In a regular second appeal regarding a suit for declaration and possession, the High Court upheld concurrent findings that the plaintiff retained title to the suit property while the defendant, a Panchayath, occupied only portions without proving adverse possession. The appeal was dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.1293 OF 2023 (DEC/INJ)
BETWEEN:
THE EXECUTIVE OFFICER TALUK PANCHAYATH OFFICE NARASIMHARAJAPURA TALUK PANCHAYATH NARASIMHARAJAPURA TALUK CHIKKAMAGALORE DISTRICT PIN CODE - 577 101
…APPELLANT
(BY SRI. MAHESH B J, ADVOCATE)
Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA
AND:
SRI.H.T.DEVAKUMAR S/O S. PADMARAJU AGED ABOUT 58 YEARS RESIDING AT 3RD CROSS ARIHANTHA NILAYA BHAGYAVATHI LAYOUT A.M.PALYA ROAD SIRA GATE TUMKUR-572 106
…RESPONDENT
(BY SRI. BHASKAR BABU H, ADVOCATE)
NC: 2023:KHC:41038 RSA No. 1293 of 2023
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.01.2023 PASSED IN R.A.NO.12/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, N.R.PURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.06.2022 PASSED IN O.S.NO.90/2011 ON THE FILE OF THE CIVIL JUDGE AND JMFC, N.R. PURA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the unsuccessful defendant questioning the concurrent findings of both Courts, wherein the plaintiff's suit seeking relief of declaration and for possession of the suit schedule property is decreed by both Courts.
The suit schedule property is the part and parcel of Sy. No.33/P. The plaintiff contends that the suit property, which is the part and parcel of Sy. No.33/P, was granted to the plaintiff's grandfather late Devaraja Shetty. It is the specific case of the plaintiff that except the suit schedule property, the plaintiff has sold the remaining portion in Sy. No.33/P. The plaintiff has further contended that one Narasimharajapura Employees Society, which was in existence, requested plaintiff's father to provide vacant land for the purpose of construction of two quarters and on the request made by the Narasimharajapura Employees Society, the plaintiff's father provided vacant land for the purpose of construction of two quarters with an assurance from the said Society that they would hand over the vacant possession after securing necessary permission from the Government for construction of quarters. Therefore, the plaintiff contended that Narasimharajapura Employees Society was in permissive
possession and they had no title and interest over the suit schedule property. The plaintiff further contended that the
said Society had ceased to exist and these two quarters, which were constructed on the land owned by the plaintiff, were mutated in the name of the defendant - Panchayath. Since defendant started asserting title over the property in question, a legal notice was issued to the defendant on 12.09.2011 calling upon the defendant to hand over the vacant possession of the suit schedule property. Since defendant by way of reply notice asserted title over the suit schedule property, the present suit is filed by the plaintiff seeking relief of declaration and for possession.
quarters in the schedule property. The defendant claimed that on account of non-existence of the said society, the defendant's employees started residing in the suit schedule property and they are owners in possession of the said two quarters. In the alternate, the defendant set up a plea of adverse possession by contending that the defendant authority is in possession for more than 30 years and their possession is hostile animus to that of a owner and therefore, claimed that the defendant authority has perfected its title by way of adverse possession.
respective claims have let in oral and documentary evidence.
and mutation register extracts and also sketch answered issue Nos.1 to 3 in the Affirmative. While answering issue No.1 in the affirmative, the Trial Court held that the plaintiff has succeeded in proving that the suit schedule
property is the part and parcel of Sy. No.33/P, which was granted to the plaintiff's grandfather. While answering issue No.2 in the Affirmative, the Trial Court held that the plaintiff has succeeded in proving that the plaintiff's father orally permitted Narasimharajapura Employees Society to stay in the suit schedule property for three years. While answering issue No.3 in the Affirmative, the Trial Court held that the plaintiff has succeeded in proving that the defendant is in unlawful possession over the suit schedule property and got its name mutated to the concerned records illegally. While answering issue No.4 in the negative against the defendant, the Trial Court held that the defendant has failed to substantiate its title by way of adverse possession. Consequently, the suit is decreed.
of the Trial Court, the defendant preferred an appeal before the Appellate court. The Appellate Court being a final fact finding authority has independently re-assessed the entire evidence on record. The Appellate Court has
also taken cognizance of the sale deed vide Ex.P.8. While examining the recitals in Ex.P.8, the Appellate Court has concurred with the reasons assigned by the Trial Court insofar as claim of the plaintiff that his ancestors have retained the suit schedule property having sold the substantial portion in Sy. No.33/P. The Appellate Court further held that the plaintiff has succeeded in establishing that inspite of sale made by the plaintiff's family, they have retained some portion, which is referred as suit property in the present case.
possession, the Appellate Court was also not inclined to accept the defence set up by the defendant. The Appellate Court has held that the defendant except raising a bald contention in the written statement that they have perfected their title by way of adverse possession, no materials are placed on record to substantiate their claim. There is a categorical finding recorded by the Appellate Court that there is absolutely no evidence adduced by the
defendant to demonstrate that as to how they come in possession of the suit schedule property. The Appellate Court was also of the view that there is no evidence let in by the defendant to demonstrate that their possession is hostile animus to that of a owner. On these set of grounds, the appeal is dismissed. These concurrent findings are under challenge.
defendant and learned counsel appearing for the plaintiff. Perused the concurrent findings of the both Courts.
NC: 2023:KHC:41038 RSA No. 1293 of 2023
house. The said portion is culled out by the Trial Court
and equally taken cognizance by the Appellate Court.
plaintiff and the evidence let in, supporting the documentary evidence, which is placed on record by the plaintiff, clearly demonstrate that the plaintiff has successfully discharged his initial burden in not only establishing his title over the suit schedule property but also substantiating that Narasimharajapura Employees Society was in permissive possession over the suit schedule property. Now, let me examine whether the defendant by rebuttal evidence has succeeded in establishing its title by way of adverse possession. Para Nos.15 and 16 of the written statement would be useful to look into. Therefore, I deem it fit to cull the said paragraphs, which read as under;
" 15. It is submitted that, of course earlier NES was existed and there have two quarters in Main Road of N.R. Pura Town, NES are the
NC: 2023:KHC:41038 RSA No. 1293 of 2023
owner in possession over the two quarters, later after the non-existence of the said society the defendant's employees are residing and defendant became the owner in possession of said two quarters, now the employees of the defendant are residing in it. The defendant is paying the tax and katha was also changed by the Pattana Panchayath in the name of defendant from long time itself. This defendant is the absolute owner in possession over the said quarters, the defendant put the fence all around it, but the plaintiff with the instigation of some person filed this suit with created some false documents with an intention to get the wrongful gain and also wants to grab the valuable property. Earlier NES, later defendant became the owner in possession over the two quarters. The defendant is enjoying in possession of above two quarters from more than 30 years and paying kandayam and other taxes to the concerned authority. The katha was also changed in the name of Panchayath.
16. It is submitted that, the defendant's authority since more than 30 years, are in possession and peacefully enjoyment over the
two quarters, the defendant's employees openly residing from 30 years in it without any interruption and obstruction of any one with hostile attitude. Hence, without prejudice above defendant's defence, defendant also became the owner in possession by way of adverse possession."
defendant at para Nos.15 and 16, it is quite tangible and evident to note that the defendant's authority without any semblance of right has taken possession of these two quarters. Not a single piece of evidence is placed on record to demonstrate as to how defendant is put in possession of these two quarters, which are admittedly a private property. The defendant has taken plea of adverse possession. The plea of adverse possession is not substantiated in the preceding paragraph No.15. The defendant has admitted in unequivocal terms that these two quarters were built by Narasimharajapura Employees Society.
NC: 2023:KHC:41038 RSA No. 1293 of 2023
then this Court is of the view that the findings recorded by both Courts on issue Nos.1 and 2 is based on cogent and clinching evidence let in by the plaintiff. The findings recorded by both Courts on issue No.4 in answering the said issue against the defendant is also for want of rebuttal evidence let in by the defendant authority. The concurrent findings are based on the legal evidence and in absence of rebuttal evidence let in by the defendant, I do not find any infirmities in the findings and conclusions recorded by both the Courts.
No substantial question of law arises for consideration and therefore, the second appeal is liable to be dismissed.
At this juncture, the learned counsel appearing for the defendant submitted that defendant may be granted some reasonable time to hand over the vacant possession.
Learned counsel appearing for the plaintiff fairly
accepts this offer and on instructions, submitted that his client is willing to grant one year time to the defendant to handover the quarters.
Learned counsel appearing for the defendant is directed to file appropriate undertaking and the same shall be filed before this Court within a period of two weeks.
To report compliance, list this matter on
04.12.2023.
Sd/-
JUDGE
NBM
List No.: 1 Sl No.: 4
2 issues framed by the court
Whether the concurrent findings of both lower courts that the plaintiff had valid title and the defendant failed to prove adverse possession are破除 on evidence.
Whether substantial question of law arises for consideration in this second appeal.
The Executive Officer, Taluk Panchayath Office, Narasimharajapura, Taluk Panchayath, Narasimharajapura, Taluk, Chikkamagalore District
Sri. H.T. Devakumar
Sachin Shankar Magadum
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
