Karnataka High Court
Smt. Dyamavva W/O Siddappa vs Sri. Channabasappa S/O Sankappa ... on 26 September, 2025
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RSA No. 100269 of 2017
RESERVED ON : 17.09.2025
PRONOUNCED ON : 26.09.2025
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 26TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO.100269 OF 2017
BETWEEN:
SMT. DYAMAVVA W/O. SIDDAPPA
@ SIDDANAGOUDA BASANAGOUDAR
SINCE DECEASED BY HIS LR'S
SRI. SHANKARAGOUDA SIDDANAGOUDA
BASANAGOUDAR
SINCE DECEASED BY HIS LR'S
1. SMT. RUDRAVVA W/O. SHANKARGOUDA
BASAVANAGOUDAR
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O. PALA, TQ: MUNDGOD-581346,
UTTARA KANNADA, KARWAR.
Digitally signed by
MALLIKARJUN
RUDRAYYA
KALMATH
Location: HIGH
COURT OF 2. SRI. VEERABHADRAGOUDA SHANKARGOUDA
KARNATAKA
DHARWAD BENCH
Date: 2025.09.26 BASANAGOUDAR
14:38:15 +0530
AGE: 30 YEARS, OCC: AGRICULTURE
R/O. PALA, TQ: MUNDGOD-581346,
UTTARA KANNADA, KARWAR.
3. SMT. MANJULA @ MANJAVVA KOM AJJAPPA
AGE: 35 YEARS, OCC: HOUSEHOLD,
R/O. KABBUR VILLAGE,
TQ AND DIST: HAVERI-581110.
4. SMT. MANGALA KOM RAMESH SHEREWADA
AGE: 20 YEARS, OCC: HOUSEHOLD WORK,
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RSA No. 100269 of 2017
R/O. PANIGATTI VILLAGE, TQ: SHIGGAON,
DIST: HAVERI-581205.
5. SRI. CHANDRAGOUDA SIDDANAGOUDA BASANAGOUDAR
SINCE DECEASED BY HIS LR'S
5A) NAGANAGOUDA CHANDRAGOUDA BASANAGOUDAR
S/O. CHANDRAGOUDA SIDDANAGOUDA BASANAGOUDAR
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: BHADRAPURA PALA, TAL: MUNDGOD,
DIST: U.K.-581346.
5B) SIDDANAGOUDA CHANDRAGOUDA BASANAGOUDAR
S/O. CHANDRAGOUDA SIDDANAGOUDA BASANAGOUDAR
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: BHADRAPURA PALA, TAL: MUNDGOD,
DIST: U.K.-581346.
5C) MAHADEVI D/O. CHANDRAGOUDA SIDDANAGOUDA
BASANAGOUDAR
AGE: 35 YEARS, OCC: HOUSEHOLD.
R/O. DEVI HOSUR, TAL. HONGAL,
DIST. HAVERI-581104.
THE APPELLANTS NO.5A TO 5C BROUGHT ON RECORD AS
PER ORDER DATED 09.09.2025 ON I.A. NO.1/2022.
6. SRI. FAKIRAGOUDA SIDDANAGOUDA BASAVANAGOUDAR
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O. PALA, TQ.MUNDGOD-581346
UTTAR KANNADA, KARWAR-581346.
7. SMT. SHANTAWWA W/O. KALLAPPA KALLAPPANAVAR
AGE: 62 YEARS, OCC: HOUSEHOLD,
R/O. HAVANGI, TQ: HANGAL,
DIST:HAVERI-581102.
8. SMT. SHRADHA W/O. IRAPPA HIROOR
SINCE DECEASED BY HER LR'S
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RSA No. 100269 of 2017
8A) SRI. GIRISH S/O. IRAPPA HIROOR
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: MALLAPUR, TAL: SORABA,
DIST: SHIVAMOGGA-577413.
8B) SMT. SHOBHA W/O. RUDRAGOWDA PATIL
AGE: 47 YEARS, OCC: HOUSEHOLD WORK,
R/O: YOGIKOPPA, TAL HIREKERUR,
DIST: HAVERI-577413.
8C) SMT. MADHUMATI W/O. RAMESH
AGE: 28 YEARS, OCC: HOUSEHOLD WORK,
R/O: MALLAPUR, TAL: SORABA,
DIST: SHIVAMOGGA-577413.
8D) SMT. ROOPA W/O. CHANNABASAPPA GOWDA
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: KOTIPURA, TAL: SORABA,
DIST: SHIVAMOGGA-577413.
THE APPELLANTS NO. 8A TO 8D BROUGH ON RECORD AS
PER ORDER DATED 09.09.2025 ON I.A.NO.2/2022
9. SMT. GANGAVVA W/O. SHEKAPPA MATTOOR
AGE: 48 YEARS, OCC: HOUSEHOLD
R/O: LADAKTTI -577413,
TAL AND DIST: HAVERI-577413.
...APPELLANTS
(BY SRI. F.V. PATIL, ADVOCATE)
AND:
1. SRI. CHANNABASAPPA SANKAPPA BASANAGOUDAR
SINCE DECEASED BY HIS LR'S
1A) SMT. SHIVAKKA KOM CHANNABASAPPA BASANGOUDAR,
SINCE DECEASED BY HER LR'S
1B) SRI. RUDRAGOUDA CHANNABASAPPA BASANAGOUDAR
AGE: 55 YEARS, OCC: TEACHER,
R/O. BISALAKOPPA VILLAGE,
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RSA No. 100269 of 2017
TQ:SIRSI, DIST: UTTARA KANNADA,
KARWAR-581402.
1C) SRI. SOMANAGOUDA CHANNABASAPPA BASANAGOUDAR
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: YELLAPUR TOWN, TAL: YALLAPYR,
DIST: UTTARA KANNADA,
KARWAR-581359.
1D) SRI. GAGANAGOUDA CHANNABASAPPA BASANAGOUDAR
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O: BADANGOD VILLAGE, TAL: SIRSI,
DIST: UTTARA KANNADA-581402.
1E) SRI. BASANAGOUDA CHANNABASAPPA BASANAGOUDAR
AGE: 47 YEARS, OCC: AGRICULTURIST,
R/O: BADRAPUR IN PALA VILLAGE,
TQ: MUNDGOD, DIST: UTTARA KANNADA,
KARWAR-581346.
1F) SRI. SADEVA CHANNABASAPPA BASANAGOUDAR
AGE. 43 YEARS, OCC: TEACHER,
R/O: MUNDGOD, TQ: MUNDGOD,
DIST: UTTARA KANNADA,
KARWAR-581346.
1G) SRI. SHIVANAGOUDA CHANNABASAPPA BASANAGOUDAR
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O: BADRAPUR IN PALA VILLAGE,
TQ: MUNDGOD, DIST: UTTARA KANNADA,
KARWAR-581346.
1H) SRI. RAJA CHANNABASAPPA BASANAGOUDAR
AGE: 39 YEARS, OCC: AGRICULTURE,
R/O: BADRAPUR IN PALA VILLAGE,
TQ: MUNDGOD, DIST: UTTARA KANNADA,
KARWAR-581346.
1I) SMT. AKKAVVA KOM AJJAPPA GADIYANNAVAR
SICNE DECEASED BY HER LR'S
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RSA No. 100269 of 2017
1I(I) SRI. AJJAPPA S/O. SHIVAPPA GADIYANNAVAR
AGE: 74 YEARS, OCC: AGRICULTURE,
R/O: MAKARALLI VILLAGE, TAL: HANAGAL,
DIST: HAVERI-581104.
1I(II) SMT. SHOBHA D/O. AJJAPPA GADIYANNAVAR
W/O. NAGAPPA AJJANNANAVAR (GADIYAVAR)
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: KATUR VILLAGE, TAL: MUNDAGOD,
DIST: UTTARA KANNADA,
KARWAR-581346.
1I(III) SMT. RATNA D/O. AJJAPPA GADIYANNAVAR
W/O. KARABASAPPA HOTANAHALLI,
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: GADEGUNDI YALLAPUR, TAL: HANAGAL,
DIST: HAVERI-581104.
1I(IV) SMT. LALITA @ GANGAMMA D/O. AJJAPPA
GADIYANNAVAR
W/O. SHANKRAPPA HOMBALI
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: DEVIHOSUR VILLAGE-581110.
TAL AND DIST: HAVERI.
1I(V) SRI. UMESH S/O. AJJAPPA GADIYANNAVAR
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: MAKARALLI VILLAGE, TAL: HANAGAL,
DIST: HAVERI-581104.
THE RESPONDENTS NO.1I(I) TO 1I(V) BROUGHT ON
RECORD AS LR'S OF RESPONDENT NO.1I AS PER THE
ORER DATED 09.09.2025 ON I.A.NO.1/2025.
1J) SMT. IRAVVA KOM SURESH MOODI
AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
R/O: HANUMANAKOPPA VILLAGE-581104
TAL: HANGAL, DIST: HAVERI.
1K) SMT. INDRAMMA KOM HANUMANTAPPA TAVARER
AGE: 37 YEARS, OCC: HOUSEHOLD WORK,
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RSA No. 100269 of 2017
R/O: ALLESHWAR VILLAGE-581104,
TAL: HANGAL, DIST: HAVERI.
2. SMT. SOMAVVA W/O. SIVU @ SHIVAPPA
@ SHIVAPPAGOUDA BASANAGOUDAR
SINCE DECEASED AND HER LR'S
3. SRI. BASANAGOWDA SHIVAPPAGOUDA BASANAGOUDAR
SINCE DECEASED BY HIS LR'S
3A) SMT. RUDRAVVA W/O. BASANAGOUDA BASANAGOUDRA
AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
3B) SHIVANAND S/O. BASANAGOUDA BASANAGOUDRA
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
3C) SRI, MAHESH S/O. BASANAGOUDA BASANAGOUDRA
AGE: 35 YEARS, OCC: AGRICULTURE,
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
3D) SMT. PREMA @ YASHODHA D/O. BASANAGOUDA
BASANAGOUDRA
W/O. IRAPPA MADURU
AGE: 40 YEARS, OCC: AGRICULTURE,
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
4. SRI. GADIGEPPAGOUDA S/O. SHIVAPPAGOUDA
BASANGOUDAR
SINCE DECEASED BY HIS LR'S
4A) SMT. SHANTA W/O. GADIGEPPA BASANAGOUDAR
AGE: 59 YEARS, OCC: HOUSEHOLD WORK
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
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RSA No. 100269 of 2017
4B) SMT. MANGALA SIDDAPPA KYTAPPANAVAR
AGE: 39 YEARS, OCC: HOUSEHOLD WORK,
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
4C) SRI. RAJU GADIGEPPA BASANAGOUDER
AGE: 36 YEARS, OCC: AGRICULTURE
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
4D) SRI. VEERESH GADIGEPPA BASANAGOUDER
AGE: 31 YEARS, OCC: AGRICULTURE
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
5. SRI. SHANKARGOUDA S/O. SHIVAPPAGOUDA
BASANAGOUDAR
AGE: 58 YEARS, OCC: AGRICULTURIST,
R/O: PALA, TAL: MUNDGOD-581346,
UTTAR KANNADA, KARWAR.
6. SMT. CHINNAMMA W/O. PUTTAPPA JIGALER
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O. MUDO.R TQ: HANAGAL
DIST: HAVERI-581104.
7. SMT. RATNAVVA W/O. SIDDAPPA MELLINAMANI
AGE: 50 YEARS, OCC: HOUSEHOLD WORK
R/O. ALADAKATTI -581110.
TQ AND DIST:HAVERI.
...RESPONDENTS
(BY SRI. S.R. HEGDE AND SRI. P.K. SANNINGAMMANAVAR,
ADVOCATES FOR R1(B TO K), R4(A TO D) AND R5, R7;
NOTICE SERVED TO R3;
SRI. S.R. HEGDE, ADVOCATE FOR R3(A TO D) AND R1(I)(I
TO IV))
THIS RSA IS FILED U/S.100 OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT & DECREE DATED:02/11/2016 PASSED
BY THE SENIOR CIVIL JUDGE, YELLAPUR IN R.A. NO.112/2007
AND THE JUDGMENT DATED 16/08/2007 PASSED BY THE COURT
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RSA No. 100269 of 2017
OF THE CIVIL JUDGE, (JR.DN.) MUNDGOD IN O.S.NO.28/2002
BY ALLOWING THIS APPEAL, IN THE INTEREST OF JUSTICE AND
EQUITY.
IN THIS REGULAR SECOND APPEAL ARGUMENTS HAVING
BEEN HEARD AND RESERVED ON 17.09.2025 AND COMING ON
FOR "PRONOUNCEMENT OF ORDERS", THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) Appellants have preferred this appeal against the Judgment and decree dated 16th August 2007, passed in OS No.28 of 2002 by Civil Judge, (Jr.Dn.) Mundgod (for short "the trial Court") which is confirmed by the Senior Civil Judge, Yellapura (for short "the first Appellate Court") in RA No.112 of 2007 dated 02nd November, 2016.
2. For the sake of convenience, the parties herein are referred to as per their rank and status before the trial Court.
3. Brief facts leading to this appeal are that the plaintiff filed suit for partition and separate position to the extent of one- third share of the suit schedule properties. It is stated in the plaint that the first shareholder by name Iravva died leaving behind her only daughter Sankavva who also died leaving behind her daughter Shivamma, who is none other than wife of the plaintiff. Plaintiff's wife-Shivamma succeeded to the interest of -9- RSA No. 100269 of 2017 her grandmother to the extent of one-third share in the suit schedule property. Later, the said Shivamma gifted her one- third share of the suit schedule property in favour of the plaintiff under gift deed dated 12th February 1962, thereby the plaintiff had become the owner of suit schedule property to the extent of one-third share.
4. The second sharer Siddappa-the adopted son of Irappa, died on 27th July, 1986 leaving behind his wife, son and daughters who are defendants 1 to 7. Thereby defendants 1 to 7 became the owners of one-third share in the suit schedule property by way of succession. The third sharer Shivu son of Gadigeppa died on 11th January 1972, leaving behind his wife, son and daughters, who are defendants 8 to 13, as his legal heirs. Thereby they also became the owners of one-third share in the suit schedule property.
5. It is contended that Shivu s/o Gadigeappa is also called as Shivappa @ Shivanagounda Basavanagoudar. Siddappa the adopted son of Irappa is also called as Siddannagouda. Since the second sharer Siddappa alias Siddanngouda was looking after the management of suit schedule properties, his name was mentioned in the cultivators' column in the revenue
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RSA No. 100269 of 2017records. After his death, the name of his son-Shankargouda is shown in the said column. As the relationship between the plaintiff and defendants was spoiling day-after-day, plaintiff asked defendants, particularly defendant No.2, to effect partition of the suit schedule property by metes and bounds and to handover the possession of one-third share. But the defendant No.2 went on postponing the same on one or the other pretext. Further, defendant No.2, by taking undue advantage of his name in the cultivators column, has raised loans from financial institutions against the interest of the plaintiff. It is contended that there are valuable trees like Teak, Eucalyptus and Mango scattered all over the suit schedule property to which all the plaintiffs and defendants have equal rights to the extent of their shares followed by way of inheritance and succession. On all these grounds, it was sought to decree the suit.
6. Upon service of summons, defendants 1 to 7 jointly appeared before the Court through their advocate and filed written statement. Defendant No.8 is reported to have died during the proceedings of the case and her legal representatives are stated to be defendants 9 to 13. Defendant No.9 representing through his advocate has filed his separate written
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RSA No. 100269 of 2017statement. Defendants 10 and 11 representing through their advocate have filed joint written statement. Defendants 12 and 13 were placed ex parte.
7. The substance of the written statement of defendants 1 to 7 is that the plaintiff is not the husband of Shivakka. In turn, the said Shivakka is not the daughter of Sankavva. The said Sankavva was not the daughter of Iravva who is said to be the original shareholder of the suit schedule property. The alleged gift deed said to have been executed in favour of the plaintiff by his wife Shivakka is false and concocted by the plaintiff only to grab the suit schedule property. They said Shivakka had no manner, right, title or interest over the suit schedule property to make any kind of gift in favour of the plaintiff. The gift confers no right, title or interest on the plaintiff with regard to the suit schedule property. It is further contended that originally Irava, one Irappa and Gadigeppa, who were the joint family members, were in joint possession of family properties. The first shareholder-Iravva had no issues and the second shareholder- Irappa took Siddappa as his adopted son. Under the joint family status, the second shareholder-Irappa and the third shareholder- Gadigeppa died, on account of which Siddappa-the adopted son
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RSA No. 100269 of 2017of 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
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RSA No. 100269 of 2017the 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.
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RSA No. 100269 of 2017But 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
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RSA No. 100269 of 2017to 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.
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RSA No. 100269 of 2017
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
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RSA No. 100269 of 2017Issues 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
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RSA No. 100269 of 2017said 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
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RSA No. 100269 of 2017has 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:
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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:
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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
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RSA No. 100269 of 2017other 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
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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
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RSA No. 100269 of 2017contemplated 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
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RSA No. 100269 of 2017not 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