Applicant challenged the confirmation of a suit decree regarding property title and adverse possession. The Second Appeal Court found no substantial question of law, rejected the plea of error in fact-finding below, and dismissed the appeal at the admission stage.
The appeal is dismissed at the admission stage as no substantial question of law is made out.
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 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE PRADEEP SINGH YERUR REGULAR SECOND APPEAL NO.2030 OF 2013 (DEC)
BETWEEN:
PAMPANAIK, S/O. HANUMANANAIK, AGED ABOUT 49 YEARS, AGRICULTURIST, R/O. PUNBHAGATTA THAND VILLAGE, HARAPANAHALLI TALUK, DAVANAGERE DISTRICT - 577 002.
…APPELLANT
(BY MS. THAMINA BEKAL, ADVOCATE FOR SRI. HAREESH BHANDARY T, ADVOCATE)
AND:
Digitally signed SRI. DAKANANAIKA, by REKHA S/O. JAGANANAIK, ANKAIAH AGED ABOUT 65 YEARS, Location: High Court of R/O. PUNBHAGATTA THAND VILLAGE, Karnataka HARAPANAHALLI TALUK, DAVANAGERE DISTRICT - 577 002.
…RESPONDENT (BY SRI. K.B.K. SWAMY, ADVOCATE FOR SRI. SHIVANAGOUDAR N.M., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 23.11.2013 PASSED IN R.A.NO.35/2012 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, DAVANGERE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DTD 31.5.2012 PASSED IN O.S.NO.123/2007 ON THE FILE OF THE CIVIL JUDGE & JMFC., HARAPANAHALLI AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is preferred by the defendant challenging the judgment and decree dated 31.05.2012 in OS.No.123/2007 passed by the Court of Civil Judge and JMFC, Harapanahalli which is confirmed in the R.A. No.35/2012 by the Court of Senior Civil Judge and JMFC, Harapanahalli.
rank before the Trial Court. Respondent filed the suit in OS.No.123/2007 seeking for the relief of declaration that the plaintiff is the absolute owner and to deliver the possession of the property to the plaintiff and for consequential relief of Permanent Injunction restraining the defendant form interfering to the peaceful possession and enjoyment of the suit schedule property of the plaintiff. The suit schedule property is in Sy.No.417/2 land measuring to an extent of Four acres situated
in Punabagatte village within the District of Davanagere, Harapanahalli. It is a case of plaintiff that the plaintiff is the
NC: 2023:KHC:36025 RSA No. 2030 of 2013
absolute owner of suit schedule property and the plaintiff's grandfather Sakra Naika purchased the property from Bodladaki Gangavva in the year 1960, after the death of Sakra Naika, father of plaintiff has inherited the same and after death of father of the plaintiff namely Jaganayanaika, plaintiff inherited the suit schedule property. In all plaintiff had purchased totally 7.25 acres out of the said property the grandfather of the plaintiff sold the extent of three acres, plaintiff inherited the remaining portion of 4.25 acres.
NC: 2023:KHC:36025 RSA No. 2030 of 2013
When plaintiff came to put up the fence on the land to an extent of 3 acres of land and left the remaining 1.25 acres. The defendant who has no manner of right, title or interest over the suit schedule property started interfering with the plaintiff's peaceful possession and enjoyment of the land and plaintiff approached the defendant to deliver the possession of portion of the suit schedule property, but the defendant refused to deliver the same. Left with no other alternative plaintiff filed this suit for declaration and possession.
2. Whether defendant proves that he is the owner of suit property by way of adverse possession?
3. Whether defendant proves that plaintiff not paid proper Court fee?
4. Whether defendant proves that suit is hit by non joinder of necessary parties?
5. Whether suit is maintainable in present form?
NC: 2023:KHC:36025 RSA No. 2030 of 2013
6. Whether plaintiff entitled for the Order as prayed in the prayer column?
7. What order or decree?"
reconsideration and re-appreciation of the entire materials placed on record, both oral and documentary, upon careful perusal of the impugned judgment of the trial Court and consideration of the issues framed therein, formulated following points for consideration:
of the learned counsel for both parties and after reconsideration of the entire material evidence, re-appreciation and admissions made by the defendant before the trial Court and several pleas taken by the defendant came to the conclusion that the trial Court had not committed any error in decreeing the suit of the plaintiff and so also the defendant having not made out the
NC: 2023:KHC:36025 RSA No. 2030 of 2013
valid ground for establishing the title by way of adverse possession and there being no material evidence on record of pleadings of the animus possidendi to establish adverse possession as against the plaintiff and contrary to the plea also taken by the defendant that the plaintiff and the defendant are in joint family possession of the property, rejected the appeal preferred by the defendant and confirmed the judgment and decree passed by the trial Court.
also held that it was also the case of defendant, who pleaded that the suit schedule property was owned jointly by the families of plaintiff and defendant. In fact the plaintiff has very clearly stated in his evidence and in the pleadings that due to his lack of literacy, he was not in possession of maintaining the land and accordingly, the defendant was to cultivate the land and handover the possession of the land in question.
and the entire materials on record, which show that it is the case of the plaintiff, that he is the absolute owner of peaceful possession and enjoyment of the suit schedule property on the basis of title deed produced at Ex.P-1 and the revenue extracts at Exs.P2-P5, whereas the defendant relying upon the revenue extracts at Exs.D1-D16, the receipts of pahanis and mutation extracts issued, which have been transferred in the name of the defendant, has created the theory of adverse possession to the interest of the plaintiff being lawful and true owner of the suit schedule property. In fact on perusal of the materials, pleadings of the defendant, it is contrary to his own stand. At one stretch, the defendant has taken the plea that the plaintiff was initially the owner of the suit schedule property and also that the schedule property is the joint family property of the plaintiff and the defendant and thereafter, the plea of adverse possession on the basis of the entries in the revenue records transfers to the name of the defendant. These aspects have been dealt with by the trial Court and first Appellate Court in detail, which arises now for consideration as to whether substantial questions is made out for consideration under
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Section 100 of Code of Civil Procedure. Section 100 of CPC reads as under:-
"100. Second appeal.- (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
been misconstrued and is not appreciated, whereas, learned counsel for appellant vehemently contended that issue of adverse possession has not been dealt with in proper perspective by both Courts. Having gone through the judgment of the trial Court and first Appellate Court, I do not find any cogent reason to interfere with the judgment of the trial Court and first Appellate Court which have elaborately dealt with the issue of ownership of the plaintiff over the suit schedule property, issue of adverse possession and the suit schedule property having been given to the defendant only for the purpose of cultivation by the plaintiff and to share the proceeds of the out come of the said crops in the suit schedule property.
ORDER
The appeal is dismissed , at the stage of admission, as
no question of law is made out for consideration.
Ordered accordingly.
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In view of dismissal of this appeal, pending I.A., if any, would not survive for consideration and the same pales into insignificance.
Sd/JUDGE
ABK/CPN
3 issues framed by the court
Whether a substantial question of law arises to interfere with the trial court and first appellate court judgments on the issues of title and adverse possession.
Whether the evidence on adverse possession was appreciated properly below such that this court should grant leave to appeal as a matter of substantial question of law.
Whether the appeal satisfies the limitation and substantial question of law requirements under Section 100 CPC.
1 provisions across 1 enactments
Pampanaik
Dakananaika
Pradeep Singh Yerur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
