Ashoka Vs K B Mahabalesh

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.10.2025 PASSED IN R.A.NO.22/2024 BY I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SAGARA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.06.2024 PASSED IN O.S.NO.170/2014 BY THE PRINCIPAL CIVIL JUDGE AND JMFC, SAGARA.

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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 PRADEEP SINGH YERUR

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ORAL JUDGMENT

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This appeal is preferred by the defendant challenging

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the judgment and decree dated 18.10.2025 passed in R.A.No.22/2024 by I Additional Senior Civil Judge and JMFC, Sagara, confirming the judgment and decree dated 28.06.2024 passed in O.S.No.170/2014 by the Principal Civil Judge and JMFC, Sagar, whereby the trial Court decreed the suit of the respondent-plaintiff and directed the appellant-defendant to handover the vacant possession of ABCD portion mentioned in the sketch appended to the plaint, to the respondent-plaintiff.

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Parties to the proceedings shall be referred to as per their status before the trial Court.

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A suit came to be filed by the plaintiff for declaration to declare himself as the absolute owner of the suit schedule property, which is mentioned in the rough sketch attached to the plaint as ABCD portion measuring

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East to West: 33-00 feet and North to South: 25-00 feet

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and for recovery of the suit property from the defendant.

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Brief facts of the case are as under:

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It is the case of the plaintiff that he is the absolute owner of the suit schedule property bearing Sy.No.10/5, dry land measuring 0-22 guntas situated at Neerkodu Village, Sagar Taluk. It is his further case that originally,

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the suit schedule property belonged to one Sri Chinnappa, S/o.Karibasappa. The plaintiff purchased the suit schedule property from Chinnappa and took possession of the same by way of a registered sale deed dated 28.06.2012. Pursuant to purchase of the suit schedule property, RTC and mutation entries were changed in the name of the plaintiff. The plaintiff has been paying revenue to the Government regularly and the plaintiff has been in absolute possession and enjoyment of the suit schedule property. It is also the case of the plaintiff that there was a small Mangalore tiled house situated on the north-west

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corner i.e. on the western side of the northern portion of

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Sy.No.10/5 of Neerkodu Village.

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4.1 On 28.06.2012, the defendant approached the plaintiff and sought permission to live in the said house for a period of six months and after stipulated period, he will vacate and handover the possession thereafter to the plaintiff. Accordingly, the plaintiff agreed and allowed the defendant to stay and reside in the house for a period of six months. Therefore, it is the say of the plaintiff that the defendant was in the permissive possession of the suit schedule property.

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4.2 In view of the fact that the defendant did not handover the vacant possession of the schedule property within a period of six months as agreed, the plaintiff was constrained to withdraw the oral permission granted and

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got issued a notice on 08.04.2013. Despite issuance of notice, the defendant has not handed over the possession

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of the suit schedule property, which perforced the plaintiff

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to file a suit for declaration and possession.

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4.3 Upon service of summons to the defendant, he appeared and filed written statement denying the facts and the plaint averments. He took up a plea that he has spent about Rs.80,000/- and built a house in three and

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a half months and started living in the said house way back in the year 2000. It was a plea taken by the defendant that he had taken possession of the property from the erstwhile owner Chinnappa, who did not cause any obstacles or raise any objection to construct the house and pursuant thereto, he has been living in the said house exercising all necessary right, title and interest including the ownership of the said house. It was also pleaded that he has taken electricity connection and also been paying local taxes to the local Government regularly and thereby,

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he has become the owner of the property. The erstwhile owner, Chinnappa of the suit schedule property and his family members had the knowledge about the construction

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of house and enjoying the suit schedule property by the defendant with his family members and they have not interfered with his possession, thereby the defendant has been enjoying the suit schedule property since 12 years and got his right of ownership through adverse possession and hostile to the knowledge of the true owner i.e. the erstwhile owner Sri Chinnappa. On the basis of these, the defendant sought for dismissal of the suit by contending that the plaintiff does not have any right, title or interest in the superstructure building put up and built by the defendant in the property, which does not belong to the plaintiff, whereas it belongs to the Government and he had taken the same from one Chinnappa.

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4.4 It is also pleaded by the defendant that on 21.05.2012, a Panchayat was held between the defendant and the said Chinnappa, as a result of which, they entered into an agreement of sale dated 21.05.2012 regarding possession of the house, where the defendant continues to live and reside in the said house and the said Chinnappa

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has agreed to sell the property to the defendant for a sum of Rs.37,500/-. Hence, he stated that the plaintiff has no right to evict or seek possession of the property, for which, the plaintiff is not the owner and therefore, he has acquired the property by way of right of possessory title of adverse possession and hostile to the knowledge of the entire world including that of the true owner namely, Chinnappa.

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4.5 Based on the pleadings of both the parties, the

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trial Court framed the following issues for consideration:

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"1. Whether the plaintiff proves that he is the owner of the suit schedule property?

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2. Whether the plaintiff proves that defendant is a licensee under him in respect of ABCD portion shown in the sketch?

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3. Whether the defendant proves that he has perfected his title over the suit schedule property by way of adverse possession?

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4. Whether the defendant proves the sale agreement dated 21.05.2012 executed by one Chinnappa in respect of suit schedule property?

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5. Whether the defendant proves that he is in possession of the suit schedule property as per Section 54 of Transfer of Property Act?

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6. Whether the plaintiff is entitled for vacant possession of the suit schedule property?

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7. Whether the plaintiff is entitled for the relief as sought for?

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8. What order or decree?

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Additional Issues dated 02-11-2015:

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1. Whether the plaintiff proves that the suit schedule

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property is a part and parcel of Sy.No.10/5? Additional Issues dated 03-03-2017:

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1. Whether the plaintiff proves that as on the date of suit, suit schedule number is an agricultural land?

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2. Whether the valuation made by the plaintiff for the purpose of court fee and jurisdiction is property and correct?"

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4.6 In order to substantiate the issues and to prove the case, the plaintiff examined himself as PW.1 and also examined two other witnesses as PWs.2 and 3 and got marked the documents as Exs.P1 to P20 in support of his case. Whereas, the defendant examined himself as DW.1 and also examined two other witnesses as DWs.2 and 3

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and got marked documents as Exs.D1 to D39 in support of

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his case.

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4.7 Upon going through the materials placed on

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record, both oral and documentary, after hearing the arguments of learned counsels for both the parties and the authorities relied upon by both the parties, the trial Court

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came to the conclusion that there was no dispute by the defendant with regard to the sale deed executed by the erstwhile owner Chinnappa in favour of the plaintiff. The plaintiff has not denied his ownership in respect of 0-22 guntas of land except to the extent of portion of measurement shown at the sketch ABCD i.e. the suit schedule property, where the defendant had taken a plea that he is absolute owner of the property as it belongs to

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the erstwhile owner, Chinnappa and also a plea that it belonged to the Government and he had put up construction. Therefore, the superstructure building having been put up by the defendant, the plaintiff cannot make a claim. It is negatived. The trial Court did not agree with

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with the contentions put-forth by the defendant rather agreed with the contentions put forth by the plaintiff for having established the right over the suit schedule property by way of a registered sale deed and all other documents remain standing in the name of the plaintiff with regard to the suit schedule property, so also, on the basis of the material evidence placed on record, both oral and documentary and the report of the Commissioner, decreed the suit of the plaintiff and declared that the plaintiff is the absolute owner of the suit schedule property mentioned in the plaint and rough sketch as ABCD portion and also directed the defendant to handover the vacant possession of the suit schedule property within two months from the date of decree, failing which, the plaintiff was provided liberty to take possession of the suit schedule property as per the provisions of law.

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4.8 Aggrieved by the judgment and decree rendered

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by the trial Court, the defendant approached the first Appellate Court in R.A.No.22/2024 by raising several

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contentions, contending that the trial Court has committed

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an error in not considering several aspects and also the materials placed on record, both oral and documentary, so also, the evidence adduced by the Commissioner, who had inspected the spot.

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4.9 The first Appellate Court, upon reconsideration of

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the entire gamut of materials placed before it and by looking into the materials of the trial Court, formulated the following points for consideration:

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"(1) Whether the Judgment and Decree of the learned trial Court is not correct and call for interference of this Court?

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(2) What Order or Decree?"

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4.10 Upon reconsideration and re-appreciation of the entire materials placed on record, both oral and documentary and on the basis of submissions made by learned counsels for parties, the first Appellate Court had a re-look of the matter and came to the conclusion that the suit was filed by the plaintiff for declaration of title.

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The defendant had not denied the title of the plaintiff over

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the extent of 0-22 guntas of land purchased by him by virtue of Ex.P1-sale deed and the suit schedule property was the only point of dispute where the defendant had taken contention that it was a superstructured building, in which a residential house put up by the defendant having taken the permission from the erstwhile owner Chinnappa at one stretch and at the same breath, taken a plea that he had occupied the property believing that it to be the property of the Government. The first Appellate Court also delved into the matter of the fact that the defendant also took up a plea that he had entered into an agreement of sale with the erstwhile owner, Chinnappa, but neither it culminated into the sale deed nor any suit filed against the said Chinnappa.

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4.11 Upon carefully re-looking at the matter once

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again, the first Appellate Court came to the conclusion that the plaintiff, on the basis of the documents produced, has established that he is the absolute owner of the suit

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schedule property. Though there may not be a mention of

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the house property in the sale deed by the vendor of the plaintiff and the defendant made several contentions that he has put up the house property, no documents were

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produced before the trial Court or the first Appellate Court. Therefore, the first Appellate Court did not find favour with the defendant and agreed with the contentions put-forth by learned counsel for plaintiff to hold that on the basis of Ex.P1-sale deed, the plaintiff became the absolute owner of the suit schedule property and that the possession follows title. The first Appellate Court did not agree with the contentions put-forth by the defendant and accordingly, dismissed the appeal and confirmed the judgment and decree rendered by the trial Court.

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4.12 It is this concurrent finding of fact rendered by

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the trial Court and the first Appellate Court challenged now by the appellant-defendant in this second appeal by taking several contentions.

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Learned counsel for appellant-defendant, inter alia contended that judgments and decree rendered by both the Courts are perverse, illegal and arbitrary and have failed to take into consideration the materials available on record and it suffers from non-application of mind and mechanically the judgments and decree are passed by the trial Court as well as the first Appellate Court, so also, it is contended that both the Courts have failed to raise proper presumption.

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5.1 Learned counsel further contends that both the Courts have not re-appreciated and re-evaluated the evidence on the basis of the materials placed on record, so also, on the question of law. It is further contended by learned counsel that both the Courts have committed a serious illegality in declaring that the plaintiff to be the owner of suit schedule property i.e. ABCD mentioned in the rough sketch to the suit schedule property and ordered delivery of possession, which is illegal and arbitrary.

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5.2 It is vehemently contended by learned counsel

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for appellant-defendant that according to Ex.P1-sale deed,

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there is no mention of existence of a house in the sale deed or schedule to the sale deed. Therefore, he contends

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that the plaintiff has not purchased the Mangalore tiled house and the land on which it stands. It is further contended that both the Courts have not appreciated that the suit house was in existence earlier to the sale deed and which is apparently clear from Ex.P1, where there is no mention of existence of a house, so also, there is no evidence produced by the plaintiff to show the existence of a house as on date of purchase of the property in question. Learned counsel has also vehemently contended that whenever a property is purchased valuing more than Rs.100/-, the document has to be registered, registration fee to be paid and stamp duty to be paid in accordance to

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the market value and the Government guidelines value. In the sale deed at Ex.P1, there is no mention about the

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suit schedule property is a house i.e. Mangalore tiled

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house.

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5.3 Learned counsel further contends that it is the duty cast upon both the vendor and vendee i.e. the seller and purchaser as per Section 28 of the Karnataka Stamp Act, 1957 (for short, 'the Act') to disclose fully and truly all the facts and circumstances for the purpose of chargeability of any instrument or amount of duty, which has to be paid as a revenue to the State. In the present case on hand, in Ex.P1-sale deed, there is no mention of a house i.e. Mangalore tiled house, whereby the respondentplaintiff has deliberately avoided payment of necessary stamp duty.

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5.4 Learned counsel further contends that the erstwhile owner of the property namely, Chinnappa sold

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the suit schedule property of 0-22 guntas for a sale consideration amount of Rs.10,25,000/-. There was a considerable amount of delay in registering the sale deed,

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after the sale agreement was entered into and

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substantially reduced rate was specified in the document for sale of the property and payment of the stamp duty, which are again the violation of the provisions of the Act.

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5.5 Learned counsel also contends that both the Courts have failed to take into consideration the evidence of the Court Commissioner, who was appointed at the instance of the plaintiff. As the Court Commissioner appointed by the Court was not the Commissioner, who went to the spot to give a report, which again is illegal and contrary and the same cannot be believed and accepted. As the one person by name, Sridhara K.A., who is the Surveyor attached to the Office of the Assistant Director of Land Records, Sagara went to the spot and gave the report, but he was not the person appointed by the Court. Therefore, the report submitted as Court Commissioner's report could not have been accepted by both the Courts. Again, the same is illegal and arbitrary. As per the order of

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the trial Court on 15.04.2021, it was a Surveyor attached

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to the City Municipal Council, Sagara, who was appointed as a Court Commissioner and not the Surveyor attached to the Office of the Assistant Director of Land Records, Sagara. This aspect has also been conveniently ignored by

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both the Courts and have passed a mechanical order by decreeing the suit of plaintiff.

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5.6 Learned counsel has also taken up a plea that the appellant-defendant acquired the right, title and interest over the suit schedule property by way of adverse possession and hostile to the entire world including the true owner of the property. The defendant has denied the title of Chinnappa over the suit schedule property. He was the erstwhile owner of the property, who had eventually sold the same as per Ex.P1 to the plaintiff. It is also contended by learned counsel that as per Ex.D39, an agreement of sale was entered into by the erstwhile owner, Chinnappa with the defendant in respect of the vacant area measuring 40-00 feet x 25-00 feet and there was no mention about the suit house. The same cannot be

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countenanced. Therefore, on the basis of these

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submissions, it is vehemently contended by learned counsel for appellant-defendant that both the Courts have not properly examined the evidence on record and in the light of the settled proposition of law laid down by the Apex Court, the judgments and decree rendered by both the Courts are highly perverse, illegal and arbitrary.

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5.7 It is also contended that the appellant-defendant has the right to take inconsistent pleas. However, it is for the plaintiff, who comes before the Court to establish his case on the strength of his case rather than on the weakness of the defendant which has not been done in the present case and therefore, he seeks this Court to frame substantial questions of law to further delve into the matter as urged in the appeal memo.

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Per contra , Sri H.Kantharaj, learned Senior

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Counsel along with Sri H.Dayananda Saraswathi appearing on behalf of the respondent-plaintiff vehemently contends

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that there is no illegality or perversity in the judgment and

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decree rendered by the trial Court, which is affirmed by

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the first Appellate Court. He sustains the impugned judgments and decree passed by the trial Court as well as the first Appellate Court. He contends that the trial Court has framed issues for consideration and to prove those issues, the same has been elaborately dealt with by production of oral and documentary evidence by the plaintiff by examining three witnesses and producing 20 documents. Though the defendant has made a valiant effort to disprove the case of the plaintiff and set up multiple defence contrary to each of it, he was unable to do so as he has taken the plea of adverse possession and at another breath, he has taken the plea that he is the owner of the property by way of an agreement of sale and thirdly, he has come into possession of the suit schedule

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property under the premise that it belonged to the State Government and thereby perfected his right, title and interest over the suit schedule property. But apparently, it

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is seen that either the appellant-defendant has filed any

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suit against the vendor of the plaintiff, Chinnappa or against the State Government for claiming the ownership of the suit schedule property either on the basis of the sale

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agreement entered into between him and Chinnappa or on the basis of seeking adverse possession hostile to the entire world or to that of Chinnappa or against the State Government. However, he has not done so. When the plaintiff has filed a suit for possession, no further suit or relief was claimed by the defendant either against the vendor of the plaintiff or against the State Government. On the contrary, he contends that the appellant-defendant has admitted Ex.P1-sale deed and the plaintiff being owner of the superstructured building of the property bearing

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Sy.No.10/5 measuring to an extent of 0-22 guntas, which is the suit schedule property being

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part and parcel of Ex.P1 to an extent of 33-00 feet x 25-00 feet.

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6.1 It is also contended by learned Senior Counsel

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that apart from oral and documentary evidence, at the instance of the plaintiff, the Court Commissioner was appointed. The Court Commissioner, who has inspected the spot, drawn up a report and furnished the same to the Court, was accepted by the Court. The Commissioner's report is a document which is in addition and ancillary to that of the other evidence produced namely, oral and documentary evidence by the plaintiff and not the only piece of evidence placed before the Court. Therefore, the plea taken by the defendant with regard to the Commissioner's report cannot be accepted and

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countenanced and also the adverse possession, which is taken as a plea falls flat on the ground for the reason that there is no statement made by the defendant with regard to when and how he has come into possession of the

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property and against whom, he is claiming adverse either against Chinnappa or the State Government or as against the respondent-plaintiff. On these grounds, it is contended

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by learned Senior Counsel that the contentions taken by the appellant-defendant cannot be entertained as both the Courts have elaborately dealt with all these matters and the extent of the superstructured building put-up on the suit property cannot be a property out of the purview of the property mentioned in Ex.P1-sale deed as it is within the purview of Ex.P1-sale deed and it cannot have a separate identity even though it is a superstructured building. Once the property is purchased, everything over and above the said property becomes appurtenant and it becomes the property of the person purchasing it, whereas in the present case, the property belongs to the plaintiff. On these grounds, he seeks dismissal of the appeal by contending that there is no substantial questions of law required to be formulated in this case as he contends that what is sought to be examined is a question of fact, evidence and the materials, which are elaborately dealt with by both the Courts.

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Having heard learned counsel for appellant and

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learned Senior Counsel for respondent, the points that

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arise for consideration are that-

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"i) Whether the appellant-defendant has made out a good ground or cogent reason for interference in the concurrent finding or fact of both the Courts?

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ii) Whether any substantial questions of law are required to be framed to delve into the matter further?"

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Apparently, it is seen that there is no dispute with regard to the fact that the plaintiff is the absolute owner of the property bearing Sy.No.10/5 measuring to an extent of 0-22 guntas as per Ex.P1-sale deed. The plaintiff has

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filed a suit for declaration to declare himself to be the owner of the suit schedule property, which is a portion of the property mentioned as ABCD in the rough sketch measuring to an extent of East to West: 33-00 feet and North to South:25-00 feet and for recovery of possession of the property from the defendant. Therefore, the suit schedule property is a smaller portion in the larger

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property of Ex.P1-sale deed, which is not denied by the defendant. The contention taken by learned Senior Counsel for defendant is that firstly, the defendant has stepped into the property by way of adverse possession; secondly, on the basis of an agreement of sale from the erstwhile owner i.e. Chinnappa; thirdly, under the premise that the property belongs to the State Government and he has encroached the property by way of unauthorised occupation. It is not the case of the defendant that he has made any application to the Government to regularise his unauthorised occupation in the property. No such application is made, nor has either filed a suit for specific performance on the basis of the sale deed or the sale agreement executed with the erstwhile owner, Chinnappa. There is also no mention as to when the defendant came into possession of the property and as to show hostility against the true owner or to the whole world to describe the adverse possession as against the true owner either Chinnappa or the State Government or the plaintiff.

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Be that as it may, the plaintiff has to establish his ownership on the basis of his title and possession. Apparently, it is a settled law that possession follows title. The title of the plaintiff is not denied. Ex.P1-sale deed is admitted, which is not questioned by the defendant. All these aspects have been elaborately dealt with by the trial Court by framing relevant issues for consideration and answered the same in a detailed manner including all the points that were urged by the defendant with regard to adverse possession as well as with regard to the agreement of sale entered into by the defendant with the erstwhile owner, Chinnappa and also with regard to Section 54 of the Transfer of Property Act, 1882.

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It is also the grievance of learned counsel for appellant-defendant that the plaintiff has denied payment of the appropriate stamp duty and also the Court fee for the reason that the plaintiff has not mentioned the superstructured building put up in Ex.P1-sale deed, which forms the part of Ex.P1. In my opinion, the same cannot

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be a ground for the appellant-defendant to raise objection

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for the reason that it is a matter between the plaintiff and the State Government for collection of revenue. If any such thing is made, it is for the State to recover the deficit stamp duty or refer the matter to the Undervaluation Department for realising the deficit stamp duty, which has not been done. Hence, the same could not have been urged or raised by the defendant.

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Having heard learned counsel for both parties and perused the judgments and decree of the trial Court as well as the first Appellate Court, it is seen that both the Courts have elaborately dealt with each of the issues and the points that were urged by learned counsels for parties and arrived at a conclusion by decreeing the suit and the same having been confirmed by the first Appellate Court.

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Section 100 of CPC deals with the scope and powers of the Appellate Court. It is a no more res integra to state that the powers as contemplated under Section

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100 CPC are very narrow and limited. This Court, in several catena of judgments, has held that the Appellate Court sitting in the second appeal is not required to appreciate the evidence on record unless there is perversity shown in the judgments rendered by the trial Court as well as the first Appellate Court. When two Courts have already considered the question of fact and the question of law to a large extent in detail, even if this Court finds third opinion on the opinions already expressed concurrently by both Courts, it is a general Rule that this Court should refrain from imposing its third opinion merely for the sake of interference when there is no cogent material placed on record.

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The question of framing of substantial questions of law would depend upon if there is any illegality or perversity in the judgments rendered by the trial Court as well as the first appellate Court. Having considered the submissions of learned counsels for parties and having perused the impugned judgments of both the Courts and

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having gone through the records, I do not find any perversity or illegality in the judgments rendered by both the Courts. The appellant has not made out any good ground for this Court to frame any substantial question of law, as no such question of law, in my opinion, exists to be framed to decide the case on hand. The reasons assigned and conclusion arrived at by both the Courts are just and proper. I do not find any cogent reason to interfere with the well reasoned judgments rendered by both the Courts.

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In view of the discussions made herein above and having given thoughtful consideration to the submissions made by learned counsel for appellant and learned Senior Counsel for respondent, I do not find any good ground or cogent reason laid out by learned counsel for appellant to frame any substantial questions of law as none exist to be considered in the present case, so also, for the reason when concurrent findings of fact are rendered by both the Courts, this Court need not interfere in such findings unless there is severe perversity or blatant

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error committed by both the Courts. It is needless to mention that this Court is not sitting in the armchair of an Appellate Court to review the evidence once again. Under the circumstances, I do not find any good ground to frame substantial questions of law.

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