- 1 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF JANUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE S VISHWAJITH SHETTY REGULAR SECOND APPEAL NO. 1733 OF 2009 (DEC) BETWEEN: SHIVALINGAPPA S/O NEELA GOWDA R/AT S. MAKANAHALLIKASABA HOBLI, ARASIKERE TALUK - 573 103. …APPELLANT (BY SRI HARISH N.R, AMICUS CURIE) AND: 1. SANNAIAH S/O NINGAPPA AGED ABOUT 58 YEARS. 2. SIDDE GOWDA S/O NINGAPPA AGED ABOUT 48 YEARS. 3. THIMMAPPA S/O RANGE GOWDA AGED ABOUT 64 YEARS. ALL ARE RESIDING AT MAKANAHALLI KASABA HOBLI, ARASIKERE TALUK - 573 103. …RESPONDENTS (BY SRI H.T. NATARAJ, ADV. FOR R-1 TO R-3) THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DTD19.09.2009 PASSED IN R.A.NO.48/2007 ON THE FILE THE CIVIL JUDGE (SR.DN) & ADDL. CJM, AARSIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 DECREE DTD 12.04.2007 PASSED IN O.S.NO.229/2005 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.DN), ARSIKERE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY ORAL JUDGMENT 1. Plaintiff is before this Court in this regular second appeal filed under Section 100 of CPC with a prayer to set-aside the judgment and decree dated 19.09.2009 passed in RA No.48/2007 by the Court of Civil Judge (Sr. Dn.) and Addl. CJM, Arsikere and the judgment and decree dated 12.04.2007 passed in OS No.229/2005 by the Court of Addl. Civil Judge (Jr. Dn.), Arsikere. 2. Heard the learned amicus curiae appearing on behalf of the appellant and the learned counsel for the respondents. 3. Facts leading to filing of this regular second appeal as revealed from the records are, the appellant herein had filed OS No.229/2005 before the Court of Civil Judge (Jr. Dn.) Arsikere, seeking the relief of declaration in respect of the suit schedule A property and also the relief of possession in respect of suit - 3 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 schedule B property. A further prayer was made claiming mesne profits in respect of the suit schedule B property. It is the case of the plaintiff that suit schedule A property is his ancestral property and was allotted to his share in a family partition between himself and his brother Krishnappa. Subsequently, revenue entries of the suit Schedule A property were also transferred in his name. Suit schedule B property which is part and parcel of suit schedule A property was encroached by the defendants about four to five years back and therefore, plaintiff had filed suit in OS No.63/2000 seeking the relief of permanent injunction. The said suit was dismissed on 08.02.2005. Though plaintiff had requested defendants to vacate and hand over possession of B schedule property, they had rejected his claim and therefore, he had filed the present suit. The defendants contested the suit by filing written statement denying the plaint averments. However, they admitted about plaintiff filing OS No.63/2000 seeking the relief of permanent injunction. They also claimed that they are in possession and enjoyment of the suit schedule B property for the last more than 100 years without any obstruction from the plaintiff and they also claimed that though the plaintiff was - 4 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 throughout aware about their possession over B schedule property, he has not taken any action against them and therefore, they have perfected their title by way of adverse possession. They also contended that the suit was barred by limitation. 4. Based on the rival pleadings, the Trial Court had framed as many as seven issues in OS No.229/2005, which reads as follows:- "1. Whether plaintiff proves that he is the absolute owner of the 'A' schedule property as on the date of suit? 2.Whether plaintiff proves that the defendants are in illegal possession of the 'B' suit schedule property? 3. Whether plaintiff is entitle for the possession of the 'B schedule property? 4. Whether plaintiff is entitle for the relief of mesne profit? 5. Whether defendant proves that the suit of the plaintiff is time barred? 6. Whether Plaintiff are entitle for the relief claimed in the suit? 7. What order or decree?" - 5 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 5. During the course of trial, two witnesses were examined on behalf of the plaintiff as PW1 and PW2 and he got marked four documents as Ex.P1 to P4. On behalf of the defendants, two witnesses were examined as DW1 and DW2 and seven documents were got marked as Ex.D1 to D7. After hearing the arguments addressed on both sides, the Trial Court had partly decreed the suit in OS No.229/2005 and had declared that the plaintiff is the owner in possession of 15 guntas of land in suit schedule A property except schedule B property. The said judgment and decree passed in OS No.229/2005 was confirmed in RA No.48/2007 by the Court of Civil Judge (Sr. Dn.) and Addl. CJM, Arsikere, by judgment and decree dated 19.09.2009. Aggrieved by the aforesaid two judgments passed by both the Courts, the plaintiff is before this Court. 6. This Court, while admitting this regular second appeal, has framed the following two substantial questions of law for consideration in this appeal, which read as under:- "1) Whether the Courts below were justified in holding that the defendants could have set up a claim for adverse possession in the manner in which it was done? - 6 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 2) Whether the ingredients claiming perfection of title by adverse possession were present?" 7. According to the plaintiff, suit schedule A property is his ancestral property and the same was allotted to his share under a registered Partition Deed dated 20.10.2005. Ex.P1 is the copy of the registered Partition Deed dated 20.10.2005 and Ex.P2 is the Pahani extract, which prima facie shows that the Partition Deed at Ex.P1 was acted upon and the revenue entries of the suit schedule property was transferred in the name of the plaintiff. Suit schedule B property is undisputedly part of suit schedule A property and according to the plaintiff, the defendants are in wrongful possession of the same for the last 4 to 5 years and it is under these circumstances, he had sought the relief of possession of the suit schedule B property. 8. The defendants, on the other hand, had filed written statement opposing the suit claim and contended that they and their forefathers are in peaceful possession and enjoyment of the suit schedule B property for the last more than 100 years, which was within the knowledge of the plaintiff and his - 7 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 forefathers and therefore, they have perfected their title over the suit schedule B property by adverse possession. 9. In paragraph No.15 of the order, the Trial Court has observed as follows:- "15. In this case, defendants have not sought for any counter claim relating to adverse possession. Even then their plea is to be considered while considering Plaintiffs right over the 'B' schedule property. Admittedly, defendants are in possession of 'B' schedule property from morethan 100 years, within the knowledge of this plaintiff, hostile to their interest. Such being the case they have perfected their title by way of adverse possession." 10. In the plaint, it is specifically stated that suit schedule B property was in wrongful possession of the defendants for the last 4 to 5 years and even during the course of deposition of PW1, he has stated that possession of the defendants over the suit schedule B property is only for the last about 4 to 5 years. However, strangely, the Trial Court has observed that defendants' possession of suit schedule B property is admittedly for the last more than 100 years within the knowledge of the plaintiff and hostile to their interest. Such a - 8 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 finding recorded by the Trial Court is not based on the pleadings or documentary evidence available on record. 11. For the purpose of proving perfection of title by adverse possession, defendants were required to unequivocally admit the title of the plaintiff and raise a plea that their possession over suit schedule B property was open and undisturbed over a period of more than 12 years which was known to the plaintiff and his forefathers. Defendants are also required to show that on what day they came into possession and what was the nature of their possession over the suit schedule B property. The material on record would go to show that such a plea was not raised in the present case by the defendants. Plaintiff has pleaded in his plaint that suit schedule A property is his ancestral property and the same was allotted to his share under a registered partition Deed dated 20.10.2005. In paragraph No.2 of their written statement, defendants have denied the said contention of the plaintiff though subsequently in paragraph No.4, they have vaguely admitted that suit schedule B property belongs to the plaintiff. - 9 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 12. Plaintiff has produced certified copy of the written statement and deposition of defendant No.2/Siddegowda in OS No.63/2000, which was filed by the plaintiff seeking the relief of permanent injunction. The said documents are marked as Ex.P3 and Ex.P4 in the present case. In Ex.P3 also, defendants have specifically raised a contention denying the title of the plaintiff over the suit schedule property. In Ex.P4 which is the deposition of defendant No.2 Siddegowda in OS No.63/2000 also, he had denied the title of the plaintiff over the suit schedule property and he also had stated that since the suit schedule property was a government land, defendants had filed application before the Tahsildar to grant the said property in their favour. In Ex.P4, it is also stated that defendants were under the impression that suit schedule B property belonged to them and therefore, they were in possession and cultivation of the said land. From the aforesaid, it is apparent that defendants had not unequivocally admitted the title of the plaintiff over the suit schedule B property in respect of which they have claimed perfection of their title by adverse possession. - 10 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 13. The Hon'ble Supreme Court in the case of Chatti Konati Rao and Others vs. Palle Venkata Subba Rao - (2010) 14 SCC 316, in paragraph Nos.13 to 15, has observed as follows:- "13. What facts are required to prove adverse possession have succinctly been enunciated by this Court in Karnataka Board of Wakf v. Govt. of India [(2004) 10 SCC 779]. It has also been observed that a person pleading adverse possession has no equities in his favour and since such a person is trying to defeat the rights of the true owner, it is for him to clearly plead and establish necessary facts to establish his adverse possession. SCC para 11 of the judgment which is relevant for the purpose reads as follows: (SCC p. 785) “11. In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse - 11 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 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. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254] , Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. Venkatarayappa v. State of Karnataka [(1997) 7 SCC 567] .) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. 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. A person pleading adverse possession has no equities in his favour. Since he is trying to - 12 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. (Mahesh Chand Sharma v. Raj Kumari Sharma [(1996) 8 SCC 128] .)” 14. In view of the several authorities of this Court, few whereof have been referred above, what can safely be said is that mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Claim by adverse possession has two basic elements i.e. the possession of the defendant should be adverse to the plaintiff and the defendant must continue to remain in possession for a period of twelve years thereafter. - 13 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law." 14. In the background of the principles laid down in the case of Chatti Konati Rao (supra), if the facts of the present case and the oral and documentary evidence available on record is appreciated, it is found that the defendants had completely failed to prove that they had perfected their title by adverse possession. Defendants have taken inconsistent stand with - 14 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 regard to the title of the plaintiff over the suit schedule property. Though in the pleadings, they have denied the title of the plaintiff, during the course of their deposition, DW1 and DW2 have admitted that suit schedule A and B properties are the ancestral properties of the plaintiff. It has also come on record that defendants had filed an application before the jurisdictional Tahsildar with a prayer to grant the suit schedule B property presuming that the suit schedule B property was a government land. In Ex.P4, defendant No.2 herein has stated that defendants were under the impression that the suit schedule property belonged to them and they were in possession and enjoyment of the said property. 15. As observed by the Hon'ble Supreme Court in the case of Chatti Konati Rao (supra) unless the defendants clearly plead and establish all facts necessary to establish their adverse possession, the Courts cannot grant them any relief since an attempt is being made by person claiming adverse possession to defeat the right of the true owner. Under the circumstances, the Trial Court was not justified in partly decreeing the suit in OS No.229/2005. The Appellate Court also has failed to - 15 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 appreciate the aforesaid aspects of the matter and has erred in confirming the judgment and decree passed by the Trial Court in OS No.229/2005. In view of the aforesaid analysis of the matter, the substantial questions of law framed by this Court are answered in the negative and it is held that both the Courts have erred in arriving at the conclusion that defendants have perfected their title over the suit schedule B property by adverse possession. Under the circumstances, the following:- ORDER (i) The regular second appeal is allowed. (ii) The judgment and decree dated 19.09.2009 passed in RA No.48/2007 by the Court of Civil Judge (Sr. Dn.) and Addl. CJM, Arsikere and the judgment and decree dated 12.04.2007 passed in OS No.229/2005 by the Court of Addl. Civil Judge (Jr. Dn.), Arsikere, to the extent it relates to dismissing the suit in respect of suit schedule B property is set- aside and the suit of the plaintiff is decreed in its entirety and the plaintiff is declared as the lawful owner of the suit schedule A property and he is entitled to recover possession of the suit schedule B property from the defendants. - 16 - HC-KAR NC: 2026:KHC:5202 RSA No. 1733 of 2009 (iii) Accordingly, defendants are directed to hand over possession of suit schedule B property in favour of the plaintiff. (iv) The services of learned Amicus Curiae is placed on record and his fees is fixed at Rs.15,000/-. Sd/- (S VISHWAJITH SHETTY) JUDGE DN