Second appeal against concurrent decrees for recovery of possession by a purchaser under a 1993 registered sale deed. The appellants' earlier adverse-possession claim had failed and this Court had granted liberty to file a possession suit. The High Court held no substantial question of law arose and dismissed the appeal.
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 20TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1403 OF 2018 (POS)
BETWEEN:
Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA
ALL ARE RESIDING AT KODIPALYA NIDAVALALU MAJRE, HEBBUR HOBLI - 572106 TUMAKURU TALUK & DISTRICT.
…APPELLANTS
(BY SRI R.P.SOMASHEKARAIAH, ADVOCATE)
AND:
…RESPONDENTS
(BY SRI AMAR GOWDA K.S., ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 23.04.2018 PASSED IN R.A.NO.139/2013, ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM, TUMAKURU DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.09.2013 PASSED IN O.S.NO.1509/2011 ON THE FILE OF THE III ADDL. CIVIL JUDGE AND JMFC-IV, TUMKUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard learned counsel for appellant and also learned counsel for respondent.
injunction and dismissed the appeal with regard to declaration of title by adverse possession by confirming the order of the Trial Court. The suit was also dismissed in its entirety even setting aside the judgment of granting of permanent injunction, the same has been challenged by the appellant herein before this Court in R.S.A.No.436/2011 and R.S.A.No.437/2011. The said appeal was also dismissed confirming the judgment and decree passed by the First Appellate Court in R.A.No.198/2007 and R.A.No.244/2008. While disposing of other R.S.A.No.436/2011 C/w R.S.A.No.437/2011, liberty
was reserved for plaintiff No.1/respondent No.1 in O.S.No.1509/2011 for the recovery of possession of the suit schedule property and if such proceedings are initiated by the plaintiff No.1/respondent No.1 herein, the Court shall dispose of the matter in accordance with law within a period of one year from the date of institution of the suit. Hence, the plaintiff has filed the suit in O.S.No.1509/2011. It is also the claim of the plaintiff before the Trial Court that the property belongs to the defendant No.5 and he
has sold the suit schedule property to the plaintiff under registered sale deed dated 11.02.1993. The cause of action also stated for the date of purchase as well as the defendant instituting the suit and also the disposal of the R.S.A.
is not maintainable. The sale deed is also not in accordance with law. No possession is delivered as on the date of sale. The possession was with the father of the defendant by name Sadayya. The plaintiff is not having title on the suit schedule property.
framed the issues with regard to whether the plaintiff had purchased the property vide sale deed dated 11.02.1993. Whether the 4th defendant proves that without the possession, alleged sale deed dated 11.02.1993 is not an
absolute sale deed and whether the 4th defendant proves that the possession without seeking for the relief of title is not maintainable. The parties are allowed to lead evidence before the Trial Court. Accordingly, plaintiff examined himself as PW1 before the Trial Court and also examined two witnesses as PW2 and PW3 and got marked Ex.P1 to Ex.P4. On the other hand, 4th defendant examined himself as DW1 and also examined two witnesses as DW2 and DW3. The document Ex.D1 to Ex.D31 are marked. The Trial Court having considered both oral and documentary evidence available on record, answered the issue No.1 and 5 as affirmative and the defense which has been taken by the 4th defendant are answered as negative and granted the relief of recovery of possession directing the defendants to hand over the possession.
considering the material on record formulated the point whether the appellants/defendants have made out sufficient reasons to interfere with the judgment and decree passed by the Trial Court. Having re-assessed the material available on record, the First Appellate Court dismissed the appeal with cost of Rs.5,000/- by confirming the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Court, the present second appeal is filed before this Court.
also vehemently contend that both the Courts fails to take
note of the factual aspects of the case. The suit is also filed for the recovery of possession without seeking the relief of declaration of title and without seeking the relief of declaration of title, not entitled for the relief of possession. Hence, this Court has to frame substantial question of law that without seeking the relief of declaration of title, whether suit is maintainable only for the recovery of possession. The counsel also vehemently contend that perverse finding is given by both the Courts ignoring the material available on record and fails to take note of the fact that earlier withdrawal of suit in O.S.No.70/2002 and the said suit is also filed for the same relief without obtaining the permission of this Court, the same was withdrawn. Hence, the very suit itself is not maintainable. Both the Courts failed to take note of the said fact into consideration.
R.S.A.No.437/2011 particularly in paragraph No.10 wherein this Court made an observation that since both the Courts have held that defendant No.1 is the owner of the plaint schedule property i.e., plaintiff and plaintiffs have failed to prove and establish their title by law of adverse possession then the plaintiffs cannot resist the
suit for recovery of possession of plaint schedule properties by defendant No.1. But unfortunately, the suit filed by the defendant No.1 in O.S.No.70/2002 is now withdrawn in view of the judgment and decree of the First Appellate Court. The withdrawal of O.S.No.70/2002 is not
a legal impediment for defendant No.1 to initiate fresh proceedings for recovery of plaint schedule properties from the plaintiffs. In such an event, the Court in which the defendant No.1 would have file a suit and the same shall decided by the Court in accordance with law within a time. The counsel by referring this observation made by this Court while disposing the earlier R.S.A filed by the appellants herein, a specific observation is made with regard to the title as well as the adverse possession and
only liberty is given to the recovery of possession since the plaintiffs have title as well as the appellants have not succeeded in getting the relief of declaration by way of law of adverse possession. Hence, the very contention raised by the appellants is not sustainable under law. Hence, there are no grounds to admit and frame substantial question of law.
R.A.No.198/2007 and the appellant herein has filed R.A.No.244/2008 against the dismissal of the declaration, the said appeal was dismissed. An appeal is filed by the plaintiff in the present suit was allowed and set-aside the judgment of the Trial Court. Ultimately the suit was dismissed. The said order of setting aside the judgment of permanent injunction and declining to grant the relief of declaration were challenged before this Court in R.S.A.No.436/2011 C/w R.S.A.No.437/2011. Admittedly, both are disposed of vide order dated 08.06.2011. The operative portion of the second appeal is very clear that R.S.A.No.437/2011 is hereby dismissed confirming the common judgment and decree dated 07.01.2011 passed in in R.A.No.198/2007 and R.A.No.244/2008 by the I Addl. District Judge, Tumkur. The judgment and decree dated 01.04.2005 in O.S.No.326/1993 passed by the III Addl. Civil Judge (Jd) and JMFC, Tumkur in so far as it relates to adverse possession. The appeal in R.S.A.No.436/2011 is allowed and while allowing the same, common judgment and decree of the First Appellate Court in so far as it
NC: 2024:KHC:22386 RSA No. 1403 of 2018
relates to R.A.No.198/2007 is set-aside wherein the permanent injunction order granted by the Trial Court which was set-aside by the appellate Court was set-aside in R.S.A.No.436/2011 C/w R.S.A.No.437/2011. The judgment and decree which was passed in O.S.No.326/1993 was restored on file that means permanent injunction granted by the Trial Court was restored. However, liberty is given to the defendant No.1/respondent No.1 to initiate proceedings against the plaintiff for recovery of possession of plaint schedule property and if such proceedings initiated and the same has to be disposed of in a time bound period of one year. Hence, the judgment of this Court is very clear with regard to the title is concerned and an answer is made that the plaintiff is the absolute owner of the suit schedule property and with regard to the seeking for the relief of declaration by way of adverse possession by the appellant herein also declined to grant the relief and only permanent injunction is granted and liberty is given to recover the possession in accordance with law.
liberty given by this Court is not enure the benefit of
curing of the law of limitation. The very issue of law of limitation is also taken note of by the Trial Court and framed the issue that is issue No.4. The Trial Court also while considering the issue of limitation, the Trial Court specifically made an observation in paragraph No.19 of the judgment that the observation of the Hon’ble High Court of Karnataka in paragraph No.10 of its judgment in R.S.A.No.436/2011 C/w R.S.A.No.437/2011 that withdrawal of O.S.No.70/2002 is not a legal impediment for the plaintiff herein to initiate fresh proceedings for recovery of the plaint schedule properties from the defendant Nos.1 to 4 herein. The present suit has been filed within the period of limitation from the date of such liberty reserved by the Hon’ble High Court of Karnataka. Having considered the order passed by this Court in paragraph No.10 of the judgment passed in both the R.S.As’, it is very clear that even withdrawal of the earlier suit filed by the plaintiff in O.S.No.70/2002 wherein sought
for the relief of declaration and permanent injunction, a specific observation is made that it is not a legal impediment for the plaintiff herein to initiate fresh proceedings for the recovery of possession of plaint schedule property. Hence, the Trial Court rightly taken note of observation made by this Court in R.S.As’ giving of liberty to seek for the relief of recovery of possession. The observation made in paragraph No.10 of R.S.A is also very clear with regard to the title is concerned, there is no dispute and the property is purchased by the plaintiff and specific issue was also framed by the Trial Court in earlier suit in O.S.No.326/1993 and the same has been answered as affirmative that the property was purchased. When the adverse possession claimed by the appellant is also declined to grant the same. Only issue is with regard to the recovery of possession is concerned. When the specific liberty was given and making such an observation made in paragraph No.10 of R.S.A and now the counsel appearing for the appellant cannot contend that it will not cure the point of limitation. The very order passed by this Court in
R.S.A making an observation that earlier withdrawal of suit in O.S.No.70/2002 is not a legal impediment for the plaintiff herein to initiate proceedings for recovery of the plaint schedule property and when such liberty is also given by making such observation and the said order has attained its finality. Now, he cannot contend that the suit
is barred by limitation and ought to have filed the suit within 2003 i.e., within a period of 12 years from the date of purchase of property and already parties have litigated the matter more than a decade in the earlier suit and the argument canvassed by the appellant is against the observations made by this Court in R.S.A while disposing of the matter. When the same has not been challenged and when the liberty which was given has not been challenged, the same has been attained finality. Now, he cannot raise such an objection before this Court. Hence, I do not find any merit in the appeal to comes to other conclusion. Apart from that no substantial question of law arises for the re-consideration of the appeal. Both the Courts have taken note of the observations made by this
Court in disposal of RSAs’ and also taken note of the material on record and with regard to the recovery of possession is concerned, when the liberty was given and accordingly possession is sought in accordance with law. Hence, no merit to frame any substantial question of law by admitting the appeal. Hence, question of invoking Section 100 of CPC does not arise.
ORDER
The Second appeal is dismissed.
Sd/JUDGE
RHS
List No.: 1 Sl No.: 74
2 issues framed by the court
Whether the suit for recovery of possession without seeking declaration of title was maintainable.
Whether liberty granted in the earlier RSA cured the bar of limitation for filing the fresh possession suit.
Colour shows how this judgement treated each authority
R.S.A.No.436/2011 C/w R.S.A.No.437/2011Relied on¶7
1 provisions across 1 enactments
Smt. Doddamma w/o Late Sadaiah (dead) by LRs
Sri Kempaiah s/o Late Sadaiah
Sri Doddagunda s/o Late Sadaiah
Sri Krishnappa s/o Late Sadaiah
Sri Nagaraju s/o Ramaiah
Sri Bheemaiah s/o Dharmaiah
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
