Karnataka High Court
Mrs K Gulabi Rao vs Mrs. Shambavi on 26 September, 2024
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NC: 2024:KHC:41156
RSA No. 415 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 415 OF 2014 (INJ)
BETWEEN:
1. MRS. K. GULABI RAO,
W/O LATE K. GOPALA RAO,
AGED ABOUT 80 YEARS,
R/AT DINESH VIHAR,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE 575 002.
(Amendment carried out vide Court order dated
13.02.2024 name of appellant No.1 deleted.)
2. MRS. H. USHA DEVI,
W/O K. HARISH RAO,
AGED ABOUT 52 YEARS,
Digitally signed R/AT DINESH VIHAR,
by R DEEPA
SHEDIGURI,
Location:
HIGH COURT ASHOKANAGAR POST,
OF MANGALORE - 575 002.
KARNATAKA
3. CHAITHRA RAO B.,
D/O K. HARISH RAO,
AGED ABOUT 23 YEARS,
R/AT DINESH VIHAR,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE - 575 002.
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NC: 2024:KHC:41156
RSA No. 415 of 2014
4. VIBHA RAO B.,
D/O K. HARISH RAO,
AGED ABOUT 22 YEARS,
R/AT DINESH VIHAR,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE - 575 002.
5. SANKETH RAO B.,
S/O K. HARISH RAO,
AGED ABOUT 20 YEARS,
R/AT DINESH VIHAR,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE - 575 002.
...APPELLANTS
(BY SRI.TANIMA BEKAL FOR HAREESH BHANDARY .T
FOR A2 TO A5., ADVOCATE)
(VIDE ORDER DATED 13.02.2024 A1 IS PERMITTED
TO DELETE. )
AND:
1. MRS. SHAMBAVI,
D/O LATE RADHA,
AGED ABOUT 72 YEARS,
R/AT NEAR SHANTHI LANE,
APPI D'SOUZA COMPOUND,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE - 575 002.
2. MRS. SUMITHRA,
D/O LATE RADHA,
W/O ROHITHASHWA,
AGED ABOUT 59 YEARS,
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NC: 2024:KHC:41156
RSA No. 415 of 2014
R/AT GOPAL MASTER COMPOUND,
NAGARAKATTE,
KASARAGOD - 671 121.
3. MRS. NAVEEN,
W/O S. RAVINDRA,
AGED ABOUT 55 YEARS,
R/AT SRINIDHI APARTMENTS,
2ND FLOOR, J.B. LOBO ROAD,
KODICAL, MANGALORE -575 001.
4. MR. RAJATH,
S/O S. RAVINDRA,
AGED ABOUT 27 YEARS,
R/AT SRINIDHI APARTMENTS,
2ND FLOOR, J. B. LOBO ROAD,
KODICAL,
MANGALORE 575 001.
5. MR. MITHUN,
S/O S. RAVINDRA,
AGED ABOUT 26 YEARS,
R/AT SRINIDHI APARTMENTS,
2ND FLOOR, J. B. LOBO ROAD,
KODICAL, MANGALORE - 575 001.
6. MR. ANAND,
SINCE DEAD
HIS LEGAL REPRESENTATIVES,
6a) SMT. PREMA,
W/O K. ANAND,
AGED ABOUT 61 YEARS,
R/AT DOOR NO.8-57,
NEAR PINTO COTTAGE,
SHEDIGURI,
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NC: 2024:KHC:41156
RSA No. 415 of 2014
ASHOKANAGAR POST,
MANGALORE - 575 002.
6b). MR. SHUBHADA,
D/O K. ANAND,
AGED ABOUT 37 YEARS,
R/AT DOOR NO.8-57,
NEAR PINTO COTTAGE,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE 575 002.
6c). MR. SUDESH,
S/O K. ANAND,
AGED ABOUT 35 YEARS,
R/AT DOOR NO.8-57,
NEAR PINTO COTTAGE,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE 575 002.
6d). MR. SUKADA,
D/O K. ANAND,
AGED ABOUT 33 YEARS,
R/AT DOOR NO.8-57,
NEAR PINTO COTTAGE,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE- 575 002.
6e). MRS. SUPRITHA,
D/O K. ANAND,
AGED ABOUT 31 YEARS,
R/AT DOOR NO.8-57,
NEAR PINTO COTTAGE,
SHEDIGURI,
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NC: 2024:KHC:41156
RSA No. 415 of 2014
ASHOKANAGAR POST,
MANGALORE - 575 002.
6f). MS. SHRUTHI,
D/O K. ANAND,
AGED ABOUT 29 YEARS,
R/AT DOOR NO.8-57,
NEAR PINTO COTTAGE,
SHEDIGURI,
ASHOKANAGAR POST,
MANGALORE - 575 002.
...RESPONDENTS
(BY SRI. K.S. RAVI FOR C/R6 (A-D)., ADVOCATE,
R1 AND 2 ARE SERVED, UNREPRESENTED, SRI. H.MALATESH
FOR R6 (A TO F)
VIDE ORDER DATED 28.05.2024 SERVICE IN R/O R3 TO R5 IS
H/S.)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SEC.100 OF CPC., PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 28.09.2013 MADE IN R.A.NO.139/2006 BY
THE COURT OF 1ST ADDITIONAL SENIOR CIVIL JUDGE
MANGALORE AND CONFIRM THE JUDGMENT AND DECREE
DATED 26.08.2006 MADE IN O.S.NO.122/02 BY THE PRINCIPAL
CIVIL JUDGE (JR DIVISION), MANGALORE, D.K. IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
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NC: 2024:KHC:41156
RSA No. 415 of 2014
ORAL JUDGMENT
This regular second appeal is filed by the appellants challenging the judgment and decree dated 28.09.2013, passed in R.A.No.139/2006, by the 1st Additional Senior Civil Judge, Mangalore, reversing the judgment and decree passed by the Trial Court in O.S.No.122/2002, by the Principal Civil Judge (Jr.Dn), Mangalore, D.K., and consequently dismissed the suit of the plaintiff.
2. For convenience, parties are referred to as per their ranking before the trial Court. The appellants are the plaintiffs, and the respondents are the defendants.
The plaintiff filed a suit for the relief of mandatory injunction, seeking direction to the defendants to quit and vacate the suit schedule property and pay mesne profits along with the interest with respect to the suit schedule property.
3. The brief facts leading rise to the filing of this appeal are as follows:
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NC: 2024:KHC:41156 RSA No. 415 of 2014 It is the case of the plaintiffs, the suit schedule property was owned and possessed by the husband of the plaintiff No.1 and father of plaintiff No.2, namely K. Gopal Rao. He acquired the property under a registered instrument. After his demise, the suit schedule property devolved on his legal heirs, i.e., plaintiffs. Defendant No.2 is the son of defendant No.1 and the younger brother of plaintiff No.1, who was permitted to occupy and reside in the suit schedule property, which is an old tiled house of about 625 sq.ft., made of mud wall, having no electricity and water connection, the defendants have been using water from the public tap on the road. Hence, the defendants are in permissive occupation of the suit property. In a partition effected between the plaintiffs family members, the suit property fell to the share of plaintiff No.2 under a partition deed dated 04.12.2000. By virtue of the partition deed, the plaintiff No.2 became the absolute owner of the suit property. The plaintiffs requested the defendants to quit and hand over the vacant possession of the suit schedule property, but they did not -8- NC: 2024:KHC:41156 RSA No. 415 of 2014 comply. The plaintiffs, having fed up with the delay attitude, issued a quit notice on 28.01.2002. Despite service of notice, the defendants did not vacate the suit property, and they have no right to continue in the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for mandatory injunction.
4. The defendants filed a written statement denying the averments made in the plaint, and it is contended that they are in possession and enjoyment of the suit schedule property and acquired a title by adverse possession. It is contended that, ever since, they began to reside in the suit schedule property since 1966 and continued to own and reside therein as their property. The defendants denied that they were in permissive possession. The notice issued by the plaintiff is null and void. It is contended that one Sundariah, the husband of the 1st defendant and the father of the 1st plaintiff and defendant No.2 and Sri.Umesh and others were residing at Kumble along with his wife and children, including the plaintiff, and subsequently, the 1st plaintiff married to -9- NC: 2024:KHC:41156 RSA No. 415 of 2014 Sri.Gopal Rao and began to reside with him at Shediguri and that later on the lands of Sundariah were acquired and compensation amount was paid. It is contended that Sundariah and his family members, including the defendants, have been residing in the suit property, thereby effecting vast improvements, including the construction of a toilet, and bathroom, and they have perfected their title by way of adverse possession to the right, title and interest of Sri.Gopal Rao. Hence, the suit filed by the plaintiff is not maintainable, hence it is liable to be dismissed. Hence prayed to dismiss the suit.
5. During the pendency of the suit, plaintiff No.2 and defendant No.1 died, and their legal representatives were brought on record.
6. The Lrs. of the defendant adopted the contents of the written statement filed by defendant No.2.
7. The trial court based on the above mentioned pleading framed the following issues and additional issues.
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NC: 2024:KHC:41156 RSA No. 415 of 2014
1. Whether the plaintiffs prove that, the defendants are permissive occupants of the suit property?
2. Whether the plaintiffs prove that, the permission granted to defendants is terminated by plaintiffs?
3. Whether the defendants prove that, they have perfected their title to the suit property by adverse possession?
4. Whether the defendants prove that, they have effected vast and valuable improvements to the suit property?
5. Whether the plaintiff is entitled for the relief prayed?
6. What Decree or Order?
Additional issue
1) Whether the defendant proves that the suit is bad for non joinder of the parties?
8. To establish the case of the plaintiffs, plaintiff No.2 was examined as PW.1, and he was partly cross examined, he died, thereafter his wife was examined and got marked 5 documents as Ex.P.1 to Ex.P.5. On the other hand, defendant No.2 was examined as DW.1 and got
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NC: 2024:KHC:41156 RSA No. 415 of 2014 marked 10 documents as Ex.D.1 to Ex.D.10. The trial court after recording the evidence, hearing both sides and after assessment of oral and documentary evidence answered the issue Nos. 1,2, and 5 in the affirmative and issue Nos.3,4, additional issue No.1 in the negative and issue No.6 as per the final order.
The trial court decreed the suit of the plaintiffs for mandatory injunction. It directed the defendants to vacate the suit schedule property bearing door No. 8-57, in Sy.No.11-3A1C, situated at Boloor village, Mangalore Taluk and to hand over the same to the plaintiffs within two months from the date of the judgment. It is also ordered that the defendants are directed to pay mesne profits at the rate of Rs. 1,000/- per month from the date of suit till the actual delivery of the possession of the suit schedule property along with interest at 12% p.a. from the date of the suit.
9. The Lrs of defendant No.2, aggrieved by the judgment and decree passed in OS.No.122/2003 preferred an appeal in RA No.139/2006, on the file of 1st Addl.
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NC: 2024:KHC:41156 RSA No. 415 of 2014 Senior Civil Judge, Mangaluru. The First Appellate Court, framed the following points for consideration:
1) Whether the appellants have made out the grounds for receiving the alleged document on their behalf, as additional evidence under order 41 Rule 27 r/w Section 151 of CPC?
2) Whether the approach of the trial court that the defendants are in permissive occupation of suit property and it has been duly terminated, is erroneous and against the law?
3) Whether the findings of the trial court in declining to consider the defendants' title to the suit property by adverse possession, is erroneous and against the law?
4) Whether the trial court has not duly considered the nature of possession of the defendants over the suit property, and their possession cannot be taken of?
5) Whether the interference of this Court is necessary to set aside the Judgment and Decree passed by the trial Court in O.S. No.122/02, dated:26-08-2006 and to dismiss the suit of the plaintiffs ?
6) What order or decree ?
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NC: 2024:KHC:41156 RSA No. 415 of 2014
10. The First Appellate Court, on re-assessing the oral and documentary evidence, answered point Nos.1,2,4 and 5 in the affirmative, and point No.3 in the negative, point No.6 as per the final order.
The appeal was partly allowed with cost.
The judgment and decree passed in O.S.No.122/2002 was set aside. Consequently, suit of the plaintiff was dismissed with costs and the plaintiffs were ordered to pay the defendants Rs.5,057/- towards the costs incurred in the appeal. The plaintiffs aggrieved by the judgment and decree passed in RA.139/2006, filed this Regular Second Appeal.
11. Heard Miss.Tanima Bekal for the appellants/plaintiffs Nos.2 to 5 and K.S.Ravi for respondents/defendants.
12. Learned counsel for the plaintiffs submits that the first appellate court committed serious irregularities and illegalities while appreciating the material evidence on record. She submits that first appellate court errored in holding that the permissive possession of the suit property
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NC: 2024:KHC:41156 RSA No. 415 of 2014 by irrevocable when the defendant had not taken such a plea in their written statement or in their evidence. She submits that the first appellate court committed an error in applying Sec. 60 of the Indian Easement Act, to the case on hand. She submits that Section 60 of the Indian Easement Act does not apply to the case on hand. Hence, she submits that the first appellate court exceeded the jurisdiction and passed the impugned judgment, which is perverse, arbitrary and erroneous. To buttress her arguments, she has placed reliance on the decision of the Hon'ble Apex Court in Nandkishore Lalbhai Mehta Vs New Era Fabrics P.Ltd. & Ors, reported in AIR 2015 SC 3796. The judgment of the Kerala High Court in RSA No.186/2022, disposed of on 20.09.2023. And decision of the Hon'ble Apex Court in the case of Mohammed Abdul Wahid Vs Nilofer & Another in SLP (CIVIL) No.14445/2021, disposed of on 14.12.2023. And the judgment of the Hon'ble Apex Court in Bachhaj Nahar Vs Nilima Mandal & Another in Civil Appeal Nos.5798-5799 /2008, disposed of
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NC: 2024:KHC:41156 RSA No. 415 of 2014 on 23.09.2008. Hence, on these grounds she prays to allow the appeal.
13. Per contra learned counsel for the defendant submits that the first appellate court was justified in passing an impugned judgment. He submits that the defendants acquired a title by way of adverse possession and have been in possession of the suit schedule property since from 1966. The defendants have made a lot of improvements in the suit schedule property by investing a huge amount and submit that the first appellate court, considering Sec.60 of the Indian Easement Act, has rightly held that permissive possession is irrevocable, and he submits that the first appellate court placed a reliance on several decisions, has rightly passed the impugned judgment. Hence, the impugned judgment passed by the first appellate court is just and proper and does not call for any interference. Hence, on these grounds prays to dismiss the appeal.
14. This court admitted the appeal on the following substantial questions of law :
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NC: 2024:KHC:41156 RSA No. 415 of 2014
1. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court holding that in view of Section 60 of the Indian Easement Act, permissive possession of defendants is irrevocable merely for the reason that during the period of their stay in the suit schedule property defendants have made some improvements in the property?
2. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court without considering the evidence of DW-1 and material documents on record?
3. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstance of the present case?
15. Substantial question of law No.1: The plaintiffs to establish their case plaintiff No.2 was examined as PW.1, he was partly cross examined and thereafter he passed away. After his demise, his wife, i.e., plaintiff No.2(a), was examined as PW.2. She reiterated the plaint averments in the examination in chief. Plaintiff No.2 is the owner of the suit property; she has produced
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NC: 2024:KHC:41156 RSA No. 415 of 2014 the partition deed marked as Ex.P.4, which discloses that the partition was effected between plaintiff No.2 and his family members and in the said partition the suit schedule property was fallen to the share of plaintiff No.2. Further the PW.1 has deposed that, it is the case of the plaintiffs that the defendant No.1 is the father of defendant No.2 and the plaintiffs have permitted them to reside in the suit property on a monthly rent of Rs. 30/- and the defendants were paying the rent. The plaintiffs requested the defendants to quit and handover the vacant possession of the suit property, but the defendants refused to vacate and handover the vacant the possession of the suit property. The plaintiffs got issued legal notice marked as Ex.P.1. The plaintiff produced the postal acknowledgement marked as Ex.P.2 and P.3. Ex.P.4(a) sketch enclosed annexed to the Ex.P.4, Ex.P.5 is the RTC for the year 2001-2002 in respect of suit schedule properties.
16. During the course of cross examination, it was suggested to PW.1, that defendant No.1 acquired title by way of adverse possession over the suit schedule
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NC: 2024:KHC:41156 RSA No. 415 of 2014 property, and the plaintiffs have no right to claim the possession. PW.1 denied the fact.
17. In rebuttal, the Lr. of defendant No.2 was examined as DW.1, and he reiterated the written statement averments examination in chief. In order to establish defence defendant has produced the copy of the reply notice marked as Ex.D.1, Ex.D.2 is the postal receipt, Ex.D.3 to D.8 are the photographs, Ex.D.3(a) to Ex.D.8(a) are the negatives, Ex.D.9 is the notarized copy of ration card, Ex.D.10 is the copy of the plaint, Ex.D.10(a) is the receipt.
18. Though the defendant has taken a defence that the defendants have acquired a title by way of adverse possession. I have perused Ex.D.1 which is the reply notice, wherein the defendants did not take a stand that they have acquired a title over the suit schedule property by way of adverse possession. Further, the defendants have disputed the plaintiffs' title over the suit property.
To consider the defence of the defendant, it is necessary to consider the concept of adverse possession.
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NC: 2024:KHC:41156 RSA No. 415 of 2014 The concept of adverse possession involves three elements, namely;
1) Property, the subject of adverse possession
2) Possession of property by person having no right to have its possession.
3) The possession be adverse to the true owner.
In the adverse possession, claim the title is not disputed: the plea of adverse possession raises mixed questions of law and fact. Where a person wants to base his title on it, he should specifically set up the plea. Unless the plea is raised, it cannot be entertained. A plea must be raised, and it must be shown when the possession became adverse so that the starting point of limitation against the party affected can be found. A person acquires title by way of adverse possession when he /she is in continuous and uninterrupted, hostile, possession over a period of 12 or more years. To calculate 12 years of period, there should be a starting point. Therefore, the law mandates that a person who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the true owner. It is from that date if a person shows continuous uninterrupted possession of 12 years. The right of the true owners to the property stands
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NC: 2024:KHC:41156 RSA No. 415 of 2014 extinguished, and the defendant would acquire title by way of adverse possession. In so far as proof of adverse possession is concerned, it is a well settled principle that a party claiming adverse possession must prove that his possession is "nec calm, nec precario", i.e., peaceful, open and continuous. The possession must be adequate, in continuity, in publicity, and to show the extent of adverse possession one should show:
a) On what date he came into possession
b) What was the nature of his possession
c) Whether the factum of possession was known to the other party
d) How long his possession was continued
e) His possession was open and undisturbed.
Only on the proof of all these ingredients the case of adverse possession is said to have established. A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owners. It is for him to clearly plead and establish all the ingredients/ points necessary to establish his adverse possession.
19. The defendants, except pleading that they have acquired title by way of adverse possession, they have not
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NC: 2024:KHC:41156 RSA No. 415 of 2014 pleaded in the written statement in regard to the Section 60 of the Indian Easement Act regarding permissive possession of the defendant is irrevocable. When the defendants have not taken a defence in the written statement that the appellate court, relying on Section 60 of the Indian Evidence Act, has come to a wrong conclusion, holding that the permissive possession of the defendant is irrevocable. The first appellate court, without notifying the plaintiffs in regard to Section 60 of the Indian Easement Act, has relied upon Section 60 of Indian Easement Act. When a specific query was put to learned counsel for the defendants about how the defendants came in possession of the suit schedule property, the learned counsel for the defendant was unable to reply to the above said query and further the defendants have not pleaded the nature of their possession over the suit schedule property. In the absence of such pleading, the defendants possession is not construed as a permissive possession as contended by the plaintiffs. The appellate court also recorded a finding that the possession of the
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NC: 2024:KHC:41156 RSA No. 415 of 2014 defendants was merely permissive possession. The defendants did not challenge finding. Further, the plaintiffs, by issuing a notice, terminated the license of the defendants in accordance with the law. It is well established principle of law that mere long possession does not fulfil the requirements of adverse possession until and unless the defendants fulfil the requirements of ingredients.
20. The first appellate court failed to consider the well settled law that one could not be permitted to lay in evidence only in tune with the pleadings. The basic rule governing pleading is founded on the principle of 2nd of SC (CIVL AND VR) Allegata with the probate that a party is not allowed to succeed when he has not set up the case when he wants to establish. In the instance case already pointed out that no contention was raised by the defendants in the written statement to the effect that permissive possession of the defendant is irrevocable. The attempt made by the defendants to prove the same was
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NC: 2024:KHC:41156 RSA No. 415 of 2014 miserably failed. In view of the above discussion, I answer the substantial question No.1 in the negative.
21. Substantial question Nos. 2 and 3: Both are interlinked, hence taken together for common discussion to avoid the repetition of facts.
The trial court, considering the material placed on record by the plaintiffs and defendants, has rightly observed that, the suit schedule property had fallen to the share of the plaintiff No.2 under the partition deed marked as Ex.P.4, and the plaintiffs permitted the defendants to reside in the suit schedule property. The plaintiffs requested the defendants to quit and deliver the possession of the suit schedule property. The plaintiffs refused to vacate the premises. However the defendants have taken the defence that they have perfected the title over the suit schedule property by way of adverse possession. As observed in substantial question No.1 the defendants miserably failed to establish their title over the suit schedule property by way of adverse possession, and
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NC: 2024:KHC:41156 RSA No. 415 of 2014 further the defendant has not taken a defence in regard to Section 60 of the Indian Easement Act, regarding license is irrevocable. The first appellate court, without their pleadings and evidence, has recorded its finding that the suit filed by the plaintiffs is not maintainable. The first appellate court committed an error in reversing the judgment and decree passed by the Trial Court. The judgment and decree passed by the First Appellate Court is contrary to the evidence of DW.1 and the material placed on record. In view of the above discussion, I answer substantial question Nos. 2 and 3 in the negative.
22. Accordingly, I proceed to pass the following;
ORDER
i) The appeal is allowed.
ii) The judgment and decree passed in RA.No. 139/2006 passed by the First Additional Senior Civil Judgment, Mangalore, is set aside.
iii) The judgment and decree passed in OS.No. 122/2002 by the Principal Senior Judge, Senior Division, Mangalore, DK, is restored.
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NC: 2024:KHC:41156 RSA No. 415 of 2014 No order as to the cost.
Sd/-
(ASHOK S.KINAGI) JUDGE SRK List No.: 2 Sl No.: 2