Karnataka High Court
Sri Iyyappa vs Sri Thayappa @ Ravi on 2 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:4714
RSA No. 518 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 518 OF 2019 (DEC)
BETWEEN:
SRI. IYYAPPA
S/O LATE KANDAPPA
AGED ABOUT 75 YEARS,
R/AT VENKATALA VILLAGE,
YELAHANKA HOBLI
BENGALURU NORTH TALUK
BENGALURU
SINCE DECEASED BY LR'S
1(A) ASHWATHAIAH A.,
S/O SRI. IYYAPPA
AGED ABOUT 52 YEARS
HOUSE NO.1, 29 A CROSS
IYAPPA BADAVANE
Digitally NEAR BRINDAVAN APARTMENTS
signed by
SUMA B N MARUTHI NAGAR 1ST MAIN
Location: YELAHANKA, BENGALURU -560 064.
High Court
of Karnataka 1(B) RAJANNA V.I
S/O SRI. IYYAPPA
AGED ABOUT 51 YEARS
HOUSE NO.5, 29 A CROSS
IYAPPA BADAVANE
NEAR BRINDAVAN APARTMENTS
MARUTHI NAGAR, 1ST MAIN
YELAHANKA, BENGALURU - 560 64.
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NC: 2024:KHC:4714
RSA No. 518 of 2019
1(C) MUNIKRISHNA V.I
S/O SRI. IYYAPPA
AGED ABOUT 49 YEARS
HOUSE NO.3, 29 A CROSS
IYAPPA BADAVANE
NEAR BRINDAVAN APARTMENTS
MARUTHI NAGAR, 1ST MAIN
YELAHANKA, BENGALURU - 560 064.
1(D) MANJUNATH A.,
S/O SRI. IYYAPPA
AGED ABOUT 48 YEARS
HOUSE NO.6, 29 A CROSS
IYAPPA BADAVANE
NEAR BRINDAVAN APARTMENTS
MARUTHI NAGAR, 1ST MAIN
YELAHANKA, BENGALURU - 560 064.
1(E) LOKESH A.,
S/O SRI. IYYAPPA
AGED ABOUT 46 YEARS
HOUSE NO.8, 29 A CROSS
IYAPPA BADAVANE
NEAR BRINDAVAN APARTMENTS
MARUTHI NAGAR 1ST MAIN
YELAHANKA, BENGALURU - 560 064.
1(F) LATE MR. SRINIVAS
S/O SRI. IYYAPPA
REPRESENTED BY LR'S
1(F)(a) MANJULA V.,
W/O MR. SRINIVAS
AGED ABOUT 36 YEARS
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NC: 2024:KHC:4714
RSA No. 518 of 2019
1(F)(b) CHETAN S.,
S/O MR. SRINIVAS
AGED ABOUT 20 YEARS
1(F)(c) KUSHAL S.,
S/O MR. SRINIVAS
AGED ABOUT 13 YEARS
REPRESENTED BY GUARDIAN
SMT. MANJULA V.,
1(F)(d) KAVANA S.,
D/O MR. SRINIVAS
AGED ABOUT 13 YEARS
REPRESENTED BY GUARDIAN
SMT. MANJULA V.,
HOUSE NO.1, 29 A CROSS
IYAPPA BADAVANE
NEAR BRINDAVAN APARTMENTS
MARUTHI NAGAR, 1ST MAIN
YELAHANKA
BANGALORE - 560 064.
...APPELLANTS
(BY SRI. UNNIKRISHNAN M., ADVOCATE)
AND:
1. SRI THAYAPPA @ RAVI
S/O LATE PACHAMUTAPPA
AGED ABOUT 60 YEARS,
2. SRI SUBRAMANI
S/O LATE PACHAMUTAPPA
AGED ABOUT 54 YEARS
BOTH ARE R/AT NO.555 KALLIBHAVI ROAD,
YELAHANKA BENGALURU NORTH TALUK
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NC: 2024:KHC:4714
RSA No. 518 of 2019
BENGALURU.
3. SRI DAYANANDA PAI
S/O LATE NARASIMHA PAI
RESIDING AT NO.10/1,
LAKSHMINARAYANA COMPLEX
PALACE ROAD
VASANTHANAGAR
BENGALURU-560 052.
4. SRI SATISH PAI
S/O LATE NARASIMHA PAI
RESIDING AT NO.10/1,
LAKSHMINARAYANA COMPLEX
PALACE ROAD, VASANTHNAGAR
BENGALURU-560 052.
5. SRI A. RAMAKRISHNA
S/O SRI ANJANEYACHAR
OPP TO SRIRAMA TEMPLE
BYATARAYANAPURA
BENGALURU-BELLARY ROAD
BENGALURU-560 092.
6. SMT LAKSHMAMMA
W/O LATE KRISHNAPPA
AGED ABOUT 60 YEARS,
7. SRI K NAGARAJ
S/O LATE KRISHNAPPA
AGED ABOUT 47 YEARS,
8. SRI K KUMAR
S/O LATE KRISHNAPPA
AGED ABOUT 42 YEARS,
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NC: 2024:KHC:4714
RSA No. 518 of 2019
9. SHEELAMMA @ KAVYA
W/O R NAVEEN KUMAR
D/O LATE KRISHNAPPA
AGED ABOUT 38 YEARS,
RESPONDENTS NOS. 6 TO 9 ARE
RESIDING AT NO.114 VENKATALA VILLAGE
YELAHANKA HOBLI
BENGALURU NORTH TALUK
BENGALURU.
...RESPONDENTS
(BY SRI. H.R. ANANTHA KRISHNA MURTHY, ADVOCATE FO R3
TO R5;
SRI. SURESH M. CHARAMAGOL, ADVOCATE FOR R6 TO R9;
NOTICE TO R1 & R2 IS HELD SUFFICIENT VIDE ORDER
DATED:20.12.2023)
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT & DECREE DATED:21.12.2018
PASSED IN R.A.NO.06/2017 ON THE FILE OF THE IX
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT BENGALURU, DISMISSING THE APPEAL AND
CONFIRMING THE ORDER DATED 01.12.2016 PASSED IN
O.S.NO.1222/2007 ON THE FILE OF THE II ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT
BENGALURU,
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by the plaintiff No.1 (since deceased by his legal representatives aggrieved by the Judgment and decree dated 01.12.2016 passed in O.S.No.1222/2007 -6- NC: 2024:KHC:4714 RSA No. 518 of 2019 on the file of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru by which trial court has dismissed the suit of the plaintiffs which Judgment and decree has been confirmed by Judgment and order dated 21.12.2018 passed in regular appeal in R.A.No.6/2017 on the file of IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru. Being aggrieved by the same the plaintiffs are before this Court.
2. The above suit in O.S.No.1222/2007 has been filed seeking following reliefs:
"a. Judgment and decree of Declaration declaring plaintiffs title to the schedule land by way of adverse possession and the sale deed executed by the defendant in favour of the defendant no. 5 pertaining to the suit property bearing Reg. No. BNG(U)YLNK/192/2009- 10/1-9 by rounding up pending registration is not binding on the plaintiffs.
b. For the judgment and decree or permanent injunction restraining the defendants from alienating and encumbering the suit land in any manner, by themselves, their agents or anybody working under their directions.-7-
NC: 2024:KHC:4714 RSA No. 518 of 2019 c. For the judgments and decree of permanent injunction restraining the defendants 3 and 4 interfering with the plaintiffs possession and enjoyment of the suit land in any manner, either by themselves, their agents or anybody working under their directions.
d. For any other relief or relief's as this Hon'ble Court deems fit to grant on the facts and circumstances of the case".
3. Defendants filed an application under Order VII Rule 11(d) of CPC seeking rejection of plaint contending in principle that a plea of adverse possession was not available to the plaintiffs.
4. The trial Court accepted the application rejecting the plaint by impugned order holding that the plea of adverse possession to claim ownership is available only when the person in the adverse possession is arrayed as a defendant in the suit filed against him and that adverse possession has to be used as a shield and not as a sword. Aggrieved by the same plaintiff No.1 preferred regular appeal in R.A.No.6/2017. First appellate Court dismissed -8- NC: 2024:KHC:4714 RSA No. 518 of 2019 the appeal confirming the Judgment and decree of the trial court. Being aggrieved by the same appellants are before this Court.
5. This appeal was admitted by order dated 28.01.2021 to consider the following substantial question of law:
"a) Whether the finding recorded by the both the Courts below is justified in view of the law declared by the Hon'ble Supreme Court in the case of Krishnamurthy S.Setlur (D) by Lrs V/s. O.V.Narasimha Setty (D) by Lrs reported in 2019 SCC 9 488?
b) Whether the suit filed by the plaintiff/appellant is maintainable in view of the dictum of the Hon'ble Supreme Court stated supra?
c) Whether the finding recorded by the Trial Court on the application made by the defendant No.5 under Order VII Rule 11(a) and (d) CPC is justifiable? "
6. Learned counsel for the appellants referred to the Judgment of the Apex Court in the case of Krishnamurthy S.Setlur (d) by Lrs VS O.V.Narasimha Setty (D) by Lrs Vs -9- NC: 2024:KHC:4714 RSA No. 518 of 2019 O.V.Narasimha Setty (D) by Lrs reported in (2019) 9 SCC 488 followed in Ravinder Kaur Grewal and others Vs Manjit Kaur and others reported in (2019) 8 SCC 729 wherein at paragraph 53 the Apex Court has held as under:
"53. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated".
7. Referring to the above learned counsel for appellants submit the trial Court and first appellate Court were in error in rejecting the plaint holding a view contrary to the law laid down by the Apex Court warranting interference at the hands of this Court by answering substantial question of law in favour of the appellants. Learned counsel for appellants further submit that since
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NC: 2024:KHC:4714 RSA No. 518 of 2019 these aspects of the matter have not been considered by the trial Court and first appellate Court matter be remanded for fresh consideration.
8. Learned counsel for the respondents does not dispute the above settled position of law. He however submits that trial court be directed to consider the application afresh and all contentions of the parties be kept open.
9. Submissions taken on record.
Appeal is allowed. Judgment and Order dated 21.12.2018 passed in R.A.No.6/2017 and Judgment and decree dated 01.12.2016 passed in O.S.No.1222/2007 are set aside. Plaint in O.S.No.1222/2007 is restored. Matter is remitted to trial Court.
Trial court after affording opportunity to the plaintiffs and defendants shall dispose of the application afresh
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NC: 2024:KHC:4714 RSA No. 518 of 2019 within an outer limit of two months from the date of receipt of certified copy of this order.
All contentions are kept open.
Sd/-
JUDGE SBN