The High Court
Case Details
- 1 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1361 OF 2007 (INJ) BETWEEN: SRI VINOD REDDY, S/O LATE K.V. NARAYANA REDDY, AGED ABOUT 40 YEARS, R/A KITHIGANUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE SOUTH TQ - 560 036. [BY SRI C.V. SUDHINDRA, ADVOCATE] AND: 1. SRI K.M. KRISHNA REDDY, S/O LATE MUNISHAMAPPA, AGED ABOUT 72 YEARS, R/A KITHIGANUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE SOUTH TQ - 560 036. 2. SRI K.N. RAMACHANDRA REDDY, …APPELLANT S/O LT K V NARAYANA REDDY, AGED ABOUT 47 YEARS, AMENDED V/O DTD.12.2.2024 SINCE DEAD BY LRs Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka 2(a) SMT.SUSHEELA, W/O KN RAMACHANDRA REDDY, AGED ABOUT 60 YEARS, 2(b) SMT. R PALLAVI, D/O KN RAMACHANDRA REDDY, AGED ABOUT 36 YEARS, 2(c) SRI R. RAKESH, S/O KN RAMACHANDRA REDDY, AGED ABOUT 32 YEARS, - 2 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 2(d) SMT. R. THANUJA, D/O K.N. RAMACHANDRA REDDY, AGED ABOUT 30 YEARS, ALL ARE R/A KITHIGANUR VILLAGE, BIDARAHALLI HOBLI, BANGALORE SOUTH TQ PRESENTLY BANGALORE EAST TALUK, BANGALORE - 560 036. [BY SRI H.R. ANANTHA KRISHNAMURTHY, ADVOCATE FOR R1; R2 (a-d) - SERVED, UNREPRESENTED] …RESPONDENTS THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 23.01.2007 PASSED IN RA.NO.170/2003 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DISTRICT, BANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 10.6.2003 PASSED IN OS.NO.250/1994 ON THE FILE OF THE ADDL.II CIVIL JUDGE (JR.DN.), BANGALORE RURAL DIST, BANGALORE. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 04.12.2024, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI CAV JUDGMENT Challenging judgment and decree dated 23.01.2007 passed by Presiding Officer, Fast Track Court-II, Bangalore Rural District, Bangalore, in R.A.no.170/2003, this appeal is filed. - 3 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 2. Brief facts as stated are, appellant was defendant no.2 in OS no.250/1994 filed by respondent no.1 (plaintiff) for permanent injunction restraining defendants, their agents, etc., from interfering with peaceful possession and enjoyment of property bearing house list no.40, khata no.26, measuring East to West - 80 ft. and North to South - 35 ft., situated at Kathiganur Village, Bidarahalli Hobli, Bengaluru South (for short 'suit property') and restrain them from constructing bathroom and toilet in it. 3.
Facts
In plaint, it was stated, plaintiff was absolute owner of suit property, inherited from his ancestors. After death of his father, names of plaintiff and his brother were mutated in revenue records. It was stated, under family settlement deed dated 24.05.1993, suit property was allotted to plaintiff and since then, he was in exclusive possession. And since he was residing near suit property and had no sanitary facility, decided to put up bathroom and toilet, collected necessary materials and begun digging foundation on 18.06.1994. It was stated, without any right, title or interest over suit property defendants prevented plaintiff from proceeding with construction. When plaintiff resisted, they abused and attempted to assault him. On - 4 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 arrival of neighbors, defendants left, by claiming right over suit property and threatened to prevent plaintiff from construction. It was stated, defendants were residing on eastern side of suit property after road and since they were powerful and influential, plaintiff filed suit. Plaint was later amended, adding prayer for declaration of title. 4. On appearance, defendants filed written statement denying plaint averments. It was stated, suit property originally belonged to Sri Muniswamappa. Since 1978, defendants and family members were in occupation and using it for storing firewood, haystack, manure pit and parking their cart, to knowledge of Muniswamappa and his family. Having been in possession and continuous uninterrupted enjoyment of suit property adverse to interest of owners and to their knowledge, defendants had perfected title by adverse possession. 5. It was alternatively stated, in partition between plaintiff and his brothers after death of Muniswamappa, suit property was allotted to M Jayaram Reddy, who in October 1983, approached mother of defendants and sought sale consideration for suit property. Despite, having perfected title by adverse possession, on advise of well-wishers, defendants’ - 5 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 mother paid Rs.5,500/- as full consideration and an agreement of sale was executed acknowledging possession. But, in collusion with Jayaram Reddy, plaintiff fabricated documents and got changed revenue records in year 1993 and filed frivolous suit. It was stated, since defendants had perfected their title, neither plaintiff nor his brother had right to dispossess defendants. On above, counter claim for declaration of title by defendants was sought apart from declaration about family settlement dated 25.04.1993 between plaintiff and his brother as null and void and not binding on defendants. 6. Based on pleadings, trial Court framed issues and additional issues: 1) Whether the plaintiff proves that his lawful possession of the suit schedule property? 2) Whether the plaintiff proves that the alleged interference by the defendants? 3) Whether the plaintiff proves that he is entitled for Permanent injunction as prayed for? 4) To What Order or Decree? ADDITIONAL ISSUES 1) Whether the defendants prove that they have perfected the title over the suit schedule property by way of adverse possession? - 6 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 2) Whether the defendants prove that they are in possession of the suit schedule property as on the date of the suit? 3) Whether that one the defendants prove Jayarama Reddy has executed an agreement of sale in favour of their mother? 4) Whether the court fee paid by the defendant is sufficient or not? 5) Whether the defendants prove that their claim for adverse possession and declaration in a suit for bear injunction is maintainable? Additional Issues framed on 26-09-1998 1) Whether the plaintiff proves that he is the absolute owner of the suit schedule property? 2) Whether the suit of the plaintiff for declaration is barred by Limitation? 3) Whether the the defendant proves settlement deed dated 25- 04-1993 executed between the plaintiff and his brothers is void and not binding on the defendant? that Additional Issue no.5 framed on 18-08-1997 recasted as: Issue no.5: Whether the defendants are entitled for counter claim? Additional Issue framed on 22-06-1999 1) Whether the Court fee paid by the plaintiff is sufficient? 7. In trial, plaintiff and another were examined as PWs.1 and 2 and got marked Exhibits P1 to P10. In rebuttal, - 7 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 defendant no.2 and another were examined as DWs.1 and 2 and got marked Exhibit D1. 8. On consideration, trial Court answered issues no.1 to 3 and additional issue framed on 26.09.1998 in negative; additional issues no.1, 2, 4, 5 framed on 18.08.1997, additional issues no.2 and 3 framed on 26.09.1998 and additional issue no.1 framed on 22.06.1999, in affirmative; additional issue no.3 framed on 18.08.1997 as not arising for consideration and issue no.4 by dismissing suit and decreeing Counter Claim of defendants, declaring defendants and their family members had perfected title by adverse possession and also declaring family settlement dated 25.04.1993 executed between plaintiff and his brother as void, non-est and not binding on defendants. 9. Aggrieved, plaintiff filed RA no.170/2003 on various grounds, based on which following point was framed: appreciating "Whether the learned trial Judge has erred in properly and documentary evidence on record in the light of settled principles of law and that whether the interference by this Court in the impugned judgment and decree is necessary?" oral the 10. On consideration, first appellate Court answered it in affirmative, allowed appeal, set-aside judgment and decree - 8 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 passed by trial Court and decreed plaintiff's suit holding plaintiff as absolute owner in possession and enjoyment of suit property and restraining defendants from interfering with peaceful possession and enjoyment of suit property. 11. Aggrieved defendant no.2 filed second appeal. Same was allowed on 10.10.2010, but in KM Krishna Reddy v. Vinod Reddy, reported in 2023 (10) SCC 248, Hon'ble Supreme Court, set-aside judgment and decree passed by this Court and remanded it to this Court for fresh consideration. 12. Smt.Anuradha, learned counsel for defendant no.2 submitted, suit was initially filed only for permanent injunction, but, later amended to include prayer for declaration of title, as defendants sought counter claim for declaration of their title by adverse possession. 13. It was submitted, as per plaintiff, suit property was ancestral joint family property and in partition suit property fell to his share, since then, he was residing nearby. And as there was no toilet/bathroom in his house, he collected building materials for construction, when defendants obstructed, he filed suit. - 9 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 14. On appearance, defendants filed written statement denying plaint averments and stating they were in possession over suit property since 1978 by using it for storing firewood, haystack, manure pit and parking bullock-cart. They claimed such possession was open, uninterrupted and adverse to knowledge of Muniswamappa, plaintiff and his family members. Though defendants had perfected their title by adverse possession, when Jayaram Reddy approached mother of defendants seeking sale consideration for suit property by stating that it had fallen to his share in partition with plaintiff, as per advise of elders-well wishers, she paid Rs.5,500/- and got executed an agreement of sale with possession. 15. During trial, plaintiff deposed that he was using suit property for haystack, storing firewood, etc., in an apparent attempt to improvise taking note of defendants' claim. Plaintiff deposed as PW.1 and produced unregistered partition deed dated 21.04.1993 as Ex.P1, even though under Section 17 of Registration Act, 1908 ('Regn. Act' for short), it was compulsorily registrable. Further, measurement of suit property was not mentioned in it. Though in revenue records, it's measurement was shown as 60 ft. X 14 ft., but, in plaint - 10 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 schedule it was shown as measuring 35 ft. X 80 ft. It was submitted, due to non-registration, Ex.P1 was hit by Section 49
Legal Reasoning
"13. As it is well settled that the Decisions of the Privy Council and the Supreme Court mentioned above that possession of a person under an invalid Deed of Transfer after entering into possession of it, prima facie becomes hostile and adverse to that of the real owner when the transferee claims ownership on the basis of that invalid Deed and that on completion of continuous possession for - 11 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 the requisite period of 12 years or more, such person acquires title by adverse possession. …." 17. It was submitted, denial of Ex.D1 by plaintiff was without examining Jayaram Reddy as witness. Hence, adverse inference under Section 114 (g) of Indian Evidence Act had to be drawn. In any case, Ex.D1 could be relied upon for collateral purpose coupled with oral evidence to support claim of title by adverse possession. 18. It was submitted, it was settled legal position that plaintiff has to stand on his own legs and cannot take advantage of weakness of defendants' case. When plaintiff failed to prove possession, suit for injunction was required to be dismissed. As defendants established their possession was adverse to interest of plaintiff to his knowledge continually for more than 12 years, their counter claim for adverse possession was required to be allowed. She relied on decision of this Court in case of Smt.Sumitha Bai v. P.Siddesh and Ors. (RSA
Arguments
of Regn. Act and unreliable. It was submitted, in his deposition, PW.2 stated that plaintiff was residing in suit property which contradicted plaintiff’s case. In cross-examination, he admitted plaintiff was residing in adjacent village. Therefore, trial Court held him unreliable. Thus, plaintiff failed to establish either possession or interference. 16. On other hand, defendant no.2 and his mother deposed as DWs.1 and 2 consistent with their case also and withstood cross-examination. Their oral evidence was duly corroborated by documentary evidence i.e. agreement to sell as Ex.D1, wherein Jayaram Reddy admitted defendants possession. Since Ex.D1 was unregistered, possession under same would be illegal by relying on ratio laid down by this Court in Alla Baksh v. Mohd. Hussain, reported in 1995 SCC OnLine Kar 347, wherein it is held:
Decision
no.2681/2006 disposed of on 20.12.2013), wherein it is held: "23. It is a recognized principle of law, that, the inference drawn by the court must be based on the admissible legal evidence available on record. Merely on the conjunctures or surmises on the basis of imaginary assessment of the evidence, the court cannot draw an inference of existence or non existence of a fact in issue or relevant fact which are not proved by the plaintiff. Further, the first appellate - 12 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 if court has observed that the defendant has not claimed any right, title, interest over the property of the plaintiff; he will not suffer any inconvenience or injustice in the event of granting any decree in favour of the plaintiff. If the analogy of the first appellate court is accepted, it goes without saying that even in the absence of proof by the plaintiff, the defendant does not suffer any inconvenience, the court automatically has to grant the decree. Such an observation cannot said to be a sound principle of law. The plaintiff has to fall or stand on the strength of his own case and he cannot take the advantage of the weakness of the defendants' case. There is no burden of proof on the defendants in so far as this case is concerned. But the entire burden of proving title and possession is on the plaintiff. When the plaintiff or the defendants fail to prove their case pleaded on the basis of evidence on record, the Court has to draw the inference that the plaintiff has to fail, as initial burden has not been discharged by him. …." 19. Apart from above, learned counsel also relied on decisions in case of Uma Pandey v. Munna Pandey, reported in (2018) 5 SCC 376, for proposition that interpretation of any document including its contents or its admissibility in evidence or its effect on rights of parties to lis would constitutes a substantial question of law. 20. Reliance was placed on ratio in K.Thimmiah v. BH Nanjappa reported in 1965 (1) Mys.LJ 44, for proposition that Section 54 of Transfer of Property Act though permitted sale of property of value less than Rs.100/- by delivery of possession, did not render lawful any written instrument of sale - 13 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 without registration. Based on above submissions, learned counsel prayed for answering substantial question of law and allow appeal. 21. On other hand, Sri HR Ananthkrishna Murthy, learned counsel for plaintiff submitted, suit property was ancestral property of Muniswamappa. After his death, plaintiff and his brother succeeded to it and under Ex.P1 - Deed of Settlement dated 25.04.1993, it fell to his share. Hence his name was entered in revenue records. It was submitted, plaintiff’s possession was established by Exs.P3 to P10 - tax paid receipts. As there was no toilet in his house, he tried to construct bathroom/toilet in suit property by collecting building materials and digging foundation. But, on 18.06.1984, he was interrupted by defendants, therefore, suit for injunction was filed, later, prayer for declaration of title was added. 22. It was submitted, defendant opposed suit by contending suit for bare injunction was not maintainable and stating that suit property belonged to Muniswamappa, and that defendants had come in possession of suit property since 1978 for storing firewood, bricks, haystack and parking their carts etc and thus perfected title by adverse possession, which was - 14 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 known to plaintiff and other family members. It was submitted, in para-11 of written statement, there was clear admission about partition after death of Muniswamappa. 23. It was submitted, even as per defendants, they came in possession of suit property in 1978 and perfected title by adverse possession prior to agreement of sale with Jayarama Reddy in 1983, i.e. within about 5 years, would be fallacious. That apart, for perfection of title by adverse possession three essential ingredients namely nic vi, nic clam and nic precario, were required to be established. Unless possession were hostile, open and continuous for over 12 years, claim of title by adverse possession would be untenable. It was further submitted, as per defendants they came in possession with consent of Muniswamappa. Thus their possession was permissive possession, which could never mature into adverse possession. 24. It was submitted, plea of adverse possession would be deemed to be given up, when defendants asserted possession in part performance of agreement of sale. Especially, when there is no pleading about starting point when possession became adverse. Consequently, plea of perfection of - 15 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 title by adverse possession must fail. It was submitted, no material was placed on record in support of counter claim. Section 58 of Evidence Act reads as follows: "58. Facts admitted need not be proved. No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions." 25. Reliance was also placed on ratio in Nagindas Ramdas v. Dalpatram Ichharam, reported in (1974) 1 SCC 242 , wherein, it is held: "27. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a - 16 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong." 26. It was submitted, plaintiff produced Partition Deed - Ex.P1, List of Properties - Ex.P2, Certified copy of Assessment Extract - Ex.P3, Form no.9 - Ex.P4 and Tax Paid Receipts - Exs.P5 to 10. It was submitted there was mistake in measurements shown in Ex.P4 and application was given for rectification. In deposition, plaintiff re-iterated plaint averments. In cross-examination, suggestion was made that father of plaintiff and Jayaram Reddy executed agreement of sale would contradict stand taken in written statement. Attention was drawn to admission elicited as follows: “It is not true to suggest that prior to effecting the partition as per Ex.Pl. there was another partition effected among the family members.” 27. It was contended said suggestion amounted to admission about partition in 1993 as genuine. Since suggestion was denied, burden to establish partition in 1983 continued to be on defendants. It was submitted, deposition of DW2, fully supported plaintiff’s case: "......I submit that one Shri.Jayarama Reddy, son of the said Muniswamappa approached me during October 1983 and claimed that in the family partition, the suit property has fallen to his share. Jayarama Reddy requested me to pay him Rs.5,500.00/- and get a sale deed registered in - 17 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 respect of the property adjacent to our house in our village. As my husband had died by that time. I was looking after the household matters. I, therefore, paid Rs.5,500.00/-to Jayarama Reddy and got executed a sale agreement in my favour. Jayarama Reddy/ put me in possession of the said property. Thus, I got possession of the property along with my three children over the said land. Jayarama Reddy promised to execute absolute sale deed in my favour, but till today he has not done so, I am an illiterate woman and don't understand the importance of preservation of documents. Further, my house is a typical village house, infested by mice and cockroach. Due to my ignorance, some parts of this document are eaten by mice, cockroaches and insects. As soon as the agreement was signed, I took a photocopy of the same and it was kept at a different place. The photocopy of is intact. I refer to the original agreement dated 10.10.1983 as Ex.D1 and the photocopy of the same is referred to as Ex. D2. I submit that Ex.D2 is the true photocopy of the Ex.D1 and there is no difference between them….. …….. I have no documents to show that suit schedule property is in our possession and the same is used for the purpose of hay stock and for parking Bullock cart and dumping other purpose. It is true that suit schedule property belongs to plaintiffs father one Muniswamappa. …….I have no document to show that my husband was in possession of suit schedule property subsequent to the death of plaintiff's father. I have not verified the said partition deed held between plaintiff and his brother during 1983....” 28. Learned counsel also pointed out following admissions elicited: “……..It is true that in the said original agreement produced by me in the schedule property neither the is true that Khata No. nor the property No. it measurement in the said is also not mentioned agreement in the schedule. It is not true to suggest that the boundaries shown in the schedule are not telling with the suit schedule boundaries shown in the agreement..... - 18 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 I have seen documents pertaining suit schedule property subsequent to this suit. It is true that revenue records pertaining to suit schedule property are standing in the name of plaintiff…….." 29. Referring to same, it was submitted, that suit property belonged to Muniswamappa was admitted. Ex.D1 – agreement of sale was not executed by Muniswamappa. Therefore, Ex.D1 was false. Submission of learned counsel for defendants that Ex.D1 should not be looked into, was not bonafide with intention to support claim of adverse possession. It was submitted, when it was produced and marked as Ex.D1, defendants were estopped from contending it as inadmissible and not to look into it. 30. It was submitted, there was failure to establish three necessary ingredients for adverse possession namely nic vi, nic clam and nic precario. Especially so without stating date from which alleged possession became adverse. Except Ex.D1, defendants did not produce any other documents. Even khata of suit property does not stand in name of defendants and they had also not paid taxes. There was admission that revenue records stood in name of plaintiff, attracting presumption of possession in favour of plaintiff. It was further submitted, Ex.P1 - 19 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 was marked without objection. Same was not challenged either before first appellate Court or before this Court during earlier round. Hence, it is too late to contend Ex.P1 as inadmissible. It was submitted, revenue entries corroborated Ex.P1. Thus, plaintiff was owner of suit property. On other hand, absolutely no documents were produced to establish possession and no witness was examined to prove Ex.D1. Therefore, contention of defendants that their mother paid sale consideration and got Ex.D1 – agreement of sale executed has to be held as not proved. Fact that defendants had not filed suit for specific performance of Ex.D1 would reinforce plaintiff’s claim. 31. It was submitted, original unregistered agreement of sale - Ex.D1 was produced. On ground that original was damaged, photocopy was produced, but signatures on photocopy and original would differ. Thereby, rendering said document unreliable. 32. It was submitted, in an appeal under Section 100 of CPC, re-appreciation was not permitted, by relying on ratio in Dudh Nath Pandey v. Suresh Chandra Bhattasali, reported in 1986 (3) SCC 360 : - 20 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 “6. This plea was however negatived by the High Court as it had never been taken when the case was remanded to the first appellate court by judgment dated February 8, 1961. Besides the question requires investigation into certain facts which was not possible in the second appeal. The High Court however reversed the finding of the first appellate court on the question of limitation relying on the so-called admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of the defendant. Virtually, the High Court has made a fresh appraisal of the evidence and has come to a different finding contrary to the finding recorded by the first appellate court which the High Court could not do in the exercise of power under Section 100 of the Code of Civil Procedure. Even on merits, if the High Court had to rely upon the alleged admission in the written statement, the admission must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other. The High Court, in our opinion, has erred in making a fresh appraisal of the evidence to come to a different conclusion. Even otherwise, the plaintiff has to stand on his own strength.” 33. It was submitted, present appeal was earlier decided on two substantial questions of law, framed on 22.07.2008 as follows: 1. Whether the appellate Court was justified in reversing the judgment and decree passed by the trial Court without considering the aspect of limitation? 2. Whether in the facts and circumstances of the case the appellate Court was in reversing the judgment and decree passed by the trial Court based on Ex.P1? justified 34. In appeal, Hon'ble Supreme Court in KM Krishna Reddy’s case (supra), while upholding decision on first - 21 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 substantial question of law, held second one framed as not substantial question of law and remanded matter back for framing additional substantial questions of law as follows: the High Court “21. We agree with the amendment was barred by limitation, considering the date of the cause of action pleaded and the date of applying for amendment. It was not the case of the respondents that the suit as originally filed was barred by limitation. Therefore, the first question does not survive. The second question, as framed, is not a substantial question of law. that 22. As the High Court has not considered the merits of the suit and counterclaim, we propose to remand the regular second appeal to the High Court.” 35. Insofar as plea of adverse possession, reference was made to findings of this Court in Pilla Akkayyamma v. Channappa, reported in 2015 SCC OnLine Kar 8226 and of Hon'ble Supreme Court in case of M. Radheshyamlal v. V. Sandhya, reported in 2024 SCC OnLine SC 318, wherein, it was held: “9. As far as the suit filed by the plaintiff for the declaration of ownership based on adverse possession is concerned, the plaintiff can never succeed unless he proves the plea of adverse possession. There is a concurrent finding of fact on this issue against the plaintiff. 10. As far as the plea of adverse possession is concerned, a Constitution Bench of this Court in the case of M. Siddiq (Ram Janmabhumi Temple-5 J.) v. Suresh Das1, in paragraph 1142 and 1143 has held thus: “1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant - 22 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit No. 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. then necessary to assess as to whether the claim of adverse possession has been established. It becomes character of 1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of the the adverse possession, possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded case. Reading Para 11(a), it becomes evident that beyond stating that the Muslims have been in long, exclusive and continuous possession beginning from the time when the Mosque was built and until it was desecrated, no factual basis has been furnished. This is not merely a matter of details or evidence. A plea of adverse possession seeks to defeat the rights of the true owner and the law is not readily accepting of such a case unless a clear and cogent basis has been made out in the pleadings and established in the evidence.” (underline supplied) 11. In the case of Karnataka Board of Wakf v. Govt. of India2, in paragraph 11, this Court has laid down the law - 23 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 regarding the plea of adverse possession. Paragraph 11 reads thus: “11. 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 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. (See S.M. Karim v. Bibi Sakina [AIR 1964 SC 1254], Parsinni v. Sukhi [(1993) 4 SCC 375] and D.N. of Karnataka [(1997) 7 SCC 567].) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. 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 : (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. 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. [Mahesh Chand Sharma (Dr.) v. Raj Kumari Sharma [(1996) 8 SCC 128]” Venkatarayappa v. State (underline supplied) 12. Therefore, to prove the plea of adverse possession:— - 24 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner; (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner; (c) The plaintiff must also plead and establish when he came into possession; and (d) The plaintiff must establish that his possession was open and undisturbed. 13. It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, ingredients of adverse the the possession must be pleaded and proved by the plaintiff.” facts constituting 36. Based on above submissions, learned counsel sought for answering substantial questions of law against defendants and consequently dismiss appeal confirming judgment and decree by first appellate Court. 37. Heard learned counsel, perused impugned judgment and decree and records. 38. From above, it is seen this appeal is by defendant no.2 assailing divergent findings of first appellate Court in suit for permanent injunction with counter claim for declaration of title by adverse possession. Relief sought for by plaintiff was for - 25 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 permanent injunction restraining defendants from interfering with plaintiff’s possession over suit property. 39. As held in Anathula Sudhakar v. P. Buchi Reddy (dead by Lrs.) & Ors., reported in (2008) 4 SCC 594, one of first ingredients to be established by plaintiff in a suit for permanent injunction against interference by defendant with possession of suit property is lawful possession as on date of suit. 40. In instant case, plaintiff has pleaded that suit property was ancestral property of his father Muniswamappa, succeeded to by his sons on his death and it fell to his share in partition dated 25.04.1993 and since then he was in possession. To establish same, he deposed as PW.1, as above. He also stated he was using it for storing firewood and haystack. He also stated that suit property was situated 50 ft. away from his house, there was no toilet and bathroom. Therefore, he intended to construct same in suit property and collected building materials and while digging foundation, defendants obstructed. He admitted defendants residing on eastern side of suit property, but denied their right or possession over it. He produced partition deed dated - 26 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 25.04.1993, wherein suit property was included in schedule ‘A’. Partition Deed and ‘A’ schedule were marked as Exs.P1 and P2. Apart from above, property tax and assessment register extracts, Form-9 and Tax paid receipts were produced as Exs.P3 to P10. 41. In cross-examination, it was elicited that he was not residing in village and not obtained licence for construction. It was also admitted that witnesses to Ex.P1 were alive and further that since 1978 no notice was issued to defendants for delivery of possession. Suggestions were made about plaintiff not being in possession and Ex.P1 being concocted were denied. Even suggestion about suit property in possession of defendants since 1978 is denied. Suggestion about father and brother of PW.1 executing agreement of sale in favour of defendants’ mother is denied. Suggestions, made that prior to partition as per Ex.P1, there was another partition, and suit property fallen to share of Jayarama Reddy in first partition are denied. Above suggestions would amount to admission about partition under Ex.P1. Especially so, as there was no cross- examination about authenticity of Exs.P2 to P10. Deposition of PW.2 supported plaintiff's case. In cross-examination only - 27 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 admission elicited was that house property of plaintiff was demolished. Suggestions made that defendants were in possession, is denied. 42. On other hand, while admitting that suit property belonged to plaintiff’s father – Muniswamappa, defendant no.2 as DW.1, stated since 1978, suit property was in possession of defendants, they were using it for storing firewood, haystacks, manure pit, parking bullock-cart etc to knowledge of Muniswamappa, uninterrupted and peaceful, which continued even after death of Muniswamappa. 43. DW.1 stated during October, 1983, Jayarama Reddy s/o Muniswamappa approached defendants’ mother stating that suit property had fallen to his share and asked her to pay sale consideration and get sale deed registered. And after she paid consideration, agreement of sale was executed and possession delivered. He alleged plaintiff came near suit property on 18.06.1994 and requested defendants to handover suit property. He alleged that Ex.P1 was concocted, on basis enquiry with witnesses mentioned in it. In cross-examination, admission is elicited that suit property was given khata no.26 and house list no.40 and its measurement was East to West 80 - 28 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 ft. and North to South 35 ft. Even boundaries were elicited. DW.1 also admitted that in Ex.D1, khata number or measurements of property were not mentioned and that documents were not verified prior to execution of Ex.D1. He also admitted, defendants had not filed suit for specific performance of Ex.D1. He also admits, revenue documents stood in name of plaintiff. 44. Thereafter, defendant no.3 was examined as DW.2. She deposed that suit property was open land measuring 80 ft. X 35 ft., situated adjacent to their house and that since 1978 her husband and three sons were using it for storing firewood, haystacks etc. She admits land belonged to Muniswamappa, whom she claimed had never questioned her husband or sons. She states that in October, 1983, Jayarama Reddy approached her stating that in partition suit property fell to his share and requested her to pay consideration and get sale deed registered, therefore, she paid Rs.5,500/- and got Ex.D1 executed. She states Jayarama Reddy put her in possession. She got marked original and photocopy of agreement of sale as Exs.D1 and D2 and stated Ex.D1 was damaged by mice etc., while Ex.D2 was intact. She stated since 1978 her husband and - 29 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 children were in possession, while from October, 1983 even she was in possession and claimed it to be uninterrupted. In cross- examination, she admitted to be unaware of particulars of suit property and that she had no documents to show her possession. She admits about not verifying partition deed between plaintiff and his brother in 1993. She admits too not verifying documents before executing Ex.D1. 45. It would be relevant to note that DW.2 feigns ignorance to suggestion that her signature in Ex.D2 differs from Ex.D1. Ex.D2 bears her signature twice and appears different. Interestingly, while defendants no.1 and 2 claim to be in possession of suit property from 1978 during life time of Muniswamappa and it had fallen to share of Jayarama Reddy, who executed Ex.D1 in favour of their mother in 1983, contrary to their claim of exclusive adverse possession, they impleaded their mother as defendant no.3. 46. While passing impugned judgment and decree, trial Court took note that plaintiff was claiming to be owner in possession of suit property based on Ex.P.1 - partition deed, had initially filed suit for bare injunction, but, added prayer for declaration of title after defendants sought counter claim for - 30 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 declaration of their title by adverse possession. It noted alternative claim that in partition between children of original owner – Muniswamappa, suit property was allotted to Jayaram Reddy, who executed Ex.D.1 after receiving consideration and put her in possession of suit property. 47. It noted PW.1 stating that suit property was vacant site used by him for storing firewood, haystack etc. And as his house did not have bathroom and toilet, he intended to construct same in suit property, but obstructed by defendants while digging foundation. It noted plaintiff was relying on Ex.P.1 to prove his title and lawful possession over suit property and revenue records to corroborate same. It appears weighed by admission that witnesses of Ex.P1 were alive but not examined and admission that plaintiff was residing in Srinivasnagar about 1½ kms. from Kithaganur village and that he had not obtained permission or licence from panchayat. 48. Trial Court drew adverse inference against plaintiff for failure to examine attesting witnesses of Ex.P.1, for attempting improvisation about user of suit property, contrary to pleading. Likewise, it held PW.2 was unreliable, as he admitted, he was not residing at Kithaganur village. - 31 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 49. Insofar as counter claim, it observed deposition of DW-1 was in conformity with written statement and withstood cross-examination and as plaintiff failed to examine Jayaram Reddy impleaded as plaintiff no.2 or produced document bearing signature of Jayaram Reddy to disbelieve - Ex.D.1, it held Ex.D1 as proved. On said reasoning, it decreed counter claim. 50. In appeal, first appellate Court adverting to rival pleadings, oral and documentary evidence, firstly observed, there was no dispute about suit property originally belonging to plaintiff’s father and his claim over suit property under Ex.P1, while defendants were claiming adverse possession from 1978 had staked claim under Ex.D1. On ground that user from 1978 to 1983 would not substantiate adverse possession and noting that plaintiff had examined adjacent site owner, who affirmed plaintiff’s possession, it held trial Court gravely erred while appreciating evidence. On said finding, it decreed suit. 51. On 26.11.2024, based on submissions, following additional substantial questions of law were framed: - 32 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 i. Whether first appellate Court was justified in reversing finding of trial Court that plaintiff being in possession of suit property? ii. Whether first appellate Court was justified in taking a different view on Ex.D1 from that of trial Court? iii. Whether reversing of judgment and decree of trial Court by first appellate Court is justified? iv. Whether alternative pleas taken by defendants mutually destructive, consequently, whether defence of defendant requires to be struck off?” 52. Initially, plaintiff’s suit was only for perpetual injunction and plaintiff amended plaint adding prayer for declaration of title, amendment has been held to be time barred by Hon’ble Supreme Court and matter remanded to consider plaintiff’s claim for injunction along with defendants’ counter claim. 53. In a suit for perpetual injunction, plaintiff must establish existence of legal right or interest, lawful possession, illegal interference, balance of convenience and irreparable loss and injury. Plaintiff relies on Ex.P1 for said purposes. Though, arguments disputing partition were advanced, defendants admitted suit property originally belonged to Muniswamappa. Plaintiff as PW.1 deposed that after allotment of suit property to his share in Ex.P1, he was in possession and when he - 33 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 collected building material to construct bathroom/toilet, there was obstruction by defendants. He also relies on assessment extract – Ex.P.3, Form no.9 – Ex.P.4 and Tax paid receipts - Exs.P.5 to P.10. 54. But, contrary to their case, following suggestions were made in cross-examination of PW-1, that prior to partition as per Ex.P1, there was another partition and that suit property had fallen to share of younger brother Jayarama Reddy in first partition. Moreover, there is no challenge to Exs.P2 to P10. 55. Apart from PW.1, adjacent land owner has deposed as PW.2. Even if there is some improvisation, Courts would require to separate chaff from grain and not throw out other relevant material. And except making suggestions which are denied, nothing material is elicited. Above material, by preponderance of probabilities would sufficiently establish plaintiff’s possession over suit property. 56. Insofar as counter claim based on Ex.D1, on comparison with photocopy produced by defendants not only mismatch, but also discrepancy in signatures is noted above. Admittedly, defendants have not examined any of witnesses to - 34 - NC: 2025:KHC:15262 RSA No. 1361 of 2007 Ex.D1. Except self-serving pleading and deposition, other relevant material is not produced. Hence, first appellate Court was justified in its reasoning on Counter Claim. 57. When exercise of jurisdiction by first appellate Court is in accordance with law as per principles enunciated in Santosh Hazari’s case (supra) and it is held by Hon’ble Supreme Court in Randhir Kaur v. Prithvi Pal Singh & Ors. reported in 2019(17) SCC 71, that even gross errors about conclusions on facts cannot be interfered, there would be no scope for interference. Substantial questions of law no.1 to 3 are answered in affirmative and substantial question of law no.4 , as not arising for consideration. Consequently, following: ORDER Appeal is dismissed. Sd/- (RAVI V HOSMANI) JUDGE PSG,GRD,AV List No.: 2 Sl No.: 1