Allowed

Sri Iyyappa v. Sri Thayappa @ Ravi

Karnataka HC2 Feb 2024RSA/518/2019

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court allowed the appeal, set aside the lower courts' order rejecting the plaint, and remanded the matter to the trial court for a fresh consideration of the defendant's application under CPC Order VII Rule 11(d), holding adverse possession can be a sword for the plaintiff.

What did the court decide?

Appeal allowed; lower judgments set aside; plaint restored; matter remitted to trial court for fresh consideration of Order VII Rule 11(d) application within two months.

Sri Iyyappa Vs Sri Thayappa @ Ravi — Property and Title | Karnataka HC (2024)

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NC: 2024:KHC:4714 RSA No. 518 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 518 OF 2019 (DEC)

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BETWEEN:

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SRI. IYYAPPA S/O LATE KANDAPPA AGED ABOUT 75 YEARS, R/AT VENKATALA VILLAGE, YELAHANKA HOBLI BENGALURU NORTH TALUK BENGALURU

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SINCE DECEASED BY LR'S

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Digitally signed by SUMA B N Location: High Court of Karnataka

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1(A) ASHWATHAIAH A., S/O SRI. IYYAPPA AGED ABOUT 52 YEARS HOUSE NO.1, 29 A CROSS IYAPPA BADAVANE NEAR BRINDAVAN APARTMENTS MARUTHI NAGAR 1ST MAIN YELAHANKA, BENGALURU -560 064.

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1(B) RAJANNA V.I S/O SRI. IYYAPPA AGED ABOUT 51 YEARS HOUSE NO.5, 29 A CROSS IYAPPA BADAVANE NEAR BRINDAVAN APARTMENTS MARUTHI NAGAR, 1ST MAIN YELAHANKA, BENGALURU - 560 64.

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2 - NC: 2024:KHC:4714 RSA No. 518 of 2019

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1(C) MUNIKRISHNA V.I S/O SRI. IYYAPPA AGED ABOUT 49 YEARS HOUSE NO.3, 29 A CROSS IYAPPA BADAVANE NEAR BRINDAVAN APARTMENTS MARUTHI NAGAR, 1ST MAIN YELAHANKA, BENGALURU - 560 064.

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1(D) MANJUNATH A., S/O SRI. IYYAPPA AGED ABOUT 48 YEARS HOUSE NO.6, 29 A CROSS IYAPPA BADAVANE NEAR BRINDAVAN APARTMENTS MARUTHI NAGAR, 1ST MAIN YELAHANKA, BENGALURU - 560 064.

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1(E) LOKESH A., S/O SRI. IYYAPPA AGED ABOUT 46 YEARS HOUSE NO.8, 29 A CROSS IYAPPA BADAVANE NEAR BRINDAVAN APARTMENTS MARUTHI NAGAR 1ST MAIN YELAHANKA, BENGALURU - 560 064.

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1(F) LATE MR. SRINIVAS S/O SRI. IYYAPPA REPRESENTED BY LR'S

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1(F)(a) MANJULA V., W/O MR. SRINIVAS AGED ABOUT 36 YEARS

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1(F)(b) CHETAN S., S/O MR. SRINIVAS

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AGED ABOUT 20 YEARS

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1(F)(c) KUSHAL S., S/O MR. SRINIVAS AGED ABOUT 13 YEARS REPRESENTED BY GUARDIAN SMT. MANJULA V.,

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1(F)(d) KAVANA S.,

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D/O MR. SRINIVAS AGED ABOUT 13 YEARS REPRESENTED BY GUARDIAN SMT. MANJULA V.,

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HOUSE NO.1, 29 A CROSS IYAPPA BADAVANE NEAR BRINDAVAN APARTMENTS MARUTHI NAGAR, 1ST MAIN YELAHANKA BANGALORE - 560 064.

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…APPELLANTS

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(BY SRI. UNNIKRISHNAN M., ADVOCATE)

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AND:

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SRI THAYAPPA @ RAVI S/O LATE PACHAMUTAPPA AGED ABOUT 60 YEARS,

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SRI SUBRAMANI S/O LATE PACHAMUTAPPA AGED ABOUT 54 YEARS

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BOTH ARE R/AT NO.555 KALLIBHAVI ROAD, YELAHANKA BENGALURU NORTH TALUK

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NC: 2024:KHC:4714 RSA No. 518 of 2019

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BENGALURU.

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SRI DAYANANDA PAI S/O LATE NARASIMHA PAI RESIDING AT NO.10/1, LAKSHMINARAYANA COMPLEX PALACE ROAD VASANTHANAGAR BENGALURU-560 052.

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SRI SATISH PAI S/O LATE NARASIMHA PAI RESIDING AT NO.10/1, LAKSHMINARAYANA COMPLEX PALACE ROAD, VASANTHNAGAR BENGALURU-560 052.

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SRI A. RAMAKRISHNA S/O SRI ANJANEYACHAR OPP TO SRIRAMA TEMPLE BYATARAYANAPURA BENGALURU-BELLARY ROAD BENGALURU-560 092.

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SMT LAKSHMAMMA W/O LATE KRISHNAPPA AGED ABOUT 60 YEARS,

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SRI K NAGARAJ S/O LATE KRISHNAPPA AGED ABOUT 47 YEARS,

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SRI K KUMAR S/O LATE KRISHNAPPA AGED ABOUT 42 YEARS,

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NC: 2024:KHC:4714 RSA No. 518 of 2019

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SHEELAMMA @ KAVYA W/O R NAVEEN KUMAR D/O LATE KRISHNAPPA AGED ABOUT 38 YEARS,

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RESPONDENTS NOS. 6 TO 9 ARE RESIDING AT NO.114 VENKATALA VILLAGE YELAHANKA HOBLI BENGALURU NORTH TALUK BENGALURU.

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…RESPONDENTS

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(BY SRI. H.R. ANANTHA KRISHNA MURTHY, ADVOCATE FO R3 TO R5;

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SRI. SURESH M. CHARAMAGOL, ADVOCATE FOR R6 TO R9; NOTICE TO R1 & R2 IS HELD SUFFICIENT VIDE ORDER DATED:20.12.2023)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED:21.12.2018 PASSED IN R.A.NO.06/2017 ON THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 01.12.2016 PASSED IN O.S.NO.1222/2007 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT BENGALURU,

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

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JUDGMENT

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This appeal is by the plaintiff No.1 (since deceased

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by his legal representatives aggrieved by the Judgment

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and decree dated 01.12.2016 passed in O.S.No.1222/2007

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NC: 2024:KHC:4714 RSA No. 518 of 2019

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on the file of II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru by which trial court has dismissed the suit of the plaintiffs which Judgment and decree has been confirmed by Judgment and order dated 21.12.2018 passed in regular appeal in R.A.No.6/2017 on

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the file of IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru. Being aggrieved by the same the plaintiffs are before this Court.

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The above suit in O.S.No.1222/2007 has been

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filed seeking following reliefs:

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"a. Judgment and decree of Declaration declaring plaintiffs title to the schedule land by way of adverse possession and the sale deed executed by the defendant in favour of the defendant no. 5 pertaining to the suit property bearing Reg. No. BNG(U)YLNK/192/200910/1-9 by rounding up pending registration is not binding on the plaintiffs.

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b. For the judgment and decree or permanent injunction restraining the defendants from alienating and encumbering the suit land in any manner, by themselves, their agents or anybody working under their directions.

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c. For the judgments and decree of permanent injunction restraining the defendants 3 and 4 interfering with the plaintiffs possession and enjoyment of the suit land in any manner, either by themselves, their agents or anybody working under their directions.

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d. For any other relief or relief's as this Hon'ble Court deems fit to grant on the facts and circumstances of the case".

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Defendants filed an application under Order VII

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Rule 11(d) of CPC seeking rejection of plaint contending in principle that a plea of adverse possession was not available to the plaintiffs.

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The trial Court accepted the application rejecting the plaint by impugned order holding that the plea of adverse possession to claim ownership is available only when the person in the adverse possession is arrayed as a defendant in the suit filed against him and that adverse possession has to be used as a shield and not as a sword.

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Aggrieved by the same plaintiff No.1 preferred regular appeal in R.A.No.6/2017. First appellate Court dismissed

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the appeal confirming the Judgment and decree of the trial court. Being aggrieved by the same appellants are before this Court.

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This appeal was admitted by order dated 28.01.2021 to consider the following substantial question of law:

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"a) Whether the finding recorded by the both the Courts below is justified in view of the law declared by the Hon’ble Supreme Court in the case of Krishnamurthy S.Setlur (D) by Lrs V/s. O.V.Narasimha Setty (D) by Lrs reported in 2019 SCC 9 488?

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b) Whether the suit filed by the plaintiff/appellant is maintainable in view of the dictum of the Hon’ble Supreme Court stated supra?

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c) Whether the finding recorded by the Trial Court on the application made by the defendant No.5 under Order VII Rule 11(a) and (d) CPC is justifiable? "

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Learned counsel for the appellants referred to the

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Judgment of the Apex Court in the case of Krishnamurthy S.Setlur (d) by Lrs VS O.V.Narasimha Setty (D) by Lrs Vs

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NC: 2024:KHC:4714 RSA No. 518 of 2019

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O.V.Narasimha Setty (D) by Lrs reported in (2019) 9 SCC 488 followed in Ravinder Kaur Grewal and others Vs

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Manjit Kaur and others reported in (2019) 8 SCC 729 wherein at paragraph 53 the Apex Court has held as under:

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"53. Law of adverse possession does not qualify only a defendant for the acquisition of title by way of adverse possession, it may be perfected by a person who is filing a suit. It only restricts a right of the owner to recover possession before the period of limitation fixed for the extinction of his rights expires. Once the right is extinguished another person acquires prescriptive right which cannot be defeated by re-entry by the owner or subsequent acknowledgment of his rights. In such a case suit can be filed by a person whose right is sought to be defeated".

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Referring to the above learned counsel for appellants submit the trial Court and first appellate Court were in error in rejecting the plaint holding a view contrary

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to the law laid down by the Apex Court warranting interference at the hands of this Court by answering substantial question of law in favour of the appellants. Learned counsel for appellants further submit that since

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NC: 2024:KHC:4714 RSA No. 518 of 2019

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these aspects of the matter have not been considered by the trial Court and first appellate Court matter be remanded for fresh consideration.

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Learned counsel for the respondents does not dispute the above settled position of law. He however submits that trial court be directed to consider the application afresh and all contentions of the parties be kept open.

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Submissions taken on record.

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Appeal is allowed. Judgment and Order dated 21.12.2018 passed in R.A.No.6/2017 and Judgment and decree dated 01.12.2016 passed in O.S.No.1222/2007 are set aside. Plaint in O.S.No.1222/2007 is restored. Matter is remitted to trial Court.

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Trial court after affording opportunity to the plaintiffs and defendants shall dispose of the application afresh

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