S.K.Bhadrachar Vs Smt. Rathnamma

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NC: 2025:KHC:26263 RSA No. 417 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14^TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 417 OF 2016 (DEC/INJ)

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BETWEEN:

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S.K. BHADRACHAR S/O K. VEERACHAR AGED 82 YEARS, OCC. RETIRED TEACHER R/O. RIPPONPETE-577426

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TQ. HOSANAGARA, DIST. SHIVAMOGGA.

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K.B.NATARAJA S/O S.K. BHADRACHAR AGED 47 YEARS, OCC. GLASS FRAME WORK R/O. RIPPONPETE-577426,

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TQ. HOSANAGARA, DIST. SHIVAMOGGA.

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…APPELLANTS

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(BY SRIYUTHS. K.N. NITISH & K.V NARASIMHAN, ADVS)

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AND:

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SMT. RATHNAMMA W/O G.R.BARMOJI RAO

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SINCE DECEASED BY HER LRS.,

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1a. SMT. USHA MOHAN GUJJAR W/O. LATE MOHAN GUJJAR

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AGED 46 YEARS,

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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1b. ANURADHA D/O LATE MOHAN GUJJAR AGED 27 YEARS,

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1c. DINESH GUJJAR, S/O LATE MOHAN GUJJAR AGE: 26 YEARS,

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1d. SHALINI CHANDRAKANTH PATHANGA

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AGE: 46 YEARS, D/O. RATHNAMMA

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1e. RAMA,

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AGE: 44 YEARS, D/O RATHNAMMA

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1f. VIJAYA SUNIL MORE, AGE 43 YEARS, D/O. RATHNAMMA

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1g. NAGESH GUJJAR S/O. RATHNAMMA, AGE: 40 YEARS,

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NC: 2025:KHC:26263 RSA No. 417 of 2016

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ALL ARE R/AT: RIPPONPETE, TQ. HOSANAGAR, DIST. SHIVAMOGGA.

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SRI. NAGESH S/O LATE G.R.BARMOJI RAO AGED 45 YEARS, OCC: TAILOR R/O. RIPPONPETE-577426 TQ. HOSANAGARA, DIST. SHIVAMOGGA.

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…RESPONDENTS

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(BY SRI. JAYAKARA SHETTY H., ADV FOR C/R1, R2 AND ALSO FOR R1(A TO F); NOTICE TO R1(G) FIS SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.01.2016 PASSED IN R.A NO.49/2014 ON THE FILE OF THE V ADDL. DISTIRCT & SESSIONS JUDGE, SHIVAMOGGA (SITTING AT SAGAR), DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.10.2014 PASSED IN O.S NO.43/2000 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SAGAR.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 12.01.2016 passed in R.A. No.49/2014 by the learned 5^th Additional District and Sessions Judge, Shivamogga, sitting at Sagar and the judgment and decree dated 17.10.2014 passed in O.S. No.43/2000 by the learned Senior Civil Judge and JMFC, Sagar.

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NC: 2025:KHC:26263 RSA No. 417 of 2016

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For convenience, the parties are referred to,

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based on their rankings before the Trial Court. The appellants were the defendants, and the respondents were the plaintiffs.

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Brief facts leading rise to the filing of this appeal are as follows:

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The Plaintiffs filed a suit against the defendants for a declaration of title, recovery of possession, and a permanent injunction. It is the case of the plaintiffs that plaintiff No.1 is the wife and plaintiff No.2 is the son of G.R.Barmoji Rao who died on 13.04.1999 leaving behind the plaintiffs, and other daughter as his legal heirs. It is contended that the suit schedule property i.e., Janata house was granted by the Government on 15.08.1972 and G.R.Barmoji Rao constructed the house on the site and resided over the same along with his family and the Khata was effected in the name of G.R.Barmoji Rao. It is contended that in 1981, Barmoji Rao had to go to Mumbai for his livelihood, and accordingly, he left Ripponpete to

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Mumbai along with his family members. At that time, the suit schedule property was entrusted to defendant No.1 by receiving Rs.90/- as a security and entered into an agreement dated 24.08.1981 in the presence of panchas. As per the terms of the agreement, defendant No.1 has to

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hand over the suit property to G.R.Barmoji Rao or his successors whoever comes back, after receiving Rs.90/The Plaintiffs are the legal representatives of Barmoji Rao, and the possession of defendant No.1 is the permissive possession. Therefore, the plaintiffs demanded for possession of the suit property, but the defendants refused to hand over the possession. Hence, this suit.

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The Defendant filed the written statement denying the averments made in the plaint. It is contended that Barmoji Rao was the absolute owner of the suit schedule property, and the same was granted to him in 1972-73; he agreed to sell the suit schedule property in favour of defendant No.1 for a sum of Rs.10,000/-. As there was a non-alienation condition on the grant, oral

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sale was entered between them. On 15.12.1977, in connection with the said sale transaction, a document by name “ munnudi patra ” was executed in the presence of Panchas. It is contended that the defendants are in possession of the suit schedule property for more than 12 years since 15.12.1977 under the said oral sale and also they have perfected their title over suit property by way of adverse possession. Hence, prays to dismiss the suit.

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The trial Court, based on the pleadings of the parties, framed the relevant issues.

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The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW-1, examined two witnesses as PW-2 and PW-3, and 11 documents as Ex.P1 to Ex.P11.

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In rebuttal, defendant No.1 was examined as DW-1, Defendant No.2 was examined as DW-3, one witness was examined as DW-2, and 26 documents were marked as Ex.D-1 to Ex.D-26. The Trial Court, after

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assessing the verbal and documentary evidence, decreed the suit of the plaintiff vide judgment dated 17.10.2014 and it is declared that the plaintiffs are the absolute owners of the suit schedule property, and the defendants were directed to deliver the vacant possession of the suit schedule property to the plaintiffs within 3 months from the date of the judgment and defendant No.2 was permanently restrained from alienating the suit schedule property.

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The defendants, aggrieved by the judgment and decree passed in O.S. No.43/2020 preferred an appeal in R.A. No.49/2014. The First Appellate Court dismissed the appeal vide judgment dated 12.01.2015, and confirmed the judgment and decree passed by the trial Court. The defendants, aggrieved by the impugned judgments, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for the defendants.

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Learned counsel for the defendants submits

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that the plaintiffs have not produced any title deed to establish their ownership over the suit schedule property. He also submits that G.R.Barmoji Rao had agreed to sell the suit schedule property by executing the sale agreement dated 15.12.1977 and the defendants are in possession of the suit schedule property for more than 12 years without interruption, and have perfected their title by way of an adverse possession. He submits that both Courts below have not properly considered the evidence placed on record. Hence, the impugned judgments passed by the Courts below are arbitrary, and erroneous and there is a dispute regarding the identity of the suit schedule property. Hence, on these grounds, he prays to allow the appeal.

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Perused the records, and considered the submissions of the learned counsel for the defendants.

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DW1, during the course of cross examination has admitted the title of Barmoji Rao, and also admitted

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that plaintiff No.1 is the wife and plaintiff No.2 is the son of Barmoji Rao and also contended that Barmoji Rao had agreed to sell the suit schedule property and on 15.12.1977, delivered the possession of the suit schedule property to defendant No.1. The defendants have produced Ex.D-1 i.e., the sale agreement executed by Barmoji Rao in favour of defendant No.1.

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From the Perusal of the recital of Ex.D1, it appears that, the defendants have admitted the title of the Barmoji Rao over the suit schedule property. Further, fact admitted need not be proved as per Section 58 of the Evidence Act. Further, DW1 has also admitted that the revenue records stood in the name of Barmoji Rao, and also, that the Government has granted janatha house to the Barmoji Rao, and it is the suit schedule property. The defendants have admitted the title, of the Barmoji Rao and plaintiff No.1 is the wife and plaintiff No.2 is the son of said Barmoji Rao. Though the defendants have denied, but the plaintiffs have proved their title over the suit schedule

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property. The defendants claim that they came in possession of the suit schedule property by virtue of the sale agreement and they have perfected their title by way of an adverse possession. To claim the adverse possession, the defendants must admit the title of the plaintiffs over the suit schedule property. Admittedly, in the instant case, the defendants have denied the title of the plaintiffs over the suit schedule property in the written statement. The defendants have not acquired title by adverse possession.

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Further, the Hon'ble Apex Court in case of Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai

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Harijan reported in (2009) 16 SCC 517 , in para 18, held as follows:

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“18. In Karnataka Board of Wakf v. Govt. of India, (2004) 10 SCC 779 at para 11, this Court observed as under:-

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"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by

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the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is " nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."

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The court further observed that plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show:

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(a) on what date he came into possession,

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(b) what was the nature of his possession ,

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(c) whether the factum of possession was known to the other party,

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(d) how long his possession has continued, and

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(e) his possession was open and undisturbed.

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A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

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(emphasis supplied by me)

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In view of the above proposition laid down by

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the Hon’ble Apex Court, the defendants failed to prove the nature of their possession over the suit property i.e., hostile to the right and title of the true owner. Both Courts below have rightly appreciated the entire evidence placed on record and rightly passed the impugned judgments.

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I do not find any error in the impugned judgments nor any substantial question of law that arises for consideration in this appeal.

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Accordingly, I proceed to pass the following order :

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ORDER

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The Regular Second Appeal is dismissed.

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The impugned judgments and decrees passed by the Courts below are hereby confirmed.

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No order as to the costs.

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Learned counsel for the plaintiffs submits that the plaintiffs have already taken the possession of the suit schedule property through the due process of law i.e., in E.P. No.9/2016 and produced the documents i.e., certified copy of the order sheet of E.P.No.9/2016, copy of the report filed by the Bailiff, copy of the Mahazar, Panchanama, copy of the receipt for having delivered the possession of the suit property in favour of the plaintiffs, as the defendants already vacated the possession of the suit schedule property.

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The submission is taken or record.

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