1

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 10TH DAY OF FEBRUARY 2023

BEFORE

THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA

R.F.A.No.2192/2006 (DEC)

BETWEEN:

1. SMT. ASHWATHAMMA,
W/O SRI CHIKKEGOWDA,
D/O APPAYYANNA,

2. SRI. CHIKKEGOWDA,
S/O LATE MUTHAHANUMAIAH,

BOTH ARE DEAD

REPRESENTED BY THEIR LRs.,

1. SRI. SRIDHAR GOWDA,

S/O SRI CHIKKEGOWDA AND
SMT ASWATHAMMA,
AGED ABOUT 49 YEARS,
RESIDING AT HURALICHIKKANAHALLI,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
PIN – 560 090.

2. SMT.SOWBHAGYALAKSHMI,
D/O SRI CHIKKEGOWDA AND
SMT ASWATHAMMA,
AGED ABOUT 36 YEARS,
RESIDING AT HURALICHIKKANAHALLI,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
PIN – 560 090.
 2

3. SMT. RAJESHWARI,
D/O SRI CHIKKEGOWDA AND
SMT.ASWATHAMMA,
AGED ABOUT 32 YEARS,
RESIDING AT HURALICHIKKANAHALLI,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
PIN – 560 090.
… APPELLANTS
(BY SRI. M.N.UMA SHANKAR, ADVOCATE)

AND:

1. SMT. NARASAMMA,
W/O VENKATACHALAPPA,
SINCE DEAD BY LRs.,
RESPONDENT Nos. 2 TO 6

2. SMT.THIMMAJAMMA,
W/O HANUMANTHA RAYAPPA,
D/O VENKATACHALAPPA,
SINCE DEAD BY LRs.,

2(a1) SRI S.H.RAVI KUMAR,

AGED ABOUT 60 YEARS,
SON OF LATE HANUMANTHARAYAPPA,

2(a2) SRI. S.H.RANGANATH,

AGED ABOUT 56 YEARS,
SON OF LATE HANUMANTHARAYAPPA,

BOTH ARE RESIDING AT

SHIDEDAHALLI VILLAGE,
YESHWANTHAPURA HOBLI,
BENGALURU NORTH TALUK.

3. SMT. LAKSHMAMMA,
W/O HEMANNA,
D/O VENKATACHALAPPA,
SINCE DEAD BY LRs.,
 3

3(1) MUNIRAJU,
S/O LAKSHMAMMA,
SINCE DEAD BY HIS LRs.,

3(1)(a) VANITHA,
D/O LATE MUNIRAJU,
AGED ABOUT 40 YEARS,

3(1)(b) LALITHA,
D/O LATE MUNIRAJU,
AGED ABOUT 38 YEARS,

3(1)(c) MURALI,
S/O LATE MUNIRAJU,
AGED ABOUT 36 YEARS,

3(2) UMESHA,
S/O LATE LAKSHMAMMA,
AGED ABOUT 50 YEARS,

3(3) JAGANNATHA,
S/O LATE LAKSHMAMMA,
AGED ABOUT 47 YEARS,

3(4) RATHNAMMA,
W/O HANUMANTHARAYAPPA,
DO LATE LAKSHMAMMA,
AGED ABOUT 45 YEARS,

ALL ARE RESIDING AT

HURALIHIKKANAHALLI,
HESARAGHATTA HOBLI,
BANGALORE NORTH TALUK,
PIN – 560 090.

4. SMT. ASHWATHAMMA,
W/O THIMMAIAH,
D/O VENKATACHALAPPA,
SINCE DEAD BY LRs.,

4(a) T.N.NARASIMHAMURTHY,
 4

S/O LATE ASHWATHAMMA,

AGED ABOUT 62 YEARS,

4(b) T.N.RAMASWAMY,
S/O LATE ASHWATHAMMA,
AGED ABOUT 55 YEARS,

BOTH ARE RESIDING AT

THARABANAHALLI,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
PIN – 560 090.

5. SMT. GOVINDAMMA,
W/O M.HANUMANTHARAYAPPA,
D/O VENKATACHALAPPA,
SINCE DEAD BY LRs.,

LRs., OF R-2 ARE ALSO L.Rs OF R-5.

5(a) SRI. S.H.RAVI KUMAR,

AGED ABOUT 60 YEARS,
SON OF LATE HANUMANTHARAYAPPA,

5(b) SRI S.H.RANGANATH,

AGED ABOUT 56 YEARS,
SON OF LATE HANUMANTHARAYAPPA,

BOTH ARE RESIDING AT

SHIDEDAHALLI VILLAGE,
YESHWANTHAPURA HOBLI,
BENGALURU NORTH TALUK.

6. SMT. NARAYANAMMA,
W/O H.V.HANUMANTHA RAYAPPA,
D/O VENKATACHALAPPA,
SINCE DEAD BY LRs.,

6(a) SUJATHA,
D/O LATE NARAYANAMMA,
W/O RAVI KUMAR,
 5

AGED ABOUT 45 YEARS,

R/A No.154, 4TH CROSS, HIPPE
ANJANEYASWAMY LAYOUT,
NADEPETE, NELAMANGALA – 562 123.

6(b) SARASWATHI,
D/O LATE NARAYANAMMA,
W/O HANUMANTHARAYAPPA,
AGED ABOUT 43 YEARS,
R/AT PUTTAGOWRAMMA BUILDING,
SPARK ELECTRIC BIKE SHOW ROOM,
NEAR HOME WOOD, BINAMANGALA,
NELAMANGALA TALUK – 562 120.

6(c) SATISH,
S/O LATE NARAYANAMMA,
AGED ABOUT 40 YEARS,
BMTC DRIVER, 7TH CROSS,
PATEL CHANNAPPA LAYOUT,
SATHYA MALLIGESWARA NILAYA,
NELAMANGALA – 562 120.

6(d) AMBARISH KUMAR

SINCE DEAD BY HIS LR.,

1. LAKSHMI,
W/O LATE AMBARISH KUMAR,
AGED ABOUT 35 YEARS,
R/AT No.6, CHANNANAYAKANA PALYA,
II STAGE, DODDA BIDIRUKALLU POST,
BANGALORE -560 073.

7. SRI.M.UMESH,
SON OF HEMANNA,
AGED ABOUT 40 YEARS,
RESIDING AT HURALICHIKKANAHALLI,
HESARAGHATTA HOBLI,
BANGALORE NORTH TLAUK,
PIN – 560 090.
 6

8. SRI.H.C.LINGARAJ,
S/O CHIKKEGOWDA AND
SMT ASWATHAMMA,
AGED ABOUT 54 YEARS,
R/AT No.6, CHANNANAYAKANAPALYA,
II STAGE, DODDA BIDIRAKALLU POST,
BENGALURU – 560 073.
DELETED VIDE ORDER DATED:27.01.2023.

… RESPONDENTS
(BY SRI.B.M.HALASWAMY, ADVOCATE FOR R-3(3)(2)/R-7;
SRI.B.V.SUDHAKAR REDDY, ADVOCATE FOR R-5(a & b);
SRI.K.N.NITISH, ADVOCATE FOR R-3(1)(a) & R-3(3),
R-6(a TO c), R-6(d)(1);
SRI.M.PRABHAKAR, ADVOCATE FOR R-3(4);
SRI.C.SHANKAR REDDY, ADVOCATE FOR R-4(b);
R-3(1b) & R-3(1c) ARE SERVED AND UNREPRESENTED;
VIDE ORDER DATED:05.12.2022, NOTICE TO R-4(a) IS
HELD SUFFICIENT;
VIDE ORDER DATED:27.01.2023 R-8 IS DELETED)

THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,

AGAINST THE JUDGMENT AND DECREE DATED:05.08.2006
PASSED IN O.S.No.431/1996 ON THE FILE OF THE I
ADDITIONAL CIVIL JUDGE (SR.DN) BANGALORE RURAL
DISTRICT, BANGALORE, DECREEING THE SUIT FOR
DECLARATION AND INJUNCTION.

THIS APPEAL HAVING BEEN HEARD AND RESERVED

FOR JUDGMENT ON 27.01.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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JUDGMENT

1. The wife, *five daughters and Sri.H.Umesh, the

adopted son of Sri.Venkatachalappa instituted a suit for

a declaration that they were the absolute owners of the

properties bearing Sy.No.10/5, measuring 8 guntas and

Sy.No.11/2 measuring 32 guntas, which were both

situated at Huralichikkanahalli Village, Hesaraghatta

Hobli, Bengaluru North Taluk. They also sought for an

injunction to restrain the defendants from alienating the

suit properties and from interfering with their

possession.

2. Smt.Ashwathamma and her husband

Sri.Chikkegowda were arrayed as the defendants.

3. The wife and children of Sri.Venkatachalappa

contended that the suit properties were the properties

owned by Sri.Venkatachalappa and in the year 1966, as

he was in need of money, he had approached

Sri.Chikkegowda (defedant No.2) for a loan of Rs.1,000/-

who agreed to advance the loan, subject to the condition

*Corrected Vide Court Order dated 03.03.2023.

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that Sri.Venkatachalappa executes a sale deed in respect

of the suit properties in the name of his wife,

Smt.Ashwathamma (defendant No.1).

4. It was stated that Sri.Venkatachalappa was given

to vices, did not have proper character and was in the

habit of squandering money. It was stated that taking

advantage of this weakness, Sri.Chikkegowda had lured

Sri.Venkatachalappa to execute a sale deed dated

04.05.1966, in which, the sale consideration was shown

as Rs.1,000/-, though the value of the land was more

than Rs.10,000/-.

5. It was stated that this sale was only a nominal sale

deed and was essentially a security for the loan taken by

Sri.Venkatachalappa. It was stated that this loan was

taken to celebrate the marriage of Sri.Venkatachalappa's

daughter, with an understanding that the properties sold

would be re-conveyed to Sri.Venkatachalappa, if he

repaid a sum of Rs.1,000/- within six years from

04.05.1966. It was also stated that Smt.Ashwathamma

 9

had executed an agreement of re-conveyance in favour

of Sri.Venkatachalappa and thus, the sale deed was only

a nominal sale deed which was not acted upon.

6. It was also alleged that the parties had agreed that

the possession of the suit properties would remain with

Sri.Venkatachalappa and in the month of March 1972, he

had approached Smt.Ashwathamma and

Sri.Chikkegowda, with a request to re-convey the

properties by accepting a sum of Rs.1,000/-, but, they

evaded to receive the money, as a result of which,

O.S.No.566/1973 was instituted by Sri.Venkatachalappa

seeking for execution of a deed of re-conveyance.

7. In this suit, it was stated that his wife and children

were not made parties and it was contended that

Sri.Venkatachalappa had no right to sell the suit

properties to Smt.Ashwathamma and Sri.Chikkegowda

without their consent. It was therefore, contended that

the sale deed executed by Sri.Venkatachalappa was not

binding on them.
 10

8. It was also stated that on 03.04.1981, the suit filed

by Sri.Venkatachalappa for re-conveyance ie.,

O.S.No.566/1973 and which was re-numbered as

O.S.No.518/1980 was decreed and a direction was

issued to Smt.Ashwathamma to execute the

re-conveyance deed in favour of Sri.Venkatachalappa,

within a period of two months, subject to

Sri.Venkatachalappa paying or depositing a sum of

Rs.1,000/-, within a month.

9. In the suit, it was stated, that Sri.Venkatachalappa

was found to be in possession and Smt.Ashwathamma

had not acquired possession of the property and the

Court had actually granted Sri.Venkatachalappa, a

decree, restraining Smt.Ashwathamma and

Sri.Chikkegowda from interfering with their possession.

10. It was stated that Sri.Venkatachalappa, however,

did not deposit a sum of Rs.1,000/- and this was not to

the knowledge of his wife and children, who continued to

 11

exercise the rights of ownership without any interference

from anybody.

11. It was stated that neither Smt.Ashwathamma nor

Sri.Chikkegowda took any steps, after the period

stipulated under the judgment and decree dated

03.04.1981, to take possession of the suit properties

either from Sri.Venkatachalappa or from his wife and

children, though they were entitled to take possession by

virtue of the fact that Sri.Venkatachalappa had not

deposited the specified amount within the time.

12. It was stated that Smt.Ashwathamma and

Sri.Cikkegowda had kept quiet and not taken any action

in the matter for a period of 15 years and even if it was

to be assumed that the sale deed executed by

Sri.Venkatachalappa was binding on them, as they were

in continuous possession for a period of more than

12 years and had exercised their rights of ownership

openly and hostile to the ownership rights of

Smt.Ashwathamma and Sri.Chikkegowda, they had

 12

perfected the title by adverse possession and had

become the owners by prescription. It was therefore,

stated that Smt.Ashwathamma and Sri.Chikkegowda

were not entitled to disturb their possession.

13. It was also stated that the wife and children of

Sri.Venkatachalappa were not bound by the sale

executed by Sri.Venkatachalappa, as it had been

executed in individual capacity and not on behalf the

joint family. It was therefore stated that they were the

owners of the suit properties and Smt.Ashwathamma

and Sri.Chikkegowda had no right to be in possession of

the suit properties and they had also lost the right to the

possession. It was however stated that an attempt was

made to interfere with their possession and therefore,

they were constrained to institute a suit.

14. Smt.Ashwathamma and Sri.Chikkegowda entered

appearance and contested the suit by filing a written

statement.
 13

15. They denied the averments in the plaint and stated

that the suit properties were in their possession. They

stated that the suit properties had been sold by

Sri.Venkatachalappa and his wife Smt.Narasamma under

a registered sale deed dated 04.05.1966 and the said

sale was an absolute sale. It was also stated that

physical possession was delivered to them under the said

sale deed and they were in uninterrupted possession of

the suit properties, ever since the date of purchase.

They also stated that they were paying the taxes and

that their names had been entered in the revenue

records.

16. It was also stated that the decree passed in

O.S.No.518/1980 was a conditional decree and since the

condition imposed under the decree had not been

complied with by Sri.Venkatachalappa, he had lost all

rights under the decree and as a consequence, it would

have to held that Sri.Venkatachalappa has lost all the

rights over the properties.

 14

17. The Trial Court, on consideration of the pleadings,

framed seven issues.

18. In support of the case of the wife and the children

of Sri.Venkatachalappa, plaintiff No.7, namely,

Sri.H.Umesh was examined and through him

48 documents were admitted in the evidence and

marked as exhibits.

19. On behalf of Smt.Ashwathamma and

Sri.Chikkegowda, their Power of Attorney Holder

Sri.C.Sridhar was examined as DW1 and through him

20 documents were admitted in the evidence and

marked as exhibits.

20. The Trial Court, on consideration of the pleadings

and also the evidence adduced, came to the conclusion

that the wife and children of Sri.Venkatachalappa had

proved that they were the absolute owners in actual

possession of the suit properties and that

Smt.Ashwathamma and Sri.Chikkegowda had partly

 15

proved that Sri.Venkatachalappa and his wife had sold

the suit properties and became the absolute owners in

possession of the properties.

21. The Trial Court held that Smt.Ashwathamma and

Sri.Chikkegowda had failed to prove that

Sri.Venkatachalappa had lost all his rights over the suit

properties due to the non compliance of the condition

imposed in the decree passed in O.S.No.518/1980.

22. The Trial Court, accordingly, decreed the suit and

declared that the wife and children of

Sri.Venkatachalappa had perfected their title over the

suit properties by adverse possession. It also granted

them a decree of permanent injunction.

23. The Trial Court for decreeing the suit took the view

that Smt.Ashwathamma and Sri.Chikkegowda had failed

to establish that they had secured possession of the

lands pursuant to the sale deed executed in their favour

and it had been established that possession of the land

 16

continued with Sri.Venkatachalappa and after his death,

with his wife and children. The Trial Court took the view

that Smt.Ashwathamma and Sri.Chikkegowda were

required to execute a decree on payment of Rs.1,000/-,

within a month and if the said sum had not been paid,

they were obliged to seek for possession through lawful

means and since they had failed to secure possession

through lawful means and had consequentially permitted

the wife and children of Sri.Venkatachalappa to exercise

the rights of ownership openly and adverse to the

interest of Sri.Chikkegowda and Smt.Ashwathamma.

24. The Trial Court concluded that since the possession

of the wife and children of Sri.Venkatachalappa was

never obstructed and they did not take any action to

take the possession of the properties and slept over their

rights for more than 12 years, the possession over the

suit properties by the wife and children of

Sri.Venkatachalappa had become hostile and they had

 17

perfected title over the suit properties by way of adverse

possession.

25. Thus, the Trial Court took the view that the wife

and the children of Sri.Venkatachalappa had acquired

title over the properties by adverse possession, though

the actual pleading raised by them in the plaint was that

the sale deed executed by their father was a nominal

sale deed and since they were not the signatories to the

sale deed, the sale deed was not binding on them. It is

also true that they also took up a plea that they were in

possession of the suit properties openly, continuously

and un-interruptedly for 12 years and therefore, they

had perfected the title by way of adverse possession.

26. At the time of hearing of this appeal, the legal

representatives of the plaintiffs, namely, Sri.S.H.Ravi

Kumar [respondent No.2(a)], Sri.S.H.Ranganath

[respondent No.2(b)], Smt.Vanitha [respondent

No.3(1)(a)], Sri.Murali [respondent No.3(1)(c)],

Sri.Jagannatha [respondent No.3(3)],

 18

Sri.T.N.Ramaswamy [respondent No.4(b)], Si.S.H.Ravi

Kumar[respondent No.5(a)], Sri.S.H.Ranganath

[respondent No.5(b)], Smt.Sujatha [respondent No.6(a)]

Smt.Saraswathi [respondent No.6(b)],

Sri.Satish[respondent No.6(c)], Smt.Lakshmi

[respondent No.6(d)(1)] (LRs of respondent No.2 are

also LRs of respondent No.5) entered into a compromise

with the legal representatives of the defendants, namely,

Sri.Sridhar Gowda (appellant No.1),

Smt.Sowbhagyalakshmi (appellant No.2) and

Smt.Rajeshwari (appellant No.3), whereby, they

mutually agreed to share the lands amongst themselves

as indicated in the compromise petition. Plaintiff No.7

and respondent Nos.3(1)(b), 3(2), 3(4), 4(a), however,

did not agree to the compromise and stated that they

would desire to get their rights adjudicated on merits.

27. In accordance with the wishes of the parties to the

compromise petition, the suit, in so far as they were

concerned, was decreed in terms of the compromise and

 19

this appeal was heard on merits in respect of plaintiff

No.7 and respondent Nos.3(1)(b), 3(2), 3(4), 4(a).

28. The admitted facts of the case are that

Sri.Venkatachalappa executed the sale deed on

04.05.1966 in favour of Smt.Ashwathamma. Thus, there

was a transfer of title in favour of Smt.Ashwathamma,

way back in the year 1966. Even according to

Sri.Venkatachalappa, the sale was a nominal sale and

Smt.Ashwathamma and Sri.Chikkegowda had executed a

deed of re-conveyance in their favour.

29. Thus, right from 04.05.1966, by virtue of the

agreement of re-conveyance, Sri.Venkatachalappa was

in possession of the land. In other words, right from

1966, Sri.Venkatachalappa claimed to be in possession

under the title of Smt.Ashwathamma. If,

Sri.Venkatachalappa contended that he had a right to be

in possession under the agreement executed by

Smt.Ashwathamma, this possession could never be

construed as an adverse possession.

 20

30. This is on the principle that a person who has been

inducted into possession of an immovable proeprty under

an agreement is always deemed to be in lawful

possession and that lawful possession would not be

translated into adverse possession. The only exception to

this rule would be that the person inducted into

possession under the agreement repudiates the

agreement, denies the title of the person who inducted

him and sets up title in himself adverse to the interest of

the person who inducted him.

31. It is also admitted that a suit was filed in

O.S.No.566/1973 seeking for a decree to direct

Smt.Ashwathamma to re-convey the properties. This

suit was admittedly decreed on 03.04.1981 and

Smt.Ashwathamma was directed to execute a deed of

re-conveyance in favour of Sri.Venkatachalappa. This

direction was however, subject to the condition that

Sri.Venkatachalappa pays a sum of Rs.1,000/- to

Smt.Ashwathama within a period of one month.

 21

32. If, Sri.Venkatachalappa failed to pay the said

amount, the resultant effect would be that he would not

be entitled to a deed of re-conveyance and the title

would therefore, continue to be with Smt.Ashwathamma.

However, the right to be in possession over the land by

Sri.Venkatachalappa would always be traceable only to

the agreement of re-conveyance.

33. Sri.Venkatachalappa, by virtue of the decree, was

entitled to get his title back, by complying with the

decree. However, by not complying with the decree and

continuing to be in possession, that possession would

never constitute as possession which was adverse to the

interest of Smt.Ashwathamma. In effect, the possession

of Sri. Venkatachalappa would be the possession

delivered in part performance of the agreement of

re-conveyance and would thus be lawful and be under

the title of Smt.Ashwathamma.

34. Thus, it is evident that from 1966 till 1981, the

possession of Sri.Venkatachalappa can only be traced to

 22

the agreement of re-conveyance and can never be

considered as possession which was adverse to the

interest of Smt.Ashwathamma. Even after 1981, since

the possession was ultimately traceable only to the

agreement of re-conveyance, the said possession cannot

also be considered as being adverse to the interest of

Smt.Ashwathamma.

35. It is also not in dispute that on 23.03.1989,

Sri.Venkatachalappa himself filed an application seeking

for extension of time to deposit a sum of Rs.1,000/- as

ordered in O.S.No.566/1973 (re-numbered as

O.S.No.518/1980). By making this application,

Sri.Venkatachalappa acknowledged the fact that he was

in possession under the agreement of re-conveyance and

his possession over the properties could thus never be

construed as possession that was adverse to the interest

of Smt.Ashwathamma.

36. During the pendency of this application,

Sri.Venkatachalappa died on 10.12.1989 and his wife

 23

and children (present plaintiffs) came on record and

prosecuted the said application.

37. The Trial Court by an order dated 25.07.1991

rejected the application that had been filed by

Sri.Venkatachalappa for extension of time to deposit

Rs.1,000/-, which had, in fact, been prosecuted by the

present plaintiffs. This refusal of the Trial Court to

extend the time was accepted by the wife and the

children of Sri.Venkatachalappa. The effect of the

acceptance of this particular order would be that they

continued to be in possession which was relatable only to

the agreement of re-conveyance.

38. It cannot be in dispute that possession into a

property through lawful means cannot become hostile,

unless the ingredients of adverse possession are

separately established.

39. As already stated above, this is on the principle

that a person who is put in possession pursuant to part

 24

performance of an agreement of sale would always be a

person in lawful possession and cannot set up the plea

that his possession, which can only be traced to the

agreement of sale, had turned hostile. A person in

possession of a property in part performance of an

agreement will always hold that status and that status

cannot be transformed into the status of a person being

in possession adverse to the interest of the true owner.

40. It is to be stated here that since, both,

Sri.Venkatachalappa and his wife and children continued

to seek for enforcement of the rights under the

agreement of re-conveyance, which had stood

culminated in a decree right up to 25.07.1991, their

possession from 1966 would always have to be

construed as possession under the agreement of

re-conveyance and thereby under Smt.Ashwathamma,

this possession can never be considered as possession

adverse to the interest of Smt.Ashwathamma.

 25

41. Learned counsel for the appellants Sri.Halaswamy,

however, sought to place reliance on the judgment of the

Supreme Court in the case of Bondar Singh & OThers

Vs. Nihal Singh & Others - 2003 AIR SCW 1383, to

contend that continuous possession over the land, as

reflected in the revenue entries, would entitle the person

in possession for a decree of adverse possession.

42. In the case relied upon, the question which came

up for consideration was as to, whether the plaintiffs

were in hostile continuous possession of the suit lands by

virtue of which they had perfected the title by way of

adverse possession.

43. In that case, the Supreme Court found that a

notice had been issued on behalf of the defendants

which had been addressed to the predecessor in interest

of the plaintiff and by the said notice, they had been

called upon to hand over the possession of the suit land

and it had been averred that they were trespassers on

 26

the suit land and were liable to hand over the possession

to the defendants.

44. In the light of this notice, in which it was averred

that the plaintiffs were trespassers, the Supreme Court

took the view that there was clear and clinching evidence

to show that the plaintiffs were in continuous and

un-interrupted possession and they had set up hostile

title against the defendants and therefore, the plea of

adverse possession had been clearly established.

45. In the instant case, neither Sri.Venkatachalappa

nor his wife and children ever contented that they were

in hostile possession of the suit properties. As a matter

of fact, they claimed to be in possession all along till they

had title and thereafter under the agreement of

re-conveyance. Even assuming that they did not hand

over the possession pursuant to the the sale deed, since

they set up the plea of an agreement of re-conveyance,

their possession over the land can only be traceable to

the agreement and would therefore, have to be

 27

considered as lawful possession. There would thus be no

element of any adverse interest being propounded

against Smt.Ashwathamma.

46. Reliance is also sought to be placed on the

judgment of the Hon’ble Supreme Court in the case of

Balkrishan Vs. Satyaprakash and others - AIR 2007

SC 700, to contend that a person in continuous

possession of the suit land would perfect his title by

adverse possession.

47. In that case, the Supreme Court was considering

the question as to whether the appellant therein had

perfected his title by adverse possession, on the ground

that there was an order of Tahsildar against him to

deliver possession of the suit land to the auction

purchasers.

48. Thus, in that case, there was an order of the

Tahsildar directing the appellants therein to deliver

possession and despite the said order, it was found that

 28

the appellants had continued in possession and this

therefore amounted to the appellants being in adverse

possession. In the present case, there was no such order

directing Sri.Venkatachalappa to hand over possession

and despite the said order he had continued in

possession.

49. As stated above, Sri.Venkatachalappa, even

according to him, continued to be in possession under

the agreement of re-conveyance, and therefore, there

was no question of setting up a plea of adverse

possession. These judgments can therefore of no

assistance.

50. Learned counsel, lastly submitted, that the

possession of wife and children of Sri.Venkatachalappa

could not be disturbed, since they were in possession

right from 1966 and were also protected by a decree of

injunction granted in O.S.No.566/1973.

 29

51. It is no doubt true that a decree of injunction was

granted in favour of Sri.Venkatachalappa, restraining

Smt.Ashwathamma and Sri.Chikkegowda from

interfering with his possession. Thus, in the normal

course, Sri.Venkatachalappa would have to be

dispossessed only by re-course to the due process of

law.

52. As far as the present case, it is to be stated here

that the plaintiff Nos.1 to 6 i.e., the wife and biological

daughters of Sri.Venkatachalappa have settled the

differences with Smt.Ashwathamma and have shared the

properties. Therefore, the possession of the property is

now admittedly on the basis of the compromise deed at

least insofar as it relates to plaintiff Nos.1 to 6 therein,

ie., respondent Nos.2, 3(1)(a), 3(1)(c), 3(3), 4(b), 5 and

6 herein.

53. However, in respect of the question that would

arise as to whether they would be entitled to perfect

their possession by virtue of a decree of injunction

 30

granted in O.S.No.566/1973, the Apex Court, in the case

of Padhiyar Prahladji Chenaji (Deceased) Through

L.R.s Vs. Maniben Jagmalbhai (Deceased) Through

L.R.s and Others – 2022 SCC OnLine SC 258, while

considering the question as to whether the plaintiff was

entitled to a relief of permanent injunction against the

true owner, has held that once the dispute with respect

to the title is settled and it is held against the plaintiff,

the suit filed by the plaintiff for permanent injunction

would not be maintainable against the true owner and

further held that if the title to the property was the basis

of the relief of possession, the relief for permanent

injunction can be said to be a consequential relief.

54. In this case, by virtue of the fact that a suit seeking

for re-conveyance had been filed and a decree of

re-conveyance had also been passed in favour of

Sri.Venkatachalappa, it is indisputable that the

defendants in that suit ie., Smt.Ashwathamma possessed

title over the said lands.

 31

55. Since, Sri.Venkatachalappa admittedly did not

secure execution of deed of re-conveyance by not

complying with the condition of the decree, the title

remained with Smt.Ashwathamma. If, by the admitted

facts of the present case, the deed of re-conveyance was

not executed, the title which always stood in favour of

Smt.Aswathamma, would also continue to vest in favour

of Smt.Ashwathamma and she would have to necessarily

be considered as the true owner.

56. In the light of this fact, the principle laid down by

the Supreme Court in Padhiyar’s case cited supra, that

a person, whose claim for title is negatived, cannot

maintain a suit for injunction, the suit even in respect of

a prayer for injunction cannot be granted.

57. The appeal, therefore, would have to be allowed

and the suit filed by plaintiffs would have to be

dismissed.
 32

58. As already held by the order dated 27.01.2023, by

virtue of the compromise decree entered into between

the plaintiffs and the legal representatives of the

defendants, their rights would be governed by the

compromise decree and the claim of the plaintiffs who

had not joined in the compromise decree would stand

dismissed by virtue of allowing of this appeal by this

order.

59. For the sake of clarity, the order dated 27.01.2023

is extracted hereunder:-

“ ORDER

1. At the request of the appellants’ counsel,

respondent No.8/H.C.Lingaraj, who was one of
the sons of appellant No.1/Ashwathama is
deleted.

2. H.C.Lingaraj, though was brought on record as

the legal representative of Ashwathamma, has
accepted the decree and has not appealed
against it. In view of this, he is ordered to be
deleted from the array of parties.

3. This appeal arises out of a suit for declaration

which had been filed by the wife and five
children of Venkatachalappa and by one
H.Umesh who had claimed that he was the
adopted son of Venkatachalappa.
 33

4. The said suit has been decreed and it has been

held that the wife and children of
Venkatachalappa have perfected their title by
way of adverse possession and the
defendants—Ashwathamma and Chikkegowda
have been restrained from interfering with
their possession.

5. During the pendency of this appeal, the legal

representatives of plaintiff No.1; legal
representatives of plaintiff No.3—barring
Smt.Lalitha, Umesha and Rathnamma; the
legal representatives of plaintiff No.4—barring
T.N.Narasimhamurthy and plaintiff
No.7/H.Umesh, have entered into a
compromise.

6. By the said compromise, the legal

representatives of defendant Nos.1 and 2
have conceded that 8 guntas of land in
Sy.No.10/5 could be enjoyed by the legal
representatives of appellant Nos.1 and 2 as
the absolute owners of the same and that the
legal representatives of respondent No.2,
respondent Nos.3(1)(a), 3(1)(c), 3(3),
respondent Nos.4(b), the legal representatives
of respondent Nos.5 and 6 shall not have any
claim over the said 8 guntas of land in item
No.1 of the suit schedule property.

7. It is also agreed that in item No.2, out of 32

guntas, the southern portion measuring 14
guntas would be the absolute property of the
legal representatives of *appellant Nos.1 and
2, and the remaining portion would be the
absolute property of the legal representatives
of respondent No.2, respondent Nos.3(1)(a),
3(1)(c), 3(3), respondent No.4(b), the legal
representatives of respondent Nos.5 and 6.

8. The learned counsel for the appellants also

undertakes that the appellants would execute

*Corrected Vide Court Order dated 03.03.2023.

 34

a sale deed in respect of this *18 guntas of

land in favour of the parties mentioned in the
compromise petition.

9. The said undertaking of the learned counsel for

the appellant is also acknowledged by his
parties who are before this Court.

10. The appellants shall accordingly execute a sale

deed in respect of *18 guntas of land in
*favour of LRs of respondent No.2,
respondent No.3(1)(a),3(1)(c),3(3),4(b) and
LR’S of respondent Nos.5 & 6 as stated in the
compromise petition *and the sketch enclosed.

11. For the sake of clarity, the terms of the

compromise are reproduced.
“MEMORANDUM OF COMPROMISE PETITION UNDER
ORDER 23 RULE 3 CPC READ WITH SECTION 151 CPC

The LRS of Appellant no.1 and 2 *and LRs of

Respondent No.2, Respondent No.3(1)(a),
3(1)(c), 3(3), Respondent no.4(b), LRS of
Respondent no.5 and 6, begs to submit as
under:-
1. Respondent No.1 to 7 herein had filed
a suit in O.S.No.431/1996 on the file of
the learned 1st Additional Civil Judge
(Sr. Dn) Bangalore Rural District,
Bangalore seeking the relief of
declaration of title and permanent
injunction concerning the plaint
schedule properties. The said suit on
contest came to be decreed.
2. Challenging the said judgment and
decree, the defendants in the said suit
namely Smt. Ashwathamma and Sri.
Chikkegowda have preferred the above
appeal.
3. During the pendency of the above
appeal the Appellants, Respondent
No.1 to 6 have passed away and their
LRs have been brought on record. At

*Corrected/Inserted vide Court Order dated 03/03/2023.

 35

the instance of well-wishers and elders,

the LRs of Appellant no.1 and 2 and
LRs of Respondent No.2, Respondent
No.3(1)(a), 3(1)(c), 3(3), Respondent
no.4(b), LRs of Respondent no.5 and 6
have amicably settled the dispute as
under:
1. Item no.1 of the plaint
schedule property i.e., land in
Sy.No.10/5 situated at
Huralichikkanahalli Village,
Hesaraghatta Hobli, Bangalore North
Taluk measures 8 Guntas. The said
property shall be enjoyed by the LRs
of 1st and 2nd Appellant as its
absolute owners. The LRs of
Respondent No.2, Respondent
No.3(1)(a), 3(1)(c), 3(3),
Respondent No.4(b), LRs of
Respondent no.5 and 6 shall not
have any claim over the said 8
Guntas of land in Item no.1 of the
plaint Schedule property. Further,
LRs of Respondent No.2, Respondent
No.3(1)(a), 3(1)(c),3(3),
Respondent no.4(b), LRs of
Respondent no.5 and 6, undertake
that they will not interfere with the
peaceful possession and enjoyment
of the said 8 Guntas of land by the
LRs of appellant No.1 and 2.
2. Item no. 2 of the plaint schedule
property i.e., land in Sy.No.11/2
situated at Huralichikkanahalli
Village, Hesaraghatta Hobli,
Bangalore North Taluk measures 32
Guntas. Out of said 32 Guntas,
southern portion measuring 14
Guntas shall be the absolute
property of LR's of Appellant no.1
and 2 and the remaining northern
portion measuring 18 Guntas shall
be the absolute property of the LRs
of Respondent No.2, Respondent
 36

No.3(1)(a), 3(1)(c), 3(3),

Respondent no.4(b), LRS of
Respondent no.5 and 6. The LRs of
Appellant No.1 and 2 shall not have
any claim over the said 18 Guntas of
land in Item no. 2 of the plaint
Schedule property. Further, LRs of
appellant No.1 and 2 undertake that
they will not interfere with the
peaceful possession and enjoyment
of the said 18 Guntas of land by the
LRS of Respondent No.2,
Respondent No. 3(1)(a), 3(1)(c),
3(3), Respondent no.4(b), LRs of
Respondent no.5 and 6. Likewise,
the LRs of Respondent No.2,
Respondent No. 3(1)(a), 3(1)(c),
3(3), Respondent no.4(b), LRS of
Respondent no.5 and 6 shall not
interfere with the possession and
enjoyment of the LRS of Appellant
No.1 and 2 over 14 Guntas of land in
Item No.2 described supra.
3. This compromise is entered into
in full and final satisfaction of all
claims of the parties. The parties
shall have no objection for getting
the khata transferred to their
respective names compromise
entered into herein.”

12. All the parties who are the signatories to the

compromise petition are present in the Court
and they acknowledge that they have entered
into the compromise on their own free will and
volition, without any compulsion from any
person.

13. I am satisfied that the compromise entered

into by some of the parties is lawful and
deserves to be accepted.
 37

14. Accordingly, the appeal is disposed off

insofar as it relates to the claim of
respondents in terms of the compromise
petition and the appellants shall execute
a sale deed as ordered above at the
earliest.

15. Office to draw the decree accordingly.

In respect of the other plaintiffs, who have not

agreed for the compromise, their extensive
arguments were heard and the judgment is
reserved.”

Accordingly, the appeal is allowed.

Sd/-
JUDGE

GH
CT:SN