- 1 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 63 OF 2007 (INJ-) BETWEEN: SMT. RUKMINI W/O. PURANDHAR MASTI, AGE: 52 YEARS, OCC: AGRICULTURIST, R/O. CHIKODI, DIST BELGAUM. …APPELLANT (BY SRI. SANGRAM S. KULKARNI, ADVOCATE) AND: MANOHAR S/O SHIVAPUTRA KATTIMANI SINCE DECEASED BY HIS LR’S 1a. ANURADHA WD/O. MANOHAR KATTIMANI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK, R/O. ANKALLIKHOT, MATANKERI, CHIKODI, TALUK: CHIKODI, DIST: BELAGAVI – 591201. 1b. POOJA D/O. MANOHAR KATTIMANI, AGE: 28 YEASRS, OCC: ADVOCATE, R/O. ANKALLIKHOT, MATANKERI, CHIKODI, TAL: CHIKODI, DIST: BELAGAVI – 591201. 1c. NAGESH S/O. MANOHAR KATTIMANI. AGE: 25 YEARS, OCC: BUSINESS, R/O. ANKALLIKHOT, MANJANNA E Digitally signed by MANJANNA E Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.01 11:43:12 +0530 - 2 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 MATANKERI, CHIKODI, TAL: CHIKODI, DIST: BELAGAVI – 591201. …RESPONDENT (BY SRI. GANAPATI M. BHAT, ADVOCATE) ----- THIS RSA IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, PRAYING TO ALLOW THIS APPEAL BY SETTING ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT OF THE ADDL. CIVIL JUDGE (JR.DN), CHIKODI IN O.S.NO.54/1996 DATED 10.06.2003 AND THE JUDGMENT AND DECREE PASSED BY THE COURT OF THE CIVIL JUDGE (SR.DN), CHIKODI AT CHIKODI IN R.A.NO.27/03 DATED 14.09.2006 BY ALLOWING THE ABOVE APPEAL ALONG WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This appeal is filed by the defendant challenging the judgment and decree dated 14.09.2006 passed in RA No.27 of 2003 on the file of the Civil Judge (Sr.Dn.), Chikodi (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 10.06.2003 passed in OS No.54 of 1996 on the file of the Civil Judge (Jr.Dn.), Chikodi (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiff. - 3 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court. 3. The plaint averments are that; it is the case of the plaintiff before the Trial Court is that, the suit property comprising TMC No.243 of Chikkodi was the ancestral property of the plaintiff. The original propositus of the suit schedule property-Ramappa Malagar, had four children namely, Malleshappa, Shankar, Sadashiva and Gangadhar. After the demise of Ramappa Malagar, his children have partitioned the suit schedule properties and as such, the TMC No. 243 was sub divided into TMC No.243, TMC No.243-A and TMC No.243-B. TMC No.243 has been allotted to Malleshappa Malagar, TMC No.243-A was allotted to Shankar and TMC No.243B was allotted to Sadashiva Malagar. It is also stated in the plaint that TMC No.243 and 243-B were sold by Malleshappa Malagar and Sadashiv Malagar in favour of defendant as per registered Sale Deed dated 10.09.1979 and thereafter, revenue records stands in the name of the defendant. However, the share of Shankar- TMC 243-A was sold in favour of plaintiff as per registered Sale Deed dated 27.05.1991. It is the case of the plaintiff that, the - 4 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 plaintiff is in possession of the partition of the purchased suit schedule property and the defendant is interfering with the peaceful possession and enjoyment of the suit schedule property and as such, the plaintiff has filed suit in OS No.54 of 1996 seeking relief of injunction against the defendant and thereafter, amended the plaint and sought for recovery of possession from the defendant. 4. After service of summons, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendant that, the defendant had purchased TMC No.243 from Malleshappa Malagar, as per registered Sale Deed dated 10.09.1979 and also property bearing TMC No.243-B from Sadashiva as per registered Sale Deed dated 16.09.1979. It is also stated in the written statement that the defendant is in possession of the property having purchased the same referred to above. It is further stated in the written statement that Shankar Malagar has filed OS No.120 of 1980 against the defendant seeking relief of declaration with consequential relief of permanent injunction which came to be dismissed on 09.08.1985 and also the said judgment and decree confirmed - 5 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 in RA No.96 of 1985. Therefore, it is the contention of the defendant that, the suit filed by the plaintiff has reached finality even against the vendor of the plaintiff. The defendant, after allowing the amendment sought for by the plaintiff seeking relief of possession, has amended the written statement seeking relief of adverse possession against the interest of the plaintiff by claiming counter claim and stated that, the defendant is in possession of the portion of the property sought in the suit openly, continuously to the knowledge of plaintiff or more than 20 years and as such, perfected the possession and therefore sought for dismissal of the suit inter-alia allowing the counter claim seeking relief of declaration. 5. On the basis of the rival pleadings, the Trial Court has formulated issues and additional issues for its consideration. 6. In order to establish the case, the plaintiff has examined three witnesses as PW1 to PW3 and got marked 06 documents as Exs.P1 to P6. On the other hand, defendant herself examined as DW1 and produced 10 documents which were marked as Exs.D1 to D10. - 6 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 7. The Trial Court, after considering the material on record, by its judgment and decree dated 10.06.2003 decreed the suit partly and restrained the defendant from interfering the peaceful possession of the suit schedule property of the plaintiff and being aggrieved by the same, the defendant preferred RA No.27 of 2003 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 14.09.2006 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No. 54 of 1996. 8. Being aggrieved by the dismissal of RA No.27 of 2003 by the First Appellate Court the appellant/defendant has preferred this Regular Second Appeal under Section 100 of CPC. This Court vide order dated 29.03.2011 formulated the substantial question of law which reads as under: “(1) Whether courts below are right in law in granting decree for injunction when the plaintiff and defendant being purchasers of a property which was earlier a property of the joint family and which had been shared amongst the brothers but when there was nothing to indicate it had been partitioned by metes and bounds and therefore the - 7 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 purchasers also virtually being in a position of joint owners whether suit by one co-owner for restraint order against another co-owner is maintainable? (2) Whether the suit for injunction had any cause of action at all, in as much as, if the defendant wanted to pull down a wall in the portion occupied by him, that cannot constitute a cause of action for the plaintiff to seek a restraint order against the defendant in the position of a co-owner, but on the other hand, having pleaded that the defendant is obstructing enjoyment of the property by the plaintiff when in view of the admitted temporary common wall interference is impossible?” 9. I have heard Sri. Sangram S. Kulkarni, learned counsel for the appellant and Sri. Ganapati M. Bhat, learned counsel appearing for the respondents. 10. Sri. Sangram S. Kulkarni, learned counsel appearing for the appellant submits that both the Courts below have misconstrued the factual aspects on record as the plaintiff has filed suit seeking relief of declaration and thereafter sought for recovery of possession and on the other hand, the defendant has amended the written statement seeking relief of declaration, declaring that the defendant has perfected the title by possession. It is also the submission made by the learned - 8 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 counsel appearing for the appellant that both the Courts below have not considered the judgment and decree in OS No.120 of 1980 which came to be confirmed in RA No.96 of 1985 and therefore, both the courts below have committed an error in respect of the facts on record. 11. Sri. Ganapati M. Bhat, learned counsel appearing for the respondents submits that since, the concurrent finding of facts was held against the defendant / appellant herein and therefore, no interference is called for under Section 100 of CPC. He further contended that the plaintiff had purchased the suit schedule property as per registered sale deed dated 27.05.1991 and therefore, the finding recorded by both the Courts below requires to be confirmed. 12. Heard the learned counsel appearing for both the parties and perused the records. 13. On careful examination of the finding recorded by both the Courts below, it is not in dispute that the suit schedule property was originally belongs to one Ramappa and as per the registered partition deed dated 01.06.1971, the schedule property under the partition deed was apportioned amongst the sons of Ramappa. The first son – Malleshappa got TMC No.243, - 9 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 the second son Shankar got TMC No.243-A, the third son – Sadashiva got TMC No.243-B and the fourth son-Gangadhar died without leaving behind the legal representatives. It is also not in dispute that the defendant had purchased TMC No.243 as per registered sale deed dated 10.09.1979 and also TMC No.243-B as per registered sale deed dated 16.09.1979. The said fact makes it clear that two sons of late Ramappa i.e., Malleshappa and Sadashiva had sold entire extent of their share in favour of the defendant as per registered sale deeds referred to above and thereby the defendant is in possession and enjoyment of the same. On the other hand, the plaintiff had purchased TMC No.243-A from Shankar (second son of late Ramappa and brother of Malleshappa and Sadashiva) as per registered sale deed dated 27.05.1991. At this juncture, it is relevant to mention that, the vendor of the plaintiff – Shankar had filed suit against the defendant in OS No.120 of 1980 seeking declaratory relief which came to be dismissed by the Trial Court on 09.08.1985 (Ex.D.9) and same came to be confirmed by the First Appellate Court by its judgment and decree dated 24.06.1991 in RA 96 of 1985 and as such same has reached finality. It is also to be noted that, during the - 10 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 pendency of the aforementioned proceedings plaintiff purchased TMC No.243-A from Shankar as per registered sale deed dated 27.05.1991. Taking into account the aforementioned aspect, it is an undisputed fact that originally suit was filed seeking relief of permanent injunction against the defendant and thereafter, the plaint was amended to incorporate the relief of recovery of possession. On the other hand, the defendant after amendment of the plaint regarding seeking recovery of possession, amended the written statement by incorporating relief of declaration as perfecting the title by adverse possession in respect of the portion of the schedule property as mentioned in the sketch annexed to the plaint. 14. Taking into account the finding recorded by the Trial Court that, nothing is stated by the plaintiff in the plaint regarding when he lost the possession of the schedule property and also no acceptable evidence has been adduced as to when the plaintiff was dispossessed from the schedule property as he sought for recovery of possession. In that view of the matter, taking into consideration the undisputed evidence of DW1 wherein, the assessment register extracts as per Exs.D6 and D7, the defendant has proved the relief sought for in the - 11 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 counter claim that defendant has perfected title by adverse possession. 15. At this juncture, it is relevant to deduce the declaration of law made by the Hon’ble Supreme Court in the case of Ravinder Kaur Grewal and Others Vs. Manjit Kaur and Others1 wherein, the Hon’ble Supreme Court at paragraph Nos.59 to 63 held as under; “59. Possession is the root of title and is right like the property. As ownership is also of different kinds of viz. sole ownership, contingent ownership, corporeal ownership, and legal equitable ownership. Limited ownership or limited right to property may be enjoyed by a holder. What can be prescribable against is limited to the rights of the holder. Possession confers enforceable right under Section 6 of the Specific Relief Act. It has to be looked into what kind of possession is enjoyed viz. de facto i.e., actual, ‘de jure possession’, constructive possession, concurrent possession over a small portion of the property. In case the owner is in symbolic possession, there is no dispossession, there can be formal, exclusive or joint possession. The joint possessor/coowner possession is not presumed to be adverse. Personal law also plays a role to construe nature of possession. 60. The adverse possession requires all the three classic requirements to coexist at the same time, namely, necvi i.e. adequate in continuity, necclam i.e., adequate in publicity and nec- precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care 1 (2019) 8 SCC 729 - 12 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonym with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession. 61. Adverse possession is heritable and there can be tacking of adverse possession by two or more persons as the right is transmissible one. In our opinion, it confers a perfected right which cannot be defeated on reentry except as provided in Article 65 itself. Tacking is based on the fulfillment of certain conditions, tacking maybe by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is sought to be tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period. 62. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by - 13 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. 63. When we consider the law of adverse possession as has developed visàvis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.” 16. Applying the principle to the case on hand, both the Courts below have committed an error in arriving at a - 14 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 conclusion as to appreciate the evidence of PW1 to PW3 with regard to date of dispossession of the plaintiff from the suit schedule property. In that view of the matter, I am of the opinion that the plaintiff has failed to establish his case before the Trial Court, and as once the right is extinguished by the plaintiff in favour of defendant, who acquires prescriptive rights which cannot be defeated by restoring possession of the plaintiff as observed by both the Courts below. It is also to be noted that the First Appellate Court has not re-appreciated the factual aspect on record as required under Order 40 Rule 31 of CPC and taking into account the pleadings and evidence on record, the defendant has proved that he was in possession of the portion of the schedule property in open, clear, continuous and the knowledge of the claim of the plaintiff and therefore, I find force in the submission made by learned counsel appearing for the appellant and accordingly answered the substantial question of law referred to above in favour of the defendant/appellant herein. Both the Courts below have committed an error in decreeing the suit despite the fact that the plaintiff has failed to establish his case when he was dispossessed from the suit schedule property. Accordingly, the - 15 - NC: 2025:KHC-D:1666 RSA No. 63 of 2007 relief of counter claim made by the defendant in the amended written statement is accepted subject to the payment of Court Fee, if any, under the circumstances of the case. In the event, if any, deficit of Court Fee is to be payable by the defendant claiming relief of counter claim and same has to be made good before the Trial Court. In the result I pass the following; ORDER (i) Appeal is allowed. (ii) Judgment and decree in RA No.27 of 2003 dated 14.09.2006 on the file of Civil Judge (Sr.Dn.), Chikodi, and the judgment and decree dated 10.06.2003 in OS No.54 of 1996 on the file of Civil Judge (Jr.Dn.), Chikodi, are hereby set aside. (iii) Suit of the plaintiff is dismissed. Sd/- (E.S.INDIRESH) JUDGE SB-para 1 to 6 SMM-para 7 to till end List No.: 1 Sl No.: 37