Sri Erappa Vs Smt. Susheela Bai Adiga

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NC: 2026:KHC:9004 RFA No. 127 of 2019

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF FEBRUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 127 OF 2019 (DEC/INJ)

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BETWEEN:

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SRI ERAPPA, S/O SRI. ANNAYAPPA, AGED ABOUT 83 YEARS, R/AT LAGGERE VILLAGE, YESHWANTHAPURA HOBLI, BENGALURU NORTH TALUK, SINCE DEAD BY HIS LRS

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SRI. ANNAYAPPA, S/O LATE SRI. ERAPPA, AGED ABOUT 58 YEARS, R/AT NO.141, ERAPPA COMPOUND GANAPAHINAGARA LAGGERE, BENGALURU-560058.

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Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

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SRI RAMA, S/O SRI.LATE ERAPPA, AGED ABOUT 60 YEARS, R/AT NO.141, ERAPPA COMPOUND, GANAPAHINAGARA LAGGERE, BENGALURU-560058.

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SMT NARAYANAMMA W/O LATE SRI. MUNIKRISHNA, AGED ABOUT 58 YEARS, R/AT NO.141, ERAPPA COMPOUND, GANAPAHINAGARA, LAGGERE, BENGALURU-560058.

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SRI. MUNIRAJU, S/O LATE SRI. MUNIKRISHNA, AGED ABOUT 27 YEARS, R/AT NO.141, ERAPPA COMPOUND,

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HC-KAR

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GANAPAHINAGARA, LAGGERE, BENGALURU - 560058.

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SRI. NAGARAJ, S/O LATE SRI. MUNIKRISHNA, AGED ABOUT 25 YEARS, R/AT NO.141, ERAPPA COMPOUND, GANAPAHINAGARA, LAGGERE, BENGALURU-560058

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…APPELLANTS

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(BY SRI J S SOMASHEKARA A/W SRI K S MALLIKARJUNAIAH, ADVOCATES)

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AND:

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SMT. SUSHEELA BAI ADIGA W/O LATE SRI. RAMACHANDRA RAO ADIGA, AGED ABOUT 85 YEARS, SINCE DEAD BY HER LRS

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SRI. MADAVA RAO ADIGA, S/O LATE SRI. RAMACHANDRA RAO ADIGA, AGED ABOUT 58 YEARS,

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SRI. NARAYANA ADIGA, S/O LATE SRI.RAMACHADRA RAO ADIGA, AGED ABOUT 61 YEARS,

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SRI. RAMAKRISHNA ADIGA, S/O LATE SRI.RAMACHADRA RAO ADIGA, AGED ABOUT 64 YEARS, ALL ARE RESIDING AT NO.7-1-1, GANGADHARA CHETTY ROAD, ULSOOR, BENGALURU-560 008.

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…RESPONDENTS

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(BY SRI S KALYAN BASAVARAJ AND DR PRAJWAL K. ARADHYA, ADVOCATE FOR R1 TO R3)

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HC-KAR

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THIS RFA IS FILED UNDER ORDER XXXXI RULE 1 OF CPC 1908,AGAINST THE JUDGMENT AND DECREE DTD 27.10.2018 PASSED IN OS.NO.26516/2007 ON THE FILE OF THE IV ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT,BENGALURU DISMISSING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is filed against the judgment and decree dated 27.10.2018 in O.S.No.26516/2007 on the file of IV Additional City Civil Court, Bengaluru.

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The suit is for declaration of title based on adverse possession and also injunction. The original plaintiff who sought the declaration of title and injunction had earlier filed Form No.7 seeking occupancy right in respect of the same property. Initially, the occupancy right was granted. Form No.10 was also issued. Said order was called in question by the landlord who disputed the plaintiff's claim as a tenant.

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The landlord's challenge to the earlier order of the

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Land Tribunal in W.P.No.15315/1979 was allowed in part. The

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NC: 2026:KHC:9004 RFA No. 127 of 2019

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order granting occupancy right was set aside and the matter was remitted to the Land Tribunal for fresh consideration.

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Upon fresh consideration, the Land Tribunal

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rejected the Form No.7. The said order is marked as Exhibit P21. The Order of the Tribunal dated 28.10.1986 records the following finding:

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"It is therefore evident that the petitioner has been in forcible possession and enjoyment in the absence of the owners of the land in Laggere Village, may at best amount to possession and enjoyment by act of trespass and not as a tenant."

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This Order rejecting Form No.7 is called in question by the plaintiff in LRRP No.837/1989. In terms of Order dated 01.04.1998 said LRRP No.837/1989 is dismissed. Thus, the order rejecting Form No.7 has attained finality on 01.04.1998.

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The plaintiff has filed a suit claiming adverse possession on the premise that the cause of action to claim adverse possession commenced on 28.10.1986 when Form No.7 application was rejected.

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The suit is dismissed. During the pendency of the

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suit, legal representatives of original plaintiff were brought on

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record. The plaintiffs are in appeal.

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The points for consideration are:

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(a) Whether the plaintiff has perfected the title by adverse possession.

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(b) If not whether the plaintiff is in possession of the property.

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The Court is unable to accept the contention that the original plaintiff had perfected the title by way of adverse possession. Though Form No.7 application is dismissed holding that the plaintiff/applicant is a trespasser, the original plaintiffform No. 7 applicant challenged the Tribunal’s order in LRRP No.837/1989 and was pursuing his claim for grant of occupancy till 01.04.1998 when his petition at LRRP No.837/1989 was rejected. Thus, till 01.04.1998, there was no plea of adverse possession.

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Thereafter, the plaintiff has instituted a suit 25.08.2007 i.e., before expiry of 12 years from 01.04.1998, the date of dismissal of LRRP No.837/1989.

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The original plaintiff in his plaint contends that he is in possession of the property for more than 12 years without any interruption from the real owner. However, it is not stated in the plaint as to when the possession became adverse. At any rate the possession cannot become adverse before 01.04.1998 as the plaintiff was pursuing his claim for grant of occupancy right till 01.04.1998 where he was urging a contention that the defendant is the owner of the property.

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Before 01.03.1974 the plaintiff-form No. 7 applicant has not claimed adverse possession. Because of the challenge to the order of the Tribunal till 01.04.1998 there was no claim based on adverse possession till then. Thus, the prescriptive period to claim adverse possession has not been fulfilled. Thus, the Trial Court is justified in rejecting the prayer for declaration of title based on adverse possession.

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Alternatively, Learned counsel appearing for the appellants would urge that appellants are in settled possession of the property since long, and the Tribunal itself has recorded the finding that applicant is in possession (not as a tenant, at

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best as a trespasser) as such appellants cannot be evicted without due process of law.

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Stressing on his plea relating to long standing possession, it is urged that the defendants have to file a suit for possession against the plaintiffs and in that suit, the plaintiffs would set up a defence of adverse possession. Thus, it is urged that injunction has to be granted in favour of the appellants, till the issue relating to adverse possession to be raised in the new suit is adjudicated.

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There is no merit in the said contention as well. Since the Court has not accepted the plaintiffs’ plea that they are the owners by way of adverse possession, dismissal of the suit with a direction to the defendants to file a suit for possession does not serve any purpose except adding one more docket to the overburdened system.

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The reasons are pretty simple. If the defendants are asked to file a suit against the plaintiffs for a decree for possession, there will be no lis left for adjudication in the said suit. The plaintiffs who are the appellants in this suit, and who will be the defendants in the said suit cannot raise a plea that

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they are the owners by adverse possession. Said plea is already negatived in this proceeding. Thus, they will be precluded under law from raising the same plea of adverse possession, at least for next 12 years from today and the defence that the suit for possession is barred by limitation cannot be raised for 12 years from today.

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If the defendants are to file a suit after 12 years from the date of this judgment, if other requirements are met, then the appellants who will be the defendants in the said suit may raise a plea of adverse possession.

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Though the learned counsel for the defendants urged that the defendants are in possession of the property, and the plaintiffs are not in possession, said plea is not established. The finding recorded by the Tribunal, that the applicant (original plaintiff) is in possession of the property (not as a tenant, at best as a trespasser) has attained finality. The Civil Court could not have disturbed the said finding based on the entry in the revenue record.

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It is also noticed that where the defendants have not raised a plea that after the dismissal of the application by

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the Tribunal, or after dismissal of the petition by the High Court in LRRP No.837/1989, the possession is handed over to the defendants.

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Under these circumstances, the Court is of the view that the plaintiffs are possession of the property without title.

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It is also noticed that the defendants have not filed any counter claim or the counter suit seeking possession. Since this Court has recorded a finding that the plaintiffs are in possession of the property without any title and defendants are the owners of the property, instead of directing the defendants to file one more suit for possession, following the ratio laid down by this Court in Narayanamma and others vs. Rajappa and Others¹ the Court directs the defendants to pay the Court fee on the valuation of the property as on the date of the suit, as if they had filed the suit for possession.

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And on payment of such Court fee, Registry shall draw a decree in favour of the respondents/defendants for

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1 RSA NO.2681/2007 C/W RSA NO.2702/2007

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NC: 2026:KHC:9004 RFA No. 127 of 2019

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possession and the respondents/defendants are at liberty to execute the decree.

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Though the learned counsel for the respondents/ defendants would urge that there has to be a direction to pay the mesne profits, the Court is rejecting the said plea because the respondents/defendants have not been fair to admit the fact that the plaintiffs are in possession of the property and have not filed a suit for possession or he has not filed a counter claim seeking possession.

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Hence, the following:

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ORDER

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(i) The appeal is allowed in part .

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(ii) The judgment and decree dated 27.10.2018 on the file of IV Additional City Civil Court in O.S.No.26516/2007 are set aside in part.

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(iii) The dismissal of the plaint rejecting the prayer for declaration of title by way of adverse possession is confirmed. The injunction is granted till the plaintiffs/appellants, are evicted in due process of law.

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(iv) It is made clear that the respondents/ defendants need not file a fresh suit seeking possession. This decree can be executed as a decree for possession in favour of defendants subject to respondents/ defendants paying the Court fee on the valuation of the property as on the date of the suit.

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(v) There is no direction to pay the mesne profits.

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(vi) Learned counsel for the appellants seeks certificate of the Court to file an appeal to the Supreme Court. The Court is of the view that it is not a fit case to grant certificate to file an appeal.

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(vii) No order as to cost.

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Sd/-

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(ANANT RAMANATH HEGDE) JUDGE

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GVP

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List No.: 1 Sl No.: 27

Sri Erappa v. Smt. Susheela Bai Adiga

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Sri Erappa v. Smt. Susheela Bai Adiga

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