Karnataka High Court
Dundawwa vs Dundawwa on 14 August, 2023
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NC: 2023:KHC-K:6411
RSA No. 200258 of 2017
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200258 OF 2017 (DEC/INJ)
BETWEEN:
1. DUNDAWWA
W/O DATTA CHAWARE
AGE: 62 YEARS
OCC: AGRIL. & HOUSEHOLD
R/O HONAWAD
TQ. & DIST. VIJAYPUR
2. VITHABAI
W/O DUNDAPPA KSHIRSAGAR
AGE: 57 YEARS
OCC: AGRIL. & HOUSE HOLD
R/O : HONAWAD
Digitally signed by TQ. & DIST: VIJAYPUR
SHILPA R
TENIHALLI ...APPELLANTS
Location: HIGH
COURT OF (BY SRI SACHIN M. MAHAJAN, ADVOCATE)
KARNATAKA
AND:
1. DUNDAWWA
W/O AGANAPPA GOTHE @ NARALE
SINCE DECEASED BY L.RS;
1(A) KESAPPA
S/O AGANAPPA GOTHE @ NARALE
AGE: 65 YEARS
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NC: 2023:KHC-K:6411
RSA No. 200258 of 2017
OCC: AGRICULTURE
R/O HONAWAD
TQ. & DIST. BIJAPUR-586 101
1(B) ANUSUYA
W/O HANMANT GOTHE @ NARALE
AGE: 45 YEARS
OCC: AGRICULTURE
R/O : HONAWAD
TQ. & DIST: BIJAPUR-586 101
1(C) SHANKARAPPA
S/O HANMANT GOTHE@NARALE
AGE: 25 YEARS
OCC: AGRICULTURE
R/O : HONAWAD
TQ. & DIST: BIJAPUR-586 101
1(D) LAXMI W/O NARASAPPA KATRAL
AGE: 65 YEARS
OCC: AGRICULTURE
R/O: HONAWAD
TQ. & DIST. - BIJAPUR-586 101
2. AMBAWWA
W/O MALAPPA KASHIRASAGAR
AGE: 47 YEARS
OCC: AGRICULTURE & HOUSE HOLD
R/O HONAWAD
TQ. & DIST: BIJAPUR-586 101
...RESPONDENTS
(BY SRI SHIVANAND PATIL, ADVOCATE FOR R1(A) TO R-1(D);
SRI S.V.DESHMUKH, ADVOCATE FOR R-2)
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 15.09.2012
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NC: 2023:KHC-K:6411
RSA No. 200258 of 2017
PASSED BY THE LEARNED PRL. CIVIL JUDGE AT VIJAYAPUR IN
O.S.NO.834/2010 AND THE JUDGMENT AND DECREE DATED
14.12.2015 PASSED BY THE I ADDL. SENIOR CIVIL JUDGE AND
CJM AT VIJAYAPUR IN RA NO.72/2012 AND CONSEQUENTLY
DECREE THE SUIT OF THE PLAINTIFFS/APPELLANTS BY
ALLOWING THE APPEAL WITH COST THROUGHOUT, IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal by the unsuccessful plaintiffs assailing the concurrent findings of the courts below, whereby, the suit filed by the plaintiffs seeking for declaration that the plaintiffs and defendant No.2 are owners of the suit land i.e., ABCD in plaint sketch measuring 12 acres eastern portion out of Sy.No.419 situated at Honwad village by way of adverse possession and for a decree of perpetual injunction restraining the defendant No.1 from obstructing the peaceful possession and enjoyment of the suit schedule property was dismissed by both the courts.
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NC: 2023:KHC-K:6411 RSA No. 200258 of 2017
2. The parties are referred to as per their rank before the trial court.
3. Brief facts of the case are that, the plaintiffs and defendant No.2 are the sisters born to one Suban and defendant No.1 is the wife of Agnappa, brother of Suban. It is stated that O.S.No.8/1970 was filed by defendant No.1 along with her son seeking declaration and perpetual injunction against the father of the plaintiffs and defendant No.2 Suban and the said suit came to be decreed on 08.09.1971. Later, the mother of the plaintiffs and defendant No.2 by name Gourawwa had filed Form No.7 claiming occupancy rights over the land in Sy.No.419 and the Land Tribunal had on earlier occasion granted occupancy rights to the said Gourawwa and defendant No.1 to the extent of half share each and later, in the second round, the Land Tribunal granted occupancy rights exclusively to defendant No.1 to entire Sy.No.419 and application filed by Gourawwa, mother of the plaintiffs and defendant No.2 came to be rejected. However, it is -5- NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 contended by the plaintiffs that Gourawwa continued in possession of the suit schedule property hostile to the interest of the defendant No.1 and on demise of Gourawwa, plaintiffs and defendant No.2 are in possession of the suit land with the knowledge of defendant No.1 and they have perfected their title to the suit land by way of averse possession from the date of the order of the Land Tribunal, Vijayapur for more than 12 years.
4. Pursuant to the suit summons issued by the Trial Court, defendant No.2 did not appear and hence, she was placed ex parte.
5. The trial court based on the pleadings, framed the following issues:
"1. Whether the plaintiffs have successfully proved the plea of adverse possession?
2. Whether the plaintiffs have proved their possession over the suit ABCD land?
3. Whether the plaintiffs are entitled for the reliefs as being sought for?-6-
NC: 2023:KHC-K:6411 RSA No. 200258 of 2017
4. Whether order?"
6. The trial court by its judgment and decree held that the plaintiffs have failed to prove that the plaintiffs are in possession over the suit schedule ABCD land by way of adverse possession. Accordingly, dismissed the suit of the plaintiffs. Aggrieved by which, the plaintiffs preferred regular appeal before the first appellate court. The first appellate court on re-appreciation of the entire material on record concurred with the judgment and decree of the trial court, however, held that the suit of the plaintiffs seeking for declaration of ownership based on adverse possession is not maintainable. Aggrieved by which, the present appeal by the plaintiffs.
7. Heard Sri Sachin M. Mahajan, learned counsel for the plaintiffs and Sri Shivanand Patil, learned counsel for respondent No.1(a) to (d) and Sri S.V. Deshmukh, learned counsel for defendant No.2.
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8. The learned counsel for the plaintiffs, would contend that the reasons accorded by the courts below that the plaintiffs have failed to prove their title on the basis of adverse possession is contrary to material on record. Learned counsel would contend that the plaintiffs have clearly pleaded that they are in possession and the proof of hostility of the possession of the plaintiffs for the considerable period was not considered by the courts below in proper perspective. The learned counsel would further contend that the trial court though considers the evidence of P.W.2 and 3 to hold that the plaintiffs are in possession of the suit schedule property, has erroneously dismissed the suit of the plaintiffs. The learned counsel would contend that the reasons accorded by the first appellate court that the suit on the basis of adverse possession is not maintainable placing reliance in the case of Gurudwara Sahib Vs. Gram Panchayat Village Sirthala & Anr.1 is erroneous as the proposition later has 1 (2014) 1 SCC 669 -8- NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 been held in the case of Ravinder Kaur Grewal & Ors. Vs. Manjit Kaur & Ors.2 that the suit based on adverse possession is maintainable. Urging these grounds, learned counsel for the appellants contend that there arises substantial question of law to be answered by this court and sought for allowing the appeal.
9. Per contra, learned counsel appearing for the respondents would justify the judgment and decree of the courts and contend that the courts below have rightly held that the plaintiffs have not proved the possession of the suit schedule property adversely hostile to the original owner and both the courts have rightly dismissed the suit of the plaintiffs. Learned counsel would contend that the first appellate court though has held that the suit of the plaintiffs is not maintainable, in light of the proposition of law as on today, the learned counsel would not dispute that plaintiffs can file a suit seeking declaration that they have perfected their title by way of adverse possession, 2 (2019) 8 SCC 729 -9- NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 but would contend that the first appellate court has not dismissed the appeal on the said sole ground only but has taken into consideration that no materials are forthcoming to show that the plaintiffs are in possession of the suit schedule property hostile to defendant No.1 and has rightly dismissed the suit of the plaintiffs and confirmed the judgment and decree of the trial court. The learned counsel would submit that no substantial question of law arises for consideration to be considered in this appeal and sought for dismissal of the same.
10. This court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the judgment and decree of the courts below including the material placed before this court.
11. Undisputed facts:
i) The relationship between the plaintiffs and the defendants.
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ii) The occupancy rights having been granted in favour of defendant No.1 in respect of suit schedule property.
iii) O.S.No.8/1970 filed by defendant No.1 and her son against Suban seeking declaration and injunction in respect of the suit schedule property, was decreed and the defendant No.1 herein was declared as a tenant of the suit land and the father of the plaintiffs and defendant No.2 namely, Suban was restrained from obstructing their possession and enjoyment of the suit schedule land.
12. It is relevant to note that the father of the plaintiffs by name Suban, filed written statement in O.S.No.8/1970 which reads as under;
"Neither Aganappa nor the plaintiffs were never in exclusive possession of the suit land either on the date of suit or at any time prior to it. It is true that a house at Honawad is only the property belonging to the family. But it is not true
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NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 that the same is partitioned between Aganappa and defendant-1. The said house is still joint. The father of Aganappa and defendant-1, Bhimappa, was cultivating the suit land till his death as tenant and after his death the tenancy devolved upon his two sons Aganappa and first defendant. Defendant-1 who was in service left the same within a short time after his father's death, returned to Honawad, and began to cultivate the suit land along with Aganappa. After some years, finding that the income from the suit land was not sufficient for maintenance for both the brothers, he used to go for work seasonally and used to come back to the village at the time of harvest. Since last few years he has permanently settled at Honawad and is cultivating the suit land jointly as tenant. He was in possession of the suit land along with Aganappa till Aganappa's death and along with plaintiffs after Aganappa's death."
(emphasis supplied)
13. The perusal of the written statement makes it evident that the plaintiffs were not in possession of the suit schedule property continuously and hostile to defendant No.1. The suit was decreed on contest and held
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NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 that the plaintiffs are the tenants of the suit land and the father of the plaintiffs and defendant No.2 were restrained by permanent injunction from obstructing the possession and ownership of the suit land.
14. The contention of the plaintiffs is that they are in possession of the suit schedule property to the extent of 12 acres adversely from the date of the order dated 20.03.1987 passed by the Land Tribunal. It is well settled recognized preposition of law that mere possession, however long does not necessarily be that it is adverse to the true owner. Adverse possession really means "hostile possession" which is expressly or impliedly in denial of the true owner and in order to constitute adverse possession, the possession must be proved adequate in continuity in publicity and in extent so as to that it is adverse to the true owner. A person who basis his title on adverse possession must show by clear unequivocal evidence that his possession was hostile to the true owner and amounted to a denial of his title of the property claimed.
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NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 In deciding whether the act alleged by the person constitute an adverse possession, regard must be had to the 'animus' of the person doing those acts, must be ascertained from the facts of the case.
15. What is material to be noted here is that in the year 1970 itself, the defendant No.1 is held to be in possession of the suit schedule property and thus the contention of the plaintiffs herein has been negated and the father of the plaintiffs and defendant No.2 herein were restrained permanently from interfering with the plaintiffs' possession therein. Having held so, now the plaintiffs cannot contend that the possession of the present plaintiffs is adverse. The plaintiffs tried to prove their possession by leading evidence of P.Ws.2 to 4 to show that they are in possession of the suit schedule property since more than 12 years, the trial court though held that P.Ws.1 to 4 have clearly stated about the plaintiffs' possession of the suit property, however, taking into consideration the document placed before it, the trial court
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NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 comes to the conclusion that the plaintiffs have failed to prove the possession of the suit property by way of adverse possession which this court is of the considered view is justifiable.
16. O.S.No.8/1970 for declaration and injunction was decreed against the plaintiffs and defendant No.2, holding that the defendant No.1 is the owner in possession of the suit land and by virtue of the granting of occupancy rights in favour of defendant No.1 establishes that the defendant No.1 is in possession of the suit schedule property as owner. The plaintiffs contend that they are in possession, perusal of the plaint averments does not establish as to when the plaintiffs were put in possession. In the absence of assertion of title over the suit land and the proximal period therefrom that too in clear hostility over the title of the true owner defendant No.1, the plaintiffs are not entitled for the relief prayed.
17. Meaning to say 'Animus-Possidendi' is an essential ingredient to prove adverse possession as held
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NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 by the Apex Court while re-iterating the above ingredients as held in the case of Chatti Konati Rao vs. Palle Venkata Subba Rao3, at paragraph No.15 held as under:-
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed..."
18. Though the legal proposition as stood earlier was that the plaintiffs cannot seek declaration that they have perfected their title by way of adverse possession since such a plea was available only to the defendants and it was to be used as a shield and not as a weapon as held 3 (2010) 14 SCC 316
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NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 in Gurudwar Sahib's case (supra). However, the said proposition is negated and the Apex Court in the case of Ravinder Kaur Grewal (supra) has held that the plea of acquisition of title by adverse possession can be taken by the plaintiffs under Section 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to issue on the aforesaid basis in case of infringement of any right of a plaintiff, in light of this judgment by the Apex Court in Ravinder Kaur Grewal (supra) case, the reasoning of the first appellate court that the suit of the plaintiffs is not maintainable would not sustain. However, the first appellate court has not only dismissed the appeal on the said sole ground but taking into consideration the entire materials, more particularly the plaint averment which does not fulfill three ingredients of adverse possession i.e.:
(i) On what date he came into possession,
(ii) What was the nature of his possession,
(iii) Whether the factum of possession was known to the other party.
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NC: 2023:KHC-K:6411 RSA No. 200258 of 2017 In the above backdrop, the first appellate court has concurred with the judgment and decree of the trial court and rightly dismissed the suit of the plaintiffs. In the said circumstances, the manner in which the courts below have considered the materials and evidence on record, this court is of the view that no substantial question of law arises for consideration to be dealt with under Section 100 of C.P.C.
19. For the foregoing reasons, this court pass the following:
ORDER
i) The regular second appeal by the plaintiffs is hereby dismissed.
ii) The judgments and decrees passed by the trial court as well the first appellate court stand confirmed.
iii) No order as to costs.
Sd/-
JUDGE BL List No.: 1 Sl No.: 67