- 1 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 4TH DAY OF NOVEMBER, 2025 PRESENT THE HON'BLE MR. JUSTICE R.DEVDAS AND THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI R.F.A. NO.100278 OF 2022 (PAR/POS) BETWEEN: 1. SMT. VIJAYLAXMI W/O. VENKANGOUDA INAMDAR, AGE: 62 YEARS, OCC: HOUSE HOLD WORK, R/O. NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI. 2. SHRI AMIT S/O. VENKANGOUDA INAMDAR, AGE: 47 YEARS, OCC: AGRICULTURE WORK, R/O. NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI. 3. ROOPA D/O. VENKANGOUDA INAMDAR, AGE: 44 YEARS, OCC: HOUSE HOLD WORK, R/O. NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI. 4. SHRI AJAY S/O. VENKANGOUDA INAMDAR, AGE: 42 YEARS, OCC: AGRICULTURE, R/O. NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI. 5. ANURADHA D/O. VENKANGOUDA INAMDAR, AGE: 40 YEARS, OCC: HOUSEHOLD WORK, NEGINHAL, TQ. BAILHONGAL, DIST. BELAGAVI. …APPELLANTS (BY SRI. A. B. NESARGI, ADVOCATE) VINAYAKA B V Digitally signed by VINAYAKA B V Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.11.10 10:03:58 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 AND: SHRI KASHINATH S/O. RUDRAGOUDA INAMDAR, AGE: 70 YEARS, OCC: AGRICULTURE WORK, R/O. CTS NO.4539, SHETTY GALLI, BELAGAVI. …RESPONDENT (BY SRI. C. S. SHETTAR, ADV. FOR SMT. KAVYA C. SHETTAR, ADVOCATE) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC., PRAYING TO SETTING ASIDE THE JUDGMENT AND DECREE DATED 8TH DAY OF DECEMBER 2021 PASSED IN ORIGINAL SUIT NO.217/2013 BY THE PRINCIPAL SENIOR CIVIL JUDGE COURT AND CJM, BELAGAVI TOP NUMBERED APPEAL MAY KINDLY BE ALLOWED AND CONSEQUENTLY TO DISMISS THE SUIT OF THE PLAINTIFF TO MEET THE ENDS OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS AND THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI - 3 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE R.DEVDAS) This Regular First Appeal is filed under Section 96 of the CPC by the legal heirs of the defendant, being aggrieved of the impugned judgment and decree dated 08.12.2021 passed by the learned Principal Senior Civil Judge and CJM, Belagavi in O.S.No.217/2013. 2. For the purpose of convenience, the parties would be referred to in terms of their ranking before the trial court. 3. The plaintiff, being the brother of the defendant sought for partition and separate possession of his half share in the suit schedule property bearing CTS No.4539 measuring 516.4/9 sq.mts, situated at Shetti Galli, Belagavi. The plaintiff contended that the suit schedule property was purchased by their grandmother Smt.Gangubai in the name of the plaintiff and the defendant who were minors, under a registered sale deed - 4 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 dated 22.04.1961, for valuable sale consideration of Rs.24,000/-. It was contended that the cause of action for the suit arose a week before the suit was instituted, since the defendant flatly refused to effect partition and allot legitimate share to the plaintiff. 4. The defendant filed a written statement contending that though the suit schedule property was purchased under a registered sale deed dated 22.04.1961, nevertheless, at that point of time, the plaintiff and the defendant were minors and the property was purchased by their paternal grandmother. It was contended that their paternal grandmother Smt.Gangubai sold her property at Bhandiwad village and purchased the suit schedule property by paying the consideration amount of Rs.24,000/- to the previous owner. It was contended that the paternal grandmother acted as a minor guardian and she took possession of the suit schedule property from the time when it was purchased and on 01.01.1980, their grandmother handed over the property to the defendant - 5 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 alone, and the defendant continued to be in actual possession and enjoyment of the suit schedule property to the exclusion of the plaintiff. It was contended that the defendant was paying the house tax to the Corporation of the City of Belagavi and that he was paying electricity and water bills to the concerned authorities regularly. It was contended that the defendant spent about Rs.22,00,000/- for renovating the house, out of his own earnings. It was contended that the plaintiff never claimed his right over the suit schedule property and by efflux of time, the plaintiff had lost his right in the suit schedule property. It was contended that the defendant and his family members are in exclusive use and enjoyment of the suit schedule property. As an alternative, it was also contended by the defendant that he had acquired title over the property by way of adverse possession, and his possession has been perfected. 5. Additional written statement was also filed by the defendants after the legal representatives of the defendant - 6 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 come on record, while pointing out to the fact that the plaintiff had also instituted a suit in O.S.No.93/2018 against the defendants before the Senior Civil Judge, Bailhongal and the suit schedule property was not included in the said suit. 6. Based on the pleadings and the materials available on record, the trial court framed the following issues and additional issues. 1) Whether the plaintiff proves that himself and defendant jointly purchased suit property on 22.4.1961, as such he is entitled ½ share? 2) Whether the defendant proves that his paternal grandmother purchased suit property after selling her property situated at Bandiwad? 3) Whether he further proves that his grandmother handed over possession of suit property to him on 01.01.1980, since then he is in possession and enjoyment of same without interruption by anybody, as such he is perfected his title by way of adverse possession? 4) Whether he further proves that suit is improperly valued and court fee paid is improper? - 7 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 5) Whether the plaintiff is entitled for suit relief? 6) What order or decree? Additional issue: 1) Whether the suit is suffers from non inclusion of all the properties in common hotch-potch? 7. Having regard to the fact that the defendant did not deny the fact that under a registered sale deed dated 22.04.1961, the suit schedule property was purchased in the name of the plaintiff and the defendant by their paternal grandmother Smt.Gangubai, the trial court however, held that the defendant had not adduced any oral and documentary evidence to show that the grandmother Smt.Gangubai had purchased the property by selling her property at Bhandiwad village. It was held that the defendant has not produced any sale deed which shows that before purchasing the suit property, the grandmother of the parties had sold any other property. It was therefore, held that the intention of Smt.Gangubai clearly shows that the property was purchased in the joint name of the plaintiff - 8 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 and the defendant with an intention that the minor grand children shall own and possess the property purchased under the sale deed dated 22.04.1961. Issue No.1 was answered in the affirmative holding that the suit property is a joint property of the plaintiff and the defendant. The trial court decreed the suit declaring one half share in favour of the plaintiff. 8. Learned counsel for the defendant however contended before this court that there is an admission at the hands of the plaintiff during the cross-examination that the plaintiff was a minor at the time when the property was purchased in the year 1961, and therefore, the trial court could not have held that the plaintiff proved that he along with the defendant jointly purchased the suit schedule property under a registered sale deed dated 22.04.1961. Learned counsel further contended that the plaintiff has not denied the fact that he was never in joint possession of the suit schedule property. The plaintiff admitted in the cross- examination that he was residing in Neginahal village of - 9 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 Bailhongal Taluk, and he never resided in the suit schedule property. Therefore, when there being a clear admission that it was defendant alone who was in exclusive possession of the suit schedule property, the alternative stand taken by the defendant that he had perfected his title by way of adverse possession had to be accepted by the trial court. 9. In this regard, the trial Court has held that the defendant has not shown ouster of the plaintiff from the suit schedule property and there is no evidence in that regard. Reliance placed on Jivakka and Others v. Ramappa Yallappa Mutgi, reported in ILR 1961 Kar 133, AIR 1961 Kant 244 by the defendant was rejected since the defendant failed to plead and prove adverse possession. 10. Insofar as the contention of defendant that in a subsequent suit filed by the plaintiff in O.S.No.93/2018, which was also for partition and separate possession of other immovable properties, which did not include the subject matter of the suit in O.S.No.217/2013, the trial - 10 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 Court held that the suit schedule property is claimed by the plaintiff to be the exclusive property belonging to the plaintiff and the defendant, therefore the plaintiff has consciously not included the subject matter of the dispute in O.S.No.217/2013 in the subsequent suit i.e., O.S.No.93/2018. 11. Learned counsel for the plaintiff has drawn the attention of this Court to a decision of the Hon’ble Apex Court in the case of Govindammal v. R Perumal Chettiar and Others, reported in (2006) 11 SCC 600, where several earlier decisions of the Hon’ble Apex Court including Md. Mohammad Ali v. Jagadish Kalita, reported in (2004) 1 SCC 271 was noticed, where it was held that in a series of decisions on the question of adverse possession, it was concluded that mere long and continuous possession by itself would not constitute adverse possession. Even non- participation in the rent and profits of the land by a co-sharer does not amount to ouster so as to give title by prescription. A co-sharer, as is well settled, becomes a - 11 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 constructive trustee of other co-sharer and the right of a person or his predecessors-in-interest is deemed to have been protected by the trustees. 12. It was noticed that in T.P.R. Palania Pillai v. Amjath Ibrahim Rowther, reported in AIR 1942 Mad 622 (FB), it was held that in order to constitute adverse possession, the possession must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the competitor. Therefore, in cases of adverse possession also their Lordships have said that the possession should not only be for longer period, it should be known to the competitor that it is held adverse and to his knowledge. Their Lordships further held that in cases of usufructuary mortgage granted by one of several co- sharers, if a person remains in possession of the land and cultivates it for years, the requirement of continuity, publicity and extent for adverse possession are fully complied with. In another decision of the Calcutta High Court in the case of Nirmal Chandra Das v. Mohitosh Das, - 12 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 reported in AIR 1936 Cal 106, their Lordships has held that there can be no adverse possession by one co-sharer as against others until there is an ouster of or exclusion; and the possession of a co-sharer becomes adverse to the other co-sharer from the moment there is ouster. Therefore, what is ouster and what is adverse to the interest of the claimant depends upon each case. The learned counsel therefore submitted that the trial Court had rightly come to conclusion that the claim of the defendant that he was in adverse possession and had perfected title over the suit schedule property cannot be accepted. Learned counsel further submitted that the trial Court has rightly come to conclusion, on the basis of material available on record that the suit schedule property was purchased by the paternal grandmother of the plaintiff and defendant at an undisputed point of time when both the plaintiff and the defendant were minors. That being the position, the defendant cannot claim exclusive rights over the suit property merely because he was in long and continuous possession of the suit schedule - 13 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 property. The right of the plaintiff cannot be denied by the defendant. 13. Having heard the learned counsel for the defendant as well as plaintiff and having perused the appeal memo and the original records, this Court finds that there are two contentions raised by the defendant. One that although the suit schedule property was purchased under a registered Sale Deed dated 22.04.1961 in the name of plaintiff and the defendant by their paternal grandmother, nevertheless the plaintiff started residing at Neginahal Village, Bailhongal Taluk from his childhood days and it was only the defendant, who resided in the suit schedule property along with the paternal grandmother. It is contended that in the year 1980 the paternal grandmother gave exclusive possession of the suit schedule property to the defendant alone to the exclusion of the plaintiff. Secondly, it is contended that the defendant has perfected title over the suit schedule property and therefore the defendant seeks a declaration that he is in adverse - 14 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 possession of the suit schedule property to the exclusion of the plaintiff. 14. Having regard to the admitted fact that in the year 1961 when the suit schedule property was purchased in the name of plaintiff and the defendant by the paternal grandmother Smt.Gangubai, the plaintiff and the defendant were minors cannot be disputed. No other material is placed on record by the defendant to show how and from what point of time the suit schedule property was exclusively given to the possession of the defendant. A mere contention in the written statement that from 01.01.1980, the defendant was put in exclusive possession of the suit schedule property by Smt.Gangubai would not be sufficient to come to conclusion that there is ouster of the plaintiff from the possession of the suit schedule property. The learned counsel for the plaintiff is therefore right in pointing out to the decision of the Hon’ble Apex Court in the case of Govindammal (supra), where the Hon’ble Apex Court has also noticed a decision of the Privy Council in the case of - 15 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 Hardit Singh v. Gurmukh Singh, reported in AIR 1918 PC 1, where it is held as under: “If by exclusive possession of joint estate is meant that one member of the joint family alone occupies it, that by itself affords no evidence of exclusion of other interested members of the family. Uninterrupted sole possession of such property, without more, must be referred to the lawful title possessed by the joint holder to use the joint estate, and cannot be regarded as an assertion of a right to hold it as separate, so as to assert an adverse claim against other interested members. If possession may be either lawful or unlawful, in the absence of evidence, it must be assumed to be the former. The evidence of actual user is not sufficient to establish abandonment or exclusion.” 15. The decision cited by the learned counsel for the defendant in Jivakka (supra), which was rendered by the division bench of this Court also notices the decision of the Hon’ble Supreme Court of India in the case of P.Lakshmi Reddy v. L.Lakshmi Reddy, reported in 1957 SCR 195, where it was held; when one co-heir is found to be in - 16 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his part in derogation of the other co-heir’s title. The trial Court was therefore right in rejecting the contention of the defendant that the plaintiff was ousted from the suit schedule property. In order to buttress such a contention raised by the defendant, no material is available on record. Merely because the defendant has paid the property tax, electricity charges, water charges and etc., it does not bestow on the defendant exclusive title to the exclusion of the plaintiff, when admittedly, the title deed namely the Sale Deed dated 22.04.1961 is in the name of the plaintiff and the defendant. It is also to be noticed that the payment of property tax, electricity charges and water charges are made on the basis of the Khata registered before the local authority namely the City Corporation, Belagavi and it is well settled position of law that Khata does not declare the - 17 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 title of the property. It is a mere document to show that who is required to pay the property tax, etc., to the local authority. 16. This Court should also notice that the Hon’ble Supreme Court of India in the case of D.N.Venkatarayappa and Another v. State of Karantaka and Others, reported in (1997) 7 SCC 567 has once again noticed the decision of the Hon’ble Supreme Court of India in the case of P.Lakshmi Reddy (supra) and the decision of the Privy Council in the case of Secretary of State v. Debendra Lal Khan, reported in AIR 1934 PC 23, where it was held that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario and the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. Unless, these three requirements are made out, there cannot be a declaration made by the Court regarding adverse possession. The trial Court has rightly held that the defendant has failed to place on record any - 18 - HC-KAR NC: 2025:KHC-D:14991-DB RFA No. 100278 of 2022 material to show the ouster of the plaintiff from the suit schedule property. Therefore, mere long and continuous possession of the defendant in the suit schedule property without there being an ouster of the plaintiff from the suit schedule property, in manner known to law, there cannot be a declaration in favour of the defendant that he is in exclusive possession and has perfected his title over the suit schedule property. 17. Viewed from any angle, this Court does not find any infirmity in the impugned Judgment and Decree passed by the trial Court. Consequently, the regular first appeal stands dismissed. Sd/- (R.DEVDAS) JUDGE Sd/- (B. MURALIDHARA PAI) JUDGE MBS/CKK CT-AN List No.: 1 Sl No.: 33