer Siddappa made an
application before the revenue authority on 31st December,
1983, to delete the name of the plaintiff and the names of sons
and daughters of third sharer. Since none of them cooperated
for the same, the revenue entries were continued as it is.
Defendants 1 to 7 further contended that in order to delete the
name of the plaintiff and defendants 8 to 13 from the revenue
records, the second defendant filed tenancy application before
the Land Tribunal during the year 1997, which came to be
dismissed holding that the suit property was the joint family
property. It was not declared that either the plaintiff or the
defendants 8 to 13 were holding one-third share in the suit
schedule property. Defendants 1 to 7 further contended that the
suit is bad for non-joinder of necessary parties for partition and
their claim is barred under law of limitation. Plaintiff,
fraudulently got obtained grant of land measuring 3.37 acres in
Sy.No.22/B of Bhadrapur village from the government. Likewise,
he got created the alleged gift deed dated 12th February 1962,
with an intention to grab the suit schedule property. In
consequence of their illegal intention, Plaintiff and defendants 8
- 15 -
to 13 collusively got filed this suit only with an intention to grab
the suit schedule property. On all these grounds, it was sought
for dismissal of the suit of plaintiff with costs.
8. Defendants 10 and 11 in their written statement
accepted the averments of the plaint as true and correct and
prayed to decree the suit as prayed for by the plaintiff by
allotting their share fallen on defendants 9 to 13.
9. Defendant No.9 accepted the contentions of defendants
1 to 7 as true and correct and prayed for dismissal of the suit.
On the basis of pleadings, trial Court framed following issues:
1. Whether the plaintiff proves that he is the
husband of Shivamma, who is the grand-
daughter of Iravva through her daughter
Sankavva?
2. Whether the plaintiff further proves that his wife
by name, the said Shivamma has got right to
execute the gift deed dated 12.2.1962 in his
favour and the same is valid, one?
3. Whether the plaintiff further proves that he has
got right over the ½ share in the suit property
and also entitled for separate possession of the
same.
- 16 -
4. Whether that defendant Nos.1 to 7 proves that
they acquired the right over the suit property by
way of adverse possession?
5. Whether the defendant Nos.1 to 7 further
proves that the suit is time barred?
6. Whether the defendant further proves that the
suit is not maintainable as other family
properties are not included for partition?
7. Whether the defendant Nos.1 to 7 further prove
that already suit properties along with other
parties, partition between the original propositur
deceased by name, Iravva, Siddappa and Shivu
@ Shivappa?
8. Whether the defendant Nos.10 and 11 prove
that they are entitled for 1/ third share and
separate possession of the same?
9. Whether the plaintiff and defendant Nos.10 and
11 prove that they are entitled for mesne
profits?
10. What order for a decree?
10. To prove the case of plaintiffs two witnesses were
examined as PWs1 and 2 and fourteen documents were marked
as Exhibits P1 to P14. On the other hand, defendants examined
five witnesses as DW1 to DW5 and marked 96 documents as
Exhibits D1 to D96. Having heard the parties, the trial Court
answered Issues No.1, 2, 3, 8 and 9 in the affirmative and
- 17 -
Issues No.4 to 7 in the negative and has decreed the suit of
plaintiff holding that the plaintive is entitled for partition and
separate position of one-third share in the suit schedule property
with mesne profits from the date of the suit till realisation.
Defendants 9 to 13 are entitled for one-third share as that of
plaintiff and defendants 1 to 7 with mesne profits from the date
of partition till realisation. Further, it was decreed that the
partition shall be effected in favour of defendants 1 to 7 by
allotting the area of their residential house in their favour. Being
aggrieved the judgment and decree of the trial Court, defendants
1 to 7 preferred appeal before the first appellate Court in RA
No.112 of 2007. Defendants 8 to 13 have not challenged the
judgment and decree passed by the trial Court. The first
Appellate Court, by judgment and decree dated 02nd November,
2016, dismissed the appeal confirming the judgment and decree
passed by the trial Court.
11. Learned Counsel appearing for the appellants submit
that the judgment and decree passed by the courts below are
contrary to the evidence on record, arbitrary, capricious, and are
liable to be set aside. The same are without consideration of
actual possession of the property and the findings given on the
- 18 -
said fact is perverse and incorrect. The Courts below have erred
in holding that the suit property is the joint family property of
the three sharers i.e. Iravva, Siddappa and Shivu, even though
they are residing separately by partitioning their family
properties prior to 1956. Both the Courts have erred in holding
that the law of adverse position not at all attracted to the facts
and circumstances set up by defendants 1 to 7. The Courts
below have failed to consider that PW1 had admitted in his
evidence that Siddappa, who was the father of defendants 1 to 7
was in possession and enjoyment of the suit property for forty
years and it is not sufficient to hold that defendants 1 to 7 have
perfected their title over the suit property by adverse possession.
The courts below have not taken into consideration that there
was an earlier oral partition between three sharers and the suit
property had fallen to the share of Siddappa i.e. the father of
defendants 1 to 7. Both the Courts have erred in holding that
Shivamma succeeded the interest of her grandmother-Iravva to
the extent of one-third share in the suit property, and the said
Shivamma has no right to execute gift deed in respect of the suit
property in favour of the plaintiff. The reasoning given and
conclusion arrived at by the courts below are illegal and hence
- 19 -
has resulted in miscarriage of justice. On all these grounds he
sought to allow the appeal. To substantiate his arguments he
has placed reliance on the following judgments:
1. KHATRI HOTELS PRIVATE LIMITED AND ANOTHER
v. UNION OF INDIA AND ANOTHER - (2011)9 SCC
126;
2. BABU MOTHER SAVAVVA NAVALGUND AND
OTHERS v. GOPINATH - ILR 1999 KAR. 3129.
12. On the other hand, Sri S.R. Hegde, learned Counsel
appearing for the respondents would support the impugned
judgments and decree passed by the courts below and submit
that the trial Court has considered all the documents placed
before it and has passed the impugned judgment and decree,
which is confirmed by the first appellate Court and that there are
no grounds for interference in this appeal.
13. I have given my anxious consideration to the
contentions advanced by the learned counsel for the parties and
perused the judgment and decree passed by both the Courts.
While answering issues 4 to 8 in the negative, the trial Court, in
paragraphs 46 to 51 of the judgment, has assigned reasons.
The same is extracted hereunder:
- 20 -
46. Issues Nos.4 & 5: I chose to answer both these
issues together as they are inter connected each other.
47. In the written statement of defendants No.1 to 7
they have contended that this suit is barred by law of
Limitation as the plaintiff ought to have filed a suit for
partition within the statutory period of 12 years. On the
other hand the entire suit schedule property was in
possession and enjoyment of their father Siddappa. He
constructed the house in the suit schedule property and
lived therein throughout his life. Thereafterwards the
defendant Nos.1 to 7 are also in possession and enjoyment
of the suit schedule property by living in the same house.
Therefore, their possession is more than 12 years, on
account of which they have perfected their title to the
entire suit schedule property by way of adverse possession.
48. In this connection their Advocate Sri.S.P.S has
argued that the possession of siddappa since more than 40
or 50 years has been admitted by the plaintiff and also
admitted by his wife. Therefore, either the plaintiff or his
wife ought to have filed the suit within 12 years for
partition and separate possession of their shares.
Therefore, this suit is barred by law of Limitation as
contemplated U/sec.65. Hence, the plaintiff is not entitled
for any reliefs as sought in this suit. During the course of
arguments Advocate Sri.5.P.S has further drawn the
attention of this court to some of the depositions of P.W.1,
which are as follows:
- 21 -
1) "FUÀ C¯ÁAiÀÄzÀ EgÀĪÀ C£ÀĨsÀªÀ ªÀiÁqÀÄwÛgÄÀ ªÀ D¹ÛUÀ¼À£ÄÀ ß
¥ÀƪÀð¢AzÀ®Æ CªÀgÉà ¥ÀÆtð ªÀiÁ°PÀgÁV C£ÀĨsÀ«¹PÉÆAqÀÄ
§A¢gÀÄvÁÛgÉ."
2) "ªÀÄÈvÀ ¹zÀÝ¥àÀ ¸ÀĪÀiÁgÀÄ 50 ªÀµÀðUÀ½AzÀUÀ®Æ zÁªÁ ¸ÀévÀÛ£ÄÀ ß
¸ÁUÀĪÀ½ ªÀiÁqÀÄwÛzÁÝ£É"
3) "zÁªÁ ¸ÀéwÛ£À°è ªÀÄ£É PÀnÖ ¹zÀÝ¥àÀ ªÀÄvÀÄÛ CªÀ£À PÀÄlÄA§ ªÁ¸ÀÛªåÀ
EgÀÄwÛzÀÝgÄÀ . CªÀ£ÀÄ ªÀÄgÀt ºÉƪÀÄ¢zÀ £ÀAvÀgÀ CªÀ£À ªÀÄUÀ
ªÁ¸À«gÀÄvÁÛ£É."
4) "zÁªÁ ¸ÀévÛÀ£ÄÀ ß ¹zÀÝ¥àÀ 40 ªÀµÀðUÀ½AzÀ ¸ÁUÀĪÀ½ ªÀiÁqÀÄvÀÛ
§A¢gÀÄvÁÛ£É."
5) "£À£ÀUÉ §Ä¢Ý §AzÁV¤AzÀ®Æ zÁªÁ¹ÛAiÀÄ£ÀÄß ¹zÀÝ¥Àà£Éà ¸ÁUÀĪÀ½
ªÀiÁqÀÄvÀÛ §A¢gÀÄvÁÛ£É J£ÀÄߪÀÅzÀÄ ¸Àj."
6) "¹zÀÝ¥Àà EzÀÝ PÁ®PÉÌ zÁªÁ ¸ÀéwÛ£À ªÉÄÃ¯É zÁ£À ¥ÀvæÀzÀ ¥ÀæPÁgÀ £À£ÀUÉ
ºÀPÀÄÌ EzÉ JAvÀ PÉýzÉÝ. DzÀgÉ CªÀ£ÄÀ ©lÄÖ PÉÆqÀ°®è."
49. According to the above said versions, the plaintiff has
admitted the possession of siddappa since 40 years, but
nowhere he has admitted that the said siadappa was in
possession and enjoyment of the suit schedule property as
an absolute owner. The above said 1st admission is
hypothical in nature which is not clarified particularly with
the suit schedule property. Moreover it is not the case on
hand that the plaintiff has ½ share and the said sidaappa
had ½ share in the suit schedule property. But it is the
matter which involves 3 shares in the suit schedule
property including the alleged share of shivu @
shivappagouda. When this being so, all the defendant Nos.1
to 7 seek relief adverse possession, it should be against
- 22 -
other two sharers. Here in this case, the defendants Nos.1
to 7 have pleaded their adverse possession only against the
plaintiff, but not against the successors of another sharer
shivu @ shivappagouda. Beside being ail these facts, our
own Hon'ble High Court and Hon'ble Supreme court have
held with regard to Law of Adverse possession as follows:
ILR 2006 KAR 4147
(SUPREME COURT)
Adverse possession-concept-Possession must be
hostile, in denial, either express or implied, of
title of the real owner-For that it is essential that
possessor must clearly know the actual owner of
the property-Only then can be situation of being
in hostile possession and question of denying
title of true owner would arise-Possession must
be peaceful, continuous and open, capable of
being known by parties intersted-In this case,
since possessor was not sure whether plaintiff or
the Government was true owner of the property,
held, claim of Aäverse possession is not
maintainable-Limitation Act, 1963, Article 65-
words and Phrases-"Adverse Possession".
2005(5) Kar.L.J.256 (FH)
(B) LIMITATION ACT, 1963, Article 110-Indian
Evidence Act, 1872, sections 101 to 104-
Particion Suit-Defence plea of adverse
possession and limitation-Burden of proof is on
party raising plea-Mere possession for period
exceeding 12 years without intention to possess
- 23 -
suit land adverse to title of other party cannot
result in acquisition of title by prescription-
possession of property belonging to several co-
sharers by one sharer shall be deemed to be
possession on behalf of other co-sharers unless
there is clear ouster by denying title of other co-
sharers.
50. According to the above said observations any person
who claims the Law of Adverse possession must asserted
the ownership of the opponent and also he should know the
same in order to constitute his possession adverse to the
interest of the real owners. But whereas in this case it is
not the case of the defendants Nos.1 to 7 that other alleged
two sharers i.e., Iravva and shivu had the undivided share
in the suit schedule property. On the other hand the entire
suit schedule property was fallen to the share of their
father Siddappa. Thus the defendants Nos.1 to 7
throughout their written statement, have asserted the
absolute right over the suit schedule property without
admission of the shares of other two sharers. Therefore,
the Law of Adverse Possession is not at by all attracted to
the facts and circumstances set up the defendants Nos.1 to
7 in their written statement. Under these circumstances
even though the possession of Siddappa has been admitted
by the plaintiff more than 40 years, I am not satisfied with
the materials on hand to constitute the plea of adverse
possession of defendants Nos.1 to 7.
51. As admitted in the written statement and also as
admitted during the oral evidence of the defendants, the
4th defendant appeared to be filed the Form No.VII as
- 24 -
contemplated under Karnataka land Reforms Act with a
prayer to declare him as a tenent against this plaintiff and
successors of another sharer deceased shivappa. This
clearly implieses the possession what-so-ever of the
defendants Nos.1 to 7 as not adverse possession against its
other sharers. Thus the defendant Nos.1 to 7 have utterly
failed to prove the plea of adverse possession and
connected Law of Limitation as contemplated U/Sec.65 of
Limitation Act. In this connection further, I would like to
say that this is the suit for partition on the basis of theiг
existing legitimate shares, but not on the basis of their title
over the suit schedule property. Therefore, this kind of
partition suit may be filed by any of the shareholder to get
his legitimate shares partitioned. In this case, it is the case
of the plaintiff that the 2nd defendant of this case was
happened to manage the affairs of the suit schedule
property. In this connection the plaintiff has deposed that
the 2nd defendant obtained the consent to cut and remove
the trees on several occasions, but currently he is not
taking the consent to cut and remove the trees. This
situation clearly shows that the 2nd defendant has been
managing the affairs of the suit schedule property under
the consent of other sharers. Therefore, the continuation of
possession even with the defendants Nos.1 to 7 is always
co-extensive with other co-sharers. Wherein the Law of
Limitation is not applicable to claim for partition. Hence, I
answered both these issues in the negative."
14. The first appellate Court has also properly appreciated
the evidence on record and dismissed the regular appeal. On
careful examination of the entire material placed on record, I do
- 25 -
not find any error/illegality in the judgment and decree passed
by the trial Court which is confirmed by the first appellate Court.
Accordingly, there are no grounds to form substantial question of
law. In the result, I proceed to pass the following:
ORDER
Appeal dismissed.
Sd/-
(G BASAVARAJA)
JUDGE
LNN
CT-CMU
