- 1 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 IN THE HIGH COURT OF KARNATAKA, AT DHARWAD DATED THIS THE 8TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA REGULAR SECOND APPEAL NO. 100609 OF 2023 (POS) BETWEEN: MUNIYAPPA S/O. HANUMAPPA AGE: 60 YEARS, OCC. AGRICULTURE, R/O. BUDAGUMPA, TQ. AND DIST. KOPPAL 583231. …APPELLANT (BY SRI. JAGADISH PATIL, ADVOCATE) AND: SAKKAPPA S/O. FIROJAPPA ARER, AGE: 70 YEARS, OCC. AGRICULTURE R/O: BUDAGUMPA, TQ. AND DIST. KOPPAL. 583231. …RESPONDENT (BY SRI. MRUTYUNJAY S. HALLIKERI, ADVOCATE) THIS RSA IS FILED U/SEC.100 OF CPC 1908, PRAYING THAT, THE JUDGMENT AND DECREE DATED 15.12.2022 PASSED IN R.A.NO.10/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE. AT KOPPAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.04.2017, PASSED IN O.S. NO.104/2013 ON THE FILE OF THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KOPPAL, PARTLY ALLOWING THE SUIT FILED FOR POSSESSION AND MESNE PROFIT. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: MALLIKARJUN RUDRAYYA KALMATH Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Date: 2025.09.11 10:35:54 +0530 - 2 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) 1. The appellant, who was the defendant before the Trial Court, has preferred this appeal against the judgment and decree passed by the Civil Judge and JMFC, Koppal, in O.S.No.104/2013 dated 17.04.2017, which was confirmed by the Senior Civil Judge and CJM, Koppal, in R.A.No.10/2017 dated 15.12.2022. 2. The parties are referred to as per their rank before the Trial Court. 3. Brief facts leading to this appeal are that the plaintiff is the absolute and exclusive owner of the suit land measuring 1.05 acres in Sy No.23/B situate at Budagumpa Village of Koppal Taluka. Originally the land bearing Sy.No.16 measuring 17.38 acres of Budugumpa village was owned and possessed by Sri.Gyanappa S/o Timmappa. Due to passing of Koppal-Gangavathi road, the said land bifurcated into two parts as eastern and western strips. Out of 17.38 acres of land in Sy.No.16, eastern strip measuring - 3 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 2.10 acres and western strip measuring 14.04 acres and 1.24 acres is covered by the said road. In partition between Gyanappa and his brother Parameshwarappa, each have got 8.39 acres inclusive of road portion out of 17.38 acres. Accordingly, the same was numbered as Sy.No.16/A and Sy. No.16/Aa respectively. 4. It is further averred that out of western strip of 14.04 acres and eastern strip of 2.10 acres, northern portion measuring 7.02 acres and 1.05 acres respectively fallen to the share of Parameshwarappa and remaining southern portion 7.02 acres and 1.05 acres fallen to the share of Gyanapa. After the death of Parameshwarappa, his entire land was succeeded by his four sons namely Hanumappa, Yamanappa, Amarappa and Duragappa who have sold the said property bearing Sy.No.16/Aa measuring 8.39 acres inclusive of road measuring 32 guntas in favour of the plaintiff's father Phirojappa through registered sale deed dated 03-01-1966 and also delivered the possession. The land bearing Sy.No.16/A measuring 7.02 acres and - 4 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 1.05 acres which was fallen to the share of Gyanappa have been renumbered as Sy.No.7/A and Sy.No.23/A respectively by revenue authorities, excluding 32 guntas covered by road. Similarly the land measuring 7.02 acres and 1.05 acres in Sy.No.16/Aa purchased by the father of the defendant which was renumbered as Sy. No.7/B and 23/B respectively by revenue authorities excluding 32 guntas covered by road. 5. It is further averred that since the date of purchase, the father of the plaintiff, and after his demise his sons are in exclusive ownership and possession of the land bearing Sy.No.7/B to the extent of 7.02 acres and land bearing Sy.No.23/B measuring 1.05 acres till date of encroachment and illegal dispossession by the defendant. In family partition among plaintiff and his brothers, the suit land has fallen to the share of plaintiff. 6. It is further averred that the defendant is the owner of adjacent land bearing Sy.No.23/A measuring 1.05 acres of Budagumpa Village and defendant has purchased - 5 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 the land from Ningappa S/o Gyanappa through the registered sale deed dated 29-11-1996 and came into the possession of said land. Defendant is totally stranger having no right, title or interest over the suit land of the plaintiff. On 21-12-2011 the defendant, all of a sudden, came along with his henchmen, forcibly encroached and dispossessed the plaintiff from the suit land stating that his land comes up to road. The recitals of boundaries in defendant's sale deed are wrong and not binding on the plaintiff. The advise and resistance of the plaintiff and other neighboring persons gone in vain. The plaintiff has approached the survey authorities for measurement and sought for the Haddubast- Phodi of his land measuring 1.05 acres and same was surveyed in the month of May 2012 wherein it is revealed that the defendant has encroached and is in illegal possession of the suit land bearing Sy No. 23/B measuring 1.05 acres. The surveyor has prepared report with sketch showing encroachment of the defendant. Hence the defendant has illegally encroached the suit land and is in - 6 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 illegal possession thereof. Hence the defendant is liable to pay mesne profit. The defendant has filed objection to the Tahasildar Koppal by fabricating the ROR of his land bearing Sy.No.23/A as 2.10 acres and refused to vacate the suit land, as such Tahasildar passed the order on 09-08-2012 directing to parties to approach Civil Court. Thereafter, the plaintiff requested defendant to handover, the possession of the sult land, which is illegally encroached. 7. After service of summons, the defendant appeared through his counsel and filed the written statement and also counter claim. The plaint averments are denied as false. It is contended that the contents of Para No.1 is within the knowledge of the plaintiff except the fact that the plaintiff is the owner of the suit land. But the defendant is in possession of the suit land and it is well within the knowledge of the plaintiff. As a matter of fact the defendant is in possession suit land since the date of purchase of his land bearing Sy.No.23/A measuring 1.05 acres since 1996 till today and is in possession and - 7 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 cultivation of his land including extent of 45 guntas out of suit land and it is within the knowledge of the plaintiff. It is admitted that he is the owner of land bearing Sy.No.23/A measuring 1.05 acres of Budagumpa Village and he has purchased the same from Ningappa S/o Gyanappa. It is contended that since 1996 he is in actual possession and enjoyment of the extent of 45 guntas out of suit land along with his land bearing Sy. No.23/A. The plaintiff knowing all the facts, did not resist. As a matter of fact, the defendant is in possession of the suit land since 1996 and in spite of knowledge, the plaintiff kept mum. The defendant has cultivated the suit land and grown various crops and the plaintiff is residing in the Budagumpa Village and he knew all these facts. Now the plaintiff filed this false suit by giving false information. 8. Further the defendant filed the counter claim U/o 8 Rule 6-A of CPC and contended that since the date of purchase of land bearing Sy.No.23/A, he is in possession of his land and also the suit land is adjacent to each other. The - 8 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 plaintiff knew that, defendant is in possession and enjoyment of the suit land but he did not do anything to get the possession of the suit land, hence the defendant has perfected his title by adverse possession. The defendant is in possession of suit land along with his land since 15 years and the same is within the knowledge of the plaintiff. Hence the defendant is owner in possession of the suit land. The cause of action for filing the counter claim arose when the plaintiff has filed this suit. On all these grounds, sought for decreeing the counter claim and dismissal of suit with costs. 9. Based on the pleadings, the Trial Court framed seven issues. 10. To substantiate the case of the plaintiff, three witnesses were examined as PW-1 to PW-3 and 19 documents were marked as Ex.P-1 to Ex.P-19. On closure of the plaintiff’s side evidence, the defendant examined himself as DW-1, and two other witnesses were examined as DW-2 and DW-3, and 16 documents were marked as Ex.D-1 to Ex.D-16. - 9 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 11. After hearing the arguments of both sides, the Trial Court decreed the suit in favour of the plaintiff. Being aggrieved by the said judgment and decree of the Trial Court, the defendants preferred R.A.No.10/2017 before the Senior Civil Judge and CJM, Koppal, which came to be dismissed on 15.12.2022. 12. Being aggrieved by the judgment and decree, the appellant has preferred this appeal. 13. Learned counsel for the appellant submits that the judgment and decree passed by both the Courts are illegal, arbitrary, capricious, and not sustainable in the facts and circumstances of the case. It is further contended that the findings are contrary to the evidence and material on record and are not based on settled legal principles. 14. It is further urged that the Courts below have failed to consider that the defendant has been in possession of the suit land since 1996 and has been cultivating the same by growing various crops, which fact was within the knowledge of the plaintiff. In spite of such knowledge, the - 10 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 plaintiff did not take any steps and remained silent. Therefore, the possession of the suit land by the defendant has been continuous since 1996, without interruption by the plaintiff. Hence, the defendant has established his ownership over the suit land by way of adverse possession. On all these grounds, learned counsel for the appellant prays for admission of the appeal by framing substantial questions of law as set out in the appeal memorandum. 15. I have examined the materials placed before me. 16. In paragraphs 61 to 63, the First Appellate Court has observed as under: “61. Instant case the DW-1 in his cross-examination at page No.7 clearly admitted that, he has no malafide intention to grab the property stands in the name of plaintiff. It is worth to extract the portion of the cross- examination of DW-1 at page No.7 as under: “ªÁ¢AiÀÄ ºÉ¸Àj£À°ègÀĪÀAvÀºÀ d«ÄãÀ£ÀÄß ®¥ÀmÁ¬Ä¸À¨ÉÃPÉA§ AiÀiÁªÀÅzÉà zÀÄgÀÄzÉÝñÀ EgÀĪÀÅ¢®è JAzÀgÉ ¸Àj”. 62. In view of the above admission made in the cross examination of DW-1, clearly reveals that he has no adverse animus. To claim the adverse possession, the open hostile and continues possession with the required animus should be proved. But instant case the defendant has not stated in the pleading and evidence that when his possession becomes adverse to the interest of the plaintiff who is the true owner of the suit property. - 11 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 63. The DW-1 in his cross examination further states that he has purchased total 02.10 acres land. Further he states that no quarrel taken place in between plaintiff and him after purchase of his land and the plaintiff never enquired him to hand over the possession of suit property. This elicitation clearly shows that there is no adverse interest. As per section 58 of, Indian Evidence Act admitted facts need not be proved. The DW-1 clearly admitted above he has no malafide intention to grab the property of the plaintiff. Hence, the defendant has failed to establish the main ingredient of the adverse possession i.e. animus possidendi which is essential to prove the adverse possession. Hence, in view of the above discussion, this Court is of the view that the defendant has failed to establish the ingredients of adverse possession.” 17. Both the Courts have properly appreciated the evidence on record in accordance with law and facts. The defendants have failed to plead and prove the essential ingredients of adverse possession. Accordingly, the Trial Court decreed the suit in favour of the plaintiff, which was confirmed by the First Appellate Court. 18. I do not find any error or legal infirmity in the judgment and decree passed by both the Courts. No substantial question of law arises for consideration in this appeal. Hence, I proceed to pass the following: - 12 - HC-KAR NC: 2025:KHC-D:11491 RSA No. 100609 of 2023 ORDER The regular Second appeal is dismissed. Sd/- (G BASAVARAJA) JUDGE AC CT-CMU LIST NO.: 1 SL NO.: 34