Dismissed

Smt B M Honnamma v. Sri P P Poonacha

Karnataka HC6 Nov 2023RSA/824/2016

Case brief

AI extract

What is this about?

This court dismissed two regular second appeals filed by defendants challenging concurrent orders that decreed a suit for possession. The evidence failed to substantiate a plea of adverse possession as the defendants admitted no hostile animus or knowledge of the encroachment.

What did the court decide?

The regular second appeals filed by the defendants were dismissed, confirming the lower court's order in favor of the plaintiff.

Smt B M Honnamma Vs Sri P P Poonacha — Property and Title | Karnataka HC (2023)

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NC: 2023:KHC:39386 RSA No. 824 of 2016 C/W RSA No. 825 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.824 OF 2016 (POS) C/W

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REGULAR SECOND APPEAL NO. 825 OF 2016 (POS)

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IN RSA NO.824/2016

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BETWEEN:

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SMT B M HONNAMMA W/O LATE SRI B MADHAVA AGED ABOUT 70 YEARS RESIDENT OF HAKATHUR VILLAGE AND POST MADIKERI TALUK KODAGU - 571 201

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Digitally signed by CHAITHRA A

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Location: HIGH COURT OF KARNATAKA

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(BY SRI. P B RAJU, ADVOCATE)

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AND:

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…APPELLANT

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. SRI P P POONACHA S/O LATE SRI P P PONNAPPA AGED ABOUT 81 YEARS RESIDENT OF GANDHI NAGAR MURNAD,BMADIKERI TALUK KODAGU -571 201

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…RESPONDENT

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(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)

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2 - NC: 2023:KHC:39386 RSA No. 824 of 2016 C/W RSA No. 825 of 2016

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.03.2016 PASSED IN RA.NO.89/2012 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, KODAGU, MADIKERI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.08.2012 PASSED IN OS.NO.62/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI AND ETC.

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IN RSA NO.825/2016

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BETWEEN:

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SMT B M HONNAMMA W/O LATE SRI B MADHAVA AGED ABOUT 70 YEARS RESIDENT OF HAKATHUR VILLAGE AND POST MADIKERI TALUK KODAGU - 571 201

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…APPELLANT

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(BY SRI. P B RAJU, ADVOCATE)

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AND:

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. SRI P P POONACHA S/O LATE SRI P P PONNAPPA AGED ABOUT 81 YEARS RESIDENT OF GANDHI NAGAR MURNAD,BMADIKERI TALUK KODAGU -571 201

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…RESPONDENT

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(BY SRI. G BALAKRISHNA SHASTRY, ADVOCATE)

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3 - NC: 2023:KHC:39386 RSA No. 824 of 2016 C/W RSA No. 825 of 2016

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 11.03.2016 PASSED IN RA.NO.101/2012 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, KODAGU, MADIKERI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 29.08.2012 PASSED IN OS.NO.62/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI AND ETC.

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THESE APPEALS, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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These two captioned second appeals are filed by the defendant No.2 assailing the concurrent judgments rendered by the both Courts in O.S.No.62/2006 as well as the counter claim raised by the defendants to declare that they have become the owners by way of adverse possession.

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For the sake of brevity, the parties are referred as they are ranked before the Trial Court.

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Facts leading to the case are as under;

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The plaintiff has instituted a suit seeking possession of the suit schedule properties alleging that the defendant

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Nos.1 and 2 have encroached plaintiff's properties, which are referred as schedule 'B' and 'C' properties. The plaintiff is asserting title based on the registered sale deed dated 04.10.1960. The plaintiff claimed that schedule 'A' property was purchased by the plaintiff's father. The plaintiff has further alleged that in a partition, schedule 'A' property was allotted to the plaintiff's share. The said family partition was confirmed by family consent letter dated 16.12.1988. The plaintiff has alleged that defendant No.1, who is the owner and in possession of the adjoining land bearing Sy. No.112/2 measuring 23.04 acres and defendant No.2, who is owner and in possession of 1 acre of coffee estate in Sy. No.108/69 have encroached eastern portion of 'A' schedule property. In order to settle the dispute regarding the boundaries, the plaintiff claimed that he has applied for survey to ascertain the encroachment and ADLR Madikeri, having conducted survey, found that there is an encroachment of 1 acre 20 cents towards eastern portion of schedule 'A' property. Based on the ADLR report, the plaintiff has filed a suit for possession

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based on the title by specifically alleging that defendant Nos.1 and 2 have encroached schedule 'B' and 'C' properties and therefore, prayed for delivery of possession of the encroached portion referred as 'B' and 'C' schedule properties.

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Defendant Nos.1 and 2 on receipt of summons have tendered appearance and contested the suit by filing written statement. Defendant Nos.1 and 2 have stoutly denied the entire averments made in the plaint. Both the defendants by way of counter claim have claimed that they have perfected their title by way of adverse possession. Defendant No.1 alleged that his grandfather and his father have been enjoying the plaint schedule 'B' property as absolute owners for more than 30 years. Defendant No.2 claimed that husband of defendant No.1 has purchased the property bearing Sy. No.108/69 measuring 1 acre under registered sale deed dated 02.10.1966. Defendant No.2 further claimed that schedule 'C' property was a part and parcel of the portion purchased

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by her husband and therefore, claimed that after his demise, she along with her children are in exclusive possession of 'C' schedule property as absolute owners and therefore, defendant No.2 also claimed that she has perfected her title by way of adverse possession.

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The plaintiff and defendants to substantiate their respective claims have let in oral and documentary evidence. The Court of first instance having examined the pleadings in the written statement more particularly the pleadings relating to assertion that they have perfected their title by way of adverse possession found that there is absolutely no materials indicating that they have perfected their title by way of adverse possession. The Court of first instance on meticulous examination of the oral and documentary evidence held that the plaintiffs have succeeded in proving that defendant Nos.1 and 2 have encroached schedule 'B' and 'C' properties respectively during 1999-2000. While answering issue Nos.2 and 3 in the Negative, the Court of first instance held that

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defendants have failed to substantiate that they have perfected their title by way of adverse possession. While answering additional Issue No.1 in the Affirmative, the Trial Court held that the plaintiff by producing title documents have succeeded in substantiating his title over the suit schedule 'A' property as well as schedule 'B' and schedule 'C' properties. On these set of reasonings and conclusions, the Trial Court has decreed the suit.

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The defendants feeling aggrieved by the judgment and decree of the Trial Court preferred two appeals in R.A.No.89/2012 and R.A.No.1/2012. The Appellate Court as a final fact Authority has re-assessed the entire materials on record. The Appellate Court while examining the requisite ingredients of adverse possession

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found that both defendants have encroached over schedule 'B' and 'C' properties during 1999-2000, while suit is filed in the year 2006. On meticulous examination of the evidence, the Appellate Court has recorded a categorical finding that there is absolutely no evidence

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adduced by the defendants to demonstrate that the plaintiff has abandoned his right over the suit schedule property. Appellate Court has also come to the conclusion that plea of adverse possession is not successfully substantiated by the defendants. Consequently, both appeals are dismissed. These two second appeals are by the defendant Nos.1 and 2 respectively assailing the concurrent findings recorded by both the Courts.

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Heard learned counsel appearing for the defendants and learned counsel appearing for the plaintiff. Perused the materials on record.

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The fact that the defendants have set up a plea of adverse possession necessarily pre-supposes that the plaintiff's title is not disputed by the defendants. It is equally a trite law that once plea of adverse possession is set up, there is absolutely no burden on the plaintiff, who is seeking possession based on the title; the entire burden is on the defendants to substantiate and demonstrate that

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they have perfected their title by way of adverse possession. In such cases, the plaintiff can be non-suited only if defendants pleads and prove that they have perfected their right and title by way of adverse possession.

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It is equally trite law that mere possession, irrespective of length of time would not in itself constitute proof of adverse possession. The defendants have to also place on record substantial materials to demonstrate that the plaintiff, who is a true owner, has abandoned his right acknowledging the hostile animus of the defendants. All these significant details and requisite ingredients are found missing in the present case on hand. The encroachment at the hands of the defendants is noticed at the instance of plaintiff, who applied for a survey, but this only occurred in the year 2004. After survey was conducted by the Assistant Director of Land Records, it was noticed that defendant No.1 has encroached schedule 'B' property and defendant No.2 has encroached schedule

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'C' property. Therefore, it can be easily inferred that even defendant Nos.1 and 2 in all probabilities were not aware that they are in possession of excess land beyond what was purchased by them.

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If defendants themselves had no knowledge that they are enjoying the portion owned by the plaintiff exhibiting hostile animus, then I am of the view that the plea of adverse possession is not at all available to the defendants. The tenor of the pleadings and the written statement at the first instance also give an indication that the defendants have asserted title over the property based on the sale deed executed by their erstwhile vendor. This vital aspect gives an indication that defendant Nos.1 and 2 were found to be in possession under the bonafide impression that this encroached portion is a part and parcel of their respective lands.

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If these significant details are taken into consideration, then I am of the view that both Courts were

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justified in answering issue Nos.3 and 5 in the negative and against defendant Nos.1 and 2 respectively. Both the Courts were justified in holding that the defendants have failed to substantiate that they have perfected their title by way of adverse possession. The conclusions and reasonings assigned by the both Courts is based on clinching evidence let in by the plaintiff and in absence of the rebuttal evidence let in by defendant Nos.1 and 2 respectively.

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Therefore, I am of the opinion that no substantial question of law arises for consideration.

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Both appeals are devoid of merits and accordingly, stand dismissed.

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Pending applications, if any, are also dismissed.

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Sd/JUDGE

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NBM

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List No.: 1 Sl No.: 4

Smt B M Honnamma v. Sri P P Poonacha

Case brief

What is this about?

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Smt B M Honnamma v. Sri P P Poonacha

Case brief

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