- 1 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 955 OF 2013 (DEC) BETWEEN: NANJUNDAPPA S/O BAVIMANE SIDDAPPA AGED ABOUT 69 YEARS AGRICULTURIST RESIDENT OF LAKSHMIDEVARAHALLI KASABA HOBLI, ARSIKERE TALUK HASSAN DISTRICT-573103 …APPELLANT (BY SRI. GANGADHARAPPA A V., ADVOCATE) AND: 1. R H RAMANNA S/O LATE HUCHEGOWDA @ HUCHANNA SINCE DEAD REP BY HIS LEGAL REPRESENTATIVES 1(A) SMT. SARVAMMA W/O LATE R.H. RAMANNA AGED ABOUT 65 YEARS 1(B) RAMESHA S/O LATE R.H. RAMANNA AGED ABOUT 45 YEARS Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 1(C) SMT. RADHA W/O LATE MALLIKARJUNA AGED ABOUT 42 YEARS 1(D) KUMARI RADHA D/O LATE MALLIKARJUNA AGED ABOUT 18 YEARS ALL ARE RESIDENTS OF RAMPURA VILLAGE KANAKATTE HOBLI ARSIKERE TALUK HASSAN DISTRICT – 573 126 2. SIDDAPPA S/O NANJUNDAPPA AGED ABOUT 45 YEARS RESIDENTS OF LAKSHMIDEVARAHALLI KASABA HOBLI ARSIKERE TALUK HASSAN DISTRICT-573103 3. BASAVARAJ S/O CHANNABASAPPA AGED ABOUT 50 YEARS RESIDENTS OF LAKSHMIDEVARAHALLI KASABA HOBLI ARSIKERE TALUK HASSAN DISTRICT-573103 …RESPONDENTS [V/O DATED 05.12.2013, NOTICE TO R2 & R3 D/W R1(A-D) ARE SERVED] THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.3.2013 PASSED IN R.A.NO.30/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., ARSIKERE, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 5.3.2009 PASSED IN O.S.NO.210/2003 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) ARSIKERE. - 3 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 THIS APPEAL, COMING ON FOR HEARING HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT 1. This Regular Second Appeal is filed by the appellant, challenging the judgment and decree dated 11.03.2013 passed in R.A.No.30/2009 by the learned Senior Civil Judge and JMFC, Arasikere, and the judgment and decree dated 05.03.2009 passed in O.S.No.201/2003 by the learned Principal Civil Judge (Jr. Dn.), at Arasikere. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellant was the defendant No.1, respondent No.1 was the plaintiff and the other respondents were the other defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: - 4 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 4. The plaintiff filed suit against the defendants for declaration of title, and a permanent injunction and also for the relief of possession in case the Court comes to a conclusion that the plaintiff is not in possession of the property, for delivery of the possession of the suit schedule property, which is an agricultural land bearing Sy.No.24/1A measuring 1 acre 21 guntas situated in Lakshmidevarahalli Village, Kasaba Hobli, Arsikere Taluk, contending that the property was purchased by his father by name Huchanna @ Huche Gowda, and he died. After his death, the plaintiff succeeded to the suit schedule property as his successor. It is contended that the defendants have no right, title, or interest over the suit schedule property. The defendants made an attempt to interfere with the plaintiff’s possession and enjoyment over the property. It is contended that in the RTC name of one Eranna son of Basanna, who is stated to be a non-existing person, is - 5 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 appearing and when the plaintiff made an application to the Tahsildar to mutate his name. Defendant No.1 filed objections for the said application. Defendant No.1 denied the title of the plaintiff over the suit schedule property. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and for permanent injunction. Accordingly, prays to decree the suit. 5. Defendant No.1 filed a written statement denying the averments made in the plaint and contended that Huchanna executed a Will dated 02.02.1958 bequeathing the suit schedule property in favour of defendant No.1 and the Will was executed on 02.02.1958 after the demise of Huchanna. Defendant No.1 became the absolute owner and in possession of the suit schedule property. It is also contended that Huchanna is none other than the brother of his mother. It is also contended that defendant No.1 was not aware of the Will, and did not take any action to - 6 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 get his name mutated in the revenue records. It is contended that the suit filed by the plaintiff is barred by limitation and hence, prays to dismiss the suit. 6. The Trial Court, based on the above said pleadings, framed the following issues: (i) Whether plaintiff proves that he is the absolute owner in possession and enjoyment of suit schedule property? (ii) Whether plaintiff proves that the defendants have interfered with his possession and enjoyment of suit schedule property? (iii) Whether plaintiff is entitled to the relief sought for in the plaint? (iv) What order or decree? 7. The plaintiff, to substantiate his case, examined himself as PW.1, examined five witnesses as PW.2 to PW.6, and marked 12 documents as Exs.P1 to P12. In rebuttal, defendant No.1 was examined as DW.1, - 7 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 examined one witness as DW.2, and marked one document as Ex.D1. 8. The Trial Court, after recording the evidence of the parties, hearing both sides, and after assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the affirmative, and issue No.4 as per final order. The suit of the plaintiff was decreed with costs vide judgment dated 05.03.2009. It was cleared that the plaintiff is the absolute owner, in possession and enjoyment of the suit schedule property and the defendants were restrained from interfering with the plaintiff’s peaceful possession and enjoyment over the suit schedule property. 9. Defendant No.1, aggrieved by the judgment and decree passed in O.S. No.210 of 2003, preferred an appeal in R.A. No.30 of 2009 on the file of the learned Senior Civil Judge and JMFC, Arasikere. - 8 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 10. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for its consideration: (i) Whether the plaintiff proves that he is the owner and in peaceful possession and enjoyment of suit property as on the date of suit? (ii) Whether trial Court was justified in decreeing the suit of the plaintiff? (iii) Whether the findings of the trial Court on various issues are in accordance with law? (iv) Whether the judgment and decree of the Court below requires interference by this Court? (v) What order? 11. The First Appellate Court, after re-appreciating the entire evidence on record, has answered point Nos.1 to 4 partly in the affirmative and point No.5, as per the final order. The appeal was allowed in part, vide judgment dated 11.03.2013 and the judgment and - 9 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 decree passed in O.S. No.210 of 2003, granting relief of permanent injunction in favour of the plaintiff was set aside, however the relief of declaration was confirmed and defendant No.1 was directed to vacate and hand over the possession of the suit schedule property in favour of the plaintiff within 6 months from the date of the judgment. 12. Defendant No.1, aggrieved by the impugned judgments, filed this Regular Second Appeal. 13. Though, the Court notice was issued to the plaintiff, despite the service of notice, the plaintiff remained unrepresented. 14. Heard the arguments of the learned counsel for defendant No.1. 15. Learned counsel for defendant No.1 submits that the plaintiff has filed a suit for declaration of title and the plaintiff has not produced any title deeds to establish that, he is the absolute owner of the suit schedule - 10 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 property. He also submits that the plaintiff has not produced any records to show that the plaintiff is the son of Huchanna alias Huchegowda. He submits that the plaintiff has not succeeded to the properties of the deceased Huchanna. He submits that defendant No.1 is in possession of the properties since more than 30 to 40 years as the owner of the property and he has perfected his title by way of adverse possession. He submits that defendant No.1 was not aware about the execution of a Will by Huchanna in his favour bequeathing the suit schedule property. 16. He also submits that to prove the execution of a Will, he had examined the son of the attesting witness. He submits that the defendants have produced the Will at Exhibit D1 executed in favour of defendant No.1. Hence, the right of the plaintiff was extinguished under Section 27 of the Limitation Act, 1963. He also submits that the suit filed by the plaintiff is barred by limitation. - 11 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 17. He also submits that the plaintiff has not pleaded that the plaintiff has permitted the defendants to enjoy the suit schedule property. He submits that, even assuming for the sake of arguments that defendant No.1 is in permissive possession, unless and until it is terminated, the plaintiff has no right to claim the relief of possession. Hence, on these grounds, he submits that the judgments passed by the Courts below are arbitrary and erroneous. Accordingly, prays to allow the appeal. 18. This Court, admitted the appeal on 10.10.2013, to consider the following substantial questions of law: (i) In a suit for declaration and consequent order of injunction on the ground that the plaintiff had acquired the property by succession, was the suit in time? (ii) Are the judgments of the courts below sustainable in the absence of the issue - 12 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 regarding limitation having been raised and decided? Reg. Substantial Question of Law Nos.1 and 2: 19. Both these questions of law are interlinked with each other and hence, they are taken together for a common discussion to avoid the repetition of facts. 20. The plaintiff filed a suit against the defendants contending that the suit schedule property was owned and possessed by Huchanna alias Huchegowda and he had purchased the suit schedule property under a registered sale deed and the plaintiff being the son of Huchanna, after his demise, he succeeded to the suit schedule property by way of succession. 21. It is contended that the defendants have no right, title or interest over the suit schedule property. The plaintiff has requested the defendants to vacate and hand over the vacant possession of the suit schedule - 13 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 property. The defendants refused to hand over the vacant possession of the suit schedule property. 22. The plaintiff, to substantiate his case, examined himself as PW-1 and reiterated the plaint averments in the examination-in-chief and produced the documents, viz., • Exhibit P1 is the genealogical tree, which discloses that the plaintiff is the son of Huchanna alias Huchegowda; • Exhibit P2 is the death certificate of Huchanna; • Exhibit P3 is the index of lands; • Exhibit P4 is the copy of patta book; • Exhibit P5 is the RTC extract; • Exhibit P6 is the obituary card; • Exhibit P7 is the NCR; • Exhibit P8 is the receipt; • Exhibit P9 is the original registered sale deed; • Exhibit P10 is the loan agreement; - 14 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 • Exhibit P11 is the mutation register extract; • Exhibit P12 is the copy of the registered sale deed; 23. The plaintiff also examined five other witnesses as PW2 to PW6 to establish his ownership and possession over the suit schedule property. 24. In rebuttal, defendant No.1 was examined as DW1. He has deposed that, Huchanna bequeathed the suit schedule property in favour of defendant No.1 by executing a Will, and after the demise of Huchanna, defendant No.1 became the original absolute owner of the suit schedule property by virtue of Exhibit D1 i.e. the Will alleged to have been executed by Huchanna in favour of defendant No.1, and defendant No.1 is in possession of the suit schedule property for more than 30 to 40 years, claiming to be the owner of the suit schedule property, without interruption and that he has acquired the title by way of adverse possession. - 15 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 25. The defendants also examined one more witness as DW2, who has deposed in the same line, as that of DW1. 26. Although the learned counsel for the defendants, during the course of arguments, submitted that the plaintiff has not produced any records to establish that Huchanna alias Huchegowda had purchased the suit schedule property, from the perusal of the evidence of the parties, it discloses that the plaintiff admitted the title of Huchanna over the suit schedule property; From the perusal of the evidence of DWs-1 and 2, DW-1 has deposed that Huchanna executed a Will as per Exhibit D1 bequeathing the suit schedule property. However, at one stretch, defendant No.1 denies the title of Huchanna and at another stretch, claims that he had acquired the title by virtue of Exhibit D1, which was executed by deceased Huchanna in favour of defendant No.1, bequeathing the suit schedule property. - 16 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 27. Alhough the plaintiff in the plaint has specifically contended that the plaintiff is the son of the deceased Huchanna and also produced the genealogical tree marked as Exhibit P1, defendant No.1 has not denied the relationship of plaintiff with Huchanna. However, defendant No.1 has failed to prove the execution of the Will by Huchanna in favour of defendant No.1. 28. Although the alleged Will was executed on 02.02.1958, since from 1958 till the date of filing of the suit, defendant No.1, based on the said alleged Will, has not got affected the mutation and the alleged Will - Exhibit D1 has not seen the light of the day. The Will is surrounded by suspicious circumstances, viz., (i) disinheritance of the legal heir i.e., the plaintiff being the son of deceased Huchanna; (ii) the wife of Huchanna has not given any property to the plaintiff; (iii) the Will has not - 17 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 seen the light of the day; (iv) Defendant No.1 has not acted upon the alleged Will. 29. In view of the proposition of law laid down by the Hon'ble Supreme Court in the case of Bharpur Singh and others vs. Shamsher Singh, reported in (2009) 3 SCC 687, wherein the Hon'ble Apex Court, regarding suspicious circumstances surrounding a Will, has held as follows: “23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature; (ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. - 18 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 (iv) The dispositions may not appear to be the result of the testator's free will and mind. (v) The propounder takes a prominent part in the execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts. ” 30. From the perusal of paragraph 17, it is clear that disinheritance of a legal heir and if the alleged Will has not seen the light of the day, they are surrounded by the suspicious circumstances. In the instant case, the defendants have not removed the suspicious circumstances surrounding the alleged Will. 31. Learned counsel for defendant No.1 submits that defendant No.1 is in possession of the property for more than 30 to 40 years as a owner and has perfected his title by way of adverse possession. - 19 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 32. From the perusal of the written statement, it is clear that defendant No.1 has not taken a plea that defendant No.1 has perfected his title by way of adverse possession. 33. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent, and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. 34. In the case of L.N.Aswathama and another v. P.Prakash reported in AIR 2009 (SCW) 5439, the Hon'ble Supreme Court in paragraph 17 has held as follows: - 20 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 “17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide : Periasami vs. P. Periathambi - 1995 (6) SCC 523, Md. Mohammad Ali (dead) by LRs. vs. Jagdish Kalita - 2004 (1) SCC 271, and P.T. Munichikkanna Reddy vs. Revamma - 2007 (6) SCC 59).” - 21 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 35. The Hon'ble Apex Court in the case of State of Haryana v. Mukesh Kumar and others reported in (2011) 10 SCC 404 in paragraph Nos.42, 43 and 48, has held as under: "42. We inherited this law of adverse possession from the British. The parliament may consider abolishing the law of adverse possession or atleast amending and making substantial changes in law in the larger public interest. The Government instrumentalities- including the police in the instant case have attempted to possess land adversely. This, in our opinion, a testament to the absurdity of the law and a black mark upon the justice system's legitimacy. The Government should protect the property of a citizen- not steal it. And yet, as the law currently stands, they may do just that. If this law is to be retained, according to the wisdom of the Parliament, then at least the law must require - 22 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 those who adversely possess land to compensate title owners according to the prevalent market rate of the land or property in question. This alternative would provide some semblance of justice to those who have done nothing other than sitting on their rights for the statutory period, while allowing the adverse possessor to remain on property. While it may be indefensible to require all adverse possessors- some of whom may be poorto pay market rates for the land they possess, perhaps some lesser amount would be realistic in most of the cases. The Parliament may either fix a set range of rates or to leave it to the judiciary with the option of choosing from within a set range of rates so as to tailor the compensation to the equities of a given case." "43. The Parliament must seriously consider atleast to abolish "bad faith" adverse possession, i.e., adverse possession achieved - 23 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 through intentional trespassing. Actually believing it to be their own could receive title through adverse possession sends a wrong signal to the society at large. Such a change would ensure that only those who had established attachments to the land through honest means would be entitled to legal relief." "48. The doctrine of adverse possession has troubled a great many legal minds. We are clearly of the opinion that time has come for change." 36. From the perusal of the entire records, it is clear that defendant No.1 has taken inconsistent pleas in the pleadings as well as in the evidence. At one breath, defendant No.1 states that he has perfected the title by way of adverse possession, and, in another breath, defendant No.1 has taken a defence that Huchanna executed a Will bequeathing the suit schedule property in his favour. - 24 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 37. As observed above, mere long and continuous possession of the suit schedule property would not by itself constitutes adverse possession. 38. This Court, in the case of D. Shivakumar, since deceased by LRs and others v. M. V. Manjunath and others reported in ILR 2025 Kar. 4165, has held that the party cannot claim adverse possession until the title of the plaintiff admitted. 39. Admittedly, in the instant case, defendant No.1 has not admitted the title of the plaintiff over the suit schedule property. Hence, defendant No.1 cannot claim adverse possession against the plaintiff. 40. Admittedly, the plaintiff has pleaded that he is the son of Huchanna. The said fact has not been specifically denied in the written statement by defendant No.1. 41. As per Order VIII Rule 5 of the Code of Civil Procedure, 1908, every allegation of fact in the - 25 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 plaint, if it is not denied specifically or by necessary implication, or stated to be admitted in the pleading of the defendant, shall be taken to be admitted. 42. In the instant case, the defendants have not denied in the written statement regarding the fact that the plaintiff is the son of Huchanna, and that after the demise of Huchanna, the plaintiff, being the sole legal heir, has succeeded to the suit schedule property, as he being Class I heir of the Schedule-I of the Hindu Succession Act. 43. Though the learned counsel for the defendants submits that the suit filed by the plaintiff is barred by limitation, as observed above, defendant No.1 has failed to prove that he has acquired the title over the suit property by way of adverse possession and further, defendant No.1 has not stated that when defendant No.1 has denied the title of the plaintiff over the suit schedule property. - 26 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 44. Learned counsel for the defendants further submits that the title of the plaintiff is extinguished as per Section 27 of the Limitation Act, 1963. 45. Defendant No.1 has failed to establish that he had acquired the title by way of adverse possession, and also this Court has already observed that mere long and continuous possession over the suit schedule property does not constitute adverse possession. Hence, Section 27 of the Limitation Act does not apply to the case on hand and the right of the plaintiff is not extinguished as contended by the learned counsel for the defendants. 46. Hence, both the Courts below have rightly considered the entire evidence on record, and have rightly passed the impugned judgments. 47. In view of the above discussion, I answer the substantial questions of Law Nos.1 and 2 in the affirmative. - 27 - HC-KAR NC: 2026:KHC:10685 RSA No. 955 of 2013 48. In the result, I proceed to pass the following order: ORDER (I) The regular second appeal is dismissed. (II) The impugned judgments passed by the Courts below are hereby confirmed. (III) No order as to costs. (IV) Pending applications, if any, stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB/RK CT:KHV List No.: 1 Sl No.: 10