Karnataka High Court
Paruvashetty vs Chief Officer, Town Panchayath on 26 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:49216
RSA No. 969 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 969 OF 2024 (DEC/INJ)
BETWEEN:
PARUVASHETTY
S/O MALLAPPASHETTY,
AGED ABOUT 68 YEARS,
R/AT NO.327,
JAYANAGARA EXTENSION,
K R PETE TOWN,
MANDYA DISTRICT - 571 426
...APPELLANT
(BY SRI. KUMARA K.G., ADVOCATE)
AND:
1. CHIEF OFFICER,
TOWN PANCHAYATH
K.R PETE TOWN,
Digitally signed
by DEVIKA M
Location: HIGH 2.
COURT OF SHIVARDURAIAH
KARNATAKA S/O DODDAIAHSHETTY
AGED ABOUT 78 YEARS,
3. DHANALAKSHMI
W/O K SHIVARUDRAIAH ,
AGED ABOUT 64 YEARS,
4. JAYARAMU
S/O NANJEGOWDA,
AGED ABOUT 53 YEARS,
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NC: 2025:KHC:49216
RSA No. 969 of 2024
HC-KAR
5. GOVINDARAJU
S/O RAMASHETTY
AGED ABOUT 48 YEARS,
RESPONDENTS NO.2 TO 5 ARE RESIDING AT
JAYANAGARA EXTENSION,
K.R PETE TALUK
MANDYA DISTRICT - 571 426
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.03.2024
PASSED IN RA.NO.5033/2022 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA,
(SITTING AT SRIRANGAPATNA) DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 14.10.2022
PASSED IN OS.NO.139/2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, KRISHNARAJPET.
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 second appeal is filed against the concurrent findings of the Trial Court and the First Appellate Court.
2. Heard the learned counsel for the appellant. This matter is listed for admission.
3. The factual matrix of the case of the plaintiff, while seeking the relief of declaration and permanent -3- NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR injunction in O.S. No.139/2006. It is contented that the plaintiff is the owner and in possession of the suit schedule property that, more fully described in the schedule as 8 guntas of land and that the defendants are interfering with his possession of the suit schedule property.
4. In pursuance of the suit summons, defendant No.1 was placed ex-parte. Defendant Nos.2 to 5 appeared and filed their objections contending that the plaintiff had no right to alienate the suit schedule property and also not in possession of the property. It is contended that defendant No.1 formed road long back and electric poles have been erected. The plaintiff has filed a false suit with larger extent and hence, he is not entitled for the relief.
5. The Trial Court having considered both oral and documentary evidence available on record, comes to the conclusion based on the report of the Commissioner. Since two commissioners were appointed and the report of the first one was rejected and second Commissioner has also filed the report, which was objected by the plaintiff. -4-
NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR However, his contentions were not accepted and comes to the conclusion that plaintiff has not made out any ground to reject the Commissioner's report.
6. The Trial Court having considered the evidence of CW2, who is the Commissioner and also the reports marked as Exs.C5 and C6 is very clear that, though as per the documents had ownership of 29 guntas in all, but in factuality had possession of 6½ guntas is less than total extent of land of 29 guntas. The land bearing Survey No.263/3 is measuring 22½ guntas as against the revenue entries of 29 quntas. He has specifically deposed that sale deed is in excess of 6½ guntas as against the survey documents.
7. Hence, it clearly transpires that vendor of the plaintiff did not have the right to alienate the property in excess, as claimed by the plaintiff. Thus, the plaintiff has failed to prove his possession over the suit schedule property in its entirety. Without there being any possession, without the property being in existence, the -5- NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR plaintiff cannot claim ownership over the suit schedule property.
8. Hence, the Court answers Issue Nos.1 and 2 as 'negative' with regard to the interference is concerned and also comes to the conclusion that plaintiff is not entitled to the relief of declaration and permanent injunction. The Court by referring the judgment of Ananthula Sudhakar vs. P.Buchi Reddy (Dead) by LRs reported in (2008) 4 SCC 594, and dismissed the suit of the plaintiff.
9. Being aggrieved by the said judgment and decree the plaintiff filed an appeal is filed in RA No.503/2022. The Appellate Court having considered the grounds urged, formulated the following points for consideration:
"1 Whether the findings of the trial Court that plaintiff has failed to prove his ownership and possession over the suit schedule property?
2. Whether the trial Court is justified in holding that plaintiff has failed to prove alleged interference?-6-
NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR
3. Whether the suit of the plaintiff is not maintainable?
4. Whether the judgment and decree of the Trial Court calls for interference?"
10. The first appellate court having reassessed both oral and documentary evidence in light of the grounds urged, comes to the conclusion that the Trial Court held that plaintiff has failed to prove his ownership and possession of the suit schedule property. Similarly, regarding the alleged interference, no such interference was established. Accordingly, Point Nos.1 and 2 were answered as 'affirmative' and Point Nos.3 and 4 were answered as 'negative'.
11. The Appellate Court while coming to such a conclusion, considered both the oral and documentary evidence. As noted in paragraph 30, taken note of that in order to measure and identify the properties, two Court Commissioners were appointed and subsequent Commissioner also examined as CW2. It is the definite -7- NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR evidence of PW1 that he is the owner in possession of the suit schedule property by virtue of the registered sale deed dated 28.08.1992. But, the defendants categorically denied the title and possession of the suit schedule properties.
12. The plaintiff claimed possession in terms of Exhibit P3, but the Court Commissioner's report (Ex.C5 and C6) and the sketch (Ex.C5) indicated that although the vendor of the plaintiff had ownership over 29 guntas, actual possession was only 22½ guntas. A vendor cannot convey more property than he actually possesses. CW5 and CW6 shows that Bhairashetty and his family had no right to alienate the excess land as claimed by the plaintiff. CW2 further confirmed that only 22½ guntas in Sy. No.263/3 were in existence.
13. The plaintiff contended that the defendants have encroached upon 6½ guntas covered by the sale deed of himself and his wife. However, no land in Sy. -8-
NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR No.263/3 exists to the extent of 8 guntas of land as claimed and the plaintiff failed to prove exclusive possession over the 8 guntas of land. Accordingly, the Trial Court's findings regarding possession and interference are not erroneous.
14. The Appellate Court also referred to the principles laid down in Ananthula Sudhakar (supra), noting that since relief for possession was not claimed, the plaintiff's suit in its present form is not maintainable. Therefore, the Appellate Court confirmed the judgment of the Trial Court.
15. Being aggrieved by the said findings, the present appeal is filed. The main contention of the appellant is that the First Appellate Court committed an error in dismissing the appeal and confirming the judgment of the Trial Court. It is urged that both the Courts committed an error in holding that the plaintiff is not in possession, even though when the sale deed dated -9- NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR 24.02.1982 is not disputed by the defendant-respondent. When the sale deed discloses the plaintiff's ownership, the suit for declaration and possession ought not to have been dismissed. Hence, this Court has to admit the appeal and frame substantial questions of law.
16. The learned counsel for the appellant further submits that the correct survey number is 262/3 and not 263/3, and that an error had occurred in referring to the survey number both before the Trial Court and the Appellate Court. Hence, the survey number shall be treated as 262/3, as mentioned in the sale deed.
17. Having heard the learned counsel for the appellant, and on considering the pleadings of the plaintiff before the Trial Court as well as the contentions of the defendant, and further taking into account the issues involved between the parties along with both the oral and documentary evidence on record, it is noted that though the plaintiff claims declaration and possession in respect of 8 guntas of land, the Court Commissioner, who was
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NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR appointed for the second time and examined as CW2, has clearly deposed that the actual extent of land is only 22½ guntas and not 29 guntas as mentioned in the revenue entries. This aspect was also considered in paragraph No.15, wherein it was observed that the vendor cannot convey more than what he was in possession. Hence, despite the existence of a sale deed, when there was a shortfall of possession to the extent of land which was conveyed and when there was no possession and existence of the property, the Trial Court rightly dismissed the suit, as observed in paragraph No. 15.
18. The Appellate Court, on re-assessing both oral and documentary evidence, particularly the evidence of CW2, the sketch marked as Exhibit C5, and the report at Exhibit C6, which clearly indicate that the vendor of the plaintiff was in possession of only 22½ guntas, has in paragraphs 34, 35, and 36 discussed the matter in detail and applied the principles laid down in Anantala Sudhakar (supra). It comes to the conclusion that when
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NC: 2025:KHC:49216 RSA No. 969 of 2024 HC-KAR the property itself was not in existence and not in possession, the question of granting a relief declaration or permanent injunction does not arise. Both the questions of fact and law have been duly considered, and when such being the case, and there being no perversity in the findings of both the Courts, I do not find any ground to invoke Section 100 of the CPC. Hence, there is no merit in the second appeal.
19. However, the claim of the appellant-plaintiff is that he may be granted liberty to file a fresh suit, after obtaining a proper survey report, for identifying the property actually in his possession and thereafter seeking appropriate reliefs. Hence, the said liberty, as sought, is granted.
20. With these observations, the second appeal stands disposed of.
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(H.P.SANDESH) JUDGE SMC/List No.: 1 Sl No.: 34