The High Court of Karnataka dismissed a regular second appeal filed under Section 100 of the CPC concerning a suit for declaration of title by adverse possession and permanent injunction. The court held that no substantial question of law arose and the lower courts correct factual findings were unassailable.
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.
RSA No. 133 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF JUNE, 2023
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.133 OF 2023 (DEC/INJ)
BETWEEN:
SRI M NAGENDRAPPA AGED ABOUT 58 YEARS, S/O KARIYAPPA @ SANNA KARIAPPA, AGRICULTURIST, R/O SORATUR VILLAGE, HONNALI TALUK - 582 120.
…APPELLANT
(BY SRI. PRABHAKARA LAXMANA SHETTY., ADVOCATE)
AND:
Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA
SRI K DURGAPPA AGED ABOUT 63 YEARS, S/O DODDATHIMMAPPA, AGRICULTURIST, R/O SORATUR VILLAGE, HONNALI TALUK - 582 120.
…RESPONDENT
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELEIFS.
THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri. Prabhakara Laxmana Shetty. learned counsel for the
appellant has appeared in person.
RSA No. 133 of 2023
The plaintiff filed a suit seeking a declaration that he has perfected his title over the suit schedule property by way of adverse possession and also for a consequential relief of permanent injunction restraining the defendant or anybody acting on his behalf from interfering with the peaceful possession and enjoyment of the suit schedule property. The plaintiff contends that he is in possession of the agricultural land bearing Sy.No.8/3 measuring to an extent of 04 Acre 23 Guntas situated at Bhoodihal Village, Honnali Taluk from the year 1969-70 to 2005-06. It is also averred that his father namely Kariyappa was cultivating the suit land. After his demise, he continued to be in possession of the same adversely against the defendant. It is specifically averred that this fact
RSA No. 133 of 2023
was very well known to the defendant, his father, and his forefathers and they have not disturbed his possession or his father's possession till the date of filing of the suit. It is contended that Column No.12 of the Record of Rights, clearly shows that the plaintiff's father was in possession. Despite these facts, the defendant tried to disturb his possession over the suit schedule property. Hence, he was constrained to take shelter under the Court of law and accordingly, filed a suit for declaration and consequential relief of injunction.
After service of summons, the defendant appeared through his counsel and filed a detailed written statement and denied the plaint averments. It is contended by the defendant that one Mr.Govindappa S/o Huccha Hanumappa purchased the land in Sy.No.8/3, measuring to an extent of 04 Acre 15 Guntas situated at Boodihal Village, Honnali Taluk from one Siddappa S/o Hosakatte Basappa under a registered sale deed dated:12.07.1926. Since that day Mr.Govindappa S/o.Huccha Hanumappa was in possession and enjoyment of the aforesaid land. After the death of Mr.Govindappa, his son Sri. Doddathimmappa - father of the defendant continued to enjoy the aforesaid land. After his death, the defendant is the son in
RSA No. 133 of 2023
possession and enjoyment of the same. It is also contended that the plaintiff never cultivated the suit land and he has no manner of right, title, or interest over the suit schedule property, and the plea regarding adverse possession was also denied. Among other grounds, he prayed for the dismissal of the suit.
Based on the above pleadings, the Trial Court framed the Issues.
To substantiate the claim, the plaintiff examined himself as PW1 and two witnesses as PW2 & 3 and produced fifteen documents which were marked at Ex.P.1 to Ex.P.15. On the other hand, the defendant examined himself as DW1 and produced fourteen documents which were marked at Ex.D.1 to Ex.D.14.
On the trial of the action, the claim of adverse possession and the relief of injunction were rejected and consequently, the suit came to be s dismissed by the Trial Court. On appeal, the Appellate Court confirmed the Judgment and Decree of the Trial Court. Hence, this Regular Second Appeal is filed under Section 100 of CPC.
RSA No. 133 of 2023
Sri. Prabhakara Laxmana Shetty., learned counsel for the appellant submits that the Judgments and decrees of the Trial Court and the First Appellate Court are against the law, and facts of the case and the same are liable to be set aside.
Next, he submits that the Trial Court and the First Appellate Court have failed to appreciate the documents at Exs.P.1 to 6 RTCs with respect to the suit schedule property to establish that, Sri. Kariyappa – the appellant's father had been the suit property's cultivator.
A further submission is made that the Trial Court and the First Appellate Court failed to appreciate that, Ex.P.11 - statement wherein the defendant and others have admitted that the plaintiff is cultivating the suit property.
Learned counsel vehemently contended that the Trial Court and the First Appellate Court failed to appreciate the fact that the plaintiff has perfected his title and possession over the suit schedule property and had erroneously proceeded to reject the claim of adverse possession.
Lastly, he submitted that viewed from any angle, the Judgments and Decrees of the Trial Court as well as the First
RSA No. 133 of 2023
Appellate Court are perverse and unsustainable in law. Hence, this Regular Second Appeal raises a substantial question of law and accordingly, it may be admitted.
The facts have been sufficiently stated and the same does not require reiteration.
In the present case, the plaintiff-initiated action and sought a declaration that he has perfected the title to the suit property by adverse possession. To substantiate his claim, he has examined two witnesses as PW2 & 3.
Learned counsel Sri.Prabhakara Laxmana Shetty., appearing on behalf of the appellant in presenting his argument strenuously urged that the Trial Court and the First Appellate Court failed to appreciate the law regarding adverse possession. A good deal of argument was canvassed on adverse possession and an attempt is made on behalf of the appellant to contend that the plaintiff is in adverse possession of suit schedule property continuously for a period of 12 years
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and hence the Trial Court & First Appellate Court ought to have decreed the suit.
I have considered the submission about adverse
possession with utmost care.
To perfect title by adverse possession, three inseparable ingredients are necessary, they are:
The Apex Court in Dr. MAHESH CHAND SHARMA VS.
RAJ KUMARI SHARMA AND OTHERS reported in (1996) 8
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.
In so far as proof of adverse possession is concerned, it is a well-settled principle that a party claiming adverse possession
RSA No. 133 of 2023
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 extant to show that their possession is adverse to the true owner. Therefore, a person who claims adverse possession should show:
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.
Reverting to the facts of the case, In the evidence of PW2 & 3, there is no iota of evidence that when the plaintiff came
RSA No. 133 of 2023
into possession of the property. Even the plaintiff has also not stated when he came into possession of the suit schedule property. The Trial Court extenso referred to the material on record and concluded that the plaintiff has failed to establish the plea of adverse possession. The First Appellate Court also re-appreciated the evidence on record and rejected the claim of adverse possession. Hence, the contention about the same in this appeal must necessarily fail.
It is pivotal to note that the Trial Court extenso referred to the material on record and dismissed the suit. The First Appellate Court has examined the evidence on record and reappreciated 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 courts are either vitiated by non-consideration 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
RSA No. 133 of 2023
fact, the High Court in the second appeal cannot reverse the said concurrent findings under ordinary circumstances.
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.
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.
No order as to costs.
TKN List No.: 1 Sl No.: 36
Sd/JUDGE
1 issue framed by the court
Whether the concurrent findings of fact regarding the failure to establish adverse possession recorded by lower courts should be disturbed under Section 100 of the CPC.
Colour shows how this judgement treated each authority
Dr. MAHESH CHAND SHARMA VS. RAJ KUMARI SHARMA AND OTHERSExplained¶60
(1996) 8 SCC 128 · Who else cites this
1 provisions across 1 enactments
Sri M Nagendrappa
Sri K Durgappa
Jyoti Mulimani
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
