Karnataka High Court: Ownership Claims Fail without Possession Plea

In a recent judgment, the Karnataka High Court emphasized that a suit for declaration alone is not maintainable if the plaintiffs are not in possession of the disputed property. The Court, while allowing a Regular Second Appeal, overturned the concurrent findings of the Trial Court and the First Appellate Court, both of which had declared the plaintiffs as the absolute owners of the suit property.

Justice H.P. Sandesh, presiding over a Single Bench, held that in the absence of possession, a plaintiff must seek both declaration and possession. Citing precedents, the Court clarified that a mere declaratory relief without seeking possession is not sustainable, especially when the defendant is in possession.

The case stemmed from a property dispute where Aithu Belchada, father of the plaintiffs, had secured occupancy rights through the Land Tribunal under Section 48A(1) of the Karnataka Land Reforms Act, 1961. An occupancy certificate was subsequently issued in his name. Aithu executed a registered partition deed in 1991 and passed away in 1998, leaving the plaintiffs as his legal heirs. The plaintiffs claimed that the defendant, who was never in possession during Aithu's lifetime, had no valid claim over the property and had not been bequeathed any right through a will.

Despite this, the defendant asserted possession, citing a will and claiming to have constructed a house and been residing there. The Trial Court and First Appellate Court granted declaratory relief in favor of the plaintiffs. However, the High Court noted that the plaintiffs admitted the defendant’s possession and yet did not amend the plaint to include a claim for possession.

The Court observed that although both lower courts found the will invalid under Section 61 of the Karnataka Land Reforms Act, they failed to consider that the plaintiffs had not sought possession despite the defendant’s occupancy. This omission rendered the declaratory suit alone untenable. Therefore, the High Court set aside the judgments of the lower courts and allowed the appeal, reaffirming that relief of possession is essential when the plaintiff is not in actual possession of the disputed property.

Cause Title- [Somayya Belchada v. Santhosh & Ors.]