- 1 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.100154 OF 2017 (DEC/INJ) BETWEEN: PUSPHAVATHI W/O VITHAL BHATTI, SINCE DECEASED BY HER LRS 1.A RAJENDRA S/O VITHAL BHATTI, AGE: 48 YEARS, OCC: CLOTH MERCHANT, R/O: VIDYARANYA GALLI, TQ. SIDDAPUR, DIST. UTTARA KANNADA-581355. 1.B RAGHVENDRA S/O VITHAL BHATTI AGE: 45 YEARS, OCC: CLOTH MERCHANT, R/O: VIDYARANYA GALLI, TQ. SIDDAPUR, DIST. UTTARA KANNADA-581355. 1.C GAYATRI W/O ASHOK KUMAR D AGE: 51 YEARS, OCC: HOUSEHOLD, R/O J.C. EXTENSION, I MAIN, I CROSS, HARIHAR, DIST. DAVANAGERE-577001. …APPELLANTS (BY SRI. VISHWANATH HEGDE, ADVOCATE) AND: MANJUNATH S/O BABURAO MALVADE, AGE: 63 YEARS, OCC: TAILOR, MAIN ROAD, SIDDAPUR (U.K)-581355. …RESPONDENT (BY SRI. VENKATESH M. KHARVI, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.11.2016 PASSED IN RA NO.56/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, SIDDAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.06.2013 PASSED IN O.S.NO.31/2009 ON THE FILE OF THE CIVIL JUDGE, SIDDAPUR, DISMISSING THE SUIT FILED FOR DECLARATION AND CONSEQUENTIAL INJUNCTION AND SEPARATE POSSESSION & ETC. YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the plaintiff challenging the judgment and decree dated 05.11.2016 in R.A.No.56/2013 on the file of the Senior Civil Judge, Siddapur1 dismissing the appeal and confirming the judgment and decree dated 12.06.2013 in O.S.No.31/2009 on the file of the Civil Judge, Siddapur2 dismissing 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 the husband of the plaintiff-Vittal Subramanya Bhatti purchased the suit property from one Ratnabai Pandurang Khatavakar as per registered sale deed dated 12.08.1982. The husband of the plaintiff died on 09.11.1988 and as such, the revenue 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 records were mutated in favour of the plaintiff. It is also stated that the defendant had expressed his willingness to occupy the suit property till he gets a suitable accommodation and therefore, the plaintiff, on humanitarian ground permitted the defendant to occupy the suit property. The plaintiff subsequently made a claim for vacation of the said house by the defendant and same was refused by the defendant and as such, the plaintiff filed suit in O.S.No.31/2009 seeking relief of declaration with consequential relief of mandatory injunction directing the defendant to remove the compound wall and to handover the possession of the suit schedule property to the plaintiff. 4. After service of notice, the defendant entered appearance and filed detailed written statement. The defendant has specifically contended that originally the property belonged to one Pandurang Bheemappa Khatavakar and he had acquired the same as per the partition deed, as reflected in Mutation No.5301. It is also - 4 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 stated that the said Pandurang Bheemappa Khatavakar and his wife-Ratnabai had five daughters and two sons. The defendant married the eldest daughter of Pandurang Bheemappa Khatavakar and he is in possession of the said property for considerable period and also taken up a contention that the defendant has perfected his title by way of adverse possession. Accordingly, sought for dismissal of the suit. 5. The Trial Court, based on the pleadings on record, has formulated issues and additional issue for its consideration. 6. In order to establish her case, the plaintiff has examined two witnesses as PW1 and PW2 and produced 16 documents, which were marked as Exs.P.1 to P.16. The defendant has examined two witnesses as DW.1 and DW.2 and got marked 28 documents as Exs.D.1 to D.28. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 12.06.2013 - 5 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred R.A.No.56/2013 on the file of the First Appellate Court and same was resisted by the defendant. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 05.11.2016, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.31/2009. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal. 8. This Court, vide order dated 29.09.2021 formulated the following substantial questions of law: a. Whether, under the facts and circumstances involved in the case, both the Courts below are justified in dismissing the suit filed for declaration and possession based on the title which was acquired through registered sale deed on the premise that the suit is barred by limitation? b. Whether, under the facts and circumstances involved in the case, as per Article 65 of the Limitation Act, 1963, whether the suit filed - 6 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 by the plaintiff claiming relief of declaration and possession is within a period of limitation or not? 9. I have heard Sri.Vishwanath Hegade, learned counsel appearing for the appellant and Sri.Venkatesh M Kharvi, learned counsel appearing for the respondent. 10. Learned counsel appearing for the appellant contended that both the Courts below have erroneously came to conclusion by relying upon Article 58 of the Limitation Act instead Article 65 of the Limitation Act and as such, sought for interference of this Court. He also pointed out that both the Courts below have failed to consider the fact that the vendor of the plaintiff’s husband has not denied execution of the sale deed and the defendant is a witness to the sale deed dated 12.08.1982 and therefore, sought for interference of this Court. In this regard Sri. Vishwanath Hegade, learned counsel appearing for the appellant, places reliance on the judgment of the Hon’ble Supreme Court in the case of Mallavva anda another v. Kalsammanavar Kalavva (Since - 7 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 deceased) by LRs3 and argued that both the Courts below have committed an error in accepting the plea applying Article 58 of the Limitation Act and accordingly, sought for interference of this Court. 11. Per contra, learned counsel appearing for the respondent, submitted that the plaintiff has purchased the property from one Ratnabai, who had no right over the property in question and accordingly sought for dismissal of the appeal and further contended that as both the Courts below have concurred on facts and this Court has limited jurisdiction to interfere with the finding on fact. 12. In view of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below and perused the records. It is not in dispute that the plaintiff’s husband has purchased the suit property from one Ratnabai Pandurang Khatavakar as per registered sale deed dated 12.08.1982. It is also to be noted here that 3 2024 SCC OnLine SC 3846 - 8 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 the finding recorded by the Trial Court at paragraph 10 and 11 makes it clear that the said Pandurang Khatavakar acquired the property in question through family partition and as the husband of the vendor of the plaintiff had acquired property under the family partition and is alive at the time of execution of the registered sale deed and therefore, the wife of Pandurang Khatavakar (plaintiff) has no right to execute the registered sale deed in favour of the husband of the plaintiff. The Hon’ble Supreme Court in the above case at paragraph 18 has made a following declaration of law, which reads as under: ”18. Article 65 of the Limitation Act, 1963 is corresponding to Article 142 of the Limitation Act, 1908, wherein it is stated that the plaintiff who based his case on title has to prove not only title, but also possession within 12 years of the date of suit. The said Article has undergone a metamorphic change in view of Article 65 of the Limitation Act, 1963. The vital distinction between Articles 142 of the Limitation Act, 1908 and Article 65 of the Limitation Act, 1963 is that as per Article 142 of 1908 Act, the plaintiff has to prove not only title, but also possession within - 9 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 12 years of the date of suit, whereas, as per Article 65 of 1963 Act, a suit for possession based on title has to be filed within 12 years when possession becomes adverse to the concerned plaintiff.” (underlined by me) 13. In that view of the matter, taking into consideration the fact that as the vendor of the plaintiff’s husband has no right to sell the suit property and as such, applying the principle laid down by the Hon’ble Supreme Court in the above case, wherein it is held that the basis for application of Article 65 of the Limitation Act presupposes title of the plaintiff, however it is the duty of the plaintiff to prove the title to secure benefit of Article 65 of the Limitation Act. In that view of the matter, as the plaintiff has failed to prove that her vendor had title over the property to alienate the same in favour of the husband of the plaintiff, both the Courts below have rightly dismissed the suit of the plaintiff, which requires to be confirmed by this Court in this appeal. Accordingly, the substantial questions of law framed by this Court favours - 10 - NC: 2025:KHC-D:6508 RSA No. 100154 of 2017 the defendant and as the plaintiff has failed to prove the title in respect of the suit property in a manner known to law, I find no merit in the appeal. Accordingly, the appeal stands dismissed. 14. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN LIST NO.: 1 SL NO.: 29