Karnataka High Court
Sri Srinivasraju vs Smt Subbalakshmamma on 1 August, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2025:KHC:29702
WP No. 16197 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 16197 OF 2025 (GM-CPC)
BETWEEN:
1. SRI. SRINIVASRAJU,
S/O LATE RANGARAJU,
AGED ABOUT 55 YEARS,
R/AT MYLANAHALLI VILLAGE,
JALA HOBLI,
YELAHANKA TALUK - 562 123.
2. SMT. RAJALAKSHMI,
D/O LATE RANGARAJU,
W/O LAKSHMIPATHIRAJU,
AGED ABOUT 53 YEARS,
R/AT DODDA BHAJANE MANE ROAD,
CHIKKABALLAPURA TOWN,
CHIKKABALLAPURA - 562 101.
...PETITIONERS
Digitally signed (BY SRI. CHOKKAREDDY, ADVOCATE)
by NAGAVENI
Location: High AND:
Court of
Karnataka 1. SMT. SUBBALAKSHMAMMA,
W/O H.N. JAYARAJU,
AGED ABOUT 66 YEARS,
R/AT NO.104, 'B' BLOCK,
ISRO QUARTERS, VIJAYANAGARA,
BANGALORE - 40.
2. SRI. M.C.NARAYANARAJU,
S/O LATE CHIKKAMUNISWAMYRAJU,
AGED ABOUT 62 YEARS,
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NC: 2025:KHC:29702
WP No. 16197 of 2025
HC-KAR
3. SRI. M.C.GOVINDARAJU,
S/O LATE CHIKKAMUNISWAMYRAJU,
AGED ABOUT 55 YEARS,
4. SRI.M.C.VASANTHARAJU,
S/O LATE CHIKKAMUNISWAMYRAJU,
AGED ABOUT 50 YEARS,
NO.2 TO 4 ARE RESIDING AT
MYLANAHALLI VILLAGE, JALA HOBLI,
YELAHANKA TALUK - 562 123.
SRI. RAMESHRAJU SINCE DEAD BY HIS LRS
5. SMT. MANJULA,
W/O LATE RAMESHRAJU,
AGED ABOUT 55 YEARS,
6. SRI.SUMANTH,
S/O LATE RAMESHRAJU,
AGED ABOUT 33 YEARS,
7. SRI. JAYANTH,
S/O LATE RAMESHRAJU,
AGED ABOUT 32 YEARS,
ALL ARE RESIDING AT
MYLANAHALLI VILLAGE,
JALA HOBLI,
YELAHANKA TALUK - 562 123.
...RESPONDENTS
(BY SRI. K.V. NARASIMHAN, ADVOCATE FOR R2 TO R4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING
TO QUASH ANNEXURE-A DATED 03.03.2025 IN EX.PET.
NO.8/2023, PASSED BY ADDITIONAL CIVIL JUDGE AND JMFC
AT DEVANAHALLI BY ALLOWING WRIT PETITION AND ETC.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2025:KHC:29702
WP No. 16197 of 2025
HC-KAR
CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA
ORAL ORDER
Petitioners-judgment debtor Nos.2 and 3, are before this Court calling in question an order dated 3.3.2025, passed on I.A.No.2/2025 in Execution No.8/2023 declining to stay further proceedings in the execution.
2. Heard Sri.Chokkareddy, learned counsel appearing for the petitioner and Sri.K.V.Narasimhan, learned counsel appearing for respondent Nos.2 to 4.
3. Facts in brief germane are as follows:
(a) The mother of the decree holders files a suit against the father of the petitioners seeking declaration and permanent injunction in O.S.No.276/1992. During the subsistence of the suit, the mother of the decree holders died. The decree holders are brought on record. The suit comes to be dismissed on 15.01.2005. Against the dismissal of the suit, the decree holders file an appeal in R.A.No.31/2006. The Regular Appeal also comes to be dismissed, thereby confirming the dismissal of the suit filed by the decree holders. This is challenged before -4- NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR this Court in R.S.A.No.506/2007. A Coordinate Bench of this Court in terms of the order dated 6.1.2023 upturns both the orders of the Civil Court and the First Appellate Court and decrees the suit. After the decree of the suit on 6.1.2023, it transpires that the judgment debtors file a separate suit against the decree holders in O.S.No.612/2024 for declaration seeking to declare that the judgment debtors are the absolute owners of the property in terms of the sale deed dated 13.05.1985 and seek permanent injunction against the decree holders.
(b) Owing to the suit being decreed at the hands of the Coordinate Bench of this Court in R.S.A.No.506/2007, the decree holders institute Execution Petition in Ex.No.8/2023 for recovery of possession from the hands of the judgment debtors. In the Execution Petition, comes the application seeking stay of the execution proceedings till the suit in O.S.No.612/2024 against the decree holders so instituted by the judgment debtors is decided. The concerned Court by its order dated 3.3.2025, rejects the said application. The rejection of the application has driven the petitioners to this Court in the subject petition.
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4. Learned counsel appearing for the petitioners-
judgment debtors would urge a solitary contention that Proviso to Order XXI Rule 29 of the Code of Civil Procedure clearly indicates that if a suit is pending in any Court against the holder of a decree, the execution must be stayed till the suit is decided. The learned counsel would contend that the suit instituted in O.S.No.612/2024 is admittedly pending against the decree holders. Therefore, the concerned Court has erred in not granting stay as prayed for, till the disposal of the suit. He would contend that the execution in Ex.No.8/2023 be stayed till the disposal of the suit in O.S.No.612/2024.
5. Per contra, learned counsel representing the decree holders would vehemently contend that the suit is decreed by the order of the Coordinate Bench. The said order was taken to the Apex Court and the SLP has been turned down. Therefore, the order has become final and therefore, the respondents become decree holders pursuant to the order passed by the Coordinate Bench. They institute execution seeking to execute the decree and recovery of possession. A suit for declaration is filed later by the judgment debtors again seeking relief of -6- NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR declaration and possession which they lost up to the Apex Court. He would submit that the order does not warrant any interference as the suit was not pending against the decree holders prior to the institution of the execution. It is only to defeat the execution, the said suit is instituted.
6. I have given my anxious consideration to the submissions made by the learned counsel for the parties and have perused the material on record.
7. The afore-narrated facts are not in dispute.
8. The position of the parties is as narrated herein above. The mother of the decree holders is said to have executed a sale deed dated 13.05.1985. A suit is instituted in O.S.No.276/1992 seeking declaration and permanent injunction by the present decree holders contending that they are the owners of the property. The suit is dismissed on 15.01.2005.
The decree holders suffer an order, they filed an appeal in R.A.No.31/2006 which is also dismissed on 31.10.2006.
Therefore, they again suffer the second order. A Regular Second Appeal is preferred before this Court in -7- NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR R.S.A.No.506/2007. The said appeal comes to be allowed by the following order:
"9. The Appellate Court referring to the material on record was of the view that plaintiffs have admitted that possession was handed over to defendant two years after the death of first plaintiff's husband. Therefore, Appellate Court was of the view that if plaintiff's husband died in 1967 and if possession was delivered to defendant in 1969, the suit for possession filed by the plaintiffs after 22 years is barred by Article 64. The Appellate Court was also of the view that relief of declaration is covered by Article 58 of Limitation Act. The Appellate Court was of the view that cause of action accrued to the plaintiff in 1985 and therefore, plaintiffs ought to have brought into action by approaching the Court within three years as stipulated under Article 58 of Limitation Act. The Appellate Court though did not concur with the findings of the trial Court in regard to plea of adverse possession, however, proceeded to dismiss the suit on the ground that plaintiff's relief of possession squarely falls under Section 6 of the Specific Relief Act and therefore, the present suit is hit by Article 64 of the Limitation Act. On these set of reasonings, the Appellate Court having partially concurred with the findings of the trial Court has proceeded to dismiss the appeal.
10. This Court vide order dated 24.04.2009 was pleased to admit the appeal on the following substantial questions of law:
1) When admittedly the plaintiff's husband was the owner of the property, in the absence of any registered document under which the title of the property is transferred to the defendant, whether the Courts below were justified in declining to grant the relief of declaration in favour of the plaintiff?
2) When admittedly the defendant has set up a plea of permissive possession by virtue of mutation entry and voluntary statement made by the plaintiff and her children, whether the defendant's plea of adverse possession is sustainable in the facts of the case?"
11. Heard learned counsel appearing for the plaintiffs and learned counsel appearing for the defendant. Perused the -8- NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR concurrent judgments rendered by both the Courts below. I have also given my anxious consideration to the judgment cited by the learned counsel appearing for the plaintiffs.
12. The plaintiffs have instituted the present suit seeking relief of declaration and consequential relief of possession. The plaintiffs assert and claim to be the absolute owners of the property. It is the specific case of the plaintiffs that suit property measuring 33¼ guntas was admittedly owned by Chikkamuniswamy Raju who is the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4. The plaintiffs traced title by contending that agricultural land bearing Sy.No.77/1 was totally measuring 1 acre 26½ guntas and that husband of plaintiff No.1 - Chikkamuniswamy Raju and his brother Narasimha Raju jointly purchased under registered sale deed dated 18.04.1963. The plaintiffs further pleaded that there was a partition between first plaintiff's husband and his brother and first plaintiff's husband was allotted 33¼ guntas which is the subject matter of the present suit. The plaintiffs are asserting possession by contending that defendant is in permissive possession.
13. The defendant has set up a plea of adverse possession. Para 9(ii) and 9(iii) would be relevant and the same is culled out as under:
"(ii) In the year 1967 the first plaintiff's husband died and after his death, the land was held by said brothers transferred by I.H.R. proceedings into the joint names of first plaintiff and Narasimha Raju. In the year 1969-70 the joint family has been divided the suit schedule land fallen to the share of Chikkamuniswamy Raju and another half has been taken by Narasimha Raju.
The plaintiffs have gave the suit schedule lands to the defendant since the defendant and his mother were brought to their family and lived as members of the said family as the defendant and his mother were also intended to live separately. Since then the defendant is in lawful possession and enjoyment of the suit schedule lands as owner thereof. In the year 1972 the defendant and Narasimha Raju intended to dig open well in the middle of the total land held by them by taking loan from the P.L.D. Bank, Devanahalli. Since the -9- NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR khata of the said land was in the joint names of first plaintiff and Narasimha Raju, the loan records are prepared in their names only. After taking loan, defendant and Narasimha Raju dig a well and utilised the water equally and also paid the loan amount equally and loan gets discharged;
(iii) In the year 1985, the plaintiffs and the defendant intends to transfer the khata of the suit schedule lands into the name of the defendant and made application to that effect. The Revenue Officer i.e., the Tahsildar, Devanahalli, after recording the statements of the plaintiffs and Narasimha Raju and after drawing mahazar, changed the khata of the entire land measuring 1 acre and 26 ½ guntas in Sy.No.77/1 of Mylanahalli Village into the joint names of defendant and Narasimha Raju. Since from 1985 and onwards all the revenue records such as R.T.C., Tax Paid Receipts, etc., are standing in the joint names of defendant and Narasimharaju. Defendant submits that even though he was in peaceful possession and enjoyment of the suit schedule land earlier to 1985, i.e., from the date of his separation, the revenue records were stood in the joint names of first plaintiff and Narasimha Raju. But the defendant is in actual possession as owner thereof and paid the loan amount and land revenue in respect of the suit schedule lands without interference whatsoever either from plaintiffs or any other persons."
14. If the averments made in para 9(ii) and 9(iii) are meticulously examined, then this Court is of the view that possession of defendant is clearly a gratuitous possession. As per his own version in the written statement, what can be gathered is that plaintiff No.1 who is the sister delivered possession to defendant. At para 9(ii), defendant claims that he was in lawful possession and enjoyment over the suit schedule property.
15. The concept of adverse possession in India is more than a century old concept of law which is primarily based on three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking
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NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR care of the land. Right of a person taking care of the land and making highest and best use of the land would prevail over the actual title holder of the land who does not take care of the land. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e., a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights despite knowing that some other person is claiming hostile possession over his land but he chooses to keep quite and not taking any action against the said person as provided under the law.
16. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario' that is, peaceful, open and continuous. The possession must be adequate in continuity in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
17. The concept of adverse possession has been well settled by the judicial committee of the Privy Council in 1907 in Perry v Clissold (1907) A.C. 73 , wherein it was held that:
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period of prescribed by the provisions of the statue of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title."
18. The decision of the Privy Council though not binding on the Supreme Court but still the said decision was upheld by three Judges of the Hon'ble Supreme Court in the case of Nair Service Society
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NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR vs. K.C. Alexander reported in AIR 1968 SC 1165. The Hon'ble Apex Court in the case of P.T.Munichikkanna Reddy and Others vs. Revamma and Others (2007) 6 SCC 59 further laid down certain guidelines regarding the enquiry to be held by the Courts while deciding the plea of adverse possession. The Hon'ble Apex Court has held that;
"Therefore, to assess a claim of adverse possession, two-pronged enquiry is required;
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distances from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property."
19. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property therefore, the plea on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. In DAGADABAI (DEAD) BY LRS V ABBAS @ GULAB RUSTUM PINJARI (2017) 13 SCC 705, the Hon'ble Apex Court held that a person, who acquires title by adverse possession, has to first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession.
20. If defendant has to assert hostile animus, it is equally important to ascertain whether plaintiff has willfully neglected and had abandoned his rights over the suit schedule property despite knowing that defendant was asserting hostile possession. Then the Court has to examine and ascertain whether there was any positive intention on the part of the defendant to dispossess which would effectively shift the title already distanced from the paper owner to the adverse possessor.
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NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR
21. In the light of the principles discussed supra, now let me examine as to whether defendant has succeeded in making out that he has perfected his title by way of adverse possession. From bare reading of the averments made in the written statement which are culled out supra, two things emerge. One is, defendant admits that property was owned by the husband of plaintiff No.1. All that he has stated in the above culled out paragraph in the written statement is that plaintiffs themselves have given the suit land to the defendant as defendant and his mother lived as family members with the plaintiffs. If these relevant pleadings are looked into, then the requisite ingredients of adverse possession are found to be totally missing in the present case on hand. The physical act of exclusion, possession and animus possidendi to hold as a owner in exclusion to the actual owner are totally found missing in the present case on hand.
22. It is in this background, this Court would find that Appellate Court erred in holding that relief of declaration sought by plaintiffs is barred by limitation. What is lost sight is that there is absolutely no dispute insofar as title of plaintiffs is concerned. The defendant apart from setting up plea of adverse possession has admitted in unequivocal terms that suit land was owned by first plaintiff's husband. This Court is also unable to understand as to how Appellate Court would have unilaterally applied Section 64 of Limitation Act. The present suit for possession is based on title and plaintiffs title is not in dispute. Therefore, the Appellate Court erred in applying Article 64 while non-suiting the plaintiff. The plaintiffs never claimed that they were dispossessed by defendant highhandedly. It is their specific case that after the death of first plaintiff's husband, possession was delivered to defendant and that defendant is in permissive possession, while defendant claims that he has perfected his title by way of adverse possession.
23. It is trite law that mere possession irrespective of the length of time would not in itself constitute adverse possession. To prove adverse possession, defendant has to also place on record to indicate that plaintiffs who are true owners have abandoned their right acknowledging the hostile animus attitude of the defendant. All these significant details and requisite ingredients are found missing in the present case on hand. The finding of the trial Court that defendant is in exclusive possession and enjoyment in his own right and since plaintiffs have not chosen to challenge the mutation, would clearly establish that defendant has perfected his title by way of adverse possession, is not only palpably erroneous but the said conclusion arrived at by the trial Court suffers from serious
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NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR perversity. The principles governing the plea of adverse possession is not properly considered by the trial Court as well as by the Appellate Court.
24. It is also trite law that a litigant cannot assert title based on entries in the revenue records. Mere entry in the revenue records will also not constitute an act of adverse possession. Having regard to proximity in regard to the relationship between plaintiff No.1 and defendant, what emerges is that under absolute trust and faith, the plaintiff No.1 who had unfortunately lost her husband at a tender age has fallen back on her brothers shoulder and this trust is conveniently exploited and misused by the defendant. These aspects are not dealt by both the Courts below. In that view of the matter, the substantial question of law framed by this Court have to be answered in the negative and against the defendant.
25. For the foregoing reasons, I pass the following:
ORDER
(i) The second appeal is allowed;
(ii) The judgment and decree passed by the Appellate Court dated 31.10.2006 in R.A.No.31/2006 and judgment and decree passed by the trial Court dated 15.01.2005 in O.S.No.276/1992 are set aside. Consequently suit is decreed;
(iii) The defendant is hereby directed to handover possession to plaintiffs."
9. The Coordinate Bench after elaborate consideration of the facts and material, decrees the suit, setting aside both the orders of the Civil Court and the First Appellate Court. It is an admitted fact that the judgment debtors challenge the said order before the Apex Court and the Apex Court rejects the Special Leave Petition. After rejection of the SLP, the decree holders institute an execution in Ex.No.8/2023 seeking to
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NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR execute the decree and recover possession. Immediately thereafter, a suit is instituted by the judgment debtors against the decree holders. The prayer in the said suit is as follows:
"WHEREFORE, the plaintiffs humbly prays that this Hon'ble Court may be pleased to pass a judgment and decree against the defendants herein in favour of the plaintiff granting the following reliefs:
a) To declare that, the Plaintiffs are absolute owners of the suit property based on the sale deed dated :
13-05-1985, executed by Defendant No.2 to 4 and their mother.
b) to grant permanent injunction by restraining Defendants, their agents, supports, holders from interfering the suit schedule property of the Plaintiffs.
c) grant such other relief or reliefs as this Hon'ble Court may deem fit to grant under the facts and circumstances of the case in the interest of justice and equity."
10. It transpires that the decree holders file an application under Order VII Rule 11 of Code of Civil Procedure, seeking rejection of the plaint in O.S.No.612/2024. The said application comes to be rejected. After the rejection of the application, the judgment debtors file an application before the Executing Court in Ex.No.8/2023 seeking stay of further proceedings until O.S.No.612/2024 is decided by filing an application under Order XXI Rule 29 of CPC. The concerned Court rejects the same by the following order:
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NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR "Learned counsel for Lrs of DHR has filed memo requesting that the Execution petition may be closed as satisfied. As the bailiff came to the schedule property on 16-01-2025 and drew mahazar. The bailiff handed over physical possession of the schedule property before witnesses to the legal heirs of DHR. The bailiff also reported the delivery of possession to the legal heirs of DHR. Hence, the legal heirs of DHR have no further claim and the question of continuing the present execution petition does not arise.
On the other hand learned counsel for Lrs of DHR submitted that there is no objection to the memo.
Heard and perused.
The entire record has been perused. The bailiff delivered the schedule property to DHR and the same was reported to this court on 16-01-2025. Since the legal heirs of DHR seek to close the execution petition as satisfied. Accordingly, execution petition stands closed."
11. The issue now would be with regard to the tenability of the order. The rejection of the application under Order XXI Rule 29 observes that the delivery of possession of the property has already happened on 16.1.2025 itself and the legal heirs of the decree holders are in possession of the property. In the light of the execution being satisfied, execution petition itself comes to be closed.
12. In the light of the aforesaid facts, the filing of the application under Order XXI Rule 29 to stay the execution proceedings is of no avail, as the execution having been
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NC: 2025:KHC:29702 WP No. 16197 of 2025 HC-KAR satisfied, is already closed on 16.01.2025. Though the application was filed by the judgment debtors seeking stay of further proceedings, Order XXI Rule 29 now cannot be invoked or used by the judgment debtors merely because they have filed a suit seeking the same prayer all over again that they lost before the Coordinate Bench of this Court, that too after the closure of the execution proceedings.
Ordered accordingly.
Sd/-
(M.NAGAPRASANNA) JUDGE CBC List No.: 1 Sl No.: 17