Smt. Geetha Naik, Vs Sri S Prabhakar Tholar

SRI. PRASHANTH P. THOLAR SON OF LATE S. PRABHAKAR THOLAR AGED ABOUT 73 YEARS RESIDING AT NO.330 WARD NO.1, MADDUGUDDE KUNDAPURA KASABA VILLAGE KUNDAPURA TALUK KUNDAPURA-576 201.

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SRI. RAJENDRA M. THOLAR SON OF LATE S. PRABHAKAR THOLAR AGED ABOUT 71 YEARS RESIDING AT NO.330 WARD NO.1, MADDUGUDDE KUNDAPURA KASABA VILLAGE KUNDAPURA TALUK KUNDAPURA-576 201.

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…RESPONDENTS

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(BY SRI. K.CHANDRANATH ARIGA, ADVOCATE FOR C/R1 AND C/R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.02.2025 PASSED IN R.A.NO.18/2024 ON THE FILE OF THE SENIOR CIVIL JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.03.2024 PASSED IN O.S.NO.134/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KUNDAPURA.

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

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NC: 2025:KHC:45512 RSA No. 558 of 2025

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HC-KAR

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard learned counsel for the appellants and learned counsel appearing for caveator-respondent Nos.1 and 2.

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This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

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The factual matrix of the case of the plaintiffs before the Trial Court while seeking the relief of possession, it is contented that ‘A’ schedule property belongs to Moolageni tenancy of plaintiff No.1, who had filed an application for its confirmation after Land Reforms Act came into force. That the occupancy rights in respect of suit ‘A’ schedule property was granted in favour of plaintiff No.1 on 21.07.1979 and accordingly, Form No.10 was also issued. Thereby, RTCs of suit ‘A’ schedule property were registered in the name of defendant No.1 as owner.

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Defendants having no manner of right, title or interest over the ‘A’ schedule property, but husband of

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defendant No.6 late Raghavendra Naik, who was working in factory of plaintiffs, where plaintiff No.1 had allowed him to stay for a temporary period in a small building constructed by plaintiff No.1 in portion of said Moolageni lands. Therefore on the basis of said permission, said late Raghavendra Naik was staying in the building as licensee. Taking advantage of the same, he filed an application for declaration in Form No.7 claiming false tenancy over entire property including residential building in suit ‘A’ schedule property. The said claim was that late Narayana Naik was in possession of the property and application before Tribunal was dismissed on 21.07.1979. Aggrieved by it, writ petition was filed and the same was also dismissed confirming the order of Land Tribunal.

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During the pendency of the said writ petition, Narayana Naik died and defendants jointly continued in the said writ petition and obtained final order dated 09.12.2010. Defendants being legal heirs of Narayana Naik are bound by orders of Land Tribunal and Hon'ble High Court of Karnataka. The said orders have rejected and nullified all the claims advanced by defendants till now over every portion of ‘A’

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schedule property. House occupied by late Raghavendra Naik is located in portion of suit ‘A’ schedule property where defendants have taken unlawful possession of the said house with some portions of land around the said house. Defendants being legal heirs of late Narayana Naik and Raghavendra Naika are in unlawful and unauthorized possession of the said house with some portions of the land. The said portion is described as suit ‘B’ schedule property. Therefore, defendants have no manner of right, title or interest over any portion of suit ‘B’ schedule property or building thereon as above stated. However, defendants have continued to be in possession and enjoyment of suit ‘B’ schedule property of which plaintiffs are entitled for physical possession. Hence, filed the suit seeking the relief.

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6. Defendant No.9 has filed written statement denying

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all averments made in the plaint, but particularly contend that originally land bearing Sy.No.189/6 measuring 0.42 acres and Sy.No.182/5 measuring 0.16 acres of Kundapura Kasaba Village were cultivated by maternal uncle of Narayana Naika namely, Venkataramana Mestha, Annapa Mestha, Sheshagiri

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Mestha on Chalageni tenancy right under one Maruthi Rao, Dasappayya Garatekar, later it was given to Narayana Naik for cultivation under Chalageni tenancy. In the same capacity, he filed Form No.7 before the Land Tribunal for confirming his occupancy rights. However the said claim was rejected and Writ Appeal was also filed. Plaintiffs do not have any right to withdraw alleged permission of defendants nor their predecessors in title. Hence, contend that they are not entitled for any relief.

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The Trial Court having considered the pleadings of parties, allowed the parties to lead evidence. The Trial Court having considered the pleadings of the parties and also oral and documentary evidence, answered issue Nos.1 to 7 as ‘affirmative’, accepting the case of plaintiffs and granted the relief directing the defendants to vacate and deliver vacant possession of suit ‘B’ schedule property to plaintiff Nos.2 and 3 within 3 months from the date of order, failing which plaintiffs would be at liberty to get the same executed through process of this Court.

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NC: 2025:KHC:45512 RSA No. 558 of 2025

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Being aggrieved by the said judgment and decree, an appeal is filed in R.A.No.18/2024. The First Appellate Court also having considered the grounds which have been urged in the appeal, formulated the point whether the Trial Court has committed an error in decreeing the suit and hence, the impugned judgment and decree of the Trial Court requires interference. The First Appellate Court on re-appreciation of both oral and documentary evidence comes to the conclusion that Trial Court has not committed any error and the very claim of the defendants was rejected that no materials to show that suit ‘A’ and ‘B’ schedule properties which are part of ‘A’ schedule property and unless the nature of the possession become adverse to the true owner of the land, the defendants cannot go against the title and deny the same. Hence, confirmed the judgment of the Trial Court. Being aggrieved by the said concurrent finding, present second appeal is filed before this Court.

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The main contention of learned counsel appearing for the appellants is that appellants are in possession of the property for more than 60 years. The counsel would

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vehemently contend that suit for possession without seeking declaration is maintainable has to be considered in this second appeal. Hence, this Court has to admit and frame substantial question of law and when the title of the plaintiffs is under dispute, cannot seek the relief of possession. Hence, this Court has to admit the second appeal and frame substantial question of law.

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Per contra, learned counsel appearing for caveatorrespondent Nos.1 and 2 would vehemently contend that main case of the plaintiffs is that they are the Moolageni tenants and an application was filed and the same was considered and grant was also made on 21.07.1979 and the very claim of the appellants is that they are Chalegeni tenants and attempt made by the appellants was rejected. Hence, the appellants are not entitled for possession and the very contention of the learned counsel for the appellants that the respondents have no title cannot be accepted when the right has already been confirmed in the year 1979 itself in favour of the respondents.

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Having heard learned counsel for the appellants and

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learned counsel appearing for the caveator-respondent Nos.1

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and 2, it is the main contention of learned counsel for the appellants before the Trial Court that appellants are Chalageni tenants and on the other hand, it is the contention of learned counsel for the caveator-respondent Nos.1 and 2 that they are Moolageni tenants and filed an application for its confirmation after Land Reforms Act came into force and the same was granted on 21.07.1979. Accordingly, Form No.10 was also issued, all the records stands in the name of the respondents/plaintiffs and name was also entered in the revenue records. When such being the case, though the appellants are in possession for a longer period, the same cannot create any right, when the claim of appellants was already rejected and when the same was challenged before this Court, this court also affirmed the same. When such being the case, I do not find any substance in the contention of the counsel that without seeking the relief of declaration as to the title, cannot claim the relief of possession and the fact that the respondents were Moolageni tenants and right was also confirmed by Land Reforms Act after the Act came into force in favour of plaintiff No.1 on 21.07.1979. When such being the material on record, the very contention of appellants cannot be

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