Second appeals by defendant challenging concurrent decrees declaring respondents owners of 6.29 acres and rejecting his adverse-possession claim founded on a disputed 1982 agreement of sale, whose execution he failed to prove.
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NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 16TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100659 OF 2018 (DEC/INJ-)
C/W
REGULAR SECOND APPEAL NO. 100658 OF 2018
IN RSA NO. 100659 OF 2018
BETWEEN:
H. VEERANA GOWDA S/O LATE SHANKAR GOWDA AGE: 62 YEARS, OCC: AGRICULTURE, R/O: YERRANGLI VILLAGE, YERRANGLI POST, BALLARI TALUKA & DISTRICT-583101.
…APPELLANT
(BY SRI J. M. ANIL KUMAR AND SRI JAYAWANT SAVAGAON, ADVOCATES)
Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD
AND:
NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
R/O: YERRANGLI VILLAGE, YERRANGLI POST,
BALLARI TALUKA & DISTRICT-583104.
…RESPONDENTS
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 04.01.2016 PASSED BY THE LEARNED FIRST ADDITIONAL SENIOR CIVIL JUDGE, BALLARI IN O.S.NO.40/2013 AND THE JUDGMENT AND DECREE DATED 28.04.2018 IN R.A.NO.40/2016 PASSED BY THE II ADDITIONAL DISTRICT JUDGE, BALLARI.
IN RSA NO. 100658 OF 2018
BETWEEN:
H. VEERANA GOWDA S/O LATE SHANKAR GOWDA AGE: 62 YEARS, OCC: AGRICULTURE, R/O: YERRANGLI VILLAGE, YERRANGLI POST, BALLARI TALUKA & DISTRICT-583104.
…APPELLANT
(BY SRI J. M. ANIL KUMAR
AND SRI JAYAWANT SAVAGAON, ADVOCATES)
AND:
NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
OCC: AGRICULTURIST, R/O: YERRANGLI VILLAGE, YERRANGLI POST, BALLARI TALUKA & DISTRICT-583104.
…RESPONDENTS
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 04.01.2016 PASSED BY THE LEARNED FIRST ADDITIONAL SENIOR CIVIL JUDGE, BALLARI IN O.S.NO.79/2011 AND THE JUDGMENT AND DECREE DATED 28.04.2018 IN R.A.NO.41/2016 PASSED BY THE II ADDITIONAL DISTRICT JUDGE, BALLARI AND CONSEQUENTLY DECREE THE SUIT INSTITUTED BY THE APPELLANTS AS PRAYED FOR IN O.S.NO.79/2011 ON THE FILE OF THE LEARNED FIRST ADDITIONAL SENIOR CIVIL JUDGE, BALLARI.
THESE APPEALS, COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
JUDGMENT
RSA No.100658/2018 is filed challenging the common judgment and decree dated 28.4.2018 passed in RA No.41/2016 by the II Additional District and Sessions Judge, Ballari1 and the common judgment and decree dated 4.1.2016 passed in OS No.79/2011 by the Additional Senior Civil Judge and Additional CJM, Ballari2 .
1 Hereinafter referred to as ‘First Appellate Court’
2 Hereinafter referred to as ‘Trial Court’
3 Hereinafter referred to as the ‘defendant’
4 Hereinafter referred to as the ‘plaintiffs’
NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
clubbed with OS No.40/2013 and trial has been conducted in OS No.40/2013. The subject matter of the property in both the suits was an extent of 6.29 acres in Sy.No.65A of Vaddatti village, Ballari Taluk5 .
5 Hereinafter referred to as ‘Suit Property’
NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
possession of the suit property on the same date i.e., 18.6.1982 and since that date he has been in possession and enjoyment of the suit property. That during the lifetime of Neelamma, he requested her to execute the registered Sale Deed. Although she informed that she will execute the same, she passed away in the year 1988. That the defendant was in possession and enjoyment of the suit property within the knowledge of Neelamma
and the plaintiffs, without any obstruction and interruption. Hence, he has perfected his title.
Court framed the following issues in both the suits:
“ISSUES IN O.S.No.79/2011
2. Whether the plaintiff proves the alleged interference of the defendants over the suit schedule property?
NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
3. Whether the defendants prove that they have inherited the suit land through their grand mother viz., Neelamma?
4. Whether the plaintiff is entitle for the relief of declaration of title and consequential relief of perpetual injunction?
5. What Order or Decree?”
ADDITIONAL ISSUES FRAMED ON 20-9-2013
1. Whether the defendants prove that suit of the plaintiff is barred by limitation?
ISSUES IN O.S.No.40 OF 2013
1. Whether the plaintiffs prove that they are the absolute
owners of suit schedule property?
2. Whether the plaintiffs prove that they are in peaceful possession and enjoyment of suit schedule property?
3. Whether the defendant proves that by virtue of agreement of sale dated 18.61982 entered into between him and grand mother of plaintiffs
by paying sale consideration of Rs.30,000/- to her, he is in continuous, uninterrupted possession of suit schedule property from the date of said agreement of sale?
4. Whether the defendant proves that he has filed a suit in O.S.No.79 of 2011 seeking declaration of his title over the suit schedule property?
5. Whether the defendant proves that he has perfected his title over the suit schedule property adversely to the interest of plaintiffs?
6. What Order or Decree?”
Court by its common judgment and decree dated 4.1.2016 dismissed OS No.79/2011 and decreed OS No.40/2013 and passed the following order:
“The suit in O.S.No.79/2011 is hereby dismissed with costs and the suit in O.S.No.40 of 2013 is decreed with costs.
It is declared that the plaintiffs are the absolute owners of suit schedule property, consequently, the defendant and all persons claiming interest through him are hereby restrained from interfering with plaintiffs’
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peaceful possession and enjoyment of suit schedule property.
Draw decree accordingly.
Original Judgment shall be kept in O.S. No.40 of 2013 and copy of the judgment shall be retained in O.S.No.79 of 2011.”
Gowda preferred RA Nos.40 and 41 of 2016. The said proceedings were contested by the plaintiffs. The First
Appellate Court framed the following points for consideration:
“ 1. Whether the common judgment and decree passed by the trial Court in OS No.79/2011 and OS No.40/2013 dated 4.1.2016 are arbitrary and capricious?
2. Whether the common judgment and decree passed by the trial Court requires interference of this appellate Court?
3. What order?”
and decree dated 28.4.2018 dismissed the appeals and confirmed the common judgment and decree passed by the
Trial Court. Being aggrieved the present second appeals are filed.
NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
defendant/Veerana Gowda. The plaintiffs/respondents are the legal heirs of said Smt.Neelamma.
“13. The Learned counsel for plaintiff has drawn the attention of this court to Ex.D.1 agreement of sale. As seen from this agreement of sale on 18-6-1982 the agreement came to be prepared. On perusal of the backside of agreement of sale, the stamp paper was purchased from the Treasury office on 15-6-1982. However, the stamp vendor has sold the stamp paper on 30-61982. When the stamp vendor has sold this stamp paper on 30-6-1982, as per the contention of counsel for plaintiff how come the sale agreement was executed on 18-6-1982? This court has also a doubt about the genuine of his agreement of sale. Even a close look on first page of agreement is given, the date 18-6-1982 is written in different ink while the other contents are written in another colour of ink. The
defendant has not examined the attesting witness. Further the defendant has examining DW.2 Veerabhadra Gouda who is said to be a person acquainted with the signature of his grand father Doddana Gouda. DW.3 is Sri. A.Chand Basha who is document writer. DW.3 has also admitted that the stamp paper was purchased on 30-6-1982 and agreement was prepared on 18-6-1982. This difference in the dates leads the court to doubt the genuine of the agreement of sale. Except the document writer, the defendant has not examined any other witness to speak about the execution of agreement of sale. Therefore, the court is not in a position to accept the due execution of agreement of sale.
14. It is true that the defendant has claimed the possession over the suit schedule property by contending that on 18-6-1982 Smt. Neelamma had handed over the possession of suit schedule property in his favour. When this court has not accepted the due execution of agreement of sale, the contention of defendant regarding taking over possession has to be proved by him independently. No doubt in the Record of Rights, in column No.12, the name of defendant is forthcoming along with the names of plaintiffs only on the basis of this revenue entry the court
cannot come to the conclusion that the defendant is in the possession of suit schedule property. If at all he is in possession of suit schedule property he would have examined any independent witness to prove his possession over the suit schedule property. Except his self serving statement, no acceptable material is placed before the court to show that he is in possession of suit schedule property from the date namely from 18.6.1982.”
(emphasis supplied)
NC: 2024:KHC-D:10218 RSA No. 100659 of 2018 C/W RSA No. 100658 of 2018
Gowda has failed to prove the execution of the Agreement of Sale. Further, it was noticed that the plaintiffs in OS No.40/2013 have established that their grandmother Smt.Neelamma was the owner of the suit property. Hence, the First Appellate Court has dismissed the appeals filed by the defendant/Veerana Gouda. Being aggrieved, the present second appeals are filed.
plea of adverse possession is to admit the title of the true owner and thereafter, plead a hostile animus, contrary to the title of the true owner and continue in possession for a minimum period of 12 years. It is clear that in the present case, the defendant/Veerana Gowda has failed to plead and prove the requisite criteria to demonstrate that he was in adverse possession of the suit property.
BS, List No.: 1 Sl No.: 35
Sd/JUDGE
2 issues framed by the court
Did the appellant prove adverse possession of the suit property based on an agreement of sale dated 18.6.1982?
Do the concurrent findings of the courts below warrant interference in second appeal?
1 provisions across 1 enactments
H. Veerana Gowda
M. Karibasappa
M. Shivappa
N. Chandrashekara Gowda
C.M. Poonacha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
