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CDJ 2025 Kar HC 1987 print Preview print Next print
Court : High Court of Karnataka
Case No : Regular Second Appeal No.1038 Of 2025 (POS)
Judges: THE HONOURABLE MR. JUSTICE H.P. SANDESH
Parties : Anisha Versus Ahamed Ali Bunayya & Others
Appearing Advocates : For the Appellant: V.R. Prasanna, Advocate. For the Respondents: ------
Date of Judgment : 10-12-2025
Head Note :-
Civil Procedure Code - Section 100 -

Comparative Citation:
2025 KHC 52323,
Summary :-
Statutes / Acts / Rules Mentioned:
- Section 100 of CPC
- Section 53-A of Transfer of Property Act
- CPC

Catch Words:
- adverse possession
- mesne profit
- part performance
- vacant possession
- second appeal
- regular second appeal

Summary:
The appellant filed a second appeal under Section 100 of the CPC challenging the trial court and first appellate court’s decree granting vacant possession and mesne profits to the plaintiffs. The dispute centered on whether a sale agreement dated 12‑08‑1992 was proved and whether the defendant’s uninterrupted possession amounted to adverse possession. Both lower courts held that the sale agreement was not proved and that no adverse possession claim was pleaded. The appellant argued that the courts erred in granting relief and that the defendant’s possession for over 12 years should invoke adverse possession. The High Court found no merit in these arguments, noting that the plaintiff’s title was not established by adverse possession and the sale agreement remained unproven. Consequently, the court saw no substantial question of law warranting interference.

Conclusion:
Appeal Dismissed
Judgment :-

(Prayer: This RSA is filed under Section 100 of CPC, against the judgment and decree dated 15.03.2025 passed in R.A.No.35/2023 on the file of the Additional Senior Civil Judge and ACJM, Udupi, dismissing the appeal and confirming the judgment and decree dated 07.06.2023 passed in O.S.No.82/2015 on the file of the Principal Civil Judge and JMFC, Udupi.)

Oral Judgment

1. This matter is listed for admission. I have heard learned counsel for the appellant.

2. This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

3. The factual matrix of case of the plaintiffs before the Trial Court in O.S.No.82/2015 while seeking the relief of possession before the Trial Court is that plaintiffs are the owners of plaint 'A' and 'B' schedule property and further contend that plaintiffs have terminated the permission of defendant by issuing a legal notice dated 18.07.2014 in which they have withdrawn the license/permission granted to the defendant to reside in the plaint 'B' schedule property. The defendant, instead of vacating the same, sent false reply to the said notice and denied her liability to vacate the plaint 'B' schedule property. Since, the defendant failed to vacate the plaint 'B' schedule property, the present suit is filed for grant of vacant possession in respect of 'B' schedule property.

4. After service of summons, the defendant appeared and filed the written statement. In the written statement, the defendant denied all the averments in the plaint. It is the contention of the defendant that father of the defendant Sri Mohammed Saadu was in actual possession and enjoyment of plaint 'B' schedule house and 11 cents of the land thereto. After the death of Aliabba, one of his son Khalid Aliabba i.e., the plaintiff No.9 executed an agreement of sale dated 12.08.1992 acting on behalf of all the heirs of his father agreeing to convey the said 11 cents and plaint 'B' schedule house to the father of the defendant for consideration of Rs.40,000/- and out of the said sale consideration, received Rs.23,000/- in cash on the same day.

5. The Trial Court having considered the pleadings of the parties, framed issues and even additional issues were also framed with regard to value of the property as well as termination of legal notice and allowed the parties to lead evidence. The plaintiff No.1 examined himself as P.W.1 and got marked the documents as Exs.P1 to P5. The plaintiff No.9 examined as P.W.2. On the contrary, the defendant herself examined as D.W.1 and got marked the documents as Exs.D1 to D34.

6. The Trial Court having considered both oral and documentary evidence placed on record, particularly taken note of the contention which was taken by the plaintiffs and defendant, admittedly, there is no dispute with regard to the fact that there was an agreement of sale and his possession is continuous and uninterrupted and not pleaded anything with regard to adverse possession. But, main contention is that there was an agreement and the same was executed by plaintiff No.9. The Trial Court even taken note of admission of D.W.1 in paragraph No.14 and comes to the conclusion that a suggestion was made that he permitted him to reside in the plaint schedule property and further stated that Aliabba and his wife told them that they will sell the plaint schedule property. But, do not know in which year they have stated so. The Trial Court also discussed with regard to document of sale agreement dated 12.08.1992 and though witness D.W.1 is examined before the Court, nothing is elicited with regard to this sale agreement. Hence, comes to the conclusion that sale agreement and receipt of earnest money is not proved and also comes to the conclusion that when the notice was issued and permission is withdrawn, particularly taken note of material available on record, considering issue Nos.4 and 5 in paragraph No.20 and the admission on the part of D.W.1 and the said admission clearly goes to show that plaint schedule house has all the basic amenities. The said admission given by D.W.1 clearly shows that plaint 'B' schedule property will fetch a rent more than Rs.1,000/-. The plaintiffs are claiming Rs.1,000/- per month as mesne profit. However, there is nothing to believe that as on the date of suit also the plaint 'B' schedule property fetch the rent of Rs.1,000/-. However, taken note of granting of mesne profit of Rs.500/- and decreed the suit and directed the defendant to surrender vacant possession of plaint 'B' schedule premises to the plaintiffs within a month and also ordered to pay the mesne profit of Rs.3,000/- for the period of 04.08.2014 to 31.10.2014 and further directed to pay an amount of Rs.500/- per month as mesne profits.

7. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.35/2023. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point for consideration whether the appellant has made out the grounds to interfere with the judgment and decree of the Trial Court and on appreciation of both oral and documentary evidence, the First Appellate Court also taken note of admission on the part of P.W.1 and also with regard to agreement is concerned and no steps were taken even to enforce the agreement and the same is discussed in paragraph No.25 and in paragraph No.26 observed that on perusal of the plaint, it goes to show that plaint 'A' schedule property was originally purchased by father of the plaintiff by name Aliabba as per sale deed dated 11.06.1962 and he died intestate. Having considered all these material on record comes to the conclusion with regard to ownership is concerned. The First Appellate Court even discussed with regard to Section 53-A of Transfer of Property Act i.e., 'Part Performance' and detailed discussion was made regarding oral and documentary evidence and confirmed the judgment of the Trial Court that there was no such agreement and nothing is placed on record even for having paid the amount of earnest money of Rs.23,000/- as against Rs.40,000/-. Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

8. The main contention of learned counsel for the appellant is that both the Courts have committed an error in granting the relief as sought by the plaintiffs and failed to take note of the fact that the defendant established the factum of uninterrupted peaceful possession of plaint 'B' schedule property for more than 12 years which impliedly shows the defence of adverse possession. The counsel would vehemently contend that plaintiffs remained silent from the date of death of their father on 28.11.1976 till 18.07.2014 the date when they got issued the legal notice. But, the Trial Court and the First Appellate Court also not considered the material on record with regard to sale agreement dated 12.08.1982. Hence this Court has to admit the second appeal and frame substantial question of law.

9. Having considered the arguments of learned counsel for the appellant and also the pleadings of the parties, it is very specifically contended by the plaintiffs in the plaint that they are the owners of plaint 'A' and 'B' schedule property and no dispute with regard to the ownership is concerned. The only contention of the appellant/defendant is that there was an agreement of sale and in order to substantiate the same, nothing is placed on record except producing the document and even for payment of the earnest money also, nothing is placed on record. It is the claim of defendant that sale agreement was executed by plaintiff No.9 and plaintiff No.9 is examined as P.W.2 before the Court and even both the Courts have taken note of the fact that signature of P.W.9 is not identified and marked stating that there was a sale transaction and in order to prove the factum of sale agreement also, nothing is placed on record, except relying upon document of Ex.D34. Hence, both the Courts rightly comes to the conclusion that sale agreement is not proved.

10. The other contention is that the plaintiffs have perfected their title by way of adverse possession. But to that effect also, there is no pleading and evidence and when it is pleaded that the plaintiffs are in possession of the property based on the sale agreement, the defendant cannot contend that they have perfected their right by way of adverse possession. The other contention is that both the Courts have committed an error in passing an order to handover possession and even possession is not disputed from the year 1976 after the death of father of plaintiffs and mere continuation of possession by the defendant will not confer any right in their favour. When such being the case and legal notice was issued before filing the suit and the plaintiffs withdrew the permission which was given to him and he did not vacate the property, the plaintiffs have approached the Court and when all the defences were met by the Trial Court and the First Appellate Court, I do not find any ground to admit the second appeal and frame any substantial question of law and both question of fact and question of law are considered by the Trial Court and First Appellate Court. Hence, not a case to invoke Section 100 of CPC.

11. In view of the discussion made above, I pass the following:

ORDER

The regular second appeal is dismissed.
 
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