Second appeal by a tenant's legal representatives against concurrent findings decreeing ejectment from suit premises and mesne profits. The court held a tenant cannot acquire adverse possession against its landlord and that an unraised jurisdictional objection is barred under Section 21 CPC.
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 19TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1254 OF 2012 (RES)
BETWEEN:
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
AGED ABOUT 40 YEARS, ADVOCATE, NO.201, ASIN APARTMENTS, BENSON TOWN, BANGALORE. (DELETED VIDE ORDER DATED 02.03.2016)
S/O LATE USMAN, W/O AND C/O MANOJ HOTEL SUVARNA, M.G.ROAD, BANGALORE.
ALL ARE REP. BY THEIR POWER OF ATTORNEY HOLDER NIZAR @ P.ABDUL NIZAR, S/O LATE USMAN, AGED ABOUT 48 YEARS, R/O REHIMATH COMPOUND, KEMMINJE ROAD, DARBE POST, PUTTUR TALUK
…APPELLANTS
(BY SRI. T I ABDULLA, ADVOCATE)
AND:
1(C) VEENA S. BHAT AGED MAJOR D/O LATE K BHASKAR SHENOY W/O SRI. SURESH BHAT
1(A)-1(C) ARE R/AT PARLADHA PUTTUR KASABA VILLAGE PUTTUR P.O., D.K. DISTRICT - 574 201
…RESPONDENTS
(BY SRI. LEX JUSTICIA & K HARI, ADVOCATE FOR R1(A-C) V/O DATED 13.08.2012 R2 IS DELETED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.03.2012 PASSED IN R.A.NO.12/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AT PUTTUR, DAKSHINA KANNADA, DISMISSED THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 25.11.2009 PASSED IN O.S.NO.105/2003 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN) PUTTUR, DAKSHINA KANNADA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This second appeal is filed by the appellants challenging the judgment dated 24.03.2012 passed in R.A.No.12/2010 by the learned Principal Senior Civil Judge, Puttur, D.K., and the judgment and decree dated 25.11.2009 passed in O.S.No.105/2003 by the learned Principal Civil Judge (Jr. Dn.), Puttur, D.K.
It is the case of the plaintiff that the plaintiff is the absolute owner of the property in R.S.Sy.No.138/8 eastern portion of Puttur, Kasaba village. He purchased the same from Y.Narayana Rai under a registered sale deed. The site of the present bunk shop bearing D.No.IV-445 of Puttur Kasaba village detailed in 'A' schedule property being enjoyed by the defendant as a tenant under Y.Narayana Rai and on purchase, by the plaintiff, the defendant attorned in favour of the plaintiff with respect to the said site and executed a rent bond on 07.08.1972, and the plaintiff agreed to pay site rent of Rs.30/- p.m. The defendant, after such a lease, has been enjoying the suit schedule site as a tenant duly on 31.12.2001. The plaintiff did not desire to continue the tenancy got issued a registered notice duly terminating the tenancy of the defendant, calling upon him to quit and surrender vacant possession of the premises, and it was duly served on the defendant. The defendant died on 06.09.2004, leaving behind his legal representatives 1(a) to 1(i). The legal representatives of the defendant failed to pay the rent for
the last three preceding issues of notice. The said property is situated in the business centre at Puttur Town. In spite of the termination of tenancy, the defendant did not vacate the premises. Hence, a cause of action arose for the plaintiff to file a suit for ejection.
occupation in respect of ‘A’ schedule property is not under any tenancy right or any permissive right. The plaintiff has lost his title. The defendant built the said building and earned his livelihood by running a shop. Hence, there is no cause of action to file a suit and prayed to dismiss the suit.
pleadings, framed the following issues:
witnesses as PW.1 to PW.3 and got marked 18 documents as Exs.P1 to P18. In rebuttal, LR of the original defendant
i.e., defendant No.1 was examined as DW.1 and got
marked one document as Ex.D1 and got marked one document as Ex.C1. The trial Court after recording the evidence, hearing on both the sides and after assessment of oral and documentary evidence, answered issue Nos.1, 3, 4 and 5 in the affirmative, issue No.2 in the negative and issue No.6 as per the final order. The trial Court decreed the suit with cost and are directed to hand over the vacant possession of schedule ‘A’ property to the plaintiff within three months from the date of this order. The legal representatives of the original defendant aggrieved by the judgment and decree passed by the trial Court in O.S.No.105/2003, preferred an appeal in R.A.No.12/2010 on the file of learned Principal Senior Civil Judge, Puttur, D.K.
points for consideration:
NC: 2024:KHC:38702 RSA No. 1254 of 2012
oral and documentary evidence answered point No.1 and 2
in the negative, point No.3 in the affirmative and point No.4 as per the final order. The appeal filed by the LRs of the defendant was dismissed and cross-objections filed by the plaintiff so far as the insertion of the amount in the decreed and granting of future mesne profits is concerned
is allowed. The judgment and decree passed by the trial Court in O.S.No.105/2003 dated 25.11.2009 was modified. The LRs of the defendant shall handover the possession of the suit schedule property within one month from the date of the order and also directed the office to insert in respect of the damages at the rate of Rs.120/p.m. from the date of termination of tenancy till the date of filing a suit in a decree and there shall be separate enquiry in respect of future mesne profits. The LRs of the
NC: 2024:KHC:38702 RSA No. 1254 of 2012
defendant aggrieved by the impugned judgments, filed this regular second appeal.
to consider the following substantial question of law :
"Whether in a suit for ejectment wherein the respondents claim to be the landlord and the appellant is tenant and a plea is taken by the appellant that he has acquired title to the suit property by way of adverse possession, whether the courts below could have directed the respondents to approach the Small Causes Court for the relief of eviction and mesne profits?"
Hence, the judgments and decree passed by the courts below are without jurisdiction. Hence, on these grounds, he prays to allow the appeal.
was examined through the power of attorney holder as
PW.1. He has reiterated the plaint averments in the examination-in-chief. To prove the case, the plaintiff has produced Ex.P1 is the general power of attorney executed by the plaintiff in favour of PW.1 authorizing him to depose on behalf of the plaintiff, Ex.P2 is the rent bond executed by the defendant in favour of the plaintiff on 07.08.1972. Ex.P3 is the office copy of the termination notice issued to the defendant terminating the monthly tenancy. Ex.P4 is the postal acknowledgement, Ex.P5 is the RTC extract in respect of the suit property, Ex.P6 is the Hosadigantha Kannada Daily Newspaper, Ex.P7 is the advertisement bill, Ex.P8 is the original registered sale deed, Ex.P9 is the original release deed dated 11.08.1972, Ex.P10 is the receipt book, Ex.P11 to P18 are the photographs.
handwriting on Ex.P2 and Ex.P8 and also examined PW3, who has the knowledge about the handwriting of a person who wrote Ex.P2. The evidence of PW2 and 3 corroborates with the Ex.P2 and P8. From the perusal of Ex.P2, it is a rent bond, which discloses that the defendant obtained the lease with respect to vacant land abutting to 'A' scheduled property to have ingress and egress to the suit schedule property. The plaintiff, by examining the PW2 and PW3, has proved the execution of the rent bond.
NC: 2024:KHC:38702 RSA No. 1254 of 2012
defendant, it is necessary to consider the concept of adverse possession. The concept of adverse possession involves three elements namely;
In the claim of adverse possession, the title is not disputed: the plea of adverse possession raises mixed question of law and fact. Where a person wants to base his title on it, he should specifically set up the plea. Unless the plea is raised it cannot be entertained. A plea must be raised and it must be shown when the possession became adverse, so that the starting point of limitation against the party effected can be found. A person acquires title by way of adverse possession when he /she is in continuous and uninterrupted, hostile, possession over a period of 12 or more years. In order to calculate 12 years of period, there should be starting point. Therefore, law
NC: 2024:KHC:38702 RSA No. 1254 of 2012
mandates that a person who seeks a declaration that he has perfected his title by way of adverse possession should specifically plead the date from which his possession becomes adverse to that of true owner. It is from that date if a person shows continuous uninterrupted possession for a period of 12 years, then the right of the true owners to the property stands extinguished and the defendant would acquire title by way of adverse possession. In so far as proof of adverse possession is concerned, it is well settled principle that a party claiming adverse possession must prove that his possession is "nec calm, nec precario" i.e., peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and to show the extent of adverse possession one should show:
It is only on the 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 favour, since he is trying to defeat the rights of the true owners, it is for him to clearly plead and establish all the ingredients/ points necessary to establish his adverse possession.
Sec. 116 of the Evidence Act reads as under;
Section 116 of the Indian Evidence Act, provides that when a tenant of immovable property admits that he is in possession of property as a tenant and during the continuous of the tenancy he denies the relationship of landlord. Such tenant has no right to remain in possession of the suit property.
held that the umbrella given to the tenant under the Transfer of Property Act or under any law can no longer come to his aid and by denying the title, the tenant had walked out of protective umbrella of the protection act. That is a case wherein the suit filed for ejectment, the title
was denied in written statement as well as in the additional written statement. Ultimately, holding that denial having made in the course of pleadings, the question of further intimating the tenant above such a denial by a fresh notice does not arise and consequently the tenant goes out of protective umbrella and not entitled to the protection of Sec.106. The judgment referred above is aptly applicable to the present case in hand. The trial
court and first appellate court were justified in passing impugned judgments.
7502/2012 disposed of on 03.01.2024, held that tenant cannot claim adverse possession against the landlord.
NC: 2024:KHC:38702 RSA No. 1254 of 2012
Code of Civil Procedure deals with the objections to
jurisdiction, which reads as follows:
21. Objections to jurisdiction. -
(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.
to territorial jurisdiction must be taken in the Court of first instance, at the earliest possible opportunity and in cases where issues are settled, or before settlement of issues
and there has been a consequent failure of justice. Thus, all these three conditions must co-exist. Admittedly, as observed above, the defendant has not raised plea of jurisdiction in the written statement, no issue is framed by the trial Court. Further, no ground is raised before the first Appellate Court. The defendant for the first time raised the plea of jurisdiction before this Court in the Regular Second Appeal. When the plea of jurisdiction is not raised, hence the question of issuing the direction by the courts below to the plaintiff to approach the Small Causes Court for the relief of eviction and mesne profits does not arise.
589 , while dealing with Section 21 of the CPC, held that objection as to territorial jurisdiction cannot be taken unless it was taken in the Court at the first instance and at the earliest possible opportunity and that there has been a consequent failure of justice.
are no doubt fully satisfied and that a case of failure of justice on account of the place of suing having been wrongly selected, was not made out. Both the courts below have rightly passed the impugned judgments. I do not find any error in the impugned judgments. In view of the above discussion, I answer the substantial question in favour of the plaintiff.
ORDER
The appeal is dismissed .
The judgments and decrees passed by the Courts below are hereby confirmed.
No order as to the costs.
Sd/(ASHOK S.KINAGI) JUDGE
SSB, SRK
2 issues framed by the court
Can a tenant claim title by adverse possession against the landlord after denying the landlord's title?
Was the jurisdictional objection directing the plaintiff to the Small Causes Court barred by Section 21 CPC as it was not raised at trial?
Colour shows how this judgement treated each authority
Palani Ammal Vs Vishwanath ChettiarApplied¶19
AIR 1998 SC 1309 · Who else cites this
Brij Narayan Shukla (D) Thr. Lrs. vs Sudesh Kumar Alias Suresh Kumar (D) and othersRelied on¶20
Civil Appeal No.7502/2012
PATHUMMA VS. KUNTALAN KUTTYApplied¶23
1981(3) SCC 589 · Who else cites this
6 provisions across 4 enactments
Hussain
P.A Lathief
P.A. Hameed
Nizar @ Abdul Nizar P.
Jameela
Maimunna
Ashok S.Kinagi
As recorded by the court registry
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