Karnataka High Court
Shivashankar S/O Siddramappa ... vs Smt. Ansuyabai D/O Srirankg Kathare W/O ... on 19 August, 2025
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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RSA No. 7425 of 2013
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IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 19TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 7425 OF 2013 (DEC/INJ)
BETWEEN:
1. SHIVASHANKAR
S/O SIDDRAMAPPA BENKANALLI,
AGE: 36 YEARS,
OCC: AGRICULTURE,
2. SUBHASCHANDRA
S/O LAXMAN BENKANALLI,
AGED : 57 YEARS,
OCC: AGRIL.,
BOTH ARE R/O: TEGGELLI,
AFZALPUR TQ.,
Digitally signed GULBARGA DIST - 585 102.
by RENUKA ...APPELLANTS
Location: HIGH (BY SRI ANANTH S. JAHAGIRDHAR, ADVOCATE)
COURT OF
KARNATAKA AND:
SMT. ANSUYABAI
D/O SRIRANKG KATHARE,
W/O PADMAKAR
AGE: 47 YEARS,
OCC: HOUSEHOD,
R/O: NEAR KAILASH NAGAR,
BRAHMPUR, GULBARGA - 585 102.
...RESPONDENT
(BY SRI B.K. HIREMATH, ADVOCATE)
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RSA No. 7425 of 2013
HC-KAR
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CPC, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE DATED 14.08.2013 PASSED IN
R.A.NO.88/2011 BY THE III ADDL. SENIOR CIVIL JUDGE AT
GULBARGA, CONFIRMING THE JUDGMENT AND DECREE DATED
08.08.2011 IN O.S.NO.216/2008 PASSED BY THE V ADDL.
CIVIL JUDGE (JR.DN.), AT GULBARGA AND TO PASS AN
APPROPRIATE ORDERS IN THE INTEREST OF JUSTICE.
THIS REGULAR SECOND APPEAL, COMING ON FOR FINAL
HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS
UNDER:
CORAM: HON'BLE MR. JUSTICE SHIVASHANKAR
AMARANNAVAR
ORAL JUDGMENT
This Regular Second Appeal is filed by plaintiffs
praying to set aside the judgment and decree dated
14.08.2013 passed in RA No.88/2011 by the III Additional
Senior Civil Judge, Gulbarga confirming the judgment and
decree dated 08.08.2011 passed in O.S.No.216/2008 by
the V Additional Civil Judge (JR Dn), Gulbarga.
2. Appellants -plaintiff Nos.1 and 2 had filed suit
in O.S.No.216/2008 against the respondent -defendant
seeking relief of declaration that plaintiffs are owners of
suit property bearing Sy. No.103/2A measuring 02 acres
22 guntas towards eastern portion out of 06 acres 16
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guntas having boundaries- East: Road; West:GDA layout
in Sy.No.103/2A; North: Approved layout of Sy.No.104;
South: Remaining portion of land Sy.No.103/2A. The said
suit property situated at Shek Roza road, Kalaburagi.
Plaintiffs have also filed suit for relief of recovery of
possession of portion of suit property and direction to the
defendant for removal of illegal construction made over
the suit property and handover vacant possession to the
plaintiffs.
3. It is case of plaintiffs that land bearing
Sy.No.103/2A measuring 06 acres 16 guntas situated at
Shek Roza road, Kalaburagi was owned and possession by
one Shanker Rao Subedar and his name was appearing as
owner and possessor in the property records. The said
Shanker Rao Subedar died on 24.12.1996 leaving behind
his wife - Smt. Sumanbai and two sons namely
Laxmikanth and Khanderao. After the death of the
Shanker Rao Subedar, the suit land and other portions of
land came to be mutated in the names of Laxmikanth and
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Khanderao as joint owner and possessor of Sy.No.103/2A.
The said Laxmikanth and Khanderao sold the suit land to
plaintiffs under registered sale deed dated 23.01.2003 and
delivered vacant possession of suit land to plaintiffs.
Plaintiffs got mutated their names in the record of rights.
4. The defendant claiming to be the owner of one
gunta in the suit land alleged to have been purchased
from GPA holder of Shanker Rao Subedar under sale deed
dated 08.03.1997 for consideration of Rs.4,000/- and
trying to put up a construction over the said suit property.
The plaintiffs filed O.S.No.71/2003 on the file of II
Additional Civil Judge, (Jr.Dn), Gulbarga seeking the relief
of perpetual injunction from making any construction over
the suit property. The application filed by plaintiffs
seeking temporary injunction came to be rejected.
Thereafter, the said suit came to be dismissed on merits
by judgment dated 26.06.2007. Plaintiffs have filed
regular first appeal in RA No.120/2007 before the III
Additional Civil Judge (Sr.Dn), Gulbarga and the said
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appeal also came to be dismissed on merits by judgment
dated 13.12.2007. Thereafter, plaintiffs have filed the
present suit seeking relief on the ground that entire
construction made by the defendant is without any right
and it is illegal construction.
5. The defendant filed her written statement and
contended that suit for injunction filed by plaintiffs in
O.S.71/2003 has been dismissed on merits and even the
appeal filed by plaintiffs in RA No.120/2007 has also been
dismissed and therefore, the suit is not maintainable. The
defendant contended that the plaintiffs ought to have
included whole claim in respect of same cause of action in
earlier suit and contended that the suit is not maintainable
as per Order II Rule 3 of CPC. The defendant has disputed
the description of the suit property, title of plaintiffs over
the suit property and handing over possession of the suit
property under said sale deed dated 23.01.2003 by
Laxmikanth and Khanderao to plaintiffs. The defendant
contended that she has purchased one gunta land in Sy.
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No.103/2B under sale deed dated 08.05.1997 and
constructed building by obtaining construction permission
from Gram Panchayath and constructed two rooms and
her name is entered in the record of rights. With these
defendant prays for dismissal of the suit.
6. On the basis of the said pleadings, the trial
Court has framed the following issues;
"ISSUES
1. Whether the plaintiff proves that he is in lawful
possession and enjoyment of entire the suit
schedule property ?
2. Whether the plaintiff proves the alleged
interfere by the defendant in the portion of the
suit scheduled property?
3. Whether the plaintiff is entitled for the relief
claimed in the suit property ?
4. What order or decree ?
Additional Issue
1. Whether defendant proves that suit is as per
provisions of Order 2 Rule 2 of CPC is barred in
view of dismissal of earlier suit O.S. No.71/03?"
7. Plaintiff No.2 has been examined as P.W.1 and
got marked documents as Ex.P1 to 8. The defendant has
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not lead any defence evidence and not produced any
documents. The trial Court after hearing arguments and
appreciating evidence on records has answered issue
Nos.1 to 3 and additional issue in the negative and
dismissed the suit of plaintiffs.
8. Aggrieved by the said judgment of the trial
Court, plaintiffs have filed first appeal in RA No.88/2011.
The said appeal came to be dismissed on merits affirming
the judgment and decree passed by the trial Court.
9. The present Second Appeal came to be
admitted to consider following substantial question of law;
"1. Whether the sale deed executed by the General
Power of Attorney holder in favour of
respondent-defendant subsequent to the death
of Principal confers any right, title or interest in
the property purchased by the defendant?
2. Whether the Trial Court and the First Appellant
Court are justified in ignoring the evidence of
the plaintiff which remained unrebutted as there
is no cross-examination and dismissing the
suit?"
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10. Heard learned counsel for appellants. Learned
counsel for the respondent is absent.
11. Learned counsel for appellants would contend
that the respondent -defendant has purchased one gunta
land in Sy. No.103/2A from GPA holder -Digambar Rao of
Shanker Rao Subedar by virtue of General Power of
Attorney dated 22.03.1994 and as on the date of sale
deed i.e., 08.05.1997 the said Shanker Rao Subedar was
not alive and he died on 24.12.1996 as per Ex.P6 -death
certificate. Therefore, the GPA holder -Digamber Rao has
no authority to execute sale deed dated 08.05.1997 based
on the GPA executed by Shanker Rao Subedar. Therefore,
the defendant has not acquired any title of one gunta land
in Sy.No.103/2A. He further submits that evidence of
P.W.1 has remained unrebutted as there is no cross
examination. Considering the same, the trial Court and
First Appellate Court ought to have believed the evidence
of P.W.1 and decreed the suit. With these he prays to
allow the appeal.
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12. Having heard learned counsel, the Court has
perused the impugned judgments and trial Court records.
13. The property described in para No.2 of the
plaint is as under;
"The description of the suit property is land
Sy.No.103/2A measuring to the extent of 2 acres 22
guntas towards eastern portion out of 6 acres 16
guntas having bounded by:
East : Road
West : GDA layout in Sy.No.103/2A
South: Remaining portion of land Sy.No.103/2A
Situated at Shek Roza, Gulbarga
(Herein after called the suit property)"
Plaintiffs purchased the suit property under sale deed
-Ex.P1. The description of the property purchased by
plaintiffs as per sale deed -Ex.P1 is as under;
"The vendors as an absolute owner hereby
transferors and conveys to the purchaser by way of any
absolute sale of all that portion of land Sy. No.103/2AA
measuring to the extent of 2 acres 22 guntas towards
northern portion out of 6 acres 16 guntas having
bounded by:
East : Land Sy. No. 1 of Brahampur, Gulbarga
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West : GDA layout
North : Sy.No. 104 of Shaikh Roza
South: Remaining portion of land of Vendor
Sy. No. 103/2AA
Situated at shaikh Roza, Gulbarga"
On perusal of both description of the property, both
will not tally. Property purchased under sale deed -Ex.P1
is northern portion of Sy.No.103/2AA measuring 02 acres
02 guntas out of 06 acres 16 guntas. But the property
described in the plaint in para No.2 is eastern portion of
Sy.No.103/2A measuring 02 acres 22 guntas out of 06
acres 16 guntas. Whenever plaintiffs claims declaration of
title, the description of the property should be proper and
accurate.
14. It is contention of appellants -plaintiffs that the
defendant purchased one gunta land in Sy.No.103/2AA
under sale deed dated 08.05.1997 from one Digambar Rao
-GPA holder of Shanker Rao Subedar and the said GPA is
dated 22.03.1994. Plaintiffs have not produced certified
copy of said sale deed dated 08.05.1997 and GPA dated
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22.03.1994 even though both are registered documents.
In the absence of said two documents, substantial
question of law No.1 cannot be considered since date of
sale deed and date of GPA document are required for
consideration of substantial question of law No.1.
15. Plaintiffs contended that property measuring
one gunta purchased by the defendant will fall within the
property purchased by plaintiffs measuring 02 acres 22
guntas in Sy.No.103/2AA. In order to prove the said
contention no evidence is placed on record. Plaintiffs ought
to have got conducted survey in order to establish that the
property of the defendant measuring one gunta will fall
within boundaries of the property purchased by plaintiffs
under sale deed -Ex.P1. In the absence of the said
aspects even though there is no cross examination of
plaintiff No.2 -P.W.1, the suit of plaintiffs cannot be
decreed placing reliance on the chief examination of
P.W.1.
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16. Considering all these aspects, substantial
question of law Nos.1 and 2 are answered accordingly and
The Second Appeal is dismissed.
Sd/-
(SHIVASHANKAR AMARANNAVAR)
JUDGE
DSP
