- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU BETWEEN: ON THE 04 TH DAY OF FEBRUARY, 2015 BEFORE THE HON BLE MR. JUSTICE RAVI MALIMATH R.S.A NO.1090/2011 (DEC/INJ) 1. SEENE GOWDA, S/O LATE MAYIGOWDA, AGED ABOUT 59 YEARS. 2. RAMACHANDREGOWDA, S/O LATE MAYIGOWDA, AGED ABOUT 45 YEARS, BOTH ARE RESIDING AT: THONDAL VILLGE, KASABA HOBLI, HUNSUR TALUK 571 105 MYSORE DIST.... APPELLANTS (By Sri.B.S.NAGARAJ, ADVOCATE) AND: 1. THE STATE OF KARNATAKA, REPTD. BY ITS SECRETARY & COMMISSIONER FOR LAND REVENUE AND MUZURAI, M.S.BUILDING, DR.AMBEDKAR VEEDI, BENGALURU 560 001. 2. THE DEPUTY COMMISSIONER FOR MUZRAI & LADN REVENUE MYSORE DISTRICT, MYSORE-570 001.
- 2-3. THE ASST. COMMISSIONER FOR MUZRAI & LAND REVENUE HUNSUR SUB-DIVISION HUNSUR 571 105. 4. THE TAHSILDAR FOR MUZRAI & LAND REVENUE, HUNSUR TALUK, HUNSUR 571 105 5. AJJA SETTY, MAJOR, S/O LATE JAVARA SETTY, THONDAL VILLAGE, GAVADAGERE HOBLI, HNSUR TALUK. 6. MUTHA SETTY, AGED 54 YEARS S/O NAGA SETTY, R/AT: THONDAL VILALGE, GAVADAGERE HOBLI 571 105, HUNSUR TALUK. 7. NAGARAJEGOWDA, AGED ABOUT 57 YEARS S/O LATE MAYIGOWDA, R/AT: THONDAL VILLAGE, GAVADAGERE HOBLI, HUNSUR TALUK-571 105, MYSORE DISTRICT.... RESPONDENTS (BY SRI E.S.INDIRESH, HCGP, FOR R1 TO R4, SRI A.LOURDU MARIYAPPA, ADV. FOR C/R.5 AND 6, R7 IS SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 06.01.2011 PASSED IN R.A.NO.77/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC, HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 1.4.2006 PASSED IN O.S.NO.54/2001 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC. HUNSUR.
- 3 - THIS RSA COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:- JUDGMENT The case of the plaintiffs is that one Sri.Venkategowda was the grandfather of the plaintiffs. He was cultivating the suit schedule property by performing the pooja Bhanathamma Devaru. After his death the father of the plaintiffs Mayigowda was cultivating the same. After his death, the plaintiffs are in possession and enjoyment of the suit schedule property by performing the pooja of deity Bhanathamma Devaru till the date of filing of the suit. One Ramegowda of Thodal village has filed an application on 30.3.1999 before the Assistant Commissioner, claiming occupancy right. The application was rejected by defendant No.3- the Assistant Commissioner. Thereafter, the plaintiffs approached the Deputy Commissioner in Revision Petition No.52/2000-01, which was rejected. Thereafter they filed Writ Petition No.407/2001 before the Hon ble
- 4 - High Court of Karnataka and the same was also rejected. 2. By issuing a notice under Section 80 of CPC, the present suit was filed seeking for a decree to declare him as the owner of the suit schedule property based on the principles of adverse possession and for permanent injunction to restrain the defendants to interfere with the suit possession and enjoyment of the suit schedule property. 3. On service of summons, defendants entered appearance and denied the suit averments. Defendants 5 to 6 were subsequently impleaded who have also denied the allegations. 4. On the basis of the pleadings, the Trial Court framed the following issues: i) Whether the plaintiffs prove that they are absolute owners of the suit schedule property acquires the same by performing puja of Bhanathamma Goddess since from more than 60 years?
- 5 - ii) Whether plaintiffs prove an alleged interference by the defendants? iii) Whether the suit is properly valued? iv) What Order/Decree? 5. In order to prove the case of the plaintiff, he was examined as PW1 and one witness as PW2 and documents Exs.P1 to P24 were marked. Defendant No.4 was examined as DW1 and defendant No.5 was examined as DW2 and two witnesses as DWs.3 and 4 and documents Exs.D1 to D6 were marked. 6. Issues 1 and 2 were held in the negative, issue No.3 was held in the affirmative and the suit was dismissed. 7. Aggrieved by the judgment and decree of the trial Court dismissing the suit of the plaintiffs and the first appellate Court affirming the said dismissal, the Plaintiffs have filed the present second appeal.
- 6-8. Learned counsel for the appellants/plaintiffs contends that the impugned orders of both the Courts below are erroneous and liable to be set aside. That the Courts below committed an error in rejecting the suit of the plaintiffs. Even the trial Court was not in favour of the plaintiffs to declare title to them, based on adverse possession. The suit should have been decreed at-least for permanent injunction. 9. The learned Counsel for the respondents contends that there is no merit in this appeal nor is there any substantial question of law that arises for consideration. Hence, he prays for dismissal of the appeal. records. 10. Heard learned counsels and examined the 11. The entire prayer of the plaintiffs is based on adverse possession. Their case is that, they have been in possession of the suit schedule property from the
- 7 - time of their grand father. Therefore, they have perfected their title by adverse possession. The trial Court recorded its finding on the same. 12. On hearing learned counsels, I am of the considered view that no suit could be maintained based on adverse possession. The plea of adverse possession could be taken up only as a defence. This Court as well as the Hon ble Supreme Court have time and again held that the plea of adverse possession can only be used as a shield and not as a sword. No suit could be filed based purely on adverse possession. 13. The Hon ble Supreme Court in the Case of Gurdwara Sahib Vs. Gram Panchayat Village Sirthala 2014(1) SCC 669 held at para 8 as follows: Para 8. There cannot be any quarrel to this extent that the judgment of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the
- 8 - effect that such adverse possession has matured into ownership. Only if proceedings are filed against the appellant and the appellant is arrayed as defendant that it can use this adverse possession as a shield/defence. 14. Under these circumstances, the entire case of the plaintiffs which is based on adverse possession requires to be rejected. It is needless to state that, adverse possession can only be pleaded as a defence when a right is claimed by the other side and not a right to be exercised based on adverse possession. Therefore, the entire plea of the appellants would necessarily have to fail. 15. So far as the relief of permanent injunction is concerned, the plaintiffs have failed to prove the alleged interference by the defendants. In order to seek an order of permanent injunction, the plaintiffs would have to show that there is interference by the defendants. When
- 9 - the plaintiffs have failed to show any interference, the question of granting an injunction would not arise for consideration. Hence, no decree was granted. 16. On hearing the learned counsel, I am of the considered view that there is no error committed by both the Courts below in recording such findings. Consequently, I do not find any error committed by both the Courts below. There is no substantial question of law that arises for consideration in this appeal. Hence, the appeal being devoid of merits is dismissed. AP/- Sd/- JUDGE