Sri Hanumanthaiah Vs Sri Thimmarayappa

SRI. HANUMANTHAIAH S/O. LATE KEMPAIAH AGED ABOUT 74 YEARS R/AT NO. 9, 1ST MAIN, 5TH CROSS KAREKALLU, KAMAKSHIPALYA KAMAKSHIPALYA, BENGALURU - 560 079.

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…APPELLANT

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(BY SRI. HARISH KUMAR .M.C, ADVOCATE)

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AND:

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Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA

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SRI. THIMMARAYAPPA S/O LATE KALLAIAH AGED ABOUT 75 YEARS R/AT NERALEKERE, TIPPASANDRA HOBLI MAGADI TALUK RAMANAGARA DISTRICT - 562 120.

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…RESPONDENT

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(BY SRI. NARASIMHARAJU, ADVOCATE FOR C/R1)

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THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 04.01.2025. PASSED IN OS NO.9053/2012 ON THE FILE OF

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NC: 2025:KHC:25834 RFA No. 442 of 2025 C/W RFA No. 444 of 2025

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XVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU, DISMISSING THE SUIT FOR INJUNCTION.

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IN RFA NO. 444/2025

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BETWEEN:

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SRI. HANUMANTHAIAH S/O LATE KEMPAIAH AGED ABOUT 74 YEARS R/AT NO 9, 1ST MAIN, 5TH CROSS KAREKALLU, KAMAKSHIPALYA KAMAKSHIPALYA, BENGALURU-560079.

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...APPELLANT

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(BY SRI. HARISH KUMAR .M.C, ADVOCATE)

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AND:

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SRI. THIMMARAYAPPA S/O LATE KALLAIAH AGED ABOUT 75 YEARS R/AT NERALEKERE, TIPPASANDRA HOBLI MAGADI TALUK RAMANAGARA DISTICT-562120.

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...RESPONDENT

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(BY SRI. NARASIMHARAJU, ADVOCATE FOR C/R1)

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THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 4.01.2025 PASSED IN OS NO.7665/2014 ON THE FILE OF XVIII ADDITIONAL CITY CIVIL JUDGE, BENGALURU., DECREEING THE SUIT FOR DECLARATION AND MANDATORY INJUNCTION.

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THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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These two appeals arise out of a common judgment rendered by the Court below in O.S.No.7665/2014 and O.S.No.9053/2012.

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For the sake of brevity, the rank of parties are referred to as in O.S.No.7665/2014.

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The facts leading to the case are as under:

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The plaintiff, Thimmarayappa, has instituted a suit in O.S.No.7665/2014 seeking relief of declaration, mandatory injunction, and possession in respect of the suit schedule property. The plaintiff asserts title over the said property based on a registered sale deed dated 10.10.1979. It is the plaintiff's specific case that he and the defendant were close friends and had jointly decided to purchase plots formed in Sy.No.70/1. Accordingly, both parties purchased individual sites measuring 23 feet x 53 feet each under separate sale deeds dated 10.10.1979. The plaintiff contends that, following the purchase, his

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name was entered in the panchayat records. Subsequently, he moved out of Bengaluru City due to his employment, while the defendant left his job and commenced business activities.

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The plaintiff further pleads that, owing to his continued employment, he had requested the defendant to oversee and manage the site situated at Davanagere, where the purchased plots were located. After his retirement in 2009, the plaintiff visited the property in 2012, only to discover that the defendant had illegally constructed a residential house on the plaintiff’s site, bearing Site No.9. Although the plaintiff initially approached the defendant and proposed to exchange the sites to resolve the matter amicably, the defendant refused. Instead, the defendant, with malafide intent, executed a registered gift deed dated 12.12.2012 in favour of his wife, conveying the site unlawfully encroached upon. This led to the institution of the present

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suit seeking declaration of title, mandatory injunction, and recovery of possession.

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The defendant, prior to the institution of the present suit, had filed a separate suit for bare injunction in O.S.No.9053/2012, asserting that he was in settled possession and that the plaintiff was interfering therein. Both suits were clubbed and tried together. In support of his claim, the plaintiff adduced both oral and documentary evidence. He relied primarily on the original registered sale deed dated 10.10.1979 (Ex.P-1) and other supporting documents to substantiate his ownership and title to Site No.9. The defendant, in rebuttal, produced documents such as property tax receipts, building plan, building licence, and other materials to assert possession and construction over Site No.9.

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Upon hearing both sides and appreciating the evidence, the Trial Court answered Issues 1 to 3 in O.S.No.7665/2014 in the affirmative, holding that the plaintiff had successfully established title to the suit

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schedule property. Consequently, the Trial Court decreed the suit, granting the plaintiff the reliefs of mandatory injunction and possession. Insofar as Issue No.4 (limitation) was concerned, the Trial Court held that the suit was not barred by limitation. Simultaneously, the Trial Court dismissed the defendant’s suit in O.S.No.9053/2012, having answered Issues 1 to 3 therein in the negative.

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Aggrieved by the common judgment and decree passed in both suits, the defendant has preferred these appeals.

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Before proceeding to hear the appeals on merits, this Court had suggested that the parties explore the possibility of an amicable settlement. However, despite granting sufficient time, it was evident that the defendant was unwilling to resolve the dispute amicably. Hence, the matter was taken up for final hearing.

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5. During the course of arguments, learned

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counsel for the defendant, while reiterating the grounds urged in the appeals, sought to advance an argument that the defendant had perfected title by adverse possession.

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Although no such plea was specifically raised in the written statement, it was contended that the pleadings, when read in their entirety, contain the necessary ingredients of adverse possession. It was further argued that the construction of a residential house on the suit property, with the plaintiff’s knowledge, substantiates the defendant’s claim of adverse possession.

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Per contra, learned counsel for the plaintiff contended that the documentary evidence on record clearly establishes that the defendant had obtained permission to construct the house on Site No.10,

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but has in fact constructed it on Site No.9, which belongs to the plaintiff. It was argued that the plea of adverse possession, being a mixed question of law and fact, cannot be permitted to be urged for the first time at the appellate

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stage, particularly in the absence of foundational pleadings and evidence. Accordingly, it was submitted that the

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appeals are devoid of merit and liable to be dismissed.

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Having heard learned counsel on record,

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following points would arise for consideration:

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1) Whether the finding of the Trial Court that plaintiff - Thimmarayappa is the absolute owner of the suit schedule property and that he is entitled for possession suffers from perversity and warrants interference?

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2) Whether the finding of the Trial Court that suit of the plaintiff filed seeking declaration of title and for possession is not barred by limitation suffers from perversity?

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Finding on Point Nos.1 and 2:

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Upon perusal of the material on record, it is evident that both the plaintiff and defendant, who were close acquaintances, purchased independent sites under separate registered sale deeds on the same day i.e., 10.10.1979. While the plaintiff purchased site measuring

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23 ft x 53 ft, situated on the eastern side of the layout,

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the defendant purchased a site of similar dimension situated on the western side of the plaintiff’s site. A crucial aspect that deserves emphasis is that, at the time of execution of the sale deeds, the layout formed in Sy.No.70/1 had not been assigned site numbers. Therefore, the identification of the properties was solely based on boundary descriptions and extent, as recorded in the respective sale deeds. Despite this, the physical location and mutual understanding of ownership appear to have remained clear between the parties. In this backdrop, the unauthorized construction of a residential house by the defendant on Site No.9, which undisputedly belongs to the plaintiff, assumes great significance. The plaintiff, having produced a registered sale deed marked as Ex.P-1, has effectively discharged the burden of establishing his title.

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Turning to the pleadings in O.S.No.9053/2012, which was instituted by the defendant seeking a bare

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injunction, it is evident that the defendant has not set up

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any plea of adverse possession. The plaint merely contains assertions that the defendant is in peaceful possession of the property along with his family members and that the

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plaintiff attempted to interfere with such possession. At no point does the defendant assert that his possession has become hostile to the knowledge of the plaintiff or that he has perfected title by way of adverse possession. It is trite law that a plea of adverse possession must be specifically pleaded and proved by concrete evidence establishing the requisite ingredients. Mere long-standing possession, in the absence of animus possidendi, cannot mature into ownership by adverse possession.

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It is well settled that a lawful owner’s right to seek possession is not defeated merely by the defendant’s assertion of possession unless such possession is shown to be adverse in the legal sense. Article 65 of the Limitation

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Act, 1963, prescribes a 12-year limitation period for a suit seeking possession based on title, commencing from the

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date when the defendant’s possession becomes adverse to the plaintiff. However, the said provision must be read in conjunction with Section 27 of the Act, which extinguishes the right of a true owner only if the adverse possession is continuous, open, and hostile, and to the knowledge of the true owner. The burden to prove these elements lies heavily on the person setting up the plea of adverse possession. In the instant case, not only has the defendant failed to plead adverse possession, but there is also a total absence of evidence to demonstrate that the defendant’s possession was hostile in character, or that he asserted a title adverse to the plaintiff’s knowledge and to his exclusion.

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Although the Trial Court has not entered into an elaborate discussion on the legal principles governing adverse possession and extinguishment of title under Section 27, this Court finds that the learned Judge has rightly appreciated the evidentiary record and held in favour of the plaintiff. The plaintiff, having

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produced unimpeachable title documents, is entitled to recover possession. The mere act of possession by the defendant even if long-standing is not sufficient to defeat the title of the plaintiff in the absence of hostile animus or overt acts signaling denial of the plaintiff's title.

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The conduct of the defendant, as evidenced on

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record, is unbecoming and lacking in bona fides. It is indeed unfortunate that the defendant, taking advantage of his long-standing personal relationship with the plaintiff, has constructed a residential structure on property that does not belong to him. The malafide intent is further demonstrated by the fact that, having encroached upon Site No.9, the defendant conveniently executed a gift deed dated 12.12.2012, transferring Site No.10, which he had lawfully purchased, in favour of his wife. This act, in the opinion of this Court, is a deliberate attempt to obfuscate the title position and frustrate the legitimate claim of the plaintiff.

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Learned counsel for the plaintiff has also

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brought to this Court’s attention that the decree passed in O.S.No.7665/2014 has been executed, and the possession of the suit schedule property has already been restored to the plaintiff. This factual position is not disputed by the defendant during the course of arguments. Therefore, the decree has not only attained finality in terms of adjudication but has also been enforced in execution, thereby restoring the lawful position.

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In view of the foregoing discussion, this Court is of the considered view that the defendant has miserably failed to establish any semblance of title, either lawful or adverse, over the suit schedule property. The Trial Court’s judgment and decree are based on a proper appreciation of the evidence and the legal principles governing title and possession. The defendant, having failed to substantiate either his ownership or an adverse claim, cannot now resist the consequences flowing from the decree. Accordingly, Point Nos.1 and 2 are answered in

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