Regular second appeal against dismissal of property suit seeking title and possession. Court held suit barred by res judicata/lis pendens and dismissed appeal, upholding lower courts' rejection of adverse possession claim.
Second appeal dismissed; judgments and decrees passed by courts below confirmed.
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 9TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 770 OF 2009 (INJ)
BETWEEN:
1. MOHAMMED ABBAS
SINCE DEAD BY HIS LRS
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
1(D). ABDUL SATTAR, S/O LATE MOHAMMED ABBAS AGED ABOUT 34 YEARS.
ALL ARE R/O YELIYUR VILLAGE,
HUTHRIDURGA HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT 572 126.
…APPELLANTS
(BY SMT. NALINA K., ADVOCATE FOR SRI. S.K. VENKATA REDDY, ADVOCATE)
AND:
1(A). REVAMMA,
W/O LATE GANGAIAH, AGED ABOUT 62 YEARS, R/O PUTTALINGAIAHNAPALYA, YELIYUR POST, HUTHRIDURGA HOBLI, KUNIGAL TALUK, TUMKUR 572 126.
…RESPONDENTS
(BY M/S. MYLARAIAH ASSTS., BY
NC: 2024:KHC:36713 RSA No. 770 of 2009
SRI. P.M. SIDDAMALLAPPA, ADVOCATE FOR R1(B AND C);
V/O DATED 21.07.2010, STEPS NOT REQUIRED IN R/O R1(A))
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 12.2.2009 PASSED IN R.A.NO.48/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.), KUNIGAL, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DATED 13.7.1998 PASSED IN OS.NO.132/1976 ON THE FILE OF THE PRL.CIVIL JUDGE (JR.DN.) & JMFC, KUNIGAL.
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 regular second appeal is filed by the legal representatives of the deceased appellant challenging the judgment and decree passed in R.A.No.48/2001 dated 12.02.2009 by the learned Civil Judge (Senior Division), Kunigal, and the judgment and decree passed in O.S.No.132/1976 dated 13.07.1998 by the learned Principal Civil Judge (Junior Division), Kunigal.
per their ranking before the trial court.
contended that the defendant, in collusion with the revenue officials, changed the katha into his name. It is contended that the plaintiff has acquired title by way of adverse possession. It is stated that the defendant and his brothers were in joint family, and the defendant is the kartha of the family. It is stated that the defendant tried to interfere with the peaceful possession and enjoyment of the suit schedule property and also denied the title of the plaintiff. Hence, cause of action arose for the plaintiff to file the suit for declaration of title and possession.
stayed. Later on, the claim petition was dismissed, and the decree passed in O.S. No. 674/1953 was sought to be executed in Execution Case No. 387/1955. The father of the defendant purchased the property under the court auction after obtaining permission from the executing court. The plaintiff's vendor instituted the suit in OS.No.977/1958 for the relief of declaration of title and permanent injunction. The said suit filed by the vendor of the plaintiff was dismissed, and the same was upheld by the High Court in R.S.A. No. 738/1963. The execution application was transferred to the Civil Court after establishment of the Court, and it was renumbered as Ex.No.17/1970, and in the said execution, the defendant and his brothers were brought on record after the demise of the defendant's father in Execution Case No.17/1970.
The Executing Court delivered possession of the suit schedule property in favor of the defendant in Misc. No. 7/1975, and it is contended that the plaintiff had purchased the suit schedule property during the pendency of the proceedings, and the said transaction is hit by the
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doctrine of lis pendens, and it is contended that the suit filed by the plaintiff is hit by the principles of res judicate. Hence, on this ground, he prayed to dismiss the suit. The trial court, on the basis of the pleadings of the parties, framed the following issues and additional issues:
"ISSUES
ADDITIONAL ISSUES
assessment of oral and documentary evidence, answered issues No. 1, 2, 5, and additional . issues Nos. 1 & 2 in the negative. Issue Nos. 3, 4, and Addl. Issue Nos. 2 & 3 in the affirmative, and issue No. 6 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 13.07.1998. The legal representatives of plaintiff aggrieved by the judgment and decree passed in O.S.No.132/1976 preferred an appeal in R.A.No.48/2001 on the file of the learned Senior Civil Judge, Kunigal. The Appellate Court, framed the following points for its consideration:
judicata and that the suit is hit by the doctrine of lis-pendens?
12.02.2009. The legal representatives of the plaintiff aggrieved by the impugned order passed by the Court
below have filed this regular second appeal.
plaintiff's property are different, hence on these grounds, prays to allow the appeal.
has not acquired title by virtue of adverse possession. He submits that both the courts below have concurrently recorded findings of facts against the plaintiff holding that the plaintiff is not the absolute owner and in possession of the suit schedule property and rightly dismissed the suit by the trial court and confirmed by the appellate court. Hence, on these grounds, he prays to dismiss the appeal.
1. Whether the suit filed by the appellant is barred by res judicata?
2. Whether both the courts below committed an error in holding that plaintiff has failed to prove his right by way of adverse possession?
13. Re: Substantial question No. 1:
The plaintiff, in order to prove his case, examined himself as PW.1, and he reiterated the plaint averments in the examination-in-chief and produced the documents Exs. P1 to P30 to establish his ownership and possession over the
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suit schedule property. In the course of cross-examination, it was suggested to PW.1 that the vendor of the plaintiff filed a suit in O.S. No. 977/1958 and sought a relief of declaration of title and permanent injunction, and the said suit was dismissed and confirmed by the High Court in RSA No. 738/1963 vide judgment dated 15.12.1967. The defendant has produced the certified copy of the judgment passed in RSA No. 738/1963. From a perusal of the judgment passed in RSA No. 738/1963, it is seen that one Mohammed Ameer Sab @ Babjasab, who is the vendor of the plaintiff, filed a claim petition regarding the attachment, and the said petition was dismissed. The vendor of the plaintiff filed a suit in O.S.No.153/1956 on the file of Munsiff Court, Tumkur. The said suit came to be dismissed and aggrieved by the judgment and decree passed in O.S.No.153/1956, which preferred an appeal. Later on, the vendor of the plaintiff has withdrawn the said suit with liberty to file a fresh suit. Later on, the vendor of the plaintiff filed a suit in O.S.No.977/1958, which was dismissed, and against the said judgment, she preferred
an appeal in R.A.No.238/1960. The Appellate Court allowed the said appeal and set aside the judgment and decree passed in O.S.No.977/1958 and decreed the suit of the plaintiff's vendor. Later on, the father of the defendant aggrieved by the judgment and decree passed in R.A. No. 238/1960 preferred the regular second appeal, RSA No. 738/1963. This Court allowed the appeal via judgment dated 15.12.1967 and set aside the judgment and decree passed in R.A.No.238/1960 and consequently dismissed the suit of the plaintiff's vendor. The issue involved in O.S.No.977/1958 and the issue involved in the instant suit are one and the same. The Civil Court has already declined to accept the contention of the plaintiff's vendor in O.S.No.977/1958, wherein it is already held in the said suit that the plaintiff's vendor had not acquired any title in Sy.No.21. Admittedly, the defendant is claiming title in respect of Sy. No. 21 under the sale certificate as per Ex. D1. The vendor of the defendant has taken a defense in O.S.No.977/1958. The Trial Court, considering the judgment rendered in O.S.No.977/1958, has held that the
present suit is hit by the doctrine of res judicata and rightly dismissed the suit. The Appellate Court, on reassessment of oral and documentary evidence, has rightly held that the suit of the plaintiff is hit by the doctrine of lis pendens and the doctrine of res judicata, as the plaintiff had purchased the property during the pendency of the proceedings between his vendor and the defendant's father.
15. Re. substantial question of Law No. 2:
It is the case of the plaintiff that the plaintiff has acquired
title by way of adverse possession. The concept of adverse
possession involves 3 elements, namely:
the claim of adverse possession, the title is not
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disputed. The plea of adverse Possession raises mixed questions 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 a title by way of adverse possession. when he 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 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 the 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 person would
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acquire title by way of adverse possession. Insofar as proof of adverse As possession is concerned, it is a well-settled principle that a party claiming adverse possession must prove that his Possession is 'nec vi, nec clam, 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’s 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 favor 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. First of all, in order to claim adverse possession, the
plaintiff has to admit the title of the defendant. Admittedly, in the instant case, the plaintiff has not admitted title of the defendant over the suit schedule property.
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plaint, and further, the Trial Court has recorded its finding at paragraph No. 48, which reads as under:
"48. The evidence of PW2 and 3 is of no avail to the plaintiff to substantiate his claims to possession. The plaintiff has sought relief of possession by way of amendment to the prayer column. The amendment application was filed on 26.08.1986. The application was dismissed on 31.03.1987 by this Court. Finally, the High Court allowed the application on 06.04.1990. Any subsequent amendment relates to the date of filing the suit. The suit was filed on 10.09.1976. The plaintiff is found to be not in possession even from the date of Ex.P1, i.e., 24.12.1958. Therefore, he should have filed a suit seeking the relief of possession within 12 years from 24.12.1958. He has not done so. Therefore, the suit for possession is barred by time."
and also recorded a finding that the plaintiff has failed to establish that he had acquired title by way of adverse
possession. Both the courts below have rightly held that
the plaintiff has failed to prove necessary animus on the part of the plaintiff to prove his title to the suit property by way of adverse possession.
question No. 2 in the negative. I do not find any error in the impugned judgments passed by the courts below. I concur with the impugned judgments passed by the courts below. Accordingly, I proceed to pass the following:
ORDER
This regular second appeal is dismissed . The
judgments and decrees passed by the Courts below are hereby confirmed.
There is no order as to costs.
Sd/(ASHOK S.KINAGI) JUDGE
NG List No.: 1 Sl No.: 72 CT:SNN
2 issues framed by the court
Whether the suit is barred by res judicata principles?
Whether lower courts erred in rejecting adverse possession claim?
Colour shows how this judgement treated each authority
RSA No. 738/1963Referred¶95
Mohammed Yusuff
Abdul Khaleel
Revamma
Gangamma
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
