Karnataka High Court
Annegowda @ D A Kumar vs Smt Parvathamma on 7 January, 2026
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NC: 2026:KHC:1009
RSA No. 1042 of 2014
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1042 OF 2014 (DEC)
BETWEEN:
ANNEGOWDA @ D A KUMAR
SINCE DECEASED BY LEGAL REPRESENTATIVES
1. SMT. NETHRA,
W/O D.A.KUMAR,
AGED ABOUT 33 YEARS
2. MASTER VIJAYA VIKRAM
S/O LATE D A KUMAR
AGED ABOUT 09 YEARS
MINOR REPRESENTED BY LR"S NO.1
Digitally signed (THE MOTHER)
by KIRAN
KUMAR R 3. SRI LAKSHMIKANTH
Location: HIGH S/O LATE D A KUMAR
COURT OF AGED ABOUT 07 YEARS
KARNATAKA
MINOR REPRESENTED BY LR"S NO.1
(THE MOTHER)
ALL ARE RESIDING AT DINNEKERE
UDUSE VILLAGE
BETTADAMANE POST
MUDIGERE TALUK-577132
...APPELLANTS
(BY SRI. M SHIVAPRAKASH., ADVOCATE)
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RSA No. 1042 of 2014
HC-KAR
AND:
1. SMT PARVATHAMMA
W/O VASUDEVAPPA
AGED ABOUT 80 YEARS
2. SRI DYAVAPPA B V
S/O VASUDEVAPPA
AGED ABOUT 54 YEARS
3. SMT. M K SHANTHAMMA
W/O B V SOMEGOWDA
AGED ABOUT 62 YEARS
4. SRI B S SHIVAKUMAR
S/O B V SOMEGOWDA
AGED ABOUT 30 YEARS
5. SRI B S TEJPAL
S/O B V SOMEGOWDA
AGED ABOUT 28 YEARS
RESPONDENTS 1 TO 5 ARE
RESIDING AT BETTADAMANE
VILLAGE AND POST
MUDIGERE TALUK-577132
6. SMT. B S SAVITHA
D/O B V SOMEGOWDA
W/O NARAYANA
AGED ABOUT 32 YEARS
GABGAL, COOVE VILLAGE
MUDIGERE TALUK-577132
7. SMT. B S TEJASWINI
W/O SOMASHEKARA
AGED ABOUT 29 YEARS
R/AT DEVAVRUNDA VILLAGE
AND POST
MUDIGERE TALUK-577132
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RSA No. 1042 of 2014
HC-KAR
8. KUM. GAYATHRIGOWDA
D/O LATE D.A.KUMAR,
13 YEARS, MINOR REPRESENTED BY HER MOTHER
SMT. VEENA,
W/O D.A. KUMAR,
36 YEARS, R/AT KPTCL QUARTERS,
CHIKKABALLAPUR - 562 101
...RESPONDENTS
(BY SRI. H.P. LEELADHAR, ADVOCATE FOR R1 TO R7
R8 IS MINOR REP. BY HER MOTHER)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 02.06.2014 PASSED IN
R.A.NO.40/2013 ON THE FILE OF THE I ADDL. SENIOR CIVIL
JUDGE AND JMFC., CHIKMAGALORE, ALLOWED THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
23.02.2013 PASSED IN O.S.NO.81/2003 ON THE FILE OF PRL.
CIVIL JUDGE AND JMFC, MUDIGERE.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 02.06.2014 passed in R.A.No.40 of 2013 by the learned I Additional Senior Civil Judge, Chikkamagalur.
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2. For convenience, the parties are referred to based on their rankings before the trial court. The appellants were the legal representatives of the deceased defendant, respondent Nos.1 to 7 were the plaintiffs and respondent No.8 was defendant No.1.
3. Brief facts, leading rise to the filing of this appeal are as follows:
4. The plaintiffs filed a suit for declaration of title, possession and recovery of money. It is the case of the plaintiffs that one Vasudevappa, acquired title to the lands bearing survey No.30 measuring to an extent of 3 acres 25 guntas under a registered sale deed dated 17.03.1972, and an extent of 1 acre 29 guntas in Survey No.29. The dispute was raised by the plaintiffs alleging that the defendant has raised boundary dispute, and is making an attempt to interfere with the peaceful possession and enjoyment of the plaintiffs in the land bearing survey No.41 described in Schedule 'A', the allegation of -5- NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR interference regarding 9 guntas is described in schedule 'B' of the plaint. Prior to the filing of this suit, the plaintiffs filed a suit in OS No. 167 of 1999 for the relief of perpetual injunction, so also the defendant in OS No.141 of 1999 and both the suits came to be dismissed and the suit in OS No. 167 of 1999 was withdrawn. Hence, the plaintiffs filed a comprehensive suit for a declaration of title, possession and recovery of money. Accordingly, prays to decree the suit.
5. The defendants filed a written statement denying the averments made in the plaint, and admitted regarding filing of suit in OS No.141 of 1999 and OS No.167 of 1999. In the written statement, the defendants totally denied the plaint 'B' schedule property as a part and parcel of 'A' schedule property and claimed that the schedule 'B' property is part and parcel of Survey No. 41, and the Surveyor has falsely stated that the suit 'B' schedule property is a part -6- NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR and parcel of 'A' schedule property. It is contended that the plaintiffs are not at all in possession of 'B' schedule property right from 18.05.1989 and prior to it, it was under possession of the defendant's family. At no point of time either the plaintiffs or their predecessor in title were in possession of the disputed land to the extent of 9 guntas. It is contended that there is no cause of action to file a suit. Hence, prays to dismiss the suit.
6. The trial Court, based on the rival pleadings of the parties, framed the following issues and additional issues:
ISSUES
1. Whether the plaintiffs prove that they are the absolute owners in possession and enjoyment of the suit schedule property?
2. Whether the plaintiffs further prove that 'B' schedule property is the part and parcel of suit 'A' schedule property?
3(a). Whether the defendant proves that 'B' schedule property is part and parcel of survey No.41 i.e., his property?
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NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR 3(b) If not, whether the defendant proves that he has perfected his title over the suit property by way of adverse possession uninterruptedly, openly to the knowledge of the plaintiff?
4. Whether the plaintiffs are entitled to the relief sought in the plaint?
5. What order or decree?
ADDITIONAL ISSUES
1. Whether the plaintiff's proves that the alleged interference of the defendant?
2. Whether the plaintiff is entitled for past mesne profits as prayed?
3. Whether the suit is within time?
7. The plaintiffs to substantiate their case, examined plaintiff No.2 as PW.1, examined one witness as PW.2 and marked 20 documents as Exs.P1 to Ex.P20. The original defendant D.A.Kumar was examined as DW.1, examined 3 witnesses as DW.2 to DW.4 and marked 50 documents as Exs.D1 to Ex.D50.
8. During the pendency of the suit, a court commissioner was appointed. The court commissioner submitted a report, and the defendants -8- NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR filed an objection to the commissioner's report, and the commissioner was examined as CW.1.
9. The trial Court, after recording the evidence, hearing both sides and after appreciating the verbal and documentary evidence, dismissed the suit vide judgment dated 23.02.2013.
10. The plaintiffs, aggrieved by the judgment and decree passed in OS No. 81 of 2003 preferred the appeal in RA No.40 of 2013 on the file of the learned I Additional Senior Civil Judge, Chikmagalur.
11. The first appellate Court, after hearing the learned counsel to the parties, framed the following points for consideration:
1. Whether the plaintiffs proved that the "B"
schedule property is part and parcel of "A" schedule property and the defendant is in illegal possession of "B" schedule property?
2. Whether the impugned judgement and decree passed by the trial court warrants interference by this Court?
3. What order or decree?
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12. The first appellate Court, after re-appreciating the entire evidence on record, allowed the appeal with costs vide judgment dated 02.06.2014, and set aside the judgment and decree passed in O.S.No.81 of 2003, and decreed the suit of the plaintiffs, and directed the defendants to hand over the vacant possession of 'B' schedule property to the plaintiffs within 3 months from the date of the judgment, and that there shall be an enquiry regarding mesne profits before the trial Court as contemplated under Order XX Rule 12(3) of CPC as per the Karnataka Amendment.
13. The legal representatives of the deceased defendant aggrieved by the judgment and decree passed in RA No. 40 of 2013, filed this Regular Second Appeal.
14. Heard the arguments of Sri. M. Shivaprakash the learned counsel for the Legal representatives of deceased defendant, and Sri. H.P. Leeladhar, learned counsel for the plaintiffs.
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15. Learned counsel for the defendants submits that the defendants had denied the title of the plaintiffs regarding 'B' schedule property and he submits that the entire judgment of the first appellate court is based on the weakness of the defendants. To buttress his arguments he placed reliance on the judgment of the Hon'ble Apex Court in the case of Union of India and others vs. Vasavi Co- operative Housing Society Ltd. And others reported in AIR 2014 SC 937.
16. Hence, he submits that the first appellate court ought to have placed a burden of proof on the plaintiffs, to the contrary, the first appellate court has placed a burden of proof on the defendants. The impugned judgment of the first appellate court is contrary to the judgment passed by the Hon'ble Apex Court in the case of Union of India Vs. Vasavi (referred supra). Hence, he submits that the matter requires reconsideration by the first appellate court. Hence,
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NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR on these grounds, he prays to allow the appeal, and set aside the judgment and decree passed by the first appellate Court, and remit the matter to the first appellate court for a fresh consideration.
17. Per contra, the learned counsel for the plaintiffs submits that the plaintiffs were the absolute owners of 'A' schedule property and that 'B' schedule property is part and parcel of 'A' schedule property. The first appellate Court, considering the documents produced by the plaintiffs, has rightly declared that the plaintiffs are the absolute owners of the suit schedule property, and directed the defendants to vacate and hand over the possession of the suit 'B' schedule property. The judgment and decree passed by the first appellate court is just and proper, and do not call for any interference. Hence, on these grounds, prays to dismiss the appeal.
18. This Court, on 30.03.2023, admitted the appeal to consider the following substantial questions of law:
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1. Whether the Appellate Court is justified in not considering the admission of CW.1 in regard to the discrepancy in Exs.P4 and P5 in regard to the location of the suit schedule property?
2. Whether the Appellate Court is justified in reversing the judgment and decree passed by the trial Court without properly appreciating the material on record?
Regarding substantial question Nos.1 and 2:
19. The substantial question Nos.1 and 2 are interlinked with each other and hence, they are taken together for a common discussion to avoid the repetition of facts.
20. The plaintiffs filed a suit for a declaration of title, possession of 'B' schedule property and recovery of money. To prove his case, the plaintiff No.2 was examined as PW1. He reiterated the plaint averments in the examination-in-chief and he has deposed that he is the absolute owner of the 'A' schedule property
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NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR and 'B' schedule property is a part and parcel of 'A' schedule property i.e., Survey No.30. To prove that the plaintiffs are the owners of the suit schedule property, produced the documents marked as Exs.P1 to P20. The plaintiffs also examined one witness as PW.2 to prove that the 'B' schedule property is part and parcel of 'A' schedule property, and that the defendant encroached upon 'B' schedule property, and the defendants have no right, title or interest over the 'B' schedule property.
21. In rebuttal, the original defendant D.A.Kumar was examined as DW1. He has reiterated the written statement averments in the examination-in-chief and deposed that prior to the filing of this suit, the plaintiffs filed a suit in OS No. 167 of 1999 for the relief of a perpetual injunction. The said suit was withdrawn, and they have filed the present suit for declaration of title, possession and recovery of
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NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR money, and also examined three witnesses as DW2 to DW4 in support of their defense.
22. The trial Court, after appreciating the entire evidence on record held that the plaintiffs have failed to prove that they are the absolute owners in possession and enjoyment of the suit schedule property, and failed to prove that 'B' schedule property is a part and parcel of suit 'A' schedule property. Also held that, the defendants prove that 'B' schedule property is the part and parcel of Survey No.41 i.e., the defendants' property. The defendants have failed to prove that they had perfected their title over the suit schedule property by way of adverse possession uninterruptedly, peacefully, openly to the knowledge of the plaintiffs, and the plaintiffs have failed to prove the alleged interference of the defendants over the property and consequently, dismissed the suit of the plaintiffs.
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23. The first appellate Court, placing reliance on the sketch prepared by the court commissioner held that 'B' schedule property is a part and parcel of Survey No.30 and the defendants encroached upon 0.09 guntas of land situated in Survey No. 30, and has passed the impugned judgment on the ground that the defendants did not choose to admit the ownership of the plaintiffs over 'B' schedule property to set up the plea of adverse possession.
24. From the perusal of the entire judgment passed by the first appellate court, it is evident that the first appellate court has passed the judgment based on the weakness of the defendants. It is a settled law that whoever approaches the court must establish his case independently, and cannot depend upon the weakness of the defendants. The said view is supported by the judgment of the Hon'ble Apex Court in the case of Union of India and others vs. Vasavi Co-operative Housing Society Ltd and
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NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR others reported in AIR 2014 SC 937. The Hon'ble Apex Court held that 'the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. Even if the title set up by the defendant is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited'.
25. Admittedly, the entire judgment of the first appellate court is based on the weakness of the defendants, and there is no finding recorded by the first Appellate Court regarding whether the plaintiffs have proved the suit schedule 'B' property is the part and parcel of 'A' schedule property, and whether the plaintiffs are the absolute owners of 'B' schedule property. The first appellate court has recorded in its finding that the commissioner has submitted a report, the
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NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR defendants have submitted objections to the commissioner's report, and the said objection was rejected, and the commissioner's report has attained finality.
26. From the perusal of the cross-examination of the court commissioner, he has clearly admitted that there is a discrepancy in Ex.P4 and Ex.P5 regarding the location of the suit schedule property. The said admission was not properly considered by the first appellate Court, and committed an error in reversing the judgment and decree passed by the trial court.
27. The judgment and decree passed by the trial court is not in compliance with Order XLI Rule 31 of the Code of Civil Procedure. The first appellate court has not adequately re-appreciated the entire evidence on record. Thus, the judgment and decree passed by the first appellate court is perverse, arbitrary and contrary to the records, and is against the exposition of law laid down by the Hon'ble Apex Court in case of
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NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR Vasavi Co-operative Housing Society Ltd (referred supra).
28. As the first appellate court has not re-appreciated the entire evidence, the matter requires a fresh consideration by the first appellate Court. In view of the above discussion, I answer substantial question Nos.1 and 2 in the negative.
29. Accordingly, I proceed to pass the following order:
ORDER i. The Regular Second Appeal is allowed.
ii. The judgment and decree dated 02.06.2014 passed in RA No. 40 of 2013 by the learned I Additional Senior Civil Judge, Chikmagalur, is hereby set aside.
iii. The appeal in RA No. 40 of 2013 is restored to its original file.
iv. The first appellate court is directed to pass the judgment in compliance with Order XLI Rule 31 of the CPC.
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NC: 2026:KHC:1009 RSA No. 1042 of 2014 HC-KAR v. The parties are directed to appear before the first appellate court on 16.02.2026 without awaiting any further notice.
vi. It is made clear that this court has not made any adjudication on the merits in issue.
vii. All the contentions of the parties are kept open.
viii. Registry is directed to transmit the records to the first appellate court.
ix. Pending interlocutory application/s, if any, shall stand disposed of accordingly.
Sd/-
(ASHOK S.KINAGI) JUDGE SKS