Dismissed

H E Nagaraju v. Muthanna H K

Karnataka HC29 May 2023RSA/108/2023

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Karnataka dismissed the appeal filed by heirs seeking declaration and possession of a shed. The respondent failed to prove adverse possession, and the High Court held that concurrent findings of fact by lower courts on possession could not be disturbed under Section 100 of CPC as no substantial question of law arose.

What did the court decide?

The appeal was dismissed at the stage of admission. No order as to costs.

H E Nagaraju Vs Muthanna H K — Property and Title | Karnataka HC (2023)

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RSA No. 108 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 29^TH DAY OF MAY, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.108 OF 2023 (DEC/POS)

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BETWEEN:

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H. E. NAGARAJU S/O H.S. ERAPPA GOWDA, SINCE DECEASED BY LRS.

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SMT. KAVERAMMA W/O LATE H. E. NAGARAJU, AGED ABOUT 70 YEARS.

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H. N. ASHOK S/O LATE H. E. NAGARAJU, AGED ABOUT 48 YEARS.

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H. N. KIRAN S/O LATE H. E. NAGARAJU, AGED ABOUT 45 YEARS,

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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APPELLANT NOS.1 TO 3 ARE R/AT CLUB ROAD, SOMWARPET KODAGU DISTRICT - 571 236.

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SAVITHA N. V. W/O VASANTHA N. T. D/O H. E. NAGARAJU AGED ABOUT 47 YEARS R/AT NEGALLI, KARKALLI VILLAGE SOMWARPET TALUK KODAGU DISTRICT - 571 236.

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…APPELLANTS

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(BY SRI. V.S.VENKATESHA GOWDA, ADVOCATE FOR SRI. HARISH N.K., ADVOCATE)

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RSA No. 108 of 2023

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AND:

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H.K. MUTHANNA S/O LATE KUTTAPPA, AGED ABOUT 65 YEARS, R/AT RADHAKRISHNA LAYOUT, KUSHALNAGAR, SOMWARPET TALUK, KODAGU DISTRICT - 571 234.

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…RESPONDENT

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC., SEEKING CERTAIN RELIEFS.

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THIS APPEAL IS COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Sri.V.S.Venkatesha Gowda, learned counsel on behalf of

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Sri.Harish N.K., for the appellants has appeared in person.

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This appeal is from the Court of I Additional District Judge, Kodagu at Madikeri.

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For the sake of convenience, the status of the

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parties is referred to as per their rankings before the Trial Court.

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The facts of the case are quite simple and are stated as under:

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RSA No. 108 of 2023

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It is a case of the plaintiff that he is the owner of the suit schedule property which came to his possession by his father. The plaint schedule is described as a temporary shed built with a tiled roof and sheet walls measuring 1,200 sq. ft. in 5 cents of land, out of 15.25 cents, in Sy. No.215 of Ward No.6 of Somwarpet Town Panchayath. It is averred that the defendant is an authorized occupant of the same and hence, he was constrained to take shelter under the Court of law and filed a suit seeking the relief of declaration and possession.

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On service of notice, the defendant appeared through counsel and filed a written statement. He contended that the plaintiff had permitted him to put up a shed and accordingly, he put up a shed in the suit schedule property. He admitted that the plaintiff is the owner of the property. The only defense put forth by the defendant is that he has put up a shed with the permission of the plaintiff and it is also contended by him that the plaintiff agreed to sell the suit schedule property in his favor and accordingly, the sale agreement is executed. The defendant further contended that he is always ready and willing to perform his part. Among other grounds, he prayed for the dismissal of the suit.

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RSA No. 108 of 2023

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Based on the above pleadings, the Trial Court

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framed the following:

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ISSUES

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Whether the plaintiff proves that the defendant is in permissive possession over the suit property?

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Whether the defendant proves that he has perfected his title over the suit property by way of adverse possession?

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What order or decree?

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In order to establish the contention, plaintiff - Muthanna himself was examined as PW.1 and produced nine documents which were marked as Ex.P.1 to P.9. On behalf of the defendant, the original defendant - Sri.H.E.Nagaraju was examined as D.W1 and one more witness - Sri.Rajanna was examined as DW.2 and produced eighteen documents which were marked as Ex.D.1 to D.18.

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On the trial of the action, the Trial Court decreed the suit and directed the defendant to hand over the possession of the suit schedule property to the plaintiff within 30 days. Aggrieved by the Judgment and Decree of the Trial Court, the defendant preferred an appeal before the Appellate Court in

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RSA No. 108 of 2023

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R.A.No.22/2018. The First Appellate Court on re-appreciation of the materials available on record, confirmed the Judgment and Decree of the Trial Court. Hence, this Regular Second Appeal is filed under Section 100 of CPC.

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Learned counsel for the appellants submits that the Judgment and Decree of the Trial Court, as well as the Appellate Court, are opposed to the facts, law, and evidence on record.

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Next, he submits that the Courts have erred in not properly appreciating the implications and impact of facts elicited by the plaintiff's side i.e., PW.1 in his crossexamination.

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A further submission is made that the defendant is in permissive possession of the property in question. He also contended that there is a sale agreement and the defendant is ready and willing to perform his part of the contract.

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Learned counsel vehemently contended that the plaintiff instead of executing a sale deed, has taken coercive steps to evict and dispossess the defendant from the suit schedule property. It is also brought to the notice of the Court that the

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RSA No. 108 of 2023

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plaintiff is residing at Kushalnagar which is 35 kilometers away from the disputed property and the suit scheduled property is the only source of income for the livelihood of the defendant. Hence, the Courts have failed to appreciate this aspect of the matter and have erroneously decreed the suit for possession and declaration.

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Lastly, he submits that viewed from any angle, the Judgments and Decrees of both the Courts are unsustainable in law and hence, this Regular Second Appeal raises a substantial question of law and accordingly, he submits that a substantial question of law may be framed and the appeal may be admitted.

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Heard, the contentions urged on behalf of the appellants and also perused Judgments and Decrees of both the Courts with utmost care.

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The facts have been sufficiently stated. In this case, the plaintiff sued for declaration and possession. Suffice it to note that the defendant either in his written statement or in his oral evidence, never disputed the title of the plaintiff. The entire issue revolves around possession.

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RSA No. 108 of 2023

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Sri. V.S.Venkatesha Gowda learned counsel in presenting his argument vehemently contended that the defendant is in permissive possession and an attempt is made on behalf of the appellant to contend that he is also in adverse possession.

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I have considered the submission about adverse

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possession with utmost care.

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To perfect title by adverse possession, three inseparable ingredients are necessary, they are:

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(1) Property, the subject of adverse possession;

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(2) Corpus possession is (physical possession): and

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(3) Animus possidendi (intention to exclude the adversary from possession).

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The Apex Court in Dr. MAHESH CHAND SHARMA VS.

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RAJ KUMARI SHARMA AND OTHERS reported in (1996) 8

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SCC 128 , has held that a plea of adverse possession is not a pure question of law but a mixed question of fact and law. 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.

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RSA No. 108 of 2023

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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 extant to show that their possession is adverse to the true owner. Therefore, a person who claims adverse possession should show:

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(a) On what date he came into position,

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(b) What was the nature of his possession,

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(d) How long his possession has continued, and

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(e) His possession was open and undisturbed.

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It is only on proof of all these ingredients the case of adverse possession is said to have been established. A person pleading adverse possession has no equities in his favor, since he is trying to defeat the rights of the true owner, it is for him to plead and establish all facts necessary to establish his adverse possession.

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RSA No. 108 of 2023

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In the present case, the defendant has failed to establish and prove the factum of adverse possession. Hence, the contention about the same must necessarily fail.

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It is pivotal to note that the Trial Court in extenso referred to the material on record and declared that the plaintiff is the absolute owner of the suit property and consequently directed the defendant to hand over the possession of the property. The First Appellate Court has examined the evidence on record and re-appreciated it. I am satisfied that it has been appreciated from the correct perspective. The concurrent finding of facts, however erroneous, cannot be disturbed by the High Court in the exercise of the power under Section 100 of CPC. The substantial question of law has to be distinguished from a substantial question of fact. In my view, the findings recorded by both the Courts are either vitiated by nonconsideration of relevant evidence or by an erroneous approach to the matter. Where based on evidence on record the Trial Court and the First Appellate Court had concurrently arrived at a finding of fact, the High Court in the Second Appeal cannot reverse the said concurrent findings under ordinary circumstances.

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10 -

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RSA No. 108 of 2023

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It is perhaps well to observe that after the 1976 amendment, the scope of Section 100 of the CPC has been drastically curtailed and narrowed down. Under Section 100 of the Code of Civil Procedure 1908 (as amended in 1976) the jurisdiction of the High Court to interfere with the judgment of the Court below is confined to hearing substantial questions of law. Interference with a finding of a fact by the High Court is not warranted if it involves re-appreciation of the evidence.

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No substantial question of law arises for consideration in this appeal. As a result, I find no merit in this appeal, and accordingly, it is dismissed at the stage of admission.

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No order as to costs.

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Sd/JUDGE

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NR List No.: 1 Sl No.: 41

H E Nagaraju v. Muthanna H K

Case brief

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H E Nagaraju v. Muthanna H K

Case brief

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