Dismissed

G P Thimanna v. Nalinamma

Karnataka HC16 Nov 2023RSA/844/2016

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed this regular second appeal filed under Section 100 of the CPC. The appellant sought to assail concurrent judgments dismissing his suit for injunction based on alleged adverse possession. The Court found no substantial question of law and dismissed the appeal.

What did the court decide?

The regular second appeal is dismissed; all pending applications stand disposed of.

G P Thimanna Vs Nalinamma — Partition | Karnataka HC (2023)

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NC: 2023:KHC:40783 RSA No. 844 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 844 OF 2016 (INJ)

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BETWEEN:

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G. P. THIMANNA, S/O PUTTAVEERAIAH, AGED ABOUT 56 YEARS, AGRICULTURIST, R/O GULUR VILLAGE TUMAKURU TALUK - 572 118.

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…APPELLANT

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(BY SRI. VINAYAKA B, ADVOCATE)

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AND:

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NALINAMMA,

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Digitally signed by REKHA ANKAIAH Location: High Court of Karnataka

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D/O LATE APPANNA SHETTY, MJAOR, R/O GULUR, TUMAKURU TALUK.

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DAYANIDHI,

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S/O LATE APPANNASHETTY, AGE MAJOR,

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SOMANNA, S/O LATE APPANNA SHETTY, AGE MAJOR,

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4. SHARATH CHANDRA, S/O LATE APPANNA SHETTY, AGE MAJOR,

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NC: 2023:KHC:40783 RSA No. 844 of 2016

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RESPONDENTS 2 TO 4 ARE R/O GULUR VILLAGE, TUMUKURU TALUK - 572 118.

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…RESPONDENTS

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(BY SRI. GURURAJ KULKARNI, ADVOCATE FOR R1, R2 AND R4; VIDE ORDER DATED 18.02.2019 APPEAL AGAINST R3 STAND DISMISSED)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.01.2016 PASSED IN RA NO.78/2015 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND JMFC., TUMKAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.08.2015 PASSED IN OS NO.518/2015 ON THE FILE OF THE III ADDL. CIVIL JUDGE AND JMFC., TUMKUR.

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

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JUDGMENT

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The captioned second appeal is filed by the unsuccessful plaintiff, assailing the concurrent judgments of the Courts below, wherein plaintiff's suit for injunction simplicitor is dismissed by both the Courts.

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

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3 - NC: 2023:KHC:40783 RSA No. 844 of 2016

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Facts leading to the case are as under:

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The plaintiff has filed the present suit in O.S.No.518/2005 seeking an injunction against the defendants. The subject matter of the suit is agricultural land bearing Sy.No.114, measuring 4 acre 15 guntas. The plaintiff is asserting possessory rights over the suit land by contending that his father was in exclusive possession and enjoyment during his lifetime and that his possession was hostile animus to that of lawful owner in excess of statutory period of more than the statutory period. The present suit is filed alleging that defendants are strangers to the suit schedule property and that they are attempting to interfere with plaintiff's possession.

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Plaintiff and defendants to substantiate their respective claims have let in oral and documentary evidence.

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Both the Courts, referring to the evidence on

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record, have recorded a categorical finding that neither

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4 - NC: 2023:KHC:40783 RSA No. 844 of 2016

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plaintiff nor defendants are in lawful possession over the suit land. Having taken cognizance of the revenue records, both the Courts held that in column No.9, the property is standing in the name of one Gulur Co-operative Society. The plaintiff's contention that he is in lawful possession as on the date of filing of the suit is negatived by both the Courts. Both the Courts referring to revenue records, have come to the conclusion that the plaintiff has failed to substantiate his lawful possession and alleged interference as on the date of filing of the suit.

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It is trite law that in case of adverse possession

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of land, two aspects has to be taken into consideration. Firstly, the nature of possession of the land should be exclusive, continuous, uninterrupted and it should be actual physical possession and not merely constructive possession over the land. Secondly, the possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when a plea of adverse possession is raised. The

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NC: 2023:KHC:40783 RSA No. 844 of 2016

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plaintiff though strangely has set up a plea of adverse possession, there are no specific pleadings indicating against whom he is claiming plea of adverse possession.

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The concept of adverse possession in India is more than a century old concept of law which is primarily based on three fundamental principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of a person taking care of the land and making highest and best use of the land would prevail over the actual title holder of the land who does not take care of the land. Secondly, the title of the land should not be kept in abeyance for a long period of time i.e. a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights if despite knowing that some other person is claiming hostile possession over his land but he chooses to

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keep quite and not taking any action against the said person as provided under the law.

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NC: 2023:KHC:40783 RSA No. 844 of 2016

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On meticulous examination of findings and conclusions recorded by both the Courts, this Court is more than satisfied that it is not a fit case to re-assess the entire material on record, having regard to the scope of enquiry under Section 100 of CPC. If both the Courts have recorded concurrent findings that the plaintiff has failed to establish his lawful possession, this Court cannot re-assess the evidence, which is not permissible under Section 100 of CPC.

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Therefore, no substantial question of law would arise for consideration. The regular second appeal is devoid of merits and accordingly stands dismissed .

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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HDK

G P Thimanna v. Nalinamma

Case brief

What is this about?

What did the court decide?

G P Thimanna v. Nalinamma

Case brief

What is this about?

What did the court decide?

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