- 1 - NC: 2025:KHC:16485 RSA No. 991 of 2014 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.991 OF 2014 (DEC/INJ) BETWEEN: SRI V. GOPAL, S/O VENKATASWAMY, AGED ABOUT 53 YEARS, R/O BELAVATA VILLAGE, KASABA HOBLI, MYSORE TALUK. …APPELLANT (BY SRI SHANKARAPPA, ADVOCATE) AND: 1. THE CHIEF SECRETARY, GOVERNMENT OF KARNATAKA, VIDHANA SOUDHA, BANGALORE 560 001. 2. DEPUTY COMMISSIONER MYSORE DISTRICT, MYSORE. 3. ASSISTANT COMMISSIONER, MYSORE SUB-DIVISION, MYSORE 571 001. 4. THE TAHSILDAR, MYSORE TALUK, MYSORE 571 001. 5. SRINIVASA, S/O VENKATASWAMY, AGED ABOUT 57 YEARS, 6. V. GANGARAJU, S/O VENKATASWAMY, AGED ABOUT 49 YEARS, 7. MANJUNATH, S/O VENKATASWAMY, AGED ABOUT 43 YEARS, Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka - 2 - NC: 2025:KHC:16485 RSA No. 991 of 2014 RESPONDENT NOs.5, 6 AND 7 ARE R/AT NO.55, BELAVATHA VILLAGE, RBI POST, KASABA HOBLI, MYSORE TALUK - 571 001. …RESPONDENTS (BY SRI K.R. RAJENDRA, AGA FOR R1 TO R4; R5 TO R7 ARE SERVED BUT UNREPRESENTED) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 10.02.2014 PASSED IN R.A.NO.39/2013 ON THE FILE OF I ADDL. DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.08.2012 PASSED IN O.S.NO.102/2011 ON THE FILE OF IV ADDL. SENIOR CIVIL JUDGE, MYSORE. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI ORAL JUDGMENT Challenging judgment and decree dated 10.02.2014 passed by I Additional District Judge, Mysore, in R.A.no.39/2013 and judgment and decree dated 13.08.2012 passed by IV Additional Senior Civil Judge, Mysore, in O.S.no.102/2011, this appeal is filed. 2. Brief facts are that appellant was plaintiff no.1 in O.S.no.102/2011. Said suit was filed along with respondents no.5 to 7 seeking for declaration that 3 Acres of land abutting 3 Acres 24 guntas bearing Sy.no.93/40 of Belavatha village, Yelawala Hobli, Mysore Taluk (for short 'suit property') belongs to plaintiffs as an absolute owners and for consequential relief of permanent injunction restraining - 3 - NC: 2025:KHC:16485 RSA No. 991 of 2014 defendants from interfering with plaintiffs' peaceful possession and enjoyment. Plaintiffs' claim was based on assertion that on 13.02.1979, their father Venkataswamy purchased land 3 Acres 24 guntas in Belavatha village, Kasaba Hobli, Mysore Taluk from one Madachar son of Bommarasachar of Siddalingapura village. And that Madachar had purchased it under registered sale deed 25.01.1954. Thus they were absolute owners in possession of suit property. It was further stated that on northern side of suit property, there was 3 Acres of Gomala land belonging to Government and that plaintiffs' father had leveled Gomala land and removed shrubs and continuously enjoying possession by raising Ragi, Hurali and Jowar etc. Thus, plaintiffs/plaintiffs' father were in continuous possession of said Gomala land for more than 30 years without any hurdles. It was stated that they had grown coconut trees aged about 4 to 5 years and an application was submitted to Government for regularization of unauthorized cultivation. It is stated that 4th defendant namely Tahsildar, Mysore had surveyed and prepared a sketch noting unauthorized cultivation of Gomala land by plaintiffs. It was further stated that on 03.01.2011, defendants no.3 and 4 attempted to - 4 - NC: 2025:KHC:16485 RSA No. 991 of 2014 interfere with plaintiffs' possession, constraining plaintiffs to file suit. On receipt of summons, defendants appeared and filed written statement questioning maintainability of suit on facts and law. Purchase of 3 Acres 24 guntas under registered sale deed in year 1970 was denied for want of production of documents. Even possession of 3 Acres of Gomala land was disputed as total extent of Sy.no.93 was stated to be 220 Acres and 36 guntas and no application in Form no.50 or Form no.53 filed under provisions of Karnataka Land Revenue Act, 1964 were produced. It was further stated that Belavatha village was situated at a distance of 10 Kms. from Mysore City. And as such, Rule 102 (b) of Karnataka Land Revenue Rules, 1966, barred application for grant. It was contended suit filed without issuing notice under Section 80 of CPC was liable for dismissal. 3. Based on pleadings, trial Court framed following : ISSUES 1) Whether the plaintiff proves that he is the absolute owner of the suit schedule properties? 2) Whether the plaintiff proves that 3 acres of land is situated abutting to the suit schedule properties belongs to him? 3) Whether the plaintiff proves that he is in defendants and enjoyment of the - 5 - NC: 2025:KHC:16485 RSA No. 991 of 2014 suit schedule properties as on the date of suit? 4) Whether the plaintiff proves that the defendants are try to interfere in the suit schedule properties? 5) Whether the plaintiff is entitled for relief of declaration and injunction against the defendants? 6) What order or decree? 4. Thereafter, plaintiff no.1 was examined as PW.1 and got marked Exs.P1 to P19. Defendants did not lead evidence. 5. On consideration, trial Court answered issues no.1 and 3 to 5 in affirmative; issue no.2 in negative and issue no.6 by decreeing suit in part declaring plaintiffs as owners of suit property and granting injunction in respect of same, but rejecting plaintiffs' claim over abutting 3 Acres of Gomala land. 6. Aggrieved, plaintiff no.1 filed RA.no.39/2013 on various grounds, based on which following points were framed: 1) Whether the judgment and decree of the Trial Court in partly decreeing the suit of the plaintiffs are illegal and perverse, which warrant the interference of this Court? 2) What order or decree? - 6 - NC: 2025:KHC:16485 RSA No. 991 of 2014 7. On consideration, it answered them against plaintiff and dismissed appeal. Hence, this second appeal proposing following substantial question of law: "Whether the plaintiff/appellant is entitled for declaration of the suit schedule property on the basis of sale deed and on the basis of actual possession of kharab land as per the documents produced by the appellant and an application filed before the concerned authorities under Section 70 under darkasth and relevant documents?" 8. Despite opportunity, there is no representation on behalf of appellant. Since appeal is 11 years old, it was taken up for disposal. 9. Sri Rajendra K.R., learned Additional Government Advocate for defendants - State would point out that dismissal of suit by trial Court was by recording specific finding that plaintiffs failed to establish adverse possession on account of omission in pleading to indicate date/time of commencement of adverse possession essential to establish that 30 years had lapsed prior to filing of suit. Said finding would be a finding of fact affirmed by first appellate Court and as such concurrent. Therefore, no substantial question of law would arise for consideration and sought dismissal of appeal filed under Section 100 of CPC. - 7 - NC: 2025:KHC:16485 RSA No. 991 of 2014 10. Heard learned counsel and perused impugned judgment and decree. 11. This second appeal was by plaintiff no.1 against concurrent judgment and decree dismissing suit for declaration of title by adverse possession over 3 Acres of Gomala land belonging to Government and claimed to be abutting suit property. 12. Indeed, at time of filing suit plea of adverse possession could be employed only as shield and not as sword, which has since been overturned and suit for declaration of title based on adverse possession would be maintainable, but same would require plaintiffs to specifically plead and establish by cogent evidence that they were in adverse possession for more than 30 years prior to filing of suit. This would necessitate specific pleading about date/time of commencement of adverse possession, as part of establishing nec vi, nec claim and nec pericranium. 13. In instant case, plaintiffs have vaguely claimed that they are in adverse possession for more than 30 years by relying on Ex.P16 - survey sketch by Tahsildar. Said document may at best indicate possession as on date of survey. While - 8 - NC: 2025:KHC:16485 RSA No. 991 of 2014 passing impugned judgment and decree, trial Court noted that plaintiffs failed to plead and establish starting point or duration of adverse possession. Trial Court noted that plaintiffs did not produce revenue records to indicate that his name was entered in respect of Gomala land. It is also seen that plaintiffs did not examine any independent witnesses. Taking note of material placed on record, it decreed suit in part in respect of area covered under Ex.P7 - sale deed, corroborated by Exs.P1 to P6 and P8 to P18 - revenue records and rejected suit in respect of Gomala land. 14. Rejection of plaintiffs claim over 3 Acres of Gomala land being in tune with legal principles regarding adverse possession laid down in State of Rajasthan v. Harphool Singh, reported in 2000 (5) SCC 652, as well as lack of evidence would not constitute substantial question of law calling for interference in appeal under Section 100 of CPC, I do not find this appeal to be fit for admission. 15. Hence, appeal is dismissed without being admitted. Sd/- (RAVI V HOSMANI) JUDGE GRD List No.: 1 Sl No.: 40