- 1 - NC: 2025:KHC-D:5138 RSA No. 100136 of 2025 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100136 OF 2025 (POS-) BETWEEN: SMT. SAVITRIBAI SOMA TANDEL, AGE: 66 YEARS, OCC: HOUSEHOLD, R/O. K.E.B. ROAD, KARWAR-581304. …APPELLANT (BY SRI. SOURABH HEGDE, ADVOCATE) AND: SHRI. SANJAY BHASKAR POKLE, AGE: 51 YEARS, OCC: SERVICE, R/O. 402, A-WING, SATYA SAI PLAZA SECTOR, 11, PLOT NO.5, NEW PANVEL-410206. …RESPONDENT THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE IN R.A. NO.09/2023 PASSED BY SENIOR CIVIL JUDGE AND CJM, KARWAR AT UTTARA KANNADA DATED 27.11.2024 AND THE JUDGMENT AND DECREE DATED 28.02.2023 PASSED BY THE PRINCIPAL CIVIL JUDGE AND JMFC, II AT KARWAR IN O.S.NO.18/2016 AND ETC. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 15:55:17 +0530 - 2 - NC: 2025:KHC-D:5138 RSA No. 100136 of 2025 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant challenging the judgment and decree dated 27.11.2024 in R.A.No.9/2023 on the file of the Principal Senior Civil Judge and CJM Court, Karwar, at Uttara Kannada1 dismissing the appeal and confirming the judgment and decree dated 28.02.2023 in O.S.No.18/2016 on the file of the Principal Civil Judge and JMFC-II at Karwar2 decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that plaintiff is the legal heir of Kamalakar Srinivas Pokle, Shivray Srinivas Pokle and Bhaskar Srinivas Pokle. The Kamalakar Srinivas Pokle died on 13.06.2007. Smt.Vidya Pokle - wife of Kamalakar Pokle died on 07.04.1989. Shivray Pokle died 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:5138 RSA No. 100136 of 2025 on 24.02.1996 and Bhaskar Pokle died on 03.02.2004. It is the case of the plaintiff that the suit schedule property is the ancestral property of the plaintiff and the suit schedule property is the only living property for the plaintiff. It is stated that the defendant has requested the plaintiff to look after the suit schedule property for time being and as such the plaintiff has allowed the defendant to stay in the suit schedule property with a rider that the defendant shall vacate the suit schedule property at the instance of the plaintiff. It is also stated that, the defendant refused to vacate the suit schedule property and as such the plaintiff has filed O.S.No.18.2016 before the Trial Court seeking relief of possession in respect of the suit schedule property. 4. After service of notice, the defendant entered appearance and filed detailed written statement and took up a contention that the legal heirs of the plaintiff are residing at Maharashtra and no one is residing in the suit schedule property. It is also the case of the defendant that - 4 - NC: 2025:KHC-D:5138 RSA No. 100136 of 2025 the defendant is residing in the suit schedule property since July 1991 and the said fact is known to the original owners and their legal heirs including the plaintiff. It is also stated in the written statement that the defendant is making payment to the Electricity Board and also the defendant has perfected his right/title over the suit schedule property by way of adverse possession and accordingly sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined 2 witnesses as PW.1 and PW.2 and produced 20 documents and same were marked as Exs.P.1 to P.20. The defendant has examined two witnesses as DW.1 and DW.2 and got marked 19 documents as Exs.D.1 to D.19. 6. The Trial Court after considering the material on record, by its judgment and decree dated 28.02.2023 decreed the suit and directed the defendant to hand over the possession of the suit schedule property to the - 5 - NC: 2025:KHC-D:5138 RSA No. 100136 of 2025 plaintiff. Feeling aggrieved by the same, the defendant has preferred R.A.No.9/2023 on the file of the First Appellate Court and same was contested by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 27.11.2024, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.18/2016. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 7. I have heard Sri.Sourabh Hegde, learned counsel appearing for the appellant. 8. Sri.Sourabh Hegde, learned counsel appearing for the appellant contended that both the Courts below have ignored the factual aspects on record as the defendant was residing in the suit schedule property for more than 12 years and the possession of the defendant was open and known to the plaintiff and his family members also and therefore both the Courts below have not properly assessed the evidence on record in a right - 6 - NC: 2025:KHC-D:5138 RSA No. 100136 of 2025 perspective and accordingly sought for interference of this Court. 9. In the light of the submissions made by the learned counsel appearing for the appellant, I have carefully examined the findings recorded by both the Courts below. It is not in dispute that the suit schedule property is belonging to the ancestors of the plaintiff. The defendant was inducted, according to the defendant in the written statement, into the suit schedule property to look after the suit schedule property. It is the case of the defendant that since July 1991 the defendant is residing in the suit schedule property as owner and at the instance of the true owners to the suit schedule property. 10. In the backdrop of these aspects, on careful examination of the finding recorded by the Trial Court, the defendant has failed to prove his intention to possess the suit schedule property against the knowledge of the true owners as well as actual possession of the suit schedule property as an owner of the suit schedule property. In the - 7 - NC: 2025:KHC-D:5138 RSA No. 100136 of 2025 backdrop of these aspects, taking into account the declaration of law made by the Hon'ble Supreme Court in the case of Ravinder Kaur Grewal vs. Manjit Kaur reported in 2019 (8) SCC 729, it is the duty of the defendant to establish that, his title by adverse possession can be maintained in a settled possession against the person seeking to dispossess him by force without recourse to law. It is also to be noted that the defendant has failed to establish the essential conditions to constitute claiming adverse possession in respect of the subject land and the possession must be adequate in continuity, in publicity and must be adverse to owner in open. It is well established principle of law that neither mere lawful possession nor possession as trespasser would qualify for adverse possession. Following the declaration of law made by the Hon'ble Supreme Court in the above case as the defendant has failed to prove from which date he was residing in the suit schedule property adverse to the interest of the plaintiff (true owners), I do not find substance in the arguments of the learned counsel - 8 - NC: 2025:KHC-D:5138 RSA No. 100136 of 2025 appearing for the appellant to infer with the impugned judgment and decree of the Courts below. Both the Courts below after examining the material on record in a right perspective, decreed the suit and therefore the appellant herein has not made out a case for formulation of substantial question of law as required under Section 100 of CPC. 11. Accordingly, I pass the following: ORDER i) The appeal is dismissed. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 30