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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16"' DAY OF SEPTEMBER 2009
BEFORE
THE HONTSLE MR JUSTECE K N KEsHAvANAn=:*A3f.A;1~:3y:"
R.S.A. No 1610/2008
cgw. , ~ --
R.S.A NO.161 .1-e/'zoos
BETWEEN:
1. A.C. Veerappa,
S/0. Shetra Kallappa,
Aged about 55 years;
2. Devendrappa, E 'E E'
S / 0. Pujari Hanumappa, f
Aged about§.50«,y§:ars:,_ 3:
Both are agrieu§_:uri':{:s Qrnfession
Resident of {)0dda~bfbige1'V ' =Vi13__age,
CheI1nagi1'i_ 'I'a1uk',. A' " * _ E' ' "
Davangere D«ist1':'.ct re 5773001
..... . APPELLANT S
are common in both the appeals)
S§d'dappa, Advocate)
. AND:
H M' "44"'V.VResp9ndents in RSA 1 61 O/2008
.. Cnifumurthaiah, M V
.___?S/0. Haiaiah,
Aged about 75 years,
2. Rudrappa.
S/ o. Mariveerappa,
Aged about 55 years,
Both are agriculturists by profession
Resident of Doddabbigere Village,
Chennagiri Taluk,
. Bavangere District -- 577 001
(By Smt. H.R. Anitha, Advocate, fo'1jR1'.__)i ~ 'll
Respondent in RSA 1 61 1/230:3 _
Gurumurthaiah, M,
S/0.Ha1a1’ah, ‘ ‘
Aged about 75 years, . A.
Agriculturist by profession v_ -‘ iv.”
Resident of Dodcliabbigere V1’i}.age…Vi’–.V_ ‘ ”
Chennagiri V , _e
Davangere Tg)ist’_ri_ct- ‘
(By Seat. Avr_1gitl11a,dAdi}ocate)
RSE’Aé1’:JVio;._1610/2008 is filed under Section 100 of cpc
“‘.agaignst”the.,j’t:dgment and Decree dated 19.02.2008 passed
in ,’.2003 on the file of the Additional Sessions
Judge and Presiding Officer, Fast Track Court-II, Davangere,
_ partiy allowing the appeal and setting aside the judgment
V’a1’Id decree dated 13.11.2002 passed in O.S. NO.120/I992
Won «the “file of the Civil Judge (Jr. D11.) and JMF’C.,
A V.’-Chaniiagiri.
RSA N0.1611/2008 is filed under Section 100 of CPC
“against the judgment and Decree dated 19.02.2008 passed
3] M. Gururnurthaiah, the plaintiff in
filed the said suit initially for the relief
injunction against the common Vappella.nt’sv>–:.::j’_1Dti: *2
Rudrappa, the Std defendant, re:spe5etA’o’f”~’landq:”tbea,tfing
sy.No. 143 / 2, Doddabbigere “\_ZviilageV,” Ham’
Channagiri Taluk, measuring interajigplébontending
that he is the absolute and enjoyment
of the said prop_erty therein, who
have no over the same are
trying to. and enjoyment of the
said property, are required to be restrained
by means of«-..perniaI_._ient ‘injunction from interfering with his
V. possession and enjogrment of this property.
“ff,”‘*The.l’Vv’appellants herein as Defendants — 1 81 2 as
_well has .-Rudrappa, the 3113’ defendant, resisted the suit
denying the ease of the plaintiff–Gummurthaiah. They
that the plaintiff is in possession of the suit schedule
f uilproperty. They contended that the plaintiff is not in
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possession of the entire extent of 19 guntas in Sy.1\io.1-43/2. 2
They further contended that the plaintiff is in of
only 6 guntas in Sy. No.14?»/2, which is the
and Defendant No.1 is in possess_i_or1_of to
the North of the portion in possesasionof
defendant No.2 is in possessio:n..V_of to
South of the portion in” possaessfion”–~of ‘p.laif1tiff. They
further contended of both the
portions for over to flay have perfected
their title They gave description of
the portions their occupation as Schedule –‘A’ 81
‘B’ to wrfitte,n’ Therefore, they sought for
disrnipssaltiy of Subsequently, the plaintiff-
arnlended the plaint by seeking an
a1tCfnatiV9e*«.pra,yer for possession pleading that in the event
S if _ of the— Co.urte’oming to the conclusion that the plaintiff is not
possvession of the suit schedule property, a decree for
of possession of the suit schedule property be
S ordered. The defendants filed their additional written
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statement to the amended plaint contending that the
plaintiff is not entitled for the said alternative relief;”—.gIn the
meanwhile, the appellants herein filed the
340/98 against Gurumurthaiah for the reiiefpfrz;1§é1;:ra£ipl1«.,_
that they have perfected their title in
respect of ‘A’ 8: ‘B’ schedule propertiesV.,’whie1’1iarefthe
portions of Sy. No.14?)/2 V
They interalia contended’:«.tha;t.’the’y« possession of the
suit Sehedule–‘A’__& ‘B’ the portions of
Sy. No.14?»/2 ?for:;1ieo.\'(erv::40€to .yexa.rs–;:therefore, they have
perfected thei’I”5i:itle advers_e “possession and the defendant
therein, xliigg’ Gnrnrnnrti:.aiah, who has no manner of right,
title er ‘interest. oV’e’r No. 143/2 is trying to interfere with
jvtlpoflssession and enjoyment of the property. Sri.
fC3n1~fg;nurthV,aial*l~”resisted the said suit interalia contending
it _ that” he-Q’ tile. the absolute owner of the land bearing
.$y*.I5Io.l4i3;/2 and the plaintiffs therein are not entitled for
th.e”de:elaration as sought. &
5] On the basis of the pieadings of the parties, the
trial Court framed several issues in both the
suits were clubbed and common evidence”‘«x§}as:*ere’eord_ed’;
After the parties led evidence, the itria1″CQti,rt,.; it
of oral and documentary _ evidweiice, *
Gururnurthaiah– plaintiff in “failed
prove that he is in oi the entire
extent of land in Sy. not furnished
proper t the property in
possession there is no pleading
regardir:r:g”hpis the suit schedule property
by the ” the suit for the relief of
possessioh is hot’ riiairitainable. In that View of the matter,
theirs; e;;u”mrdismiss§ed the suit in o.s. No.12()/1992. The
held that the appellants herein who were I
the piain.tiEs’:””in 0.S. No.34c0/98 have faiied to prove that
perfected their title by adverse possession in
‘_’_p~re”:».p’ect of ‘A’ & ‘B’ schedule properties and therefore, they
not entitled for the relief of deciaration and aiso for
E.
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plaintiff in 0.8. 120/92, has been in possession of the land
to an extent of 6 guntas in Sy. i\lo.148/2, which forms the
middle portion while the defendants therein’e’..:’ar_e in
possession of 2 bits of land each measuring Siééllgan-tas;.V_one
on the Northern side and the otherflon
Sy. No.143/ 2. The Lower Appellate the’? V
observations of the trial Court; that-since
not pleaded as to when he wa_s”‘dis—posse’s«sed from the suit
schedule property, _ :V.foi’f~ possession is not
maintainable, is pervers’e”‘ar1d law. In that View
of the rr1atter’;’lf’t–he Court in exercise of its
power under Order “7”‘of CPC moulded the decree and
held that plaintifl-Guruinurthaiah is entitled for
pospsvessiori pf._the properties described in ‘A’ & ‘B’ schedule
lb}; herein both in their written statement filed
_ in (is. lilo.-v*i20/92 and in the plaint filed by them in o.s.
“In that View of the matter, the Lower Appellate
Court: dismissed the appeal filed by the appellants
“continuing the judgment of the trial Court dismissing the
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suit in O.S. No.340/98 and allowed the appeal filed by
Gurumurthaiah against the judgment in 0.8. l2()]’92, set
aside the judgment of the trial Court dismissj.n.g’ said
suit and decreed the said suit in partp’:A”dire_etilng
appellants herein to deliver possession’ of the
property in their possession vdesCril:§ed”as Schedule-‘A’ 8: V’Bi’p
in their written statement filed’V’in.._V’OuS. plaintiifi
Gurumurthaiah. It is these.V_j1,id«grnentHoAf the Courts
below, the appellants haveV:presJentecf”these« appeals.
6) I learned counsel
appearing for in these appeals and
perused the Courts below. After hearing the
-“‘.learr§e}d E(::ounsel”‘for.__..the appellants and on perusal of the
judgi11ent.,s”u:11d:er. appeal, I am of the opinion, that the appeal
cloesiiot any question of law rnuchless substantial
” e . ,. ‘ ‘question of law.
As could be seen from the judgments under
..__”‘.appeal, there is no serious dispute that Sy. No.143/2 totally
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itself does not extinguish the right of the true owner to seek
possession of the property from the person who is in
possession of the same. It is Well–settled law
owner of the property is entitled to remain
if the property owned by him is i:nmp»os’ses«siori oi”-.anyl”o_tl;1er
person without any authority oflll-aw, 2
entitled to seek possession of tlieEpropert3r person
in accordance with lyitlljehypverson pleads that
he has perfected his to show that
he has perfe%_ctel§l»l’ ‘hiss title by adverse possession by
remaining the same openly and hostile to
the interest of true and to the knowledge of the true
owner; ”
_ in Inthe caselon hand, both the Courts below have
that the appellants have failed to prove
_ that’~they’ have perfected their title by adverse possession
the “said plea of the appellants has been rejected on the
that they have not admitted title of the defendant-
ll Gtirumurthaiah in respect of the portions of the property in
fir
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their possession. Perusal of the judgments under appeal
indicate that the appellants have disputed tlrieftitle of
Gurumurthajah in respect of the land bearing
Therefore, the Courts below have rightly pleat {Iii
the appellants that they have perfected
possession. The finding recorded –the Couprt-s.Vlt)’elo\l2sf’;
regard being a finding of of
perversity in the in second
appeal under Section /gflterfere with the
said finding. H the.lju’dgrneIit”‘:of the Courts below
dismissing thesuitlof the~«l_’appellants for declaration of their
title is law and does not call for
interference ‘lColurtl.
‘ 9) iidoubt, Sri. Gurumurthaiah initially filed the
suit for periiisfient injunction on the premise that he is in
7.,.gpgossession of the entire extent of property and that the
are ‘trying to interfere with his possession of the
V. llproperty. However, in the light of the written statement filed
the appellants herein contending that they are in
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possession of two portions of the suit schedule property, the
plaintiff–Gurumurtha.iah sought amendment of thepplaint
seeking an alternative prayer for possession, e:4tih:at,.pin
the event of the Court coming to the concvItision:yl_tha’ti
not in possession of the entire
directed to deliver possession
occupation. The suit was the The
amendment was It is the
contention of theAl_earned. that there
is no propepri: the prayer for
possession; ‘lit’ _contention that the plaintiff ~
the proper description of the
property in possesslion oi the defendants and therefore, the
ought not to have decreed the suit for
contended that the trial Court was right
it _ in ohservfing that there is no pleading as to when exactly the
.p1aintiff¥Giirumurthaiah was dis–possessed from the
and in the absence of such pleading he is not
“entitled for the relief of possession, was in accordance with
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that the appellants are in possession of the portions of the
property to which they have no title and their4.pr»a’yer for
declaration that they have perfected their
possession having been rejected. right “of
plaintiff-Gurumurthaiah to seek :th,’e’V:prOp.e:rty
is not extinguished in termsot” If
the Limitation Act, he entitl.ed~v:tow~.seei{ possession of the
same. No doubt, the has included
the entire ext€n_*§’O_f’ schedule to the
plaint in I.§S; the fact that the
appellants hderein the plaintiff–Gururnurthaiah is
in possession of 6 in the middle portion of the
land. true that the”plaintiff-Gurumurthaiah should have
“describecl the portions in occupation of the
fW.}iil6 lleeking the relief of possession.
_Neve’1*’thel.ess,’:”” the relief which is granted by the Lower
3’4.”‘Appel_late'”Court is not in excess of the relief sought. The
.’_gjreliei’ of possession was for the entire extent of 19 guntas
T ‘«’..:VVWhereas, the Lower Appellate Court has granted the relief of
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possession only to an extent of 13 guntas which is described
in schedule ‘A’ & ‘B’ to the written statement._file’tf:’hy’~.the
appellants herein in O.S.}20/92. Since the”‘«’i;dentity
property in possession of the ap;pellajits?i_s »«in._disp.ute,
the Lower Appellate Court has it
directing the appellants to dellivler»posses.s_ion.Vof
of the property in In frnyfvconsidered
opinion, the judgment of Court granting
the relief of” of the plaintiff»
perversity, illegality
or Court in exercise of its
power C’ evidence both oral and
documentary has corne to the right conclusion that the
is entitled for possession of the
portions”‘vvof./,,lv_tliVevvproperty in occupation of the appellants
_herei”n as”des?cribed by them in Schedule —‘A’ 8: ‘B’ in their
:”.’4.4″y§fritten statement. The judgment of the Lower Appellate
‘.’_t’~_Court”:does not call for interference by this Court. The
by
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appeais do not involve any question of Law muchless
substantial question of law.
11) Learned counsel for the plaintiff-(:;druni{itthej;th«–_V_
submitted that the judgment 8;iid”‘(}eAc1:*ee_;’
Appeiiate Court has aIready been
Gurumurthaiah has been sof the
property in question plat’:-:1fl1an_td’t’e’:th.ei,deIeivertttéifaittant issued
by the Executing matter, I see no
ground to admitihese appeals. ‘V
are dismissed.
Sd/-3
JUDGE
‘hLKGRea 3’