- 1 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 05TH DAY OF AUGUST 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI REGULAR FIRST APPEAL NO. 100282 OF 2018 (POS-) BETWEEN: 1. SHRI. AMARSINH S/O. VASANTRAO PATIL AGE: 61 YEARS, OCC: LANDLORD, R/O. BEKKERI, TAL: RAIBAG-591317, DIST: BELAGAVI. …APPELLANT (BY SRIYUTHS. SOURABH R. MIRJI for SHIVRAJ S. BALLOLI, ADVS) AND: 1. PRATAPRAO S/O. ALAGOUDA PATIL AGE: 66 YEARS, OCC: BUSINESS & AGRICULTURE, R/O. H.NO.117, BYAKUD, TAL: RAIBAG-591317, DIST: BELAGAVI. 2. SMT. LAJUBAI W/O. PRATAPRAO PATIL AGE: 62 YEARS, OCC: BUSINESS & AGRICULTURE, R/O. H.NO.117, BYAKUD, TAL: RAIBAG-591317, DIST: BELAGAVI. 3. MANGAL W/O. PRATAPRAO PATIL AGE: 50 YEARS, OCC: BUSINESS & AGRICULTURE, R/O. H.NO.117, BYAKUD, TAL: RAIBAG-591317, MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.09.09 12:08:25 +0530 - 2 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 DIST: BELAGAVI. 4. SHIVARAJ S/O. PRATAPRAO PATIL AGE: 28 YEARS, OCC: BUSINESS & AGRICULTURE, R/O. BYAKUD, TAL: RAIBAG-591317, DIST: BELAGAVI. 5. GRAM PANCHAYAT, BYAKUD REPRESENTED BY ITS SECRETARY, TAL & DIST: BELAGAVI-590001. 6. SHRI. VIVEKRAO S/O. VASANTRAO PATIL AGE: 66 YEARS, OCC: BUSINESS & AGRICULTURE, R/O. STATION HILL RAIBAG, TAL: RAIBAG-590001, DIST: BELAGAVI. …RESPONDENTS (BY Smt. BHARATI G BHAT, ADV FOR C/R1, NOTICE TO R2 TO R6 ARE SERVED) THIS RFA IS FILED UNDER ORDER 41 RULE (1) READ WITH SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DTD:25.04.2018 PASSED IN O.S.NO.133/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, RAIBAG, DISMISSING THE SUIT FILED FOR POSSESSION AND MESNE PROFIT. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant challenging the judgment and decree dated 25.04.2018 passed in O.S. No.133/2011 by the learned Senior Civil Judge and JMFC, Raibag. 2. For convenience, the parties are referred to based on their ranking before the trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to filing of this appeal are as follows: The plaintiff filed a suit against the defendants for possession and mesne profit. It is the case of the plaintiff that one Payappa was the propositus of the plaintiff. He had two sons by name Sankappa and Annappa. There was a partition between them. Sankappa had a daughter by name Sattevva and one son by name Sidagouda. Sattevva got married and is residing in her husband’s house. Sidagouda was the absolute owner of the suit schedule property. He - 4 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 died in 1942 leaving behind Vitabai, Vasantrao i.e., the paintiff, and Prataprao. Prataprao was a freedom fighter and he died unmarried. Vasantrao Patil the plaintiff succeeded to the properties through his adopted father Lakhagouda. The plaintiff had constructed a house. The defendants have no right, title or interest over the suit schedule property. During 2007, Vasantrao Patil i.e., the plaintiff was admitted in KHI hospital at Ghataprabha and then shifted to Bengaluru. During that time, defendant No.1 taking undue advantage, illegally trespassed into the suit schedule property. The plaintiff requested the defendants to handover the vacant possession but the defendants refused. Hence, a cause of action arose for the plaintiff to file a suit for possession. 4. Defendant No.4 filed a written statement. The other defendants have adopted the written statement filed by defendant No.4. Defendant No.4 denied the averments made in the plaint. It is also denied that the plaintiff is the absolute owner of the suit schedule property. It is contended that the suit schedule property is the property of defendant - 5 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 No.1 and the name of defendant No.4 was entered in the records in 2006. Defendant No.1 and their family members are in possession and enjoyment of the suit property. It is stated that the adopted father of defendant No.1 was the owner of the suit schedule property. Defendant No.1 has gone in adoption in 1961 to the family of Alagouda Annappa Patil of Byakud village. The suit property is the property of Alagouda. The property was mutated in the name of defendant No.1. He transferred the same to the name of defendant No.4. Hence, the plaintiff has no right, title or interest over the suit schedule property. It is contended that the suit for mere possession is not maintainable without seeking a relief of declaration of title. Hence, prays to dismiss the suit. 5. The trial Court based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiff proves that, the defendants are unauthorized occupants in the suit schedule properties? - 6 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 2. Whether the plaintiff is entitled to recovery the possession of the suit schedule properties? 3. Whether the plaintiff is entitled to future miss profit at the rate of Rs.5,000/- p.m.? 4. What order or decree? 6. The plaintiff to substantiate his case, examined himself as PW.1 and marked 25 documents as Ex.P-1 to P- 25. In rebuttal, defendant No.1 was examined as DW.1 and marked 32 documents as Exs.D1 to D32. 7. The trial Court, after recording the evidence, hearing both sides and assessing the verbal and documentary evidence, held that the plaintiff has failed to prove that the defendants are unauthorized occupants in the suit schedule property and the plaintiff is not entitled to recover the possession of the suit schedule property and consequently dismissed the suit of the plaintiff vide judgment dated 25.04.2018. 8. The plaintiff, aggrieved by the judgment and decree passed in O.S. No.133/2011, filed this regular first appeal. - 7 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 9. Heard the arguments of the learned counsel for the plaintiff and the learned counsel for the defendants. 10. Learned counsel for the plaintiff submits that the plaintiff is the absolute owner of the suit schedule property. During 2007, the plaintiff got admitted in the hospital. During that time, the defendants trespassed into the property of the plaintiff. He submits that the plaintiff requested the defendants to hand over the vacant suit schedule property. However, the defendants did not heed to the request of the plaintiff. To prove that the plaintiff is the owner of the suit schedule property, has produced documents Ex.P1 to P25. In the cross-examination, the defendants have suggested that the plaintiff is not the absolute owner of the suit schedule property and it is suggested that the suit schedule property was not owned and possessed by Vasantrao Patil and defendant No.1 is the absolute owner of the suit schedule property and he has transferred the said property in favour of defendant No.4. The said suggestion was denied by PW.1. Hence, on these grounds, he prays to allow the appeal. - 8 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 11. Per contra the learned counsel for the defendants supports the impugned judgment passed by the trail court and submits that the suit for possession without declaration is not maintainable. Learned counsel for the defendants submits that the defendants have denied the title of the plaintiff over the suit schedule property, therefore, the suit of the plaintiff for mere possession without seeking a relief of declaration of title is not maintainable. She submits that the property stands in the name of defendant No.4. She submits that the plaintiff did not challenge the Panchayat records standing in the name of defendant No.4. Hence, the trial Court was justified in dismissing the suit of the plaintiff. Hence, on these grounds, she prays to dismiss the appeal. 12. Perused the records and considered the submission of the learned counsel for the parties. 13. The points that arises for consideration are: (i) Whether the plaintiff proves that the defendants have trespassed into the suit schedule property in 2007? - 9 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 (ii) Whether the plaintiff proves that the judgment and decree passed by the trial Court is perverse and arbitrary? (iii) What order or decree? 14. Point No.(i): It is the case of the plaintiff that the plaintiff is the absolute owner of the suit schedule property. During 2007, he was unwell and admitted in KHI hospital and later on, was shifted to Bangalore. During the said period, the defendants trespassed into the suit schedule property. The defendants have no right to continue in possession of the suit schedule property. It is contended that the plaintiff is the absolute owner of the suit schedule property. To substantiate the case of the plaintiff, the plaintiff has produced the documents marked as Exs.P-1 to P-25. From the perusal of the documents produced by the plaintiff, they do not disclose that the plaintiff is the absolute owner of the suit schedule property. The defendants have denied the ownership of the plaintiff over the suit schedule property. Admittedly, the suit schedule property was standing in the name of defendant No.1. Subsequently, it - 10 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 was transferred to the name of defendant No.4. The plaintiff did not challenge entry made the panchayat register standing in the name of defendant No.4. Further, the plaintiff has not pleaded in the plaint that how the plaintiff became the owner of the absolute owner of the suit schedule property. The defendants have denied the title of the plaintiff over the suit schedule property. The plaintiff instead of filing a suit for declaration and possession, has filed a suit for possession, which is not maintainable. In view of the proposition laid down by the Hon’ble Apex Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) By LRs. And others reported in (2008) 4 SCC 594, wherein at paragraph 21 it has held as follows: “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under: (a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is - 11 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.” 15. Admittedly, in the instant case, the defendants have denied the title of the plaintiff over the suit schedule property and further the plaintiff has not pleaded how the plaintiff had acquired the title over the suit schedule property and the plaintiff has not produced any single piece of paper to show that his name is appearing in the revenue records. Further, the plaintiff has contended that during 2007, the defendants have trespassed into the suit schedule property. Except the oral evidence of the plaintiff, the plaintiff has not produced any records to establish that the defendants have trespassed into the suit schedule property. If that was so, the plaintiff ought to have lodged a complaint against the defendants. Admittedly, the plaintiff has not lodged any complaint against the defendants regarding trespassing into the suit schedule property by the defendants. Further except the oral evidence of PW.1, the plaintiff has not produced any records to establish that the defendants have - 12 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 unauthorisedly occupied the suit schedule property during 2007. Thus, the trial court was justified in recording its findings that the plaintiff has failed to prove that the defendants are unauthorized occupants in the suit schedule property. Hence, I do not find any error in the finding recorded by the trial Court on issue No.1. I concur with the findings recorded by the trial Court on Issue No.1. 16. In view of the above discussion, I answer Point No.(i) in the negative. 17. Point No.(ii): the trial Court has considered the entire evidence on record and also none of the documents produced by the plaintiff, reveal that the suit property is the property of Vasantrao Patil the plaintiff and also that there was overwriting on Ex.P-25. The trial Court relying on Exs.P- 16 to 25 has recorded a finding that the property was mutated in the names of the defendants and the rest of the documents do not show the plaintiff’s ownership over the suit schedule property and has rightly dismissed the suit. I do not find any error in the impugned judgment. - 13 - HC-KAR NC: 2025:KHC-D:9802 RFA No. 100282 of 2018 Accordingly, I concur with the findings recorded by the trial Court in the impugned judgment. 18. In view of the above discussion, I answer point No.(ii) in the negative. 19. Point No.(iii): As per the final order. ORDER The appeal is dismissed. The judgment and decree dated 25.04.2018 passed in O.S. No.133/2011 by the learned Senior Civil Judge and JMFC, Raibag, is hereby confirmed. No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE kmv CT: BSB