- 1 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 842 OF 2015 (DEC) BETWEEN: 1. SRI A. NARAYAN ALVA S/O LATE KUNHANNA ALVA, DEAD BY LEGAL REPRESENTATIVES 1(A) SMT. KOUSALYA A ALVA W/O LATE A NARAYANA ALVA AGED ABOUT 74 YEARS 1(B) MRS. AARATHI A SHETTY W/O SRI. AJITHKUMAR SHETTY AGED ABOUT 48 YEARS D/O LATE ANRAYANA ALVA 1(C) ADARSH ALVA S/O LATE A NARAYANA ALVA AGED ABOUT 41 YEARS 1(D) ASHWIN ALVA S/O LATE A NARAYANA ALVA AGED ABOUT 38 YEARS ALL ARE R/AT KENCHANAKERE POST AND VILLAGE MULKY, MANGALORE TALUK 2. K C LOKAYYA, S/O CHINNAPPA GOWDA, AGED ABOUT 58 YEARS, Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 R/AT KOLLAMOGARU VILALGE, AND POST, SULLIA TALUK, D.K DISTRICT …APPELLANTS (BY SRI. SANATHKUMAR SHETTY K., ADVOCATE) AND: 1. SMT K.P SUSHEELA W/O LATE PADMAYYA GOWDA, AGED ABOUT 75 YEARS, R/AT KOLLAMOGARU VILLAGE, SULLIA TALUK, D.K. 2. SMT. SAVITHRI, W/O BALAKRISHNA GOWDA, AGED ABOUT 56 YEARS, R/AT QUARTERS NO.25, KUMARAKRIPA ANNEX, HIGH GROUNDS, BENGALURU-560 001. 3. SRI K P GIRIDHARA, AGED ABOUT 54 YEARS, S/O LATE PADMAYYA GOWDA, R/AT KOLLAMOGARU VILLAAGE, SULLIA TALUK, D.K. 4. SMT. RATHNAVATHI, W/O DHANUJAYYA MUNDODI, AGED ABOUT 52 YEARS, MUNDODI HOUSE, NALKOOR VILLAGE, NADUGALLU POST, SULLIA TALUK, D.K. 5. SMT. GEETHA KUMARI W/O RAVINDRA KUMAR, AGED ABOUT 50 YEARS, DOOR NO.129, - 3 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 RAMAKRISHNANAGAR, I BLOCK, NEAR GANESH TEMPLE, MYSURU-570 002. 6. SMT. HEMALATHA, W/O JINNAPPA GOWDA, AGED ABOUT 48 YEARS, PELNTHIJA HOUSE, KULA VILLAGE, ALIKEMAJALU P.O, BANTWAL TALUK, D.K. 7. SRI MOHANDAS K P S/O LATE PADMAYYA GOWDA, AGED ABOUT 26 YEARS, R/AT KOLLAMOGARU VILLAGE, SULLIA TALUK, D.K. 8. SMT. SHASHIKALA, W/O ELIANNA GOWDA, AGED 44 YEARS, KULLAPPADY HOUSE, IVARNADU VILLAGE AND POST, SULLIA TALUK. …RESPONDENTS [BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE FOR R1 TO R8 (NOC)] THIS RSA IS FILED UNDER SEC.100 R/W ORDER XLII RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 7.3.2015 PASSED IN R.A.NO.5002/2014 ON THE FILE OF THE V ADDL. DISTRICT & SESSIONS JUDGE, D.K, MANGALORE, SITTING AT PUTUUR, D.K, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.8.2014 PASSED IN O.S.NO.52/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE & JMFC., PUTTUR, D.K. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 4 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT 1. This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 07.03.2016 passed in RA No.5002/2014 by the learned V Addl. District and Sessions Judge, D.K. Mangalore, Sitting at Puttur, D.K. (‘First Appellate Court’ for short), and the judgment and decree dated 28.08.2014 passed in OS No.52/2007 by the learned Addl. Senior Civil Judge and JMFC, Puttur, Itinerate at Sullia, D.K. (‘Trial Court’ for short). 2. For convenience, the parties are referred to based on their rankings before the Trial Court. The appellants were the defendants, and the respondents were the plaintiffs. 3. Brief facts leading rise to the filing of this appeal are as follows: - 5 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 4. Plaintiffs filed a suit against the defendants for a declaration and possession. It is the case of the plaintiffs that suit ‘A’ schedule property was owned and possessed by Smt. Kaveramma and she had a daughter by name Smt. Devamma. Devamma had two sons namely Sri. K.S.Chandrashekara and Sri. Padmayya Gowda. Plaintiff No.1 is the wife of Padmayya Gowda and plaintiff Nos.2 to 8 are the children of plaintiff No.1 and Padmayya Gowda. Padmayya Gowda died in 1973, leaving behind the plaintiffs. It is contended that the suit schedule property was divided between Chandrashekara and the plaintiffs under a registered partition deed dated 21.11.1983 in which, the suit ‘A’ schedule property fell to the share of the plaintiffs along with other properties mentioned as ‘B’ schedule in the partition deed. It is contended that the plaintiffs became the absolute owners in possession of the suit ‘A’ schedule property based on the registered partition deed. - 6 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 Defendant No.1 has no right, title or interest over the suit schedule property. Defendant No.1, to grab the suit ‘A’ schedule property, filed Form No. 7 before the Land Tribunal. The Land Tribunal, after holding an enquiry, granted occupancy rights regarding the said property in the name of defendant No.1 on 19.06.1976. The said order was challenged by the plaintiffs in a writ petition before this Court. This Court allowed the writ petition, and set aside the order passed by the Land Tribunal, and remitted the matter to the Land Tribunal for a fresh enquiry. The Land Tribunal, after remand, rejected Form No.7 vide order dated 24.03.1994. Defendant No.1, aggrieved by the order passed by the Land Tribunal, preferred a writ petition in WP No.9733/1994 before this Court. The said writ petition came to be dismissed vide order dated 22.03.2000. Against the said order, defendant No.1 preferred a writ appeal in WA No.3785/2000 before the Division Bench of this - 7 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 Court. The writ appeal came to be dismissed vide order dated 31.10.2001. The claim of defendant No.1 regarding occupancy right has been finally rejected and same has attained finality. Defendant No.2 is acting as a GPA holder of defendant No.1. He participated in all the proceedings before the Land Tribunal, and before this Court. Defendant No.2 illegally took the possession of ‘A’ schedule property. The plaintiffs filed an application under Section 41(2) of the Karnataka Land Reforms Act, seeking for restoration of possession. The Tahsildar issued a notice to the defendants, and conducted an enquiry, and allowed the petition vide order dated 21.11.2000. Defendant No.1, aggrieved by the order passed by the Tahsildar, preferred a writ petition in WP No.43449/2002 before this Court. The said writ petition was allowed, and the order passed by the Tahsildar was set aside, and a liberty was reserved to the plaintiffs to recover the possession by due - 8 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 process of law. After the disposal of the said writ petition, the plaintiffs issued a legal notice calling upon the defendants to hand over the vacant possession of the suit schedule property vide legal notice dated 03.02.2007. The defendants gave untenable reply, and refused to hand over the vacant possession. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and possession. Accordingly, prays to decree the suit. 5. Defendant No.1 filed a written statement denying the averments made in the plaint, and it is contended that defendant No.1 is in possession of the suit schedule property for more than statutory period, and acquired the title over the said property by way of adverse possession. He also contended that, defendant No.1 constructed a house in the suit schedule property and improved it. He also contended that, the suit is bad for non-joinder of - 9 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 necessary parties. Hence, on these grounds, he prayed to dismiss the suit. 6. The plaintiff filed his rejoinder admitting the existence of house on suit property. It is contended that, the house was built during the pendency of the suit. Accordingly, prays to decree the suit. 7. The Trial Court, based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiffs prove that they are the absolute owners of plaint A schedule properties? 2. Whether the 1st defendant proves that he acquired title to plaint ‘A’ schedule properties by adverse possession? 3. What is the correct income of the plaint schedule properties? 4. Whether the defendants prove that the valuation of the suit is not correct? 5. Whether the defendants prove that this Court has no jurisdiction to try the above suit? 6. What Decree? What Orders as to costs? - 10 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 8. The plaintiff, to substantiate their case, plaintiff No.3 was examined as PW-1, and marked 13 documents as Exs.P1 to P13. In rebuttal, defendant No.2 was examined as DW-1, and marked 24 documents as Exs.D1 to D24. 9. The Trial Court, after recording the evidence, hearing both sides, and assessing the verbal and documentary evidence, answered issue No.1 in the affirmative, issue Nos.2, 4 and 5 in the negative; on issue No.3, held that there shall be a separate enquiry (mesne profits) and issue No.6 as per the final order, and finally, decreed the suit in-part vide judgment dated 28.08.2014declaring that the plaintiffs are the absolute owners of the suit ‘A’ schedule property and directed the defendants to vacate and hand over the possession of the suit ‘A’ schedule property within 3 months from the date of passing the judgment. - 11 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 10. The defendants, aggrieved by the judgment and decree passed in the suit, preferred an appeal in RA No.5002/2014 before the First Appellate Court. 11. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1. Whether the appellants prove that judgment and decree passed by the Trial Court is perverse, arbitrary and unsustainable in law or on facts? 2. Whether appellants made out that interference of this Court in the judgment and decree of the lower Court is required to reverse or set aside the same? 3. What Order? 12. The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 and 2 in the negative and point No.3 as per the final order. The appeal was dismissed vide judgment dated 07.03.2015 and the judgment and decree passed by the Trial Court was confirmed. - 12 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 13. The defendants, aggrieved by the impugned judgments, filed this Regular Second Appeal. 14. Heard the arguments of learned counsel for the defendants, and learned counsel for the plaintiffs. 15. Learned counsel for the defendants submits that, the plaintiffs filed a suit for declaration of title based on the will alleged to have been executed by Kaveramma in favour of Chandrashekara and Padmayya Gowda, and also claiming, based on the registered partition deed Ex.P9. He submits that, defendant No.1 is in possession of the suit schedule property for more than the statutory period, and has acquired the title by way of adverse possession. Thus, the said aspect has not been adequately considered by the Courts below. He also submits that, the Courts below have passed the impugned judgments on the weakness of the defendant. To buttress his argument, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of - 13 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 Union of India and others vs. Vasavi Co- operative Housing Society Ltd. and others reported in 2014 (2) SCC 269. He further submits that, in alternative, defendant No.1 claims to have been acquired the title by way of adverse possession. Hence, on these grounds, he prays to allow the appeal. 16. Per contra, learned counsel for the plaintiffs submits that, it is an undisputed fact that the suit schedule property was owned and possessed by Kaveramma. She has bequeathed the suit schedule property in favour of her grandchildren i.e., Chandrashekara and Padmayya Gowda as per Ex.P12. Based on Ex.P12, Chandrashekara and Padmayya Gowda became the joint owners of the suit schedule property and subsequently, a partition was effected between Chandrashekara and the plaintiffs under a registered partition deed marked as Ex.P9. He submits that, thereafter, defendant No.1 filed Form No.7 claiming - 14 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 occupancy rights. The Land Tribunal initially granted occupancy rights in favour of defendant No.1. The plaintiffs, challenging the grant of occupancy right, filed a writ petition. The said writ petition came to be allowed, and the order of the Land Tribunal was set aside, and remitted the matter to the Land Tribunal for a fresh enquiry. He submits that, the Land Tribunal, after remand, rejected Form No.7, and defendant No.1 filed a writ petition. The said writ petition was dismissed, and the writ appeal, challenging the said order was also dismissed. He submits that, defendant No.1 has no right to continue in possession of the suit ‘A’ schedule property. He also submits that, defendant No.1 claimed that he had acquired a title by way of adverse possession. He submits that, the defendants have not admitted the title of the plaintiffs, and therefore, they cannot claim adverse possession, without admitting the title of the plaintiffs. He also - 15 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 submits that, even in the absence of Ex.P12 and Ex.P9, by way of succession, they have succeeded to the properties of the deceased Kaveramma. Both the Courts below were justified in passing the impugned judgments. Hence, on these grounds, he prays to dismiss the appeal. 17. This Court, vide order dated 23.06.2016, admitted the appeal to consider the following substantial questions of law: i) Were the Courts below justified in decreeing the suit of the plaintiffs for declaration only on the basis of Ex.P.12 Copy of the Will and subsequent document Ex P.9 partition deed when the will is not proved in accordance with the provisions of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872? ii) Were the Courts below justified in granting declaration in the absence of any independent oral and documentary evidence produced by the plaintiffs to prove their title? - 16 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 iii) Were the Courts below justified in decreeing the suit for declaration in the facts and circumstances of the present case? 18. Perused the records and considered the submissions of the learned counsel for the parties. Reg.Substantial questions of law No.(i) and (ii): 19. Since, the substantial questions of law No.(i) and (ii) are interlinked with each other, they are taken together for a common discussion to avoid repetition of facts. 20. The plaintiffs filed a suit for declaration to declare that they are the absolute owners of the suit ‘A’ schedule property and for relief of possession. It is the case of the plaintiffs that the suit schedule property was owned and possessed by Kaveramma. Kaveramma had a daughter by name Devamma, who predeceased Kaveramma. After the demise of Devamma, Devamma had two sons namely - 17 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 K.S. Chandrashekara and Padmayya Gowda. Kaveramma out of love and affection bequeathed the suit schedule property in favour of K.S. Chandrashekara and Padmayya Gowda, under a registered will dated 15.12.1964. After the demise of Kaveramma, the property was transferred in the name of Chandrashekara and Padmayya Gowda. They became the absolute owners of the suit schedule property based on a registered will. Thereafter, Padmayya Gowda died leaving behind the plaintiffs. Subsequently, a partition was effected between K.S. Chandrashekara and the plaintiffs under the registered partition deed dated 21.11.1983. 21. Defendant No.1 submitted an application in Form No.7 before the Land Tribunal for the grant of occupancy rights. The Land Tribunal after due enquiry, allowed the application, and granted an occupancy rights in favour of defendant No.1. The - 18 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 plaintiffs, aggrieved by the order passed by the land Tribunal, preferred a writ petition. The writ petition was allowed, and occupancy rights were granted. 22. The said order was challenged before this Court and this Court set aside the order passed by the Land Tribunal, and remitted the matter to the Land Tribunal for a fresh enquiry. The Land Tribunal after remand, and after holding a due inquiry, rejected the application filed by defendant No.1 vide order dated 24.03.1994. Defendant No.1, aggrieved by the order of Land Tribunal preferred a writ petition in WP No. 9733 of 1994. This Court dismissed the writ petition vide order dated 22.3.2000. 23. Defendant No.1, aggrieved by the order passed by the writ court preferred a writ appeal in a W.A.No.3785 of 2000 before the division bench. The division bench dismissed the writ appeal vide order dated 31.10.2001. After the disposal of the writ appeal, the plaintiffs filed an application under - 19 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 Section 41(2) of Karnataka Land Reforms Act, seeking for possession. The Tahsildar passed the order dated 21.11.2000 directing defendant No.1 to vacate, and to hand over the possession of the suit schedule property to the plaintiffs. 24. Defendant No.1 aggrieved by the order passed by the Tahsildar under Section 41(2) of the Karnataka Land Reforms Act, preferred a writ petition before this Court. This Court in W.P.No.43449 of 2002, set aside the order passed by the Tribunal, and directed the plaintiffs to seek appropriate remedy before the appropriate forum. After the disposal of the said writ petition, the plaintiffs issued a legal notice on 03.02.2007 calling upon the defendants to vacate and hand over the suit schedule property. The defendants refused to vacate the suit schedule property. Hence, this suit was filed. 25. The plaintiffs, to substantiate their case, plaintiff No.3 was examined as PW.1. He reiterated the plaint - 20 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 averments in the examination-in-chief and to prove their case, the plaintiffs marked the documents- Ex.P1 is the RTC extract, standing in the name of the plaintiffs, which discloses that the name of the plaintiffs were entered based on the registered will executed by Kaveramma and partition effected between K.S. Chandrashekara and the plaintiffs. Ex.P2 is a certified copy of the order passed by the land Tribunal, wherein defendant No.1 submitted an application in Form No. 7 seeking a grant of occupancy rights. Initially, the said application was allowed by the Land Tribunal. The plaintiffs, aggrieved by the order passed by the Land Tribunal, preferred a writ petition before this court. The said writ petition was allowed and remitted the matter to the Land Tribunal for a fresh consideration. The Land Tribunal, after due inquiry, was pleased to reject the application filed by defendant No.1 as per Ex.P2. - 21 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 26. Defendant No.1, aggrieved by the order passed by the Land Tribunal rejecting the application, preferred a writ petition before this court in WP No.9733 of 1994. The said writ petition came to be dismissed vide order dated 22.03.2000. Defendant No.1, aggrieved by the order passed by the writ court in the aforesaid writ petition preferred a writ appeal in a W.A.No.3785 of 2000. The Division Bench vide order dated 31.10.2001, dismissed the writ appeal i.e., the order passed in the writ petition is marked as Ex.P3 and the order passed in the writ appeal is marked as Ex. P4. Ex.P5 is the order passed by the Tahsildar, which discloses that the plaintiffs have filed an application under Section 41(2) of the Karnataka Land Reforms Act, seeking for possession, and the said application came to be allowed by the Tahsildar vide order dated 21.11.2002. 27. Defendant No.1 aggrieved by the order passed by the Tahsildar preferred a writ petition in WP No. 43449 of - 22 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 2002. This court, vide order dated 30.11.2006, allowed the writ petition vide Ex.P6, and set aside the order passed by the Tahsildar and it was made clear that the said order will not preclude the contesting respondents therein/plaintiffs from taking possession of the land in question in accordance with law. After the disposal of the said writ petition, the plaintiffs issued a legal notice dated 03.02.2007 as per Ex.P7, calling upon the defendants to vacate and hand over the possession of the suit schedule property. The said legal notice was served on the defendants. The defendants replied to the legal notice marked as Ex.P8 on 22.02.2007. Ex.P9 is a certified copy of the partition deed, which discloses that the partition was effected between K.S. Chandrashekara and the plaintiffs and in the said partition the suit schedule property fell to the share of the plaintiffs. 28. Based on the registered partition deed, the plaintiffs got entered their names in the revenue records. The - 23 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 name of the plaintiffs appear in the revenue records. Ex.P2 and Ex.P10 are the order of Land Tribunal, which are one and the same. Ex.P11 is Form No.7 alleged to have been submitted by Defendant No.1 before the Land Tribunal, Ex.P12 is a certified copy of the will, which discloses that Kaveramma bequeathed the suit schedule property in favour of K.S. Chandrashekara and Padmayya Gowda jointly bequeathing the suit schedule property. Ex.P13 is a notice issued in Writ Appeal No.3785 of 2000 filed by defendant No.1. 29. During the cross-examination, it was suggested to PW.1 that defendant No.1 is in possession of the suit schedule property for more than four decades, and defendant No.1 acquired the title by way of adverse possession. The said suggestion was denied by PW1. 30. In rebuttal, defendant No.2 was examined as DW1. DW.1 has not filed a written statement. DW1 has deposed that the defendants are in possession of the - 24 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 suit ‘A’ schedule property for more than statutory period claiming themselves as the owners of the suit ‘A’ schedule property without any interference and obstruction. It is stated that, thus, they have perfected their title by way of adverse possession and to substantiate their defence, the defendants have produced the documents: Ex.D1 to Ex.D12 are the tax paid receipts, Ex.D13 is the notice, issued on 28.05.1994 calling for objections from the interested persons. Ex.D14 is the notice issued by the Tahsildar dated 04.01.1994. Ex.D15 is the notice issued by the Deputy Tahsildar. Ex.D16 is a certificate issued by Grama Panchayath. Ex.D17 is the certificate issued by the Secretary of Kollamogru Grama Panchayat, Ex.D18 is a certificate issued by Secretary of Grama Panchayath, Harihara, Pallathadka. Ex.D19 is a certificate issued by the Assistant Executive Engineer regarding the electricity supply to show that the defendants are in possession of the suit schedule - 25 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 property, constructed a house in the suit schedule property and they are residing in the suit schedule property. Ex.D20 to D23 are the voters’ list, which indicate that the defendants reside in the building constructed in the suit schedule property. Ex.D24 is the schedule of the property. 31. During the cross-examination, DW1 admitted that Kaveramma was the absolute owner of the suit schedule property, and defendant No.1 submitted an application for registration of occupancy rights, the Land Tribunal allowed the application and subsequently, after remand it was rejected, and also about dismissal of the writ petition, and the writ appeal filed by defendant No.1. It is denied that the defendants have acquired the title by way of adverse possession over the schedule property. 32. Defendant No.1 filed a written statement, however, defendant No.1 did not enter the witness box. Defendant No.2 did not file a written statement, - 26 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 however, he was examined as DW.1. The trial court committed an error in recording the evidence of DW1, as he did not file a written statement. In the absence of written statement, any evidence led by defendant No.1 cannot be considered. 33. From the perusal of entire records, it is an undisputed fact that the suit schedule property was owned and possessed by Kaveramma. Kaveramma had a daughter by name Devamma. Devamma had two sons i.e., K.S. Chandrashekara and Padmayya Gowda. Devamma predeceased her mother Kaveramma. Kaveramma bequeathed the suit schedule property in favour of both the grandsons i.e., K.S. Chandrashekara and Padmayya Gowda by executing a registered will dated on 15.12.1964, as per Ex.P12. After the demise of Kaveramma, the propounders of the will i.e. K.S. Chandrashekara and Padmayya Gowda transferred the said property in their names based on the registered will executed by - 27 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 the testator Kaveramma. Subsequently, a partition was effected between K.S. Chandrashekara and the plaintiffs and in the said partition the suit ‘A’ schedule property fell to the share of plaintiffs, and the said partition was reduced into writing, and the same was registered which is marked as Ex.P9. 34. From the perusal of Ex.P9, it is clear that, the suit schedule property fell to the share of the plaintiffs. Based on the registered partition deed, the plaintiffs became the absolute owners of the suit schedule property. Defendant No.1 filed a written statement contending that defendant No.1 was in possession of the suit schedule property as a tenant, and submitted an application in Form No.7 for a registration of occupancy rights. The land Tribunal allowed the application and granted occupancy rights in favour of defendant No.1. The plaintiffs, aggrieved by the order passed by the land Tribunal, preferred a writ petition challenging the order of land Tribunal. This - 28 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 court allowed the writ petition, and set aside the order passed by the Land Tribunal, and remitted the matter to the Land Tribunal for fresh consideration. 35. After remand, the Land Tribunal on due enquiry rejected the application filed by defendant No.1. Defendant No.1, aggrieved by the order passed by the land Tribunal preferred a writ petition in WP No. 9733 of 1994. This court dismissed the writ petition on 22.03.2000 vide Ex.P3. 36. Defendant No.1, aggrieved by the order passed by the Writ Court in the aforesaid Writ petition, preferred a Writ Appeal in a W.A.No.3785 of 2000. The Division Bench dismissed the appeal on 31.10.2001 as per Ex.P4. After dismissal of the said Writ Appeal, the plaintiffs submitted an application under Section 41(2) of the Karnataka Land Reforms Act, before the Tahsildar for the restoration of possession. The Tahsildar passed an order as per Ex.P5, wherein the Tahsildar directed the defendants - 29 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 to hand over the vacant possession of the property to the plaintiffs. 37. Defendant No.1, aggrieved by the order passed by the Tahsildar, preferred a writ petition in WP No. 43449 of 2002. This court allowed the writ petition, and set aside the order passed by the Tahsildar and reserved a liberty to the plaintiffs to seek a possession in the appropriate proceedings in accordance with law. Pursuant to the disposal of the said writ petition, the plaintiff issued a legal notice on 03.02.2007 calling upon the defendants to deliver the possession of the suit schedule property. 38. The defendants replied to the legal notice. The defence of defendant No.1 is that defendant No.1 is in possession of the suit schedule property for more than 4 decades, and he has acquired the title by way of adverse possession. The entire defence of defendant No.1 is based on plea of adverse possession. The defendant has not pleaded in the - 30 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 written statement as to when defendant No.1 came in possession of the suit schedule property, nature of the possession and whether factum of possession was known to the plaintiffs? And further the defendant No.1 has not admitted the title of the plaintiffs over the suit schedule property. How long his possession continued? Whether his possession was open and undisturbed? It is only on the proof of all these ingredients the case of adverse possession is said to have been established. A person pleading adverse possession has no equity in his favour, since he is trying to defeat the rights of the true owners, it is for him to clearly plead and establish all ingredients/points necessary to establish his possession. 39. From the perusal of the written statement filed by defendant No.1, the defendant No.1 has not stated when defendant No.1 came in possession of the suit schedule property, the nature of his possession and - 31 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 whether the factum of possession was known to the plaintiffs. Further, this Court in the of case of R. Prakash vs. Smt. G.P. Marthamma reported in ILR 2000 Kar. 123 held that 'the adverse possession- Whether can be claimed by the defendant denying title of the plaintiff who is the true owner? Held without admitting the title of the plaintiff, the defendants raising question of adverse possession is not known to law. 40. This Court considering the judgment of the Co- ordinate Bench in the case of R. Prakash (referred supra) and also the judgment of the Co-ordinate Bench of this Court in the case of Basawanthrao since deceased by his LRs. Vs. Rajkumar reported in ILR 2009 KAR 1099 disposed of the Regular Second Appeal in Pakeera (Malera) Jinda Sab, since deceased through LRs. vs. Khaji Mohammad Hussain Sab and Others in RSA No. 855 of 2007 disposed of on 12.03.2024, and held - 32 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 that the defendants without admitting title of the plaintiffs, cannot plead for adverse possession. The judgment passed in RSA No. 855 of 2007 was upheld by the Hon'ble Apex Court in SLP(C) No. 017601 of 2024 disposed of on 13.08.2024. 41. Admittedly, defendant No.1 is claiming to be in possession of the suit schedule property as a tenant. The defence of the defendant was not accepted by the learned Tribunal, that the defendant is in possession of the suit schedule property as a tenant. Defendant No.1 has failed to establish the nature of his possession over the suit schedule property and further, defendant No.1 has not entered the witness box to rebut the evidence of PW1. Thus, both the courts below have concurrently recorded the finding of the facts that the plaintiffs are the owners of the suit schedule property, and they are entitled for a possession. - 33 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 42. The learned counsel for the defendants submits that, the plaintiffs have not acquired the title by Ex.P9 and Ex.P12. However, even assuming for the sake of arguments, but not admitting that the plaintiffs have failed to prove the execution of Ex.P12 i.e. the registered will executed by Kaveramma in favour of K.S. Chandrashekara and Padmayya Gowda. However, K.S. Chandrashekara and Padmayya Gowda succeeds to the suit schedule property by virtue of Section 15 of the Hindu Succession Act. Kaveramma being the grandmother, even assuming that she died intestate, the property would devolve upon the class-1 heirs. K.S. Chandrashekara and Padmayya Gowda, being the class-1 heirs, they have succeeded to the suit schedule properly. Both the courts below have rightly passed the impugned judgments. 43. Even in the absence of a will Ex.P12, the plaintiffs will succeed to the property of Kaveramma. Admittedly, - 34 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 the plaintiffs have not examined the attesting witnesses to Ex.P12. However, in view of the above discussion, even in the absence of Ex.P12, ultimately K.S. Chandrashekara and Padmayya Gowda succeeds to the property of Kaveramma. After the death of Kaveramma, K.S. Chandrashekara and the plaintiffs got divided the suit schedule property as per Ex.P9. In the said partition, the suit schedule property fell to the share of the plaintiffs, and the plaintiffs are the absolute owners of the suit schedule property. 44. In view of the above discussion, I answer substantial question of law Nos.1 and 2 partly in the affirmative and partly in the negative. Reg. Substantial question of law No.(iii): 45. The defendants being a third party to the family of the plaintiffs, they have no right of assertion regarding the plaintiffs’ title over the suit schedule property. Both the courts below were justified in - 35 - HC-KAR NC: 2025:KHC:49375 RSA No. 842 of 2015 passing the impugned judgments. In view of the above discussion, I answer substantial question No.3 in the affirmative. 46. Accordingly, I proceed to pass the following order: ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decrees passed by the courts below are hereby confirmed. iii. No order as to the costs. In view of the dismissal of the appeal, pending IAs, if any, do not survive for consideration, and they are disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE PA, SKS CT:KHV