- 1 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1477 OF 2013 (DEC/INJ) BETWEEN: 1. SRI. GANGEERAIAH S/O ANKEGOWDA AGED ABOUT 66 YEARS SINCE DEAD BY HIS LR'S. 1(A). SHIVANNA S/O GANGEERAIAH, AGED ABOUT 43 YEARS, AGRICULTURIST, R/O ANKANAHALLI VILLAGE, KUTKAL HOBLI, RAMANAGARA TALUK AND DISTRICT. 1(B). SMT. SHIVAMMA, W/O DEVARAJU, D/O GANGEERAIAH, AGED ABOUT 41 YEARS, R/O SANGANABASAVANADODDI, KASABA HOBLI, RAMANAGARA TALUK AND DISTRICT. …APPELLANTS (BY SRI S.R. HEGDE HUDLAMANE, ADVOCATE) AND: CHANNANKAIAH S/O LATE ANKEGOWDA AGED ABOUT 69 YEARS R/A ANKANAHALLI VILLAGE KOOTAGAL HOBLI, RAMANAGARA TALUK, RAMANAGARA DISTRICT - 571 511. …RESPONDENT (BY SRI. K.N. NITISH, ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DTD 16.8.2013 PASSED IN R.A.NO.145/2008 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 14.10.2008 PASSED IN OS.NO.130/2004 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC, RAMANAGARAM. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 16.08.2013, passed in R.A.No.145/2008, by the learned Prl. Senior Civil Judge, CJM, Ramanagara, and the judgment and decree dated 14.10.2008, passed in O.S.No.130/2004 by the learned Civil Judge (Jr. Dn.) and JMFC, Ramanagara. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the defendant, and the respondent was the plaintiff. - 3 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for a declaration of title and a permanent injunction. It is the case of the plaintiff that the land bearing Sy.No.71 of Tadakavagilu Village, measuring 4 acres 20 guntas, was originally owned by one Ankegowda, who had 5 sons; Chennakaiah, the plaintiff Gangeeriah, the defendant Manarudraiah, Shivarudraiah, and Nagaraja. The above- said persons constituted a Hindu undivided joint family under Mithakshara School of Law. The aforementioned persons divided the property by virtue of a Panchayath Parikath, on 04.06.1979 before the Panchayathdars and succeeded to their respective shares in the joint family property holding the same independently as lawful owners in possession thereafter. After succeeding to the property by the jubane partition, the plaintiff cultivated the property and used to grow the various seasonal crops. The plaintiff had also planted a number of mango plants and is - 4 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 in peaceful possession and enjoyment of the suit schedule property. Subsequent to the execution of the Panchayath Parikath, dated 04.06.1979, the two brothers, of the plaintiff, namely Maharudraiah and Shivrudraiah, due to a dispute regarding the passage of the property, had decided to sell their share to the defendant. Accordingly, Maharudraiah and Shivrudraiah sold their property to the defendants in Sy.No.71 to the extent of 2 acres and 10 guntas, and executed a registered sale deed dated 08.02.1982. The defendant became the absolute owner of the suit property to the extent of 3 acres 15 guntas, including his share allotted by way of partition dated 04.06.1979, and the remaining extent of 1 acre 5 guntas was retained by the plaintiff. The plaintiff is in possession and enjoyment of the suit schedule property, and the defendants have no right, title or interest in the suit schedule property. The defendants, based on the revenue records, attempted to dispossess the plaintiff from the suit schedule property by creating relinquishment deed. It is - 5 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 contended that the plaintiff never executed any relinquishment deed and never relinquished his right in favour of the defendant regarding his share on the suit properties. The plaintiff received a notice from the revenue authorities based on the jubane partition (oral partition) that has been entered between the parties to the suit. The plaintiff, aggrieved by the revenue entries in the name of the defendant, preferred an appeal before the Assistant Commissioner. The Assistant Commissioner dismissed the appeal directing the plaintiff to approach the Civil Court. Pursuant to the directions issued by the Assistant Commissioner, the plaintiff has filed this suit for declaration and permanent injunction. Accordingly, prays to decree the suit. 3.1. The defendant filed a written statement contending that there was an oral partition on 04.06.1979 between the brothers of the plaintiff and the defendant, and subsequently, Maharudraiah and Shivrudraiah sold their shares in favour of the defendant under a registered - 6 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 sale deed dated 08.02.1982. It is contended that the plaintiff executed a registered relinquishment deed in favour of the defendant after his two brothers sold their respective shares in the suit property to the defendant. It is contended that the revenue records, have stood in the name of the defendant since 1986 about suit property as the owner and the possessor of the suit property. The defendant has perfected his title by adverse possession. It is also contended that the plaintiff, by receiving a sum of Rs.2,000/- relinquished his right over the suit schedule property. It is further contended that the defendant has been in possession and enjoyment of the suit schedule property for more than 12 years, and he has perfected the title through adverse possession. Hence, he prays to dismiss the suit. 3.2. The Trial Court, based on the aforementioned pleadings, framed the following issues: - 7 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 Issues: 1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property? 2) If so, he is entitled to declaratory decree as prayed? 3) Whether the plaintiff proves that he is in possession and enjoyment of the suit schedule property? 4) Whether the plaintiff proves the alleged interference by the defendant over the suit schedule property? 5) Whether the defendant proves that suit is barred by law of limitation? 6) Whether the defendant proves that suit is not maintainable for the reasons stated in his written statement at para-11? 7) What decree or order? 3.3. The plaintiff, to substantiate his case examined himself as PW.1, examined 2 witnesses as PW.2 and PW.3 and marked 5 documents as Exs.P1 to P5. In rebuttal, the defendant examined himself as DW.1, examined 6 witnesses as DW.2 to DW.7 and marked 52 documents as Exs.D1 to D52. The trial Court, after recording the evidence, hearing both sides, and assessing the verbal and - 8 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 documentary evidence of the parties, answered issue Nos.1 to 4 in the affirmative, issue Nos.5 and 6 in the negative and issue No.7 as per the final order. The suit of the plaintiff was decreed vide judgment dated 14.10.2008. 3.4. The defendant, aggrieved by the judgment and decree passed in O.S.No.130/2004, preferred an appeal in R.A.No.145/2008 on the file of learned Prl. Senior Civil Judge and CJM, Ramanagara. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the plaintiff proves that, he is the absolute owner and in possession and enjoyment of the suit schedule property as on the date of suit? 2) Whether the defendant proves that, plaintiff has relinquished his right over the suit schedule property by executing released deed as per Ex.D8? 3) Whether the defendant proves that, plaintiff has shown sufficient reasons to send Ex.D8 to the Hand Writing Expert for scientific examination to find out disputed signature and thumb impression found on Ex.D8 is belongs to plaintiff along with admitted signatures? - 9 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 4) Whether the judgment and decree passed by the lower Court are perverse, capricious and unreasonable, suffers from any infirmity? If so, liable to be interfered with? 5) What order? 3.5. The First Appellate Court, after reassessing the verbal and documentary evidence, answered point No.1 in the affirmative, point Nos.2 to 4 in the negative and point No.5 as per the final order. The appeal was dismissed by judgment dated 16.08.2013. 3.6. The defendant, aggrieved by the judgments and decrees passed by the court below, has filed this Regular Second Appeal. 4. This Court, on 11.04.2017, admitted the appeal to consider the following substantial questions of law : 1) Whether the trial Court and the First Appellate Court have committed any serious legal error in giving preference to the oral evidence as against the Revenue Records standing in the name of the defendant, for the purpose of rebutting the presumption under Section 133 of the Land Revenue Act? - 10 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 2) Whether the trial Court and the First Appellate Court have committed any serious legal error in appreciating the oral and documentary evidence, in holding that the plaintiff is in possession and enjoyment of the property and that the defendant has not proved the adverse possession over the suit schedule property? 5. Heard the arguments of the learned counsel for the defendants, and the learned counsel for the plaintiff. 6. Learned counsel for the defendant submits that the partition was effected between the plaintiff, the defendant and their brothers on 04.06.1979. The brothers of the defendant, i.e., Maharudraiah and Shivrudraiah, sold their shares in favour of the defendant under a registered sale deed. He submits that after the sale by Maharudraiah and Shivrudraiah, the present plaintiff, by accepting Rs.2,000/-, has relinquished his right in favour of the defendant by executing an unregistered release deed dated 06.10.1986. He submits that from the date of the execution of the release deed, the defendant has been - 11 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 in continuous possession of the suit property, for more than 12 years without interruption or obstruction as the owner and the defendant has acquired a title by way of adverse possession. He also submits that the suit filed by the plaintiff is barred by limitation. The trial Court has not framed the issue on the point of limitation. He submits that the name of the defendant appears in the revenue records since 1986 as the owner and the possessor. 7. To buttress his argument, he placed a reliance on the following judgments: 1. Laxmibai Vs. Thoreppa reported in AIR 1982 Karnataka 248. 2. Mehar Chand Das Vs. Lal Babu Siddique and others reported in AIR 2007 SCW 2024. 3. Sri Aralappa Vs. Sri Jagannath and others reported in ILR 2007 KAR 339. 4. State of West Bengal Vs. The Dalhousie Institute Society reported in 1970(3) SCC 802. 5. Krishnamurthy S. Setlur (Dead by LRs.) Vs. O.V.Narasimha Setty and others reported in AIR 2007 SCW 2979. - 12 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 6. Hanumanthappa and others Vs. M.Adisheshaiah and others reported in ILR 2003 KAR 2442. 7. M.Radheshyamlal Vs. Sandya reported in AIR 2024 SC 1595. 8. He also submits that both the courts below have committed an error in passing the impugned judgments. Hence, on these grounds, he prays to allow the appeal. 9. Per contra, learned counsel for the plaintiff submits that, admittedly, the plaintiff has acquired the suit schedule property by Panchayath Parikath dated 04.06.1979. He submits that the plaintiff never relinquished his right in favour of the defendant at any point in time. He submits that the alleged relinquishment deed is unregistered and the said unregistered relinquishment deed did not seen the day of light till it is produced before the trial Court. He submits that the mutation was effected based on the oral partition but not based on the alleged relinquishment deed. He submits that - 13 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 there was no relinquishment as mentioned in Ex.D8 in 1986. He also submits that the said mutation entry is based on untrue piece of evidence, and he submits that the said mutation entry has no evidentiary value in the civil case. 10. To buttress his argument, he has placed reliance on the judgment of the Hon'ble Apex Court in the case OF DAYARAM & ORS. VS DAWALATSHAH & ORS. reported in AIR 1971 SC 681. He further submits that the defendant has not pleaded in the written statement regarding, on what date the defendant came into possession of the suit schedule property, what was the nature of his possession, whether the factum of possession was known to the other party, how long his possession has continued and, whether his possession was open and undisturbed. In the absence of the pleading in the written statement regarding the aforesaid ingredients, the defendant has no right to claim the ownership by adverse possession. - 14 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 11. Further, he has also placed a reliance on the judgment of this Court in PAKEERA (MALERA) JINDA SAB SINCE DEAD BY LRS AND ANOTHER VS. KHAJI MOHAMMAD HUSSAIN SAB @ BASHA SAB SINCE DEAD BY LRS AND OTHERS in RSA.NO.855/2007 disposed of on 12.03.2024. He submits that the judgment passed in the aforesaid appeal was confirmed by the Hon’ble Supreme Court in SLP.No.17601/2024 He submits that the defendant has taken a plea of limitation and the adverse possession. He submits that the parties have understood the pleading and proceeded to trial and the trial Court has already discussed the said aspect and merely the non-framing of an issue is not a ground to set aside the judgment. 12. He has placed a reliance on the judgment of the Co-ordinate Bench of this Court in the case of M.C.SURESH VS. SRI B. SRINIVAS NAIK AND OTHERS reported in ILR 2009 KAR 3897. He submits that both the courts below have concurrently recorded a finding of fact that the - 15 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 defendant has failed to prove possession of the suit schedule property and ownership by adverse possession. Hence, on these grounds, he prays to dismiss the appeal. Reg. Substantial questions of law Nos.1 and 2: 13. Substantial questions of law Nos.1 and 2 are discussed together as they are interlinked, to avoid the repetition of facts. 14. The plaintiff, to substantiate his case, examined himself as PW.1. He has deposed that the suit schedule property was originally owned and possessed by the father of the plaintiff and the defendant, and there was a partition effected between the plaintiff, the defendant and their brothers on 04.06.1979. In the said partition, the suit schedule property fell to the share of the plaintiff. The plaintiff is in peaceful possession and enjoyment of the suit schedule property. It is contended that the defendant is not in possession and enjoyment of the suit schedule property. The defendant, by creating a - 16 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 relinquishment deed, In his favour regarding suit property had to prove that the suit schedule property was owned and possessed by the plaintiff, the plaintiff produced the records and, further, there is no dispute regarding the partition effected between the plaintiff, the defendant and other brothers and the suit schedule property fell to the share of the plaintiff. During the cross-examination, it was suggested to PW.1 that the plaintiff relinquished his share in favour of the defendant by executing the release deed dated 06.10.1986, and the said fact was denied by the plaintiff. It is suggested that the defendant is in possession of the suit schedule property. The said fact was denied by PW.1. 15. In rebuttal, the defendant examined himself as DW.1. He deposed that there was a partition effected between the plaintiff, the defendant and his brothers on 04.06.1979 and two brothers, Maharudraiah and Shivrudraiah, sold their shares in favour of the defendant by a registered sale deed dated 08.02.1982. - 17 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 Subsequently, after purchasing the shares of Maharudraiah and Shivrudraiah, by the defendant, the plaintiffs by accepting Rs.2,000/- from the defendant relinquished his right in favour of the defendant and executed a relinquishment deed dated 06.10.1986 and also the plaintiff delivered the possession of the suit schedule property in favour of the defendant. The defendant is in possession of the suit schedule property as the owner for more than 12 years without any interruption, obstruction and acquired the title over the suit property by adverse possession. He deposed that the name of the defendant is entered in the revenue records as per Ex.D1 - mutation extract. To prove that the defendant has been in possession of the suit schedule property since 06.10.1986, the defendant has produced the relinquishment deed marked as Ex.D8 and also produced the RTC extract and mutation orders to establish that the defendant is in possession of the suit schedule property as the owner from 06.10.1986. The defendant - 18 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 further stated that he has perfected his title by adverse possession. The defendant also examined 6 witnesses to prove his possession of the suit schedule property and also examined one attesting witness to the said relinquishment deed, as DW.4 and also the scribe of Ex.D8. Further, he also examined other witnesses to prove his possession of the suit schedule property. From the perusal of the written statement filed by the defendant, the defendant has nowhere pleaded on what date he came into possession, what was the nature of his possession, whether the factum of possession was known to the other party, how long his possession has continued and his possession was open and undisturbed. The entire defence of the defendant is based on Exs.D1 and Ex.D8. From the perusal of Ex.D1 there is no reference about Ex.D8, though Ex.D8 was executed on 06.10.1986 and Ex.D1 mutation order was passed on 15.08.1986. The mutation was certified on 31.10.1986. As observed above, there is no reference to Ex.D8 in Ex.D1 wherein the mutation was effected based on the oral - 19 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 partition, but not based on the relinquishment deed. The revenue authorities have passed a mutation order without there being any evidence on record regarding to the relinquishment deed. 16. The Hon'ble Apex Court in the case of DAYARAM (Supra) held that the order of the revenue inspector in the mutation proceeding based on the entropies of evidence has no evidentiary value in the civil suit. Ex.D1 is not supported by the document, and it is not defence of the defendant that an oral partition was effected in 1986, and the suit schedule property fell to his share in the partition effected on 06.10.1986. At one stretch, the defendant contended that there was an oral partition on 06.10.1986. At another stretch, the defendant has taken the defence that the plaintiff had relinquished his right in respect of suit schedule property by virtue of Ex.D8. Ex.D8 is an unregistered document and the same is inadmissible in evidence. The defendant has failed to fulfill the ingredients of adverse possession. A person pleading the adverse - 20 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. Further, the Hon’ble Apex Court, in DAYARAM (Supra) held as follows: “Order of Revenue Officer in mutation proceedings based on untrue piece of evidence has not evidentiary value in the civil suits.” 17. The claim of the defendant is the defendant is in possession of the suit schedule property from 06.10.1986 openly and adversely. The plaintiff’s suit is barred by limitation. As observed above, the defendant did not plead in the written statement, what the nature of his possession was, the factum of possession was known to the plaintiff, how long his possession was continued, and his possession was open and undisturbed. The trial Court as well as the First Appellate Court, have rightly held that the mutation order was challenged by the plaintiff before the learned Assistant Commissioner. The learned Assistant - 21 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 Commissioner dismissed the appeal and recorded its finding that the dispute between the plaintiff and the defendant is of a civil nature, and they must secure their rights before the Civil Court. After the disposal of the appeal by the learned Assistant Commissioner, the plaintiff filed a suit for declaration of title. Though there is a presumption regarding the entries in the revenue records under Section 133 of the Karnataka Land Revenue Act, the said presumption is rebutable. The plaintiff has denied the execution of the release deed and also denied the signature on Ex.D8. The defendant had not taken any steps to refer Ex.D8 to the handwriting experts. The burden is on the defendant to establish that the plaintiff has relinquished his share in favour of the defendant in respect of the suit schedule property. The courts below, considering the entire evidence on record, have disbelieved the execution of Ex.D8 and have rightly declined to consider the revenue entries. - 22 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 18. Learned counsel for the defendant has placed reliance on the judgment of this Court in LAXMIBAI VS. THOREPPA reported in AIR 1982 KARNATAKA 248, which held that the possession based on the inadmissible document becomes adverse to the true owner. The defendant is claiming to be in possession based on Ex.D8. The defendant has failed to prove the execution of Ex.D8 and the said document is inadmissible in evidence and Ex.D8 has not seen the day of light till it is produced before the trial Court. 19. Further, the learned counsel for the defendant has also placed a reliance on the judgment of the Hon'ble Apex Court in the case of MEHAR CHAND DAS VS. LAL BABU SIDDIQUE AND OTHERS reported in AIR 2007 SCW 2024 held that a mere suit for declaration without seeking consequential relief of possession is not maintainable. - 23 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 20. Admittedly, in the instant case, the plaintiff claims to be the owner and in possession of the suit schedule property and the defendant though produced Ex.D8, but has failed to establish that the plaintiff executed Ex.D8 and delivered the possession of the suit schedule property to him. 21. He has also placed a reliance on the judgment of this Court in the case of SRI ARALAPPA VS. SRI JAGANNATH AND OTHERS reported in ILR 2007 KAR 339, wherein this Court held that a, mere suit for declaration without seeking consequential relief of possession is not maintainable. The judgment passed in ARALAPPA (Supra) case was not accepted by the Hon'ble Apex Court in the case of AKKAMMA VS VEMAVATHI reported in Civil Appeal No. 5884/2009, wherein the Hon'ble Apex Court held that “we do not accept the ratio of the Karnataka High Court judgment in the case of Sri ARALAPPA (Supra) to be good law.” In that decision, it was held, in para No.31, which reads as follows: - 24 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 “31. Even if the plaintiff comes to Court asserting that he is in possession and that if it is found after trial that he was not in possession on the date of the suit, even then, the suit for declaration and permanent injunction is liable to be dismissed as not maintainable, as no decree for permanent injunction can be granted if the plaintiff is not in possession on the date of the suit. In such circumstances, it is necessary for the plaintiff to amend the plaint before the judgment and seek relief of possession. Therefore, a suit for declaration of title and permanent injunction, by the plaintiff who is not in possession on the date of the suit, when he is able to seek further relief of recovery of possession also, omits to do so, the Court shall not make any such declaration and the suit is liable to be dismissed as not maintainable”. 22. Further, the Hon'ble Apex Court held that there is no bar in the Specific Relief Act, 1963, to grant a standalone declaratory decree and such a declaration could not be denied on the reasoning that no purpose - 25 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 would be served in giving such a declaration. May be such a declaratory decree would be non-executable on the facts of this case, but for that reason alone, such a declaration cannot be denied to the plaintiff. 23. Further, he also placed a reliance on the judgment of the Hon'ble Apex Court in the case of STATE OF WEST BENGAL VS. THE DALHOUSIE INSTITUTE SOCIETY reported in 1970(3) SCC 802, held that even possession based on the invalid documents for more than prescribed years, attracts adverse possession. 24. As observed above, the defendant has failed to prove the execution of Ex.D8 by the plaintiff in favour of the defendant and also regarding the delivery of possession. 25. Further, he has also placed a reliance on the judgment of Hon'ble Apex Court in the case of KRISHNAMURTHY S. SETLUR (DEAD BY LRS.) VS. O.V.NARASIMHA SETTY AND OTHERS reported in AIR 2007 - 26 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 SCW 2979, wherein the Hon'ble Apex Court held that the defendant pleaded adverse possession as on the date of the suit, and an issue has to be framed on the adverse possession, by the trial Court. Since the first Appellate Court and the trial Court did not frame an issue on the adverse possession the Hon'ble Apex Court remanded the matter. Insofar as adverse possession is concerned, though the trial Court had not framed issues about the adverse possession, the parties understood the pleading and went to trial. The defendant has not made any application for framing of additional issues. The parties, having understood, the pleading and went to trial fully knowing the rival case and led all the evidence not only in support of their contentions, but in refutation of those of the other side. It cannot be said that the absence of an issue was fatal to the case, or that there was a mis-trial, which violated the proceedings. 26. The Hon'ble Apex Court in the case of NEDUNURI KAMESWARAMMA VS SAMPATI SUBBA RAO - 27 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 reported in AIR 1963 SC 884 held that since each party went to trial fully knowing the rival case and led all the evidence not only in support of its own contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. 27. Further, the Division Bench of this Court in SIDDEGOWDA VS. SIDDEGOWDA AND OTHERS reported in (1987)1 KLJ 62 held that when the finding has been recorded on the appreciation of the evidence led by the parties, omission to frame the issue does not vitiate the judgment. 28. Further, he has also placed a reliance on the judgment of this Court in the case of HANUMANTHAPPA AND OTHERS VS. M.ADISHESHAIAH AND OTHERS reported in ILR 2003 KAR 2442 where the co-ordinate bench of this Court held that a finding about the concurrent finding of the Courts below, where the High Court can interfere, if it - 28 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 is perverse and one-sided. There is no dispute about the proposition laid down by the Co-ordinate Bench of this Court in the case of Hanumanthappa (Supra). 29. From the perusal of the entire judgments placed before this Court and the reliance on the judgment of this Court in the case of R.Prakash and Another V/s Smt. G.P. Marthamma reported in ILR 2000 KAR 1223, wherein, the co-ordinate bench of this Court has heled that without admitting the title of the plaintiff of the defendnat, raising question of adverse possession is not known to law. Hence, the defendant cannot claim the title over the suit property by way of adverse possession, by denying the ownership of the plaintiff over the suit property. 30. In the case of BASAWANTHRAO SINCE DECEASED BY HIS LRS VS. RAJKUMAR reported in ILR 2009 KAR 1099 and examined the plea of adverse possession held in para Nos.13 and 14, which reads as follows: - 29 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 “13. Adverse possession is a question of fact and in a claim of adverse possession, the title is not disputed; what is alleged is only its extinction. A plea of adverse possession being based on facts which have to be raised to that effect, is not necessarily a legal plea. The plea of adverse possession raises a mixed question of law and fact. Where a person wants to base his tide on it, he should specifically set up the plea. Unless the plea is raised, it cannot be entertained. A plea must be raised and it must be shown when possession became adverse, so that the starting point of limitation against the party affected can be found. The prayer clause may not be taken as a substitute for a plea. A person acquires title by way of adverse possession when he is in continuous, uninterrupted, hostile possession over a period of 12 years. In order to calculate 12 years period there should be a starting point. Therefore, the law mandates that the plaintiff who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of the defendant. It is from that date if the - 30 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 plaintiff shows continuous, uninterrupted possession for a period of 12 years, then the right of the defendant to the property stands extinguished and the plaintiff would acquire title by way of adverse possession. 14. In so far as proof of adverse possession is concerned, it is a well-settled principle that a party claiming adverse possession must prove that his possession is “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. Therefore, a person who claims adverse possession should show: (a) On what date he came into possession, (b) What was the nature of his possession, (c) Whether the factum of possession was known to the other party (d) How long his possession has continued, and (e) His possession was open and undisturbed. It is only on proof of all these ingredients the case of adverse possession is said to - 31 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 have been established. A person pleading adverse possession has no equities in his favour, since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.” 31. The Hon'ble Apex Court in the case of ANNAKILI VS A. VEDANAYAGAM & ORS. reported in AIR 2008 SC 346, at paragraph 24 has held as follows: “24. Claim by adverse possession has two elements: (1) the possession of the defendant should become adverse to the plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must - 32 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title.” 32. The contention of the defendant is not tenable as the defendant is claiming the title of the suit property based on Ex.D8 and also the plea of adverse possession. The defendant cannot be advanced simultaneously, as it would amount to the contradicting plea. The said view is supported by the Hon'ble Apex Court, in the case of NARASAMMA VS A.KRISHNAPPA (DEAD) THR. LRS. reported in AIR 2020 SC 4178, the Hon'ble Apex Court held that “the legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date. Hence, the appeal being merit less is dismissed.” - 33 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 Further, the defendant failed to establish the execution of Ex.D8 and also, on the basis of Ex.D8 and Ex.D1, the mutation order was passed. As observed above, the mutation order was passed based on oral partition, however the defence of the defendant is that he had acquired the title by virtue of Ex.D8. There is no reference to Ex.D8 in Ex.D1. Both courts below have rightly passed the impugned judgments and there is no serious error committed by both courts below in appreciating the oral and document evidence and rightly held that the plaintiff is in possession and enjoyment of the suit schedule property. The defendant has failed to prove his possession over the suit schedule property and also acquired title by way of the adverse possession. The decisions relied upon by the learned counsel for the defendant are not apply to the case on hand. In view of the above discussion, I answer the substantial questions of law No.1 and 2 in the negative. - 34 - HC-KAR NC: 2025:KHC:27158 RSA No. 1477 of 2013 33. In view of the aforesaid facts and circumstances, I proceed to pass the following: 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. (iv) I.A.No.1/2013 is rejected. Sd/- (ASHOK S.KINAGI) JUDGE SSB List No.: 1 Sl No.: 2 CT: BHK