- 1 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5957 OF 2012 (DEC/INJ) BETWEEN: ABDULSAB REHEMANRAB KAJJURI AGE: 36 YEARS, OCC: AGRICULTURE, MULGUND, TQ: DIST: GADAG-582117. …APPELLANT (BY SRI. S.S.YADRAMI, SENIOR COUNSEL FOR SRI. GIRISH BHAT, ADVOCATE) AND: 1. BASAVANEPPA IRAPPA TADASAD AGE: 36 YEARS, OCC: AGRICULTURE, R/O. MULGUND, TQ: DIST: GADAG-582117. 2. SHANKARAPRABHAPPA IRAPPA TADASAD AGE: 61 YEARS, OCC: AGRICULTURE, R/O. MULGUND, TQ: DIST: GADAG-582117. 3. DANAPPA IRAPPA TADASAD AGE: 53 YEARS, OCC: AGRICULTURE, R/O. MULGUND, TQ: DIST: GADAG-582117. …RESPONDENTS (BY SRI. G.N.NARASAMMANAVAR, ADVOCATE) THIS RSA IS FILED U/S.100 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 19.07.2012 PASSED IN RA NO.43/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT AT GADAG, DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT DATED 24.03.2009 AND THE DECREE PASSED IN O.S. NO.119/2006, ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & CJM, GADAG, DISMISSING THE SUIT FILED FOR DECLARATION & INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 ORAL JUDGMENT This Regular Second Appeal is filed by the plaintiff, challenging the judgment and decree dated 19.07.2012 passed in RA No.43/2009 on the file of Fast Track Court, Gadag (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 24.03.2009 passed in OS No.119/2006 on the file of Civil Judge (Sr.Dn.) and CJM, Gadag (for short, hereinafter referred to as ‘Trial Court’), dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. It is the case of the plaintiff that, the plaintiff is the owner of land bearing Sy.No.21/3 measuring 4 acres 17 guntas of Shitalhari village, Gadag taluk having purchased the same as per registered sale deed dated 16.06.2006. It is further averred in the plaint that, the defendant Nos.1 to 3 are the owners of land bearing - 3 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 Sy.No.21/1+2 situate towards western side of the suit schedule property of the plaintiff. 3.1. It is the grievance of the plaintiff that, the defendants have encroached the portion of the land in question and as such, the plaintiff has filed OS No.119/2006, seeking relief of declaration with consequential relief of injunction in respect of the suit schedule property. 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendants that, dispute with regard to the property is only to an extent of 23 guntas out of 4 acres 17 guntas of the plaintiff. It is also stated that, the defendants were cultivating the extent of 23 guntas of land belonging to the plaintiff, and therefore, the defendants perfected their title by adverse possession. Hence, the defendants sought for dismissal of the suit. - 4 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. 6. In order to establish their case, plaintiff has examined three witnesses as PW1 to PW3 and got marked 05 documents as Exs.P1 to P5. On the other hand, defendants have examined six witnesses DW1 to DW6 and produced 10 documents as Exs.D1 to D10. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 24.03.2009 dismissed the suit of the plaintiff and allowed the counter claim made by the defendants. Being aggrieved by the same, the plaintiff preferred Regular Appeal in RA No.43/2009 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 19.07.2012 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No.119/2006. Being aggrieved by the same, the appellant/plaintiff has preferred this Regular Second Appeal. - 5 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 8. This Court vide order dated 08.01.2015 formulated the following substantial question of law. “1) Whether the trial Court was justified in accepting the counter claim of defendants regarding adverse possession based on Ex.D.1-survey sketch prepared in the year 2006? 2) Whether the trial Court was justified in rejecting the prayer for declaration which is supported by registered sale deed – Ex.P.1? 3) Whether the concurrent findings of both the Courts below in accepting adverse possession of defendant Nos.1 to 3 to an extent of 23 guntas in suit land is supported by oral or documentary evidence and need to be confirmed in this proceedings?” 9. I have heard Sri. S. S. Yadrami, learned Senior counsel appearing on behalf of Sri. Girish Bhat, learned counsel for the appellant and Sri. G. N. Narasammanavar, learned counsel appearing for the respondents. 10. Sri. S. S. Yadrami, learned Senior counsel appearing for the appellant submits that, both the Courts below have committed an error in ignoring the sale deed dated 16.06.2006 (Ex.P1) and further contended that, the - 6 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 reasons assigned by both the Courts below cannot be accepted on the sole ground that, the vendor of the plaintiff – PW2 has surveyed the land before selling the suit schedule property in favour of the plaintiff and thereafter, the plaintiff found that the defendants have encroached the land in question to an extent of 23 guntas and therefore, the relief of adverse possession granted by both the Courts below requires to be interfered with as the same is contrary to settled principle of law for granting relief of adverse possession. 11. Per Contra, Sri. G. N. Narasammanavar, learned counsel appearing for the respondents submits that, as both the Courts below on concurrent facts held that, the defendants have perfected their title by adverse possession and same cannot be disturbed under Section 100 of CPC, hence, sought for dismissal of the appeal. 12. In the light 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. - 7 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 13. It is the case of the plaintiff that, the plaintiff had purchased the land bearing Sy.No.21/3 measuring 4 acres 17 guntas of Shitalhari village, Gadag taluk as per registered sale deed dated 16.06.2006 (Ex.P1). The title of the plaintiff is not questioned by the defendants, however, defendants have taken up a plea in the counter claim that, the defendants have perfected their title by adverse possession to an extent of 23 guntas of land bearing Sy.No.21/3. In the backdrop of these aspects, the evidence of PW2, who is the vendor of the plaintiff has deposed that, before selling the suit schedule property in favour of the plaintiff, survey has been made and thereafter, entire extent of 4 acres 17 guntas of land was handed over to the plaintiff. The said aspect would makes it clear that, the defendants were not in possession of 23 guntas in the suit schedule property as contended in the counter claim and the said aspect of the matter was not properly appreciated by both the Courts below. 14. In order to claim relief of adverse possession by perfecting title, it is the duty of the defendant to prove - 8 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 that, he was claiming right against the true owner and he must be in possession of property for more than 12 years. 15. Applying the principle laid down by the Hon'ble Supreme Court in the case Ravinder Kaur Grewal vs Manjit Kaur1, I am of the view that, the defendants have failed to establish that, they have perfected their title by adverse possession since, the PW2 – vendor of the plaintiff has deposed that, before handing over the possession of the suit schedule property in favour of the plaintiff, the land in question was survey and said aspect of the matter was misconstrued by both the Courts below and therefore, I find force in the submission made by the learned Senior counsel appearing for the appellant. 16. 16. Though the learned counsel appearing for the respondent strenuously contended that, concurrent finding of fact cannot be interfered under Section 100 of CPC, however, the said submission cannot be accepted on the sole ground, if both the Courts below have ignored the material evidence and have arrived at a wrong impression 1 (2019) 8 SCC 729 - 9 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 drawn from the wrong inferences and therefore, this Court while exercising jurisdiction under Section 100 of CPC, is empowered to interfere with the finding recorded by both the Courts below, if the same is suffered from perversity. In that view of the matter, the substantial question of law framed above favours the plaintiff/appellant and accordingly, I pass the following: ORDER i) Appeal is allowed. ii) Judgment and decree dated 19.07.2012 in RA No.43/2009 on the file Fast Track Court, Gadag, is hereby set aside. ii. Judgment and decree dated 24.03.2009 in OS No.119/2006 on the file of Civil Judge (Sr.Dn.) and CJM, Gadag, is hereby set aside. - 10 - NC: 2025:KHC-D:5767 RSA No. 5957 of 2012 iii. Suit in OS No. 119/2006 is decreed accordingly. Sd/- (E.S.INDIRESH) JUDGE SMM CT-MCK List No.: 1 Sl No.: 24