The High Court
Case Details
- 1 - NC: 2025:KHC:8958 RSA No. 31 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 31 OF 2022 (PAR) BETWEEN: 1. P SHIVANANDAPPA S/O PUTTALINGAPPA DEAD BY HIS LEGAL REPRESENTATIVES Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA 1(A) SMT. GOWRAMMA, W/O LATE SHIVANANDAPPA, AGED ABOUT 68 YEARS, R/O NANDIHALLI VILLAGE, BHADRAPURA POST SHIKARIPURA TALUK - 577427. 1(B) SRI P RAMESH S/O SHIVANANDAPPA, AGED ABOUT 39 YEARS, R/O NANDIHALLI VILLAGE, ANJANAPURA HOBLI, SHIKARIPURA TALUK - 577427. 1(C) SMT UMA W/O CHANNAPPA GOWDA, D/O LATE SHIVANANDAPPA, AGED ABOUT 47 YEARS, R/O VIDYANAGARA, SHIKARIPURA TOWN - 577427. 1(D) SMT PADMA W/O NAGARAJAPPA, D/O LATE SHIVANANDAPPA, AGED ABOUT 36 YEARS, - 2 - NC: 2025:KHC:8958 RSA No. 31 of 2022 …APPELLANTS R/O NYAMATHI VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT. 2.
Legal Reasoning
There is no dispute regarding the relationship between the - 11 - NC: 2025:KHC:8958 RSA No. 31 of 2022 parties to the suit and also item no.1 was purchased by one Veeramma. The properties bearing Sy.No.78/1 measuring 1 acre 29 guntas and Sy.No.78/3 measuring 1 acre 20 guntas were purchased by Veeramma under a registered sale deed dated 10.2.1969. If a female acquires the property by the sale, she becomes the absolute owner of the suit schedule property as per Section 14(1) of the Hindu Succession Act 1956. It is not the case of the defendants that, Veeramma had executed a Will or Gift in favour of the defendants. Admittedly, she died intestate leaving behind the plaintiffs and defendants as her legal heirs. After the demise of Veeramma, the plaintiffs and defendants have succeeded to the share of deceased Veeramma. Item nos.1 and 2 i.e., Sy.nos.78/1 and 78/3 are the joint family properties of the plaintiffs and defendants. The plaintiffs and defendants are the members of the Hindu joint family and no partition is effected. Plaintiffs No.1 and 2 are the sons and, plaintiff no.3 and Gowramma are the daughters of Virupaxappa. After the demise of Veeramma, they succeeded to the - 12 - NC: 2025:KHC:8958 RSA No. 31 of 2022 property as per Section 15(1) of the Hindu Succession Act, 1956. Though, defendants No.1 to 3 contended that they are in possession of the property since 1969, and they have perfected their title by way of adverse possession, to prove the adverse possession, the plaintiffs have to prove the essential ingredients of adverse possession. The following essential ingredients are 1) Possession 2) Animus possessandi 3) the Adverse possessor should assert title in himself openly and in derogation of the title of a true owner of a continuous and unbroken period of 12 years. 8. Admittedly, defendants No.1 to 3 have not led any evidence to establish that, when they came in possession of the suit schedule properties and when they have asserted their title openly, in derogation of the title of the true owner. Mere possession, without it being adverse, and hostile to the claim of the true owner will not constitute adverse possession. Defendants No.1 to 3 failed to establish that they have perfected their title by way of adverse possession. The First Appellate court has - 13 - NC: 2025:KHC:8958 RSA No. 31 of 2022 recorded a finding of facts that the plaintiffs have proved that the suit schedule properties are the joint family properties of the plaintiffs and the defendants, and rightly granted a share to the plaintiffs. Defendants No.1 to 3 failed to establish that they have perfected their title by way of adverse possession. I do not find any error in the impugned judgment or any substantial question of law that arises for consideration in this appeal. 9. Accordingly, I proceed to pass the following order :
Arguments
SRI P JAYADEVAPPA S/O PUTTALINGAPPA, AGED ABOUT 77 YEARS, R/O NANDIHALLI VILLAGE, ANJANAPURA HOBLI, SHIKARIPURA TALUK - 577427. (BY SRI. SRIKANTH PATIL K., ADVOCATE) AND: 1. SRI B VEERAPPA S/O LATE VIRUPAKSHAPPA, AGED 74 YEARS, R/O NANDIHALLI VILLAGE, SHIKARIPURA TALUK - 577427. SHIVAMOGGA DISTRICT – 577427 2. SMT H KUSUMA W/O S.H. HALESHAPPA, AGED ABOUT 45 YEARS, R/O BHADRAPURA VILLAGE, SHIKARIPURA TALUK - 577427. 3. SRI H S SATHYANARAYANA S/O HANUMANTHAPPA, AGED ABOUT 70 YEARS, R/O SALUR VILLAGE, SHIKARIPURA TALUK - 577214. 4. SRI H S HUCHARAYAPPA S/O HANUMANTHAPPA, AGED ABOUT 65 YEARS, 5. SRI H S KRISHNAMURTHY S/O HANUMANTHAPPA, AGED ABOUT 58 YEARS - 3 - NC: 2025:KHC:8958 RSA No. 31 of 2022 6. SRI H.S. LAKSHMIKANTHAPPA S/O HANUMANTHAPPA, AGED ABOUT 48 YEARS, RESPONDENTS No.4 TO 6 ARE R/O GAMA VILLAGE, SHIKARIPURA TALUK - 577214. 7. SRI BHIMA GOWDA S B R/O VEERANA GOWDA NILAYA, SHARAVATHI NAGARA, 7TH CROSS, BEHIND VEENA SHARADA HIGH SCHOOL, SHIVAMOGGA - 577201. 8. SRI RUDRAPPA S/O VIRUPAKSHAPPA, AGED ABOUT 59 YEARS, R/O NANDIHALLI VILLAGE, SHIKARIPURA TALUK - 577427. 9. SMT MALLAMMA W/O MANJAPPA, AGED 60 YEARS, R/O KURUVA VILLAGE, HONNALI TALUK - 577230. …RESPONDENTS THIS RSA IS FILED UNDER ORDER XLII RULE 2 R/W SECTION 100 OF CPC 1908., AGAINST THE JUDGMENT AND DECREE DATED 17.09.2019 PASSED IN RA.No.124/2013 ON THE FILE OF THE JUDGE, SHIVAMOGGA, ALLOWING THE APPEAL AND PARTLY SETTING ASIDE THE JUDGMENT AND DECREE DATED 10.08.2012 PASSED IN OS No.358/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ITINERARY AT SHIKARIPURA. II ADDITIONAL DISTRICT THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI - 4 - NC: 2025:KHC:8958 RSA No. 31 of 2022 ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 17.9.2019 passed in R.A.No.124/2013 by the learned II Additional District and Sessions Judge, Shivamogga, partly setting aside the judgment and preliminary decree dated 10.8.2012 passed in O.S.No.358/2007 by the learned Senior Civil Judge and JMFC, Itinerary at Shikaripura. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were defendants No.1 to 3. Respondent No.1 was the plaintiff, the other respondents were the defendants, respondent No.8 was plaintiff No.2 and respondent No.9 was plaintiff No.3. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession regarding the suit schedule properties. It is the case of the plaintiffs that - 5 - NC: 2025:KHC:8958 RSA No. 31 of 2022 Virupakshappa was the original propositus of the family. Smt. Veeramma @ Murigemma is the wife of Virupakshappa. Plaintiffs No.1 and 2 are the sons, and plaintiff No.3 and one deceased Gowramma are the daughters of Virupakshappa. Defendant No.1 is the husband of deceased Gowramma. Defendant No.3 is the son of defendant No.1, and defendant no.2 is the brother of defendant no.1. The plaintiffs and defendants 1 to 3 are the residents of Nandihalli Village, Shikaripura Taluk. Defendants No.4 to 9 are impleaded as LRs of necessary parties. It is the case of the plaintiffs that, land bearing Sy.No.78/1, measuring 1 acre 29 guntas and Sy.No.78/3 measuring 1 acre 20 guntas are the joint family properties purchased by Veeramma under the registered sale deed dated 10.2.1969 from one Lakshmi Chand s/o.Dhanraj for a valuable consideration. Thereafter, the names of the plaintiffs’ mother and Gowramma were mutated in the revenue records as per MR No.257/1968-69. The plaintiffs’ father- Virupakshappa, plaintiffs, along with defendant No.1 continued the cultivation. After the - 6 - NC: 2025:KHC:8958 RSA No. 31 of 2022 demise of Veeramma, the names of defendants No.1 and 2 were mutated. It is contended that the plaintiffs have not consented to the same. Defendant No.4 purchased Sy.No.78/3. The sale deed is not binding on the plaintiffs. Defendants No.1 and 2 have phodied their names over Sy.No.78/1 into Sy.No. 78/1 and 78/4. Defendant No.1, illegally got mutated Sy.No.78/4 in the name of his son i.e., defendant No.3. It is contended that the suit schedule properties are the joint family properties of the plaintiffs and defendants, and they are the members of the Hindu undivided family, and no partition is effected. The plaintiffs demanded partition and separate possession, but the defendants denied the partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession, with the metes and bounds. Accordingly, prays to decree the suit. 3.1. Defendants No.1 to 3 filed their written statement admitting the relationship of plaintiffs No.1 to 3 and Gowramma. It is also admitted that one Lakshmikanth - 7 - NC: 2025:KHC:8958 RSA No. 31 of 2022 Jain was the absolute owner of the suit schedule properties. Veeramma had purchased the suit schedule properties in 1969. It is contended that, as Virupakshappa was in Government service, he had not made any efforts to dispossess defendants No. 1 to 3 from the suit schedule item no.1 of the suit schedule properties since 1967. They have perfected their title by way of adverse possession over suit item no.1 property as they are in possession since 1967 to 1979. It is contended that defendants No.1 and 2 have partitioned the suit schedule item no.1 and defendant No.1 got the eastern portion measuring 34 gutnas, and defendant No.2 got the western portion measuring 34 guntas. Hence, prays to dismiss the suit. 3.2. Defendants No.5 to 8 have filed their written statement by contending that suit schedule item no.2 was purchased from defendant No.4 and they became the owners of suit schedule item no.2. The plaintiffs are not entitled to claim any share in the suit schedule item no.2. It is contended that defendant No.4 has sold item no.2 to - 8 - NC: 2025:KHC:8958 RSA No. 31 of 2022 them for a valuable consideration as per the competitive rates prevailing in that period. The plaintiffs have no right to claim a share in item no.2 of the suit schedule properties and accordingly, prays to dismiss the suit against defendants No.5 to 8. Defendant No.9 filed a written statement reiterating the written statement filed by defendants No.5 to 8. 3.3. The trial Court, based on the pleadings of the parties, framed the relevant issues. 3.4. The plaintiffs, to substantiate their case, plaintiff No.1 was examined as PW.1, examined one witness as PW.2 and marked 5 documents as Exhibits P.1 to P.5. In rebuttal, defendant No.2 was examined as DW.1, examined one witness as DW.2, and marked 9 documents as exhibits D.1 to D.9. The trial Court on the assessment of oral and documentary evidence, partly decreed the suit and dismissed the suit in respect of item no.1 of the suit schedule property vide judgment dated 10.8.2012. The plaintiffs aggrieved by the dismissal of the suit regarding - 9 - NC: 2025:KHC:8958 RSA No. 31 of 2022 item No.1, preferred an appeal in R.A.No.124/2013 on the file of the II Additional District and Sessions Judge Shivamogga. The first Appellate Court, on re-appreciation of oral and documentary evidence, allowed the appeal vide judgment dated 17.9.2019. The judgment and decree passed by the trial Court is partly set aside. It was declared that suit schedule item nos. 1 and 2 properties, purchased by mother Veeramma @ Muligemma on 10.02.1969 are the joint family properties. The plaintiffs No. 1 to 3 and legal representatives of the deceased Gowramma, are entitled to 1/4th share each with metes and bounds. The claim of adverse possession made by the defendants No. 1 to 3 with regard to the suit schedule item no.1 is hereby rejected. Defendants No. 1 to 3, aggrieved by the impugned judgments, filed this regular second appeal. 4. Heard the arguments of the learned counsel for defendants No. 1 to 3. - 10 - NC: 2025:KHC:8958 RSA No. 31 of 2022 5. Learned counsel for the defendants No. 1 to 3 submits that the suit in respect of item no.1 of the suit schedule properties, by holding that, it is a joint family property of the plaintiffs and defendants, is illegal. He submits that defendants No.1 to 3 are in possession of item no.1 of the suit schedule properties since 1969, and defendants No. 1 to 3 perfected their title by way of adverse possession. The said aspect was not properly considered by the courts below, and committed an error in passing the impugned judgments. Hence, prays to allow the appeal. 6. Perused the records, and considered the submissions of the learned counsel for the plaintiffs. 7. It is not disputed that item no.1 of the suit schedule properties were purchased by Smt. Veeramma under a registered sale deed dated 10.2.1969 from one Lakshmi Chand s/o. Dhanaraj. Admittedly, there is no dispute regarding the relationship between the parties to the suit.
Decision
ORDER (i) The Appeal is dismissed. (ii) The impugned judgment and decree passed by the First Appellate Court is hereby confirmed. No order as to costs. SD/- (ASHOK S.KINAGI) JUDGE rs