Defendants in a second appeal challenged concurrent decrees for recovery of possession by an auction purchaser whose Order XXI Rule 95 application was dismissed as time-barred. The High Court held the suit lay under Article 65 within twelve years, adverse possession was not proved, and dismissed the appeal.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2024 BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.2209 OF 2016 (RES)
BETWEEN:
BOTH ARE R/AT SAMPAJE VILLAGE, MADIKERI TALUK-571201. KODAGU DISTRICT. ... APPELLANTS
(BY SRI PRASAD B.S., ADVOCATE)
AND:
Digitally signed by SHYAMALA Location: HIGH COURT OF KARNATAKA
SAMPAJE VILLAGE, MADIKERI TALUK-571 201 KODAGU DISTRICT. ... RESPONDENTS
(BY SRI DEEPAK WAGLE, ADVOCATE FOR SRI KESHAVA BHAT A., ADVOCATE FOR C/R-1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 07.09.2016 PASSED IN R.A.NO.84/2011 ON THE FILE OF THE PRL. DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.08.2011 PASSED IN O.S.NO.61/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI.
THIS APPEAL COMING ON FOR DISMISSAL, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
Assailing the concurrent finding of facts recorded by
the Courts below decreeing the suit of the plaintiff for recovery of possession, defendant Nos.1 and 2 are before this Court in the regular second appeal.
before the trial Court for the sake of convenience.
schedule properties, stating that the plaintiff purchased the suit schedule properties through a public auction
conducted by Prl. Civil Judge, Madikeri, in Ex. Case No.63/1987 and the sale has been confirmed, sale certificate has been issued on 15.06.1994 and in view of the said purchase, the plaintiff is entitled for possession of the suit schedule properties. The plaintiff filed CMC No.7/2000 in the execution petition under Section 151 read with Order XXI Rule 95 CPC, seeking possession of the suit properties. The said petition was dismissed on 25.05.2005, holding that the petition was barred by time under Article 134 of the Limitation Act, 1963 (‘the Act’ for short). The plaintiff contended that the suit of the plaintiff seeking possession is maintainable despite dismissal of CMC No.7/2000, as he has filed the suit within limitation.
statement contending that the suit is not maintainable, and that the plaintiff is not the absolute owner of the suit properties, the purchase of the property in public auction in Ex.No.63/1987 is not binding on the said defendant, as he is not party to the proceedings and that the suit is barred by limitation.
“ ISSUES:-
1. Whether the plaintiff proves that he is entitled for possession of suit property based on sale confirmation by court in the auction?
2. Whether the plaintiff proves that suit is maintainable though C.M.C.7/2000 dismissed?
3. Whether the defendants prove that defendants
are in joint possession of suit property and there is no identity of suit property?
4. Whether the suit is barred by law of limitation?
5. Whether the suit is bad for non-joinder of necessary party?
6. What decree or order?
Addl.issue:-
1. Whether the defendants No.1 and 2 prove that, they have perfected their title over the suit schedule property by way of adverse possession?”
marked 21 documents at Exs.P-1 to P-21, defendant No.1 examined himself as DW.1 and got marked documents at Exs.D-1 and D-2.
NC: 2024:KHC:36945 RSA No. 2209 of 2016
(i) Plaintiff has proved that he is entitled for possession of the suit property based on the sale confirmation.
(ii) Plaintiff’s suit is maintainable even though CMC No.7/2000 was dismissed.
(iii) Defendants have failed to prove that they have perfected their title over the suit schedule properties by way of adverse possession.
(iv) The suit of the plaintiff is not barred by limitation.
before the first appellate Court, the first appellate Court while re-appreciating and reconsidering the entire oral and documentary evidence independently, concurred with the
NC: 2024:KHC:36945 RSA No. 2209 of 2016
judgment and decree of the trial Court. Aggrieved, the defendants are before this Court in this second appeal.
been recovered within one year from the date of confirmation of sale, which was confirmed on 20.03.1993, and having lost in CMC No.7/2000, the plaintiff’s suit is not maintainable.
date of sale certificate and the suit is filed only on 20.04.2006, and the suit is barred by limitation. Learned counsel for the appellants submits that there arise substantial questions of law to be framed by this Court in this second appeal.
Ubedulla vs. Smt. Noorjahn & others1 (Sri Abdul
Ubedulla).
“Whether the suit for delivery of possession is maintainable after having invoked Order XXI Rule 95 CPC?”
the decree holder, in the execution proceedings, the plaintiff purchased the property through Court auction and
1 ILR 2014 Kar. 5628
the sale was confirmed on 20.03.1993, the plaintiff filed CMC No.7/2000 against the defendants and one William D’Souza under Order XXI Rule 95 CPC to recover possession on 15.02.2000, the said CMC was dismissed on 25.05.2005 as barred by limitation, it is thereafter, the plaintiff filed the present suit seeking possession of the schedule premises. Suit of the plaintiff is for recovery of possession of the properties purchased in the public auction in Ex. Case No.63/1987, the auction purchaser can seek possession of the property by two means, one is, by filing an application in the execution petition under Order
XXI Rule 95 CPC which mandates that an application for possession of the auction property can be made by the auction purchaser only after a sale certificate in accordance with Order XXI Rule 94 CPC is issued, Article 134 of the Act states that the auction purchaser can seek for delivery of possession in execution of a decree within one year when the sale becomes absolute. In the instant case, the application filed by the plaintiff under Order XXI Rule 95 has been dismissed on the ground of limitation,
and other remedy available to the plaintiff is, by filing a suit seeking rights over the suit property by seeking recovery of possession. Order XXI Rule 95 CPC available to the auction purchaser is to get possession expeditiously in the very same execution proceedings. The defendants have set up a plea of adverse possession and the relevant Article applicable is Article 65 of the Act, which reads as under:
For possession of When the possession immovable property Twelve of the defendant 65 or any interest years becomes adverse to therein based on the plaintiff. title.
he has to establish as to from when his possession has become adverse to the knowledge of the other party and the limitation would start from such date. The sale was confirmed in favour of the plaintiff on 20.03.1993, the plaintiff filed application under Order XXI Rule 95 CPC, which came to be dismissed, the defendants have to prove
that they have perfected their title adversely to the interest of the true owner, mere long and continuous possession by itself is not enough to plea an ouster not enough, when the defendant raises a plea of adverse possession, he must prove the same along with his “ animus posidendi” and for ascertaining whether the plea of adverse possession was raised, the Court must construe the entire pleading and cumulative effect of the averments made in the written statement. The written statement of the defendants is totally silent about the ingredients of adverse possession as to when the possession of the defendants became adverse to the true owner, on the other hand, there are materials to indicate that the plaintiff had filed application under Order XXI Rule 95 seeking delivery of possession and which proceedings was concluded only in the year 2005 and the present suit seeking possession is filed in the year 2006, and thus, the defendants have failed to prove that they are in possession and enjoyment of the schedule properties
openly, peacefully, continuously against the interest of the plaintiff over the statutory period.
NC: 2024:KHC:36945 RSA No. 2209 of 2016
property and shall have all the rights over such property under law including the right to recover possession. The only difference is, if such application is filed within one year, he will get possession without paying any Court fee and without waiting for years. Once he loses that advantage given under law, then he has to file a suit for possession, pay requisite Court fee and such a suit is to be filed within twelve years from the date when the defendant’s possession becomes adverse to his interest .
NC: 2024:KHC:36945 RSA No. 2209 of 2016
interference under Section 100 CPC and no substantial question of law arises for consideration and accordingly,
this Court pass the following:
ORDER
Sd/(K.S. HEMALEKHA) JUDGE
S*
List No.: 2 Sl No.: 14
2 issues framed by the court
Whether a suit for delivery of possession by an auction purchaser is maintainable after invoking Order XXI Rule 95 CPC when that application was dismissed as time-barred?
Whether defendants proved title by adverse possession under Article 65 of the Limitation Act?
Colour shows how this judgement treated each authority
Sri Abdul Ubedulla vs. Smt. Noorjahn & othersRelied on¶21
ILR 2014 Kar. 5628 · Who else cites this
6 provisions across 2 enactments
Devajana Devappa
Smt. D.M. Gopamma
Sri S.S. Prasad
Sri D.P. Seetharama
D.S. Poornima
K.S. Hemalekha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
