- 1 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 7315 OF 2012 (DEC/INJ) C/W REGULAR SECOND APPEAL NO. 7311 OF 2012 IN R.S.A.NO.7315 OF 2012 BETWEEN: 1. NEELKANTHA S/O NAGAPPA BAVIN AGE: 41 YEARS, OCC: AGRICULTURE, R/O: KALMALA VILLAGE, TQ. & DIST. RAICHUR – 586 101. 2.. BASAVARAJ S/O NAGAPPA BAVIN AGE: 47 YEARS, OCC: AGRICULTURE, R/O: KALMALA VILLAGE, TQ. & DIST. RAICHUR – 586 101. …APPELLANTS (BY SRI AMEETKUMAR DESHPANDE, SENIOR COUNSEL FOR, SRI GANESH SUBHASHCHANDRA KALBURGI, ADVOCATE) AND: TRIPURAMMA W/O SIDRAMA REDDY AGE: 79 YEARS, OCC: AGRICULTURE & HOUSEHOLD, SINCE DECEASED BY HER LRS AMENDED AS PER ORDER DATED 15.02.2018 Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 R/O: FATHEPUR VILLAGE, TQ: RAICHUR – 586 101. 1a. MANJUNATH S/O LATE TRUPURAMA AGE: 26 YEARS, OCC: AGRICULTURE, R/O: FATHEPUR VILLAGE, TQ: RAICHUR. 2. SOMAREDDY SINCE DECEASED BY LRS SMT. RAMTHAMMA W/O LATE SOMAREDDY AGE: 59 YEARS, OCC: AGRICULTURE, R/O: FATHEPUR VILLAGE, TQ: RAICHUR – 586 101. 3. KAMALAMMA W/O MARADAPPA AGE: 44 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR – 586 101. 4. TARANATH S/O LATE SOMAREDDY AGE: 42 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR – 586 101. 5. MEENAKSHI D/O LATE SOMAREDDY AGE: 33 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR – 586 101. 6. KUMARI PARIMALA D/O MARADEPPA - 3 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 AGE: 24 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR – 586 101. 7. KUMARI MANJULA D/O MARADAPPA AGE: 24 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR – 586 101. 8. KUMARI ASHWINI D/O MARADAPPA AGE: 20 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR – 586 101. 9. DASHWANTHAPPA S/O IYALAPPA AGE: 56 YEARS, OCC: AGRICULTURE, R/O: YELAGATTIVILLAGE, TQ: LINGASUGUR DIST: RAICHUR – 586 101. …RESPONDENTS (BY SRI SHIVANAND PATIL, ADVOCATE FOR R1(A); SRI AJAYKUMAR A.K., ADVOCATE FOR R2 TO R8; R9 IS SERVED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 06.09.2012 PASSED IN R.A.NO.49/2008 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE AT RAICHUR, CONFIRMING THE JUDGMENT AND DECREE DATED 20.03.2008 IN O.S.NO.132/1998 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DN) RAICHUR, WHEREBY THE SUIT OF THE PLAINTIFF IS DISMISSED AND THE COUNTER CLAIM MADE BY THE DEFENDANT NO.1 IS ALLOWED AND CONSEQUENTLY TO - 4 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 DECREE THE SUIT OF THE PLAINTIFFS AS PRAYED FOR THE PLAINT AND BY DISMISSING THE COUNTER CLAIM OF DEFENDANT NO.1 AND PASS ANY OTHER APPROPRIATE ORDER AS THIS HON’BLE COURT DEEM FIT IN THE CIRCUMSTANCES OF THE CASE, IN THE INTEREST OF JUSTICE AND EQUITY. IN R.S.A.NO.7311 OF 2012 BETWEEN: 1(a). SOMAREDDY S/O LATE BHEEMA REDDY, SINCE DECEASED BY LRS SMT. RAMBHAMMA W/O LATE SOMAREDDY AGE: 62 YEARS, OCC: AGRICULTURE, R/O: FATHEPUR VILLAGE, TQ: RAICHUR. 1(b). KAMALAMMA W/O MARADAPPA AGE: 47 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR. 1(c). TARANATH S/O LATE SOMAREDDY AGE: 45 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR. 1(d). MEENAKSHI D/O LATE SOMAREDDY AGE: 36 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR. 1(e). KUMARI PARIMALA - 5 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 D/O MARADEPPA AGE: 31 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR 1(f). KUMARI MANJULA D/O MARADAPPA AGE: 30 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR. 1(g). KUMARI ASHWINI D/O MARADAPPA AGE: 25 YEARS, OCC: AGRICULTURE, R/O: HALVENKATAPUR VILLAGE, TQ: RAICHUR …APPELLANTS (BY SRI AJAYKUMAR A.K., ADVOCATE) AND: TRIPURAMMA W/O SIDRAMA REDDY 1a. NARASAREDDY S/O LATE PAMPAREDDY, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: FATHEPUR VILLAGE, TQ: AND DIST: RAICHUR. 1b. CHANDRASHEKHAR REDDY S/O LATE PAMPAREDDY, AGE: 60 YEARS, OCC: AGRICULTURE, R/O: FATHEPUR VILLAGE, TQ: AND DIST: RAICHUR. AMENDED CAUSE TITLE AS PER ORDER DATED 08.04.2025 - 6 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 1c. BHASKAR REDDY S/O LATE PAMPAREDDY, AGE: 65 YEARS, OCC: AGRICULTURE, R/O: FATHEPUR VILLAGE, TQ: AND DIST: RAICHUR. 1d. MANJUNATH REDDY S/O LATE PAMPAREDDY, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: FATHEPUR VILLAGE, TQ: AND DIST: RAICHUR. …RESPONDENTS (BY SRI SHIVANAND PATIL, ADVOCATE FOR R1(A) TO R1(C); SRI VEERANAGOUDA MALIPATIL, ADVOCATE FOR R1(D)) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.03.2008 PASSED IN O.S.NO.132/1998 BY THE PRINCIPAL CIVIL JUDGE (SR.DN), RAICHUR DISMISSING THE SUIT OF THE PLAINTIFF AND DECREEING THE COUNTER CLAIM AND ALSO JUDGMENT AND DECREE DATED 06.09.2012 PASSED IN R.A.NO.35/2008 PASSED BY THE PRINCIPAL DISTRICT JUDGE, RAICHUR AND CONSEQUENTLY DECREE THE SUIT OF THE PLAINTIFFS AND DISMISS THE COUNTER CLAIM OF THE DEFENDANT, IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, COMING ON FOR DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 7 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) These two appeals in RSA No.7311/2012 and RSA No.7315/2012 are arising from the judgment and decree in O.S.No.132/1998 on the file of the Principal Senior Civil Judge, Raichur. 2. Plaintiff No.1 in the said suit referred to above is appellant in RSA No.7311/2012. Plaintiffs No.2 to 4 in the said suit are appellants in RSA No.7315/2012. 3. In the aforementioned suit filed by the original plaintiff-Somareddy, plaintiffs No.2 to 4 came on record as the purchasers of the properties from the plaintiff No.1- Somareddy during the pendency of the suit. 4. In the said suit, original plaintiff-Somareddy sought a declaration of ownership over the suit properties and also consequential relief of injunction. The suit is primarily filed on the premise that Somareddy purchased the suit properties on 12.12.1970 from the husband of defendant. - 8 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 5. In the said suit, the defendant filed a counter claim and sought for possession of the properties. The suit is dismissed, counter claim is allowed and decree for possession is granted. 6. Aggrieved by the aforementioned judgment and decree in the suit as well as in the counter claim, R.A.No.35/2008 is filed by the original plaintiff-Somareddy and R.A.No.49/2008 is filed by plaintiffs No.2 to 4. 7. The said appeals before the District Judge at Raichur are dismissed and aggrieved by the judgment and decree in the original suit, and counter claim and the judgment and decree in the aforementioned Regular Appeals, the plaintiffs have filed above mentioned two appeals. 8. On 21.08.2013, RSA No.7315/2012 is admitted to consider the following substantial questions of law: (i) Whether the Courts below are justified in permitting the counter claim to be raised by the defendants by amending the written - 9 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 statement after the issues were already framed? (ii) Whether the Courts below have failed to consider the effect of the admission given by the husband of the defendant No.1 in the Land Tribunal as per Ex.P33 and the cumulative effect of the mutation extract at Ex.24 which is based on the sale deed and the long standing entries in the revenue records showing the name of the plaintiff as having purchased the suit property under the sale deed executed by the husband of the defendant No.1? (iii) Whether the counter claim seeking the recovery of possession when the relief of declaration is maintainable especially when the title to the property was specifically denied much prior to the seeking of the counter claim? (iv) Whereas the Courts below are justified in decreeing the counter claim without framing proper issues as to the proof of ownership over the suit property by the defendant No.1 and in the absence of any evidence whatsoever to indicate that the defendant No.1 is the owner of the suit property? - 10 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 (v) Whether the lower Appellate Court has failed in its duties to re-appreciate and reassess the entire evidence on record and thereafter to give its independent finding on all the issues? (vi) Whether the Courts below are justified in holding that the purchasers/appellants herein have no right to the property purchased by them without ascertaining that the appellants are bonafide purchasers of the property for valuable consideration without notice of the litigation or defect of title? (vii) Whether the Courts below are justified in holding that the plaintiffs have not proved that they have acquired title to the schedule property by adverse possession and prescription, without appreciating the entire evidence on record in its right perspective? 9. On 28.08.2013, RSA No.7311/2012 was admitted to consider the following substantial questions of law: (i) Whether the suit filed in the year 2000 claiming relief of possession with regard to the property which is in uninterrupted possession of defendants from 12.11.1970 is not barred by limitation? - 11 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 (ii) Whether the possession of the property in dispute by the defendants as per Ex.P.35 to 46 right from the year 1970 and defendants exercising their right over the property as owners will extinguish their right over the property as owners will extinguish the right, if any of the plaintiffs. 10. Certain facts are not in dispute. At one point of time, husband of defendant namely Siddaramareddy was the owner of the suit properties. Plaintiff No.1 claimed Siddaramareddy sold the suit properties in the year 1970 to plaintiff No.1. Defendant who is the wife of Siddaramareddy disputes the alleged sale. The plaintiffs’ claim that Siddaramareddy during his life time has acknowledged the sale transaction and has given a statement that he has sold properties to plaintiff No.1 and he has put plaintiff No.1 in possession of the suit properties. 11. It is further stated that plaintiff No.1 entered into an agreement for sale with plaintiffs No.2 to 4 and subsequently, when the suit was pending, plaintiff No.1 sold portion of the suit properties to plaintiffs No.2 to 4 under a - 12 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 registered sale deed. Thus, all the plaintiffs together prosecuted in the suit. 12. Before the Trial Court, the defendant initially did not file the counter claim, later before the settlement of the issues, defendant filed an application for amendment of written statement and sought to incorporate a counter claim seeking possession of the properties. The plaintiffs objected to the said application. The objection was overruled and the counter claim was taken on record. 13. The plaintiffs did not file written statement to the counter claim, later they sought permission of the Court to file written statement to the counter claim and the said application was rejected. The plaintiffs did not question the said order rejecting the application seeking permission to file written statement to the counter claim. 14. During the pendency of the suit, plaintiff No.1 filed an application to incorporate the contention relating to adverse possession and that application was allowed. Aggrieved by the said order, defendant filed Civil Revision - 13 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 Petition No.1360/2001 before this Court. The said Civil Revision Petition was allowed and order granting amendment to incorporate the plea relating to adverse possession is set- aside by this Court. Thus, plaintiff No.1 was not allowed to raise the contention relating to adverse possession. 15. Thereafter, the parties led evidence before the Trial Court. It is relevant to note that the plaintiffs did not lead any evidence relating to adverse possession and it is quite obvious that said plea was not permitted as the Civil Revision Petition filed by the defendant challenging the amendment permitting plea relating to adverse possession is set-aside. 16. In the backdrop of the facts narrated above, plaintiff No.1 was required to establish his title based on the sale deed of 1970 said to have been executed by Siddaramareddy, husband of defendant. Based on the evidence placed on record, the Trial Court concluded that the sale by Siddaramareddy is not established and suit is dismissed. - 14 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 17. In addition to that, the Trial Court adjudicating the counter claim also concluded that defendant, who is the wife of Siddaramareddy is the absolute owner of the suit properties and granted a decree for possession. 18. Learned Senior counsel appearing for the appellant in RSA No.7315/2012 and learned counsel appearing for the appellant in RSA No.7311/2012 would submit that the husband of defendant in the year 1970, made an unequivocal statement that plaintiff No.1 is put in possession of the properties and he has sold the properties. The contention of the defendant that the defendant is dispossessed from the properties during the pendency of the suit is not established. The record of rights pertaining to the suit properties revealed that the plaintiff was in possession of the suit properties since 1970. In addition to that, the statement made by the husband of the defendant that he has sold the property to plaintiff No.1 is not shown to be erroneous. 19. Under these circumstances, in the absence of registered sale deed in the name of plaintiff No.1, the Court - 15 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 ought to have held that plaintiff No.1 perfected the title by way of adverse possession and this contention though not taken in the plaint, is certainly available in the counter claim filed by the defendant who sought possession of the properties. 20. It is also urged in the alternative that the issue relating to adverse possession is not framed and same resulted in miscarriage of justice as the plaintiffs could not lead evidence relating to adverse possession for want of issue in this behalf. 21. In the alternative, it is also submitted that assuming that no specific evidence is not led relating to adverse possession, the very fact that plaintiff No.1 was in possession of the property since 1970 without there being a valid title deed itself would indicate that the possession is adverse to the interest of the real owner. It is submitted that, if not a decree in the suit in favour of the plaintiffs, the Trial Court ought to have dismissed the counter claim on the premise that the counter claim is time barred. - 16 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 22. In addition to that it is also urged that, the order rejecting an application seeking permission to file counter claim can be questioned under Section 105 of the Code of Civil Procedure in an appeal without filing any revision petition against the interlocutory application. Thus, he would contend that in all fairness of things, the Trial Court ought to have granted permission to file written statement to the counter claim and rejection of the said application has resulted in miscarriage of justice. 23. It is further stated that in the written statement the defendant has taken a contention that dispute relating to the suit properties is pending before the High Court in W.P.No.1234/1979 and the said dispute is pertaining to the ceiling limit prescribed under the Karnataka Land Reforms Act, and unless the defendant establishes that his ceiling is within the permissible limit, he cannot seek possession of the properties as his title over of the properties itself is in cloud. 24. It is further urged that the plaintiff has been asserting his title over the property since 1970, his name is found in the property records since 1970 and he has filed a - 17 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 suit claiming ownership, asserting ownership and possession and this being the position, the counter claim filed seeking relief of possession without relief of declaration is not tenable. 25. Learned counsel appearing for the respondent on the other hand would contend that the title of the defendant’s husband-Siddaramareddy is never disputed at least till 1970. After 1970, the plaintiff claims that Siddaramareddy sold the properties to plaintiff No.1, plaintiffs No.2 to 4 claimed right over the properties through plaintiff No.1. Thus, the plaintiffs to succeed must establish that Siddaramareddy sold the property to plaintiff No.1 in the manner known to law. There is no say in the manner contemplated under law as such, the plaintiffs cannot succeed in the suit. 26. In addition, it is urged that the sale transaction between plaintiff No.1 and plaintiffs No.2 to 4 is during the pendency of suit and same is hit by the provisions of lis pendense. - 18 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 27. It is also urged that this Court in CRP No.1360/2001 has allowed the Civil Revision Petition and has set-aside the order passed by the Trial Court granting amendment to incorporate plea relating to adverse possession and that order has attained finality and the plaintiffs cannot raise the plea of adverse possession. 28. In addition, it is also submitted that an application seeking permission to file written statement to the counter claim is rejected and same is not questioned during the pendency of the suit. Even before the First Appellate Court, no ground is raised challenging the order rejecting the application seeking permission to file written statement to the counter claim and even in these second appeals, ground is not raised to contend that the Trial Court erred in rejecting the application seeking permission to file written statement to the counter claim. 29. It is also further submitted that counter claim for possession without relief of declaration is maintainable for the simple reason that plaintiff No.1 till 1970 has not disputed the title of Siddaramareddy. Unless plaintiff No.1 is - 19 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 able to establish the title over the suit property through a registered sale deed executed by Siddaramareddy, the defendant who is claiming under Siddaramareddy is under no obligation to seek a relief of declaration as registered sale deed is not produced. Since plaintiff No.1 is also claiming title through Siddaramareddy, without a valid transfer of title defendant No.1 admittedly being the wife of Siddaramareddy is entitled to seek the relief of possession without there being relief of declaration. 30. It is further urged that defendant has disputed the statement said to have been made by Siddaramareddy in Ex.P33 and same is not established. 31. This Court has considered the contentions raised at the bar and perused the records. 32. From the materials on record and contentions urged before this Court and it is an admitted possession that plaintiff No.1 is claiming title over the property based on the alleged sale by husband of defendant. Plaintiffs No.2 to 4 are claiming title over the property through the alleged sale deed - 20 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 said to have been executed during the pendency of the suit by plaintiff No.1. Thus, to succeed, the plaintiffs must establish that there is a valid transfer of title by Siddaramareddy in favor of plaintiff No.1. 33. The defendant is claiming possession over the property based on title as successor of Siddaramareddy. Since there is no dispute that Siddaramareddy at one point of time owned the property, this Court is of the view that the counter claim filed by the defendant can be dismissed only in the event of plaintiff No.1 establishing his title over the suit properties. 34. As already noticed, the claim for adverse possession is not permitted by this Court as CRP No.1360/2001 is allowed, setting-aside the order permitting amendment to incorporate the plea of adverse possession and for this reason, there cannot be any issue relating to adverse possession. When there is no plea and when there is no issue, the party cannot be permitted to lead evidence relating to adverse possession. Thus, plaintiff No.1 has to succeed only if plaintiff No.1 is able to establish that - 21 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 Siddaramareddy has sold the property to plaintiff No.1. Admittedly, no sale deed is produced. Even in the mutation which is relied on by the plaintiffs where the name plaintiff No.1 is entered, there is no reference to date of sale deed said to have been executed by Siddaramareddy. Hence, this Court is of the view that title of plaintiff No.1 through alleged sale by Siddaramareddy is not established. 35. Hence, the Trial Court is justified in dismissing the suit. Needless to say plaintiffs No.2 to 4 who are claiming through plaintiff No.1, have no title over the properties as plaintiff No.1 has failed to establish his title over the suit properties. 36. Now the question is whether the Trial Court is justified in granting the relief of recovery of possession in the counter claim filed by the defendant? 37. Learned Senior counsel to substantiate his contention that the counter claim without relief of declaration is not maintainable has relied on the judgment of the Hon’ble Apex Court in the case of Anathula Sudhakar Vs. P. Buchi - 22 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 Reddy (Dead) by LRS. And Others1. Learned Senior counsel invited the attention of this Court to paragraph No.13.3 of the aforementioned judgment. “13.3.Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.” 38. This Court has considered the ratio laid down in the aforementioned judgment. The law laid in the judgment is that in case, the plaintiff’s title is under cloud and if he is not in possession of the property and if he seeks possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 39. In the instant case, it is the defendant who has filed the counter case and he is seeking recovery of the possession. Thus, admittedly the defendant is not in 1 2008 SCC 594 - 23 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 possession. Applying the said ratio in appropriate cases, the defendant in the counter claim who stands in the shoes of the plaintiff, is required to seek declaration of title. Merely, because plaintiff No.1 is raising a dispute relating to the defendant’s title, it cannot be said that the defendant’s title is in cloud. The Court has to see what is the basis to dispute the title of the defendant. The basis for plaintiff No.1 to doubt the defendant’s title is the alleged sale deed by defendant’s husband in favour of plaintiff No.1. The sale deed as already noticed is not produced at all and it is not executed at all. 40. Under these circumstances, the plaintiffs cannot raise a contention that, the defendant’s title is in cloud. It is relevant to note that the plaintiffs themselves admit that husband of the defendant was the owner of the properties and the plaintiffs have not produced any records to show that husband of the defendant has legally sold the properties to plaintiff No.1. And it is not possible to conclude that merely because plaintiff No.1 was found to be in possession of property since 1970, the title of the defendant is in cloud. - 24 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 The reason is plaintiff No.1 has not raised the plea of adverse possession. Attempt to raise plea of adverse possession is rejected by this Court in CRP No.1360/2001 referred to above. And it is well-settled position of law that merely, because a person continues to be in possession of the property belonging to another for any length of time, that does not mean that the defendant losses the title over the said property. To raise a genuine doubt relating to the title over the property, the plaintiff must plead and establish that his possession is adverse, continuous and uninterrupted for the prescribed period and that plea is not forthcoming and that evidence is also not forthcoming and more importantly said plea is not allowed when sought to be raised by way of an amendment. Since the plea of adverse possession is not established, there is no limitation to relief of possession sought by the defendant in her counter claim. 41. Under these circumstances, this Court is of the view that this is not a case where the Court has to take a view that the defendant’s title was under cloud and defendant was under obligation to seek the relief of - 25 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 declaration of title. Hence, the ratio laid down in the aforementioned judgment does not come to the aid of the defendant. 42. As far as the contention that the Trial Court ought to have permitted the plaintiff to file written statement to the counter claim, this Court has to hold that the order rejecting the application seeking permission to file counter claim is not questioned by invoking Section 105 of the Code of Civil Procedure when the appeal was filed before the District Court. Even before the District Court, the only contention was relating to the merit of the decree passed by the Trial Court dismissing the suit and merit of the decree granted by the Trial Court granting the counter claim made by the defendant. 43. Even before this Court, a specific ground is not raised in the appeal memo challenging the order passed by the Trial Court rejecting the application seeking permission to file written statement to the counter claim. - 26 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 44. On perusal of Section 105, this Court is of the view that if the party is aggrieved by the order rejecting the interlocutory application during the course of the trial, the party though has not filed any appeal or revision challenging the interlocutory order, has to raise a specific ground in the appeal memo challenging such order. If such ground is not raised, it is to be viewed that the party has abandoned the challenge to the said order. 45. Under these circumstances, this Court is of the view that the contention that the Trial Court is not justified in rejecting the application seeking permission to file written statement to the counter claim cannot be entertained. 46. Even otherwise, assuming that the Court takes a liberal view and permits the plaintiff to file written statement to the counter claim filed by the defendant, then it is to be noticed that plaintiff No.1 in his written statement to the counter claim cannot lead evidence relating to adverse possession or even if he leads evidence relating to adverse possession, that cannot be accepted for the simple reason, since the date of the suit till today plaintiff No.1 is asserting - 27 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 his title over the properties as a owner under the alleged sale deed executed by the husband of defendant. Thus, his evidence relating to adverse possession cannot be treated as evidence relating to adverse possession at all as his assertion in the suit as well as in these appeals would come in the way of accepting the plea of adverse possession. 47. Hence, there is no point in remitting the matter to the Trial Court to permit plaintiff No.1 to file written statement to the counter claim filed by the defendant. 48. The contention that counter claim could not have been filed after filing the written statement has to be rejected. Order VIII Rule 6A of the Code of Civil Procedure permits the defendant to file the counter claim before settlement of the issues. Admittedly, the counter claim is filed before the settlement of issues or atleast the application to amend the written statement is filed before settlement of issues. Moreover, the order permitting the amendment of written statement enabling the defendant to file counter claim is not questioned and the ground is not raised to the First Appeal by challenging the order permitting the - 28 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 defendant to amend the written statement to incorporate the counter claim. Even before this Court, there is no ground raised in the appeal memo challenging the order to amend the written statement to incorporate the counter claim. Hence, this Court does not find any error in the order permitting amendment to seek counter claim. Hence, the substantial question of law (i) in RSA No.7315/2012 is answered against the appellant. 49. The other substantial questions of law relating to adverse possession, limitation and appreciation of evidence are answered against the plaintiffs and in favour of the defendant. 50. As far as the contention relating to the ceiling limit under the Karnataka Land Reforms Act, 1961 is concerned, this Court has perused the order dated 30.07.1984 in Writ Petition No.12341/1979 after securing the records pertaining to the said order. In terms of the order dated 30.07.1984, the writ petition is allowed and impugned order in the said petition is quashed and the matter is remitted to the Land Tribunal for fresh disposal - 29 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 after holding fresh enquiry under Section 67(1)(b) of the Karnataka Land Reforms Act, 1961, read with Rule 24 of the Karnataka Land Reforms Rules. What happened thereafter is not forthcoming. It is relevant to note that plaintiff No.1 claimed to have taken the possession of the suit properties under the unregistered sale deed of 1970 from the husband of the defendant. Admittedly, the husband of the defendant was the owner of the properties in the year 1970. After the 1974 amendment to the Karnataka Land Reforms Act, 1961, ceiling limits are prescribed restricting the holding of agricultural lands. 51. If the holding limit of the family of the defendant exceeds certain limits, prescribed under the Karnataka Land Reforms Act, 1961, the defendant is not entitled to seek possession. However, what is required to be noticed is when plaintiff No.1 took possession from defendant’s husband, the defendant was the owner of the properties and at that point of time, there was no ceiling limit to hold the agricultural land. Now the present defendant is the successor of the original owner. Hence, the appellants shall hand over the - 30 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 possession of the properties to the defendant or the successor of the defendant. 52. At the same time, this Court should also take into consideration the subsequent change in law. Thus, the liberty is also granted to the appellants to bring it to the notice of the competent authority under Karnataka Land Reforms Act, 1961 to consider whether the respondent is entitled to retain the suit properties qua the ceiling limit under the Karnataka Land Reforms Act, 1961. 53. It is made clear that the appellants can move the competent authority only after delivery of the possession of properties to the respondent. 54. If the appellants bring it to the notice of the competent authority, about the restriction relating to ceiling limits to hold the suit properties by the respondent, the competent authority shall issue notice to the respondent to decide the question relating to permissible ceiling limit to hold the suit properties by the defendant and family - 31 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 members and thereafter, the competent authority shall pass appropriate orders in accordance with law. 55. Hence, the following: ORDER (i) The appeals are dismissed. (ii) Three months time is granted to deliver the possession of the suit properties to the respondents. (iii) Notwithstanding dismissal of the appeals, if the respondents or the original defendant did not possess the eligibility to hold the suit properties in view of the ceiling limits under the Karnataka Land Reforms Act, 1961, the competent authority can initiate action under the Karnataka Land Reforms Act, 1961 after the possession of the suit properties is delivered by the appellants to the respondents. (iv) In case, the holding of the original defendant and her family members and the present respondents is within the permissible ceiling limits, the competent authority under the Karnataka Land - 32 - NC: 2025:KHC-K:2346 RSA No. 7315 of 2012 C/W RSA No. 7311 of 2012 Reforms Act, 1961 shall not proceed further. (v) No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE THM/TMP List No.: 1 Sl No.: 48