Karnataka High Court
Sri N Ningappa vs Sri Govindashetty on 17 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:20738
RSA No. 60 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.60 OF 2023 (DEC/POS)
BETWEEN:
1. SRI. N. NINGAPPA,
AGED ABOUT 77 YEARS,
S/O LATE CHIKKANINGAIAH,
R/AT NO.2713,
2ND CROSS, K.G.KOPPAL,
MYSURU-570001.
...APPELLANT
(BY SRI. SHIVARAMU H.C., ADVOCATE)
AND:
1. SRI. GOVINDASHETTY,
Digitally signed AGED ABOUT 53 YEARS,
by DEVIKA M S/O MUNISHETTY.
Location: HIGH
COURT OF 2. SMT. N. MANJULA,
KARNATAKA AGED ABOUT 49 YEARS,
W/O GOVINDASHETTY.
BOTH ARE RESIDING AT NO.215,
RAMAKRISHNA NAGARA,
DATTAGALLI EXTENSION,
NIMISHAMBA LAYOUT,
CHAMARAJA MOHALLA,
MYSURU-570001.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 26.09.2022
PASSED IN R.A.NO.26/2021 ON THE FILE OF THE VI
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NC: 2025:KHC:20738
RSA No. 60 of 2023
HC-KAR
ADDITIONAL DISTRICT AND SPECIAL JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 11.12.2020 PASSED IN
O.S.NO.408/2015 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE AND CJM, MYSURU.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned counsel for the appellant.
2. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of declaration and possession is that the plaintiff is the absolute owner of Sy.No.65/1B, measuring 1 acre 34 guntas, which was acquired by him under a registered partition deed dated 12.12.1955. Since from the date of partition, the plaintiff is in possession and enjoyment of the property. The plaintiff was the head of their joint family. In order to increase the income of the joint family and also for the welfare of the family, he had formed a residential layout and about 20-25 residential sites have been sold to different persons under registered sale deeds. Such purchasers are in possession and enjoyment of their respective residential sites by putting up structures in it. -3-
NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR The remaining extent of Sy.No.65/1B, measuring approximately about 30 guntas and it is in possession of the plaintiff and joint family members. In the second week of March 2009, the plaintiff notices that defendant No.1 and 2 are in possession of a structure put up in a portion of the said property measuring to an extent of 30 x 60 feet, claiming that it bears site No.215. It has been described as suit schedule property. The plaintiff enquired defendant No.1 about their right to be in possession of the suit property, for which defendant No.1 informed that he became owner by virtue of a registered sale deed. When the plaintiff insisted for production of the registered sale deed, he changed the version and stated that it is the self-acquired property of his wife by virtue of a registered gift deed. The plaintiff insisted for production of registered gift deed in favour of defendant No.1. But, they have not produced the same. The plaintiff issued a legal notice to the defendants and inspite of the said notice, the defendants have not complied with the said demand. Hence, the plaintiff filed the suit for the relief of declaration and possession.
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NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR
3. In pursuance of the suit summons, the defendants appeared through their counsel and filed the written statement contending that the suit is not maintainable. The suit property is measuring 1800 sq.feet with a 12 squares of constructed building. It is situated in Nimishamba Extension, which is situated in Kuvempunagar and Vivekananda Nagar, Mysuru. The entire area is developed as commercial area. At present, the market value is more than Rs.50 lakhs. The suit property is not an agricultural land. Without paying proper Court fee, the present suit has been filed. The suit is barred by law as per Section 27 of the Limitation Act. The plaintiff and his wife Leelamma together sold the suit property in favour of one Jayalakshmi for valuable consideration of Rs.6,000/- through an unregistered sale deed dated 19.06.1982. On the date of sale deed, the said Jayalakshmi was put in possession of the said property in part performance of the contract. The said Jayalakshmi has paid the entire consideration amount. Subsequently, Jayalakshmi executed a GPA in favour of defendant No.1 on 08.09.2005 empowering him to transfer the plaint schedule property. Jayalakshmi has handed over the possession of the schedule property to defendant No.1 along with the documents. -5-
NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR Subsequently, on the basis of the GPA, defendant No.1 executed a registered gift deed on 14.09.2005 in favour of his wife defendant No.2 and put her in possession of the property. Now, defendant No.2 is in possession of the property and she has constructed a house in it by investing huge amount. She is enjoying the property from more than 12 years. As such she has perfected her title by way of adverse possession. The defendants have constructed the building in the year 2005 itself. They are paying kandayam of the schedule property to Mysuru City Corporation and all the documents are standing in their name. When the property was sold in the year 1982 itself, now the plaintiff is making false claim before the Court. The plaintiff's son who has enrolled as an advocate has started to interfere with the possession of the defendants. Similarly, they have obstructed the possession of one Dr.Prakash also. He has filed a suit in O.S.No.1107/2009. The plaintiff has admitted the selling of revenue sites. The plaintiff could not have filed the suit for declaration and possession. Hence, prayed for dismissal of the suit.
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NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR
4. The Trial Court having considered the pleadings of both the parties, framed the issues and allowed the parties to lead their evidence. The plaintiff examined himself as P.W.1 and got marked the documents at Exs.P.1 to 12. On the other hand, defendant No.1 got examined himself as D.W.1 and got marked the documents at Exs.D1 to 30. The Trial Court having considered both oral and documentary evidence placed on record, comes to the conclusion that the possession is vest with the defendants and dismissed the suit.
5. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.26/2021. The First Appellate Court having considered the grounds urged in the appeal and also the oral and documentary evidence placed on record, framed the points for consideration with regard to whether the suit is barred by limitation, whether the suit schedule property is an agricultural land and description of the property is proper and correct and whether the plaintiff is entitled for the relief of declaration and possession. The First Appellate Court having re-assessed both oral and documentary evidence placed on record, answered point Nos.2 and 3 in the negative and answered point No.1 in the -7- NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR affirmative concurring the judgment of the Trial Court that the suit is barred by limitation on the ground that the document was executed in the year 1982 and thereafter POA was executed and the defendants are in possession having constructed the building in 2005 and the plaintiff cannot seek the relief of declaration and possession after having lost the possession and invoked Section 65 of the Limitation Act and dismissed the appeal.
6. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.
7. The main contention of the learned counsel for the appellant before this Court is that both the Courts have erred in relying upon the GPA Ex.D1, the gift deed Ex.D2 and Ex.D30 unregistered sale deed/agreement of sale. The very case of the defendants was that the plaintiff had executed an unregistered sale deed in their favour. In the absence of the registered sale deed, the subsequent GPA and gift deed would be invalid in the eye of law, which aspect has been totally ignored by the Court below. Both the Courts have committed an error in coming to the conclusion that they are entitled to -8- NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR protect their possession as per Section 53A of the Transfer of the Property Act. But the recitals of the sale deed Ex.D30 is clear that it is a sale deed and not parting with possession in terms of the agreement and the very approach of both the Courts is erroneous. Hence, the learned counsel for the appellant suggested to frame substantial questions of law whether both the Courts have erred in proper construction of the documents Exs.D1, 2 and 30, notwithstanding the fact that Ex.D30 is an unregistered sale deed, which has not been proved by the defendants, whether both the Courts have committed an error in dismissing the suit on the ground of barred by limitation and ought not to have relied upon Ex.D30, which is an unregistered document.
8. Having heard the learned counsel for the appellant and having considered the very case of the plaintiff, while seeking the relief of possession and declaration, it is contended that the plaintiff is the absolute owner of Sy.No.65/1B measuring 1 acre 34 guntas and the same was acquired by him under a registered partition deed dated 12.12.1955. It is his case that he is in possession and enjoyment of the property. The plaintiff was the head of their -9- NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR joint family and in order to increase the income of the joint family and also for the welfare of the family, he had formed a residential layout and executed sale deeds in favour of prospective purchasers. His contention is that he had retained the property to an extent of 30 guntas in Sy.No.65/1B and it is in possession of the plaintiff and joint family members. In the second week of March 2009, the plaintiff came to know that defendant Nos.1 and 2 are in possession of a structure put up in a portion of the said property measuring to an extent of 30 x 60 feet claiming that they are in possession of the property. Hence, the plaintiff filed a suit for the relief of declaration and possession.
9. The defendants in the written statement contended that there is an unregistered sale deed of the year 1982, which was executed in favour of Jayalakshmi and Jayalakshmi in turn executed GPA in terms of Ex.D1. It is contended that there is a gift deed in terms of Ex.D2 and the possession is with the defendants. In order to prove the said fact, specific contention was taken that the plaintiff is not in possession of the property and the suit is barred by limitation, since the suit is filed after 27 years of the executing the
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NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR document of Ex.D30. The plaintiff also got marked the documents at Exs.P.1 to 12 i.e., copy of notice, postal receipts, certificate of posting, original notice with cover and acknowledgment, certified copy of tax paid receipt, RTCs, certified copy of notice issued by the Special Deputy Commissioner, Form No.2 and certified copy of partition deed. On the other hand, the defendants got marked the documents at Exs.D1 to 30 i.e., GPA, original gift deed, copy of tax paid receipt, tax paid receipt, SAS Forms, water bill, electricity bills and receipt, conversion letter, water bills and receipts, work order, certificate, purchase of water meter, aadhar cards, ration card and sale deed.
10. Having considered all these documents and also considering the material available on record and also the admission on the part of P.W.1, the Trial Court comes to the conclusion that thought the plaintiff denies the execution of the very document of Ex.D30 i.e., unregistered sale deed, taken note of the fact that this sale deed, which is marked as Ex.D30 shows that the plaintiff and his wife have handed over the possession of the suit schedule property to Jayalakshmi on 19.06.1982 itself. During the evidence of P.W.1, he has
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NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR not denied the execution of the said document and only contention was taken that Ex.D30 is not a registered document and hence it is the very contention of the plaintiff that he has not executed the document of Ex.D30. It is not his case that it is a created document. Only in the cross- examination of D.W.1, he has suggested to D.W.1 that he has not executed such document and the signatures found in the said document are not his signatures. The Trial Court has taken note of the very execution of the document of Ex.D1 i.e., GPA, which shows that Jayalakshmi handed over the possession of the suit schedule property to defendant No.1 and Ex.D.2, which shows that defendant No.1 handed over the possession of the suit schedule property to defendant No.2 on 14.09.2005. A detailed discussion is made in paragraph No.18 and taken note of that there is no pleading regarding dispossession of the plaintiff over the suit schedule property and also the plaintiff has not pleaded how the defendants got in possession of the property and there is no explanation with regard to the possession, but only contend that he found the possession of defendant Nos.1 and 2 when he went around in 2009. Having considered the material available on record, particularly the property is in possession
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NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR of the subsequent purchaser in the year 1982, comes to the conclusion that the suit is barred by limitation and answered issue No.2 in the affirmative in coming to the conclusion that suit is barred by limitation.
11. The First Appellate Court having re-assessed the material available on record, taken note of that the suit is filed after 27 years from the date of the delivery of possession, which was parted in favour of the purchaser in the year 1982. The First Appellate Court also taken note of Article 65 of the Limitation Act that the suit has to be instituted within 12 years from the date when the possession of the land becomes adverse to the plaintiff. Admittedly, though the document of Ex.D30 was not registered, the same was executed in the year 1982, wherein also the recitals clearly discloses the delivery of possession. The Appellate Court also re-assessed the material that there is no specific pleading in the plaint for having dispossessed or possession was given to the defendants. When such being the case, the Appellate Court also re-assessed the material that the suit is barred by limitation invoking Article 65 of the Limitation Act and the same is filed after a long delay and comes to the
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NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR conclusion that the suit is barred by limitation. The suit is filed after 27 years of the delivery of possession and subsequent to the document of Ex.D30, power of attorney was executed in favour of the defendants in the year 2005 and the plaintiff noticed the construction in the year 2009 having parted with the possession in the year 1982. When such being the case, I do not find any ground to admit the appeal and frame substantial question of law and already both the Courts have considered the substantial question of law suggested by the learned counsel for the appellant with regard to the limitation is concerned.
12. The learned counsel for the appellant would contend that Ex.D30 is an unregistered document. No doubt, the said document is an unregistered document, but the Trial Court has not given any finding in favour of the defendants with regard to the said document of Ex.D30 and the same was taken note of only for the purpose of considering the possession was given long back and the suit is filed after 27 years of parting with possession. When such being the case, I do not find any ground to admit the appeal and frame
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NC: 2025:KHC:20738 RSA No. 60 of 2023 HC-KAR substantial question of law on the aspect of Ex.D30 also. Hence, no ground is made out.
13. In view of the discussions made above, I pass the following:
ORDER The appeal is dismissed.
Sd/-
(H.P.SANDESH) JUDGE MD List No.: 1 Sl No.: 48