The suit for possession based on title is governed by Article 65 of the Limitation Act, allowing 12 years from the date of adverse possession, not Article 58.

JUDGMENT :

J.B. PARDIWALA, J.

1. Leave granted.

2. This appeal arises from the judgment and order passed by the High Court of Karnataka, Dharwad Bench dated 13.06.02019 in Regular Second Appeal No. 100071 of 2019 by which the Second Appeal filed by the appellants herein (original defendants) came to be dismissed thereby affirming the judgment and order passed by the First Appellate Court allowing the appeal filed by the respondents herein(original plaintiffs) and decreeing the suit for declaration of title and possession.

3. The facts giving rise to this appeal may be summarised as under:

a. For the sake of convenience, the appellants herein shall be referred to as the original defendants and the respondents herein shall be referred to as the original plaintiffs.

b. The original plaintiff Late Kalsammanavara Kalamma instituted Original Suit No. 67 of 2011 in the Court of the Civil Judge and JFMC, Hadagali, seeking relief of declaration and injunction in respect of the suit property. In the said suit, the trial court framed the following issues:

“1. Whether the plaintiff proves that she is the absolute owner and in possession of the suit properties?

2. Whether the plaintiff proves that she belonged to the Kalasammanavar family, and her ancestors Chinmayappa and Mallappa are own brothers?

3. Whether the plaintiff proves that the defendants are interfering with the peaceful possession and enjoyment of the suit schedule properties of the plaintiff.

4. Whether the defendants prove that Jamani Mallavva has consented to change the Khatha in the name of defendant No.2 in respect of the suit properties?

5. Whether the defendants prove that the suit is not maintainable without seeking the relief of possession by the plaintiff?

6. Whether the defendants prove that they are in lawful possession and enjoyment of the suit schedule properties?

7. Whether the defendants prove that the Court fee paid by the plaintiff is insufficient?

8. Whether the plaintiff is entitled for the relief as sought for?

9. What order or decree?

c. The trial court answered the issue No. 1 referred to above partly in affirmative and issue Nos. 2, 4, 5 and 6 respectively in the affirmative. The issue Nos. 3 and 7 respectively were answered in the negative. The trial court accordingly dismissed the suit with costs of Rs. 5, 000.

d. Before the original plaintiff could file First Appeal, she passed away.

In such circumstances referred to above, her legal heirs i.e., the respondents herein preferred Regular First Appeal No. 80 of 2018 in the Court of Sr. Civil Judge, Hoovina Hadagali seeking to challenge the judgment and decree passed by the trial court in Original Suit No. 67 of 2011 referred to above.

e. The First Appellate Court framed the following points for determination:

“1. Whether the appellants/ plaintiff proved that they belong to Kalasammanavara family thereby they became the absolute owners of the suit property by virtue of inheritance?

2. Whether the impugned judgment and decree is capricious, perverse, illegal and calls the interference by this court?

3. Whether the claim of the plaintiff is barred under law of limitation?”

f. The First Appellate Court answered the points of determination referred to above as under:

As per final order for the following..”

g. It is pertinent to note that before the First Appellate Court the appellants herein as defendants had filed cross-objection challenging the findings recorded by the trial court on the issue Nos. 1 and 2 respectively referred to above.

h. It also appears that in the First Appeal filed by the legal heirs of the original plaintiffs an application for amendment of plaint was filed wherein, the plaintiffs prayed for possession of the suit property. The application seeking amendment of plaint filed by the legal heirs of the or