Karnataka High Court

D R Chandrashekar vs D P Devaraju on 20 August, 2025

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                                                              NC: 2025:KHC:32507
                                                             RSA NO.931 OF 2016


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                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                                DATED THIS THE 20TH DAY OF AUGUST, 2025

                                                BEFORE
                               THE HON'BLE MR. JUSTICE E.S.INDIRESH

                       REGULAR SECOND APPEAL NO. 931 OF 2016 (DEC/INJ)

                      BETWEEN:

                      1.    D.R. CHANDRASHEKAR
                            SINCE DEAD, REP. BY LRS.
                            APPELLANTS 2 TO 4.

                      2.    ROOPA
                            W/O SRI. RAMESH
                            AGED ABOUT 36 YEARS.

                      3.    RESHMA
                            W/O SATHYANARAYANA
                            AGED ABOUT 32 YEARS.

                      4.    MAMATHA
                            D/O D.R. CHANDRASHEKAR
                            AGED ABOUT 29 YEARS.
Digitally signed by
SHARMA ANAND          5.    SHILPA RANGANATH
CHAYA
Location: HIGH              W/O SRI. N. RANGANATH
COURT OF
KARNATAKA                   AGED ABOUT 36 YEARS.

                            ALL ARE RESIDENTS OF
                            DANTRAMAKKI EXTN.,
                            JYOTHI NAGAR POST,
                            CHIKKAMAGALURU CITY - 577 101.
                                                                   ...APPELLANTS
                      (BY SRI. PAVAN KUMAR N., ADVOCATE FOR
                       SRI. L. SRINIVASA BABU, ADVOCATE)
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AND:
1.       D.P. DEVARAJU
         S/O PUTTEGOWDA,
         AGED ABOUT 43 YEARS,
         R/O DANTRAMAKKI EXTN.,
         JYOTHINAGARA POST,
         CHIKKAMAGALUR CITY - 577 101.

2.       MOHAN KUMAR
         S/O. CHIKKANNA
         AGED ABOUT 36 YEARS,
         R/O NAGAPPANA COLONY,
         TARIKERE TOWN, TARIKERE TALUK,
         CHIKKAMAGALUR DISTRICT - 577 228.

3.       CHANDRA
         SINCE DEAD, REP. BY LRS.

3(a). SMT. MAMATHA
      W/O LATE CHANDRA @ CHANDRAPPA
      AGED ABOUT 45 YEARS.

3(b). SHUBHASHREE T.C.
      D/O LATE CHANDRA @ CHANDRAPPA
      AGED ABOUT 22 YEARS.

3(c).    AISHWARYA T.C.
         D/O CHANDRA @ CHANDRAPPA
         AGED ABOUT 21 YEARS.

3(d). DEEKSHITHA T.C.
      D/O CHANDRA @ CHANDRAPPA
      AGED ABOUT 19 YEARS.

         RESPONDNETS 3(a) TO 3(d) ARE
         R/AT NAGAPPANA COLONY,
         TARIKERE TOWN,
         CHIAKKAMAGALURU DISTRICT - 577 228.
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4.       RAVIKUMAR
         S/O PAPANNA
         AGED ABOUT 33 YEARS.

5.       PAPANNA
         S/O LATE DODDAPPAGOWDA,
         AGED ABOUT 69 YEARS.

         RESPONDENTS 4 AND 5 ARE
         R/AT NAGAPPANA COLONY,
         TAKIRKERE TOWN,
         CHIKKAMAGALURU DISTRICT - 577 228.

                                              ...RESPONDENTS
(BY SRI. PRAKASH M.H., ADVOCATE)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 05TH MARCH, 2016
PASSED IN REGULAR APPEAL NO.65 OF 2012 ON THE FILE OF
THE II ADDITIONAL DISTRICT JUDGE, CHIKKAMAGALURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 13TH JUNE, 2012 PASSED IN ORIGINAL
SUIT NO.168 OF 2007 ON THE FILE OF THE ADDITIONAL
SENIOR CIVIL JUDGE AND JMFC., CHIKKAMAGALURU,
DECREEING THE SUIT FILED BY THE PLAINTIFFS.

     THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM:      HON'BLE MR. JUSTICE E.S. INDIRESH


                      ORAL JUDGMENT

This appeal is preferred by defendants 1 to 5, challenging

the judgment and decree dated 05th March, 2016 passed in

Regular Appeal No.65 of 2012 on the file of the II Additional

District Judge, Chikkamagaluru (for short, hereinafter referred

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to as 'First Appellate Court'), dismissing the appeal and

confirming the judgment and decree dated 13th June, 2012

passed in Original Suit No.168 of 2007 on the file of the

Additional Senior Civil Judge and JMFC., Chikkamagaluru (for

short, hereinafter referred to as 'Trial Court'), wherein the suit

filed by the plaintiffs came to be decreed.

2. For the sake of convenience, the parties in this

appeal are referred to as per their ranking before the Trial

Court.

3. The relevant facts for adjudication of this appeal are

that the land bearing Survey No.110/1 of Dantaramakki Village,

Chikkamagaluru District measuring to an extent of 34 guntas is

described as 'B' Schedule property. Plaintiffs are the

grandchildren of late Doddappegowda. The said

Doddappegowda acquired the schedule property by way of

succession. It is also stated that the said Doddappegowda had

five children namely, 1) Puttegowda-defendant No.6 (father of

the plaintiff No.1), 2) Chikkanna, 3) Sannappaiahanna (his

whereabouts are not known to parties), 4) Kenchamma, and 5)

Papanna. On 09th March, 1965, Doddappegowda and his son

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Puttegowda-defendant No.6 have executed a registered Sale

Deed in favour of one D.R. Rangegowda to an extent of 29

guntas of land in Survey No.128 and the remaining four

children of Doddappegowda were not parties to the said

registered Sale Deed. Therefore, it is contended by the

plaintiffs that the said registered Sale Deed dated 09th March,

1965 is not binding on the plaintiffs. It is the specific

contention of the plaintiffs that they have not claimed right

over 29 guntas of land in Survey No.128 however, the

defendant No.1 induced the defendant No.6-Puttegowda to

execute a Rectification Deed dated 11th April, 2002 and rectified

the survey number as Survey No.110/1 with an intention to

grab the schedule property.

4. It is the further case of the plaintiffs that the

siblings of the defendant No.6 were not parties to the said

Rectification Deed dated 11th April, 2002. It is also averred in

the plaint that, there was a partition in the family of the

defendant No.1 on 03rd December, 1999 and in the said

partition, the land bearing Survey No.110 was not included. It

is also contended that the rectification deed was made pursuant

to the Partition Deed dated 02nd December, 1999 and

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therefore, the execution of the rectification deed is illegal and

accordingly, sought for cancellation of the same.

5. The plaint averments further reveals that the

defendant No.1 on behalf of the defendants 2 to 4 through

Power of Attorney has sold the 'B' schedule property in favour

of the defendant No.5 and the defendant No.5 is the brother's

daughter of the defendant No.1. Hence, plaintiffs filed Original

Suit No.168 of 2007, seeking to declare that the Rectification

Deed dated 11th April, 2002 and the registered Sale Deed dated

31st December, 2003 as null and void and not binding on the

plaintiffs.

6. After service of notice, defendants 1 to 5 entered

appearance and defendant No.1 categorically denied the

averments made in the plaint. It is the specific case of the

defendants 1 to 5 that the plaintiffs have filed suit at the

instigation of defendants 6 to 8, seeking additional payment

and accordingly sought for dismissal of the suit.

7. The Trial Court, based on the pleadings on record,

formulated issues for its consideration.

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8. In order to establish their case, plaintiffs examined

3 witnesses as PW1 to PW3 and marked 16 documents as

Exhibits P1 to P16. On the other hand, defendant No.1

examined as DW1 and got marked 5 documents as Exhibits D1

to D5.

9. The Trial Court, after considering the material on

record, by its judgment and decree dated 13th June, 2012,

decreed the suit of plaintiffs and as such, declared the

Rectification Deed dated 11th April, 2002 and Sale Deed dated

31st December, 2003 in respect of the 'B' schedule property as

null and void and not binding upon the plaintiffs. Being

aggrieved by the same, defendants 1 to 5 have filed Regular

Appeal No.65 of 2012 before the First Appellate Court and

same was resisted by respondents 1 to 6 therein. The First

Appellate Court, after re-appreciating the material on record,

by its judgment and decree dated 05th March, 2016, dismissed

the appeal and as such, confirmed the judgment and decree

dated 13th June, 2012 passed by the Trial Court in Original Suit

No.168 of 2007. Being aggrieved by the same, defendants 1 to

5 preferred this appeal.

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10. This Court, by order dated 29th June, 2016,

admitted the present appeal to consider the following

substantial questions of law:

1) Were the Courts below justified in decreeing the suit of the plaintiff without observing the fact that schedule B property was self acquired property of late Doddappegowda (grandfather of plaintiffs) during his life time having sold schedule B property in favour of D.R. Rangegowda, brother of defendant No.1 under the registered sale deed dated 09.03.1965?

2) Whether the Courts below justified in decreeing the suit of the plaintiffs in the absence of challenge to the original sale deed dated 09.03.1965 only on the basis to seek declaration to declare the rectification deed dated 11.4.2002 as null and void without praying for setting aside the original sale deed dated 9.3.1965?

3) Whether the lower Appellate Court is justified in reversing the judgment and decree of the trial court in the facts and circumstances of the present case?

11. Heard Sri. Pavan Kumar N., learned counsel on

behalf of Sri. L. Srinivasa Babu, appearing for appellants and

Sri. Prakash M.H., learned counsel appearing for respondents.

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12. Sri. Pavan Kumar N., learned counsel appearing for

appellants contended that the original propositus-

Doddappegowda and his son Sri. Puttegowda-defendant No.6

have sold the 'B' schedule property as per the registered Sale

Deed dated 09th March, 1965 in favour of the D.R.

Rangegowda, who is none other than the brother of defendant

No.1 and the said aspect of the matter was ignored by both the

Courts below. He further contended that the Courts below have

ignored the fact that the 'B' schedule property was the self

acquired property of late Doddappegowda (grandfather of the

plaintiffs).

13. It is further argued by learned counsel appearing for

appellants that the plaintiffs have sought for cancellation of the

Rectification Deed dated 11th April, 2002, without seeking to

declare that the original Sale Deed dated 09th March, 1965 as

null and void. Accordingly, he sought for interference of this

Court.

14. Per contra, Sri. Prakash M.H., learned counsel

appearing for respondents invited the attention of the Court to

Section 26 of the Specific Relief Act, 1963 and contended that

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the rectification of the deed is permissible only by the parties in

the instrument and in the absence of such parties or the legal

heirs of the deceased parties, the rectification deed is not

permissible under law. In this regard, learned counsel

appearing for respondents places reliance on the judgment of

Hon'ble Supreme Court in the case of JOSEPH JOHN PETER

SANDY vs. VERONICA THOMAS RAJKUMAR AND

ANOTHER reported in AIR 2013 SC 2028 and accordingly,

sought for dismissal of the appeal.

15. In the light of the submission made by learned

counsel appearing for the parties, it is not in dispute that the

original propositus-Doddappegowda had acquired the property

by way of succession and the defendant No.6-Puttegowda is the

son of Doddappegowda. It is also not in dispute that on 09th

March, 1965, the said Doddappegowda and the defendant No.6

executed the registered Sale Deed in favour of D.R.

Rangegowda to an extent of 29 guntas of land in Survey

No.128 of Dantaramakki Village, Chikkamagaluru District. The

finding recorded by the Trial Court would indicate that the

purchaser of the land viz., D.R. Rangegowda is the elder

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brother of the defendant No.1. In the partition said to have

been effected on 02nd December, 1999 (Exhibit D1) in the

family of defendants 1 to 4, the subject land to an extent of 29

guntas in Survey No.128 was allotted to the share of the

defendant No.1. It is also to be noted that the defendant No.1

got executed the Rectification Deed dated 11th April, 2002 after

lapse of nearly four decades from the date of registered Sale

Deed and that apart, the said rectification deed was executed

by the defendant No.6 alone and none of his brother/sisters

i.e., all the children of late Doddappegowda were parties to the

rectification deed. As per the Rectification Deed dated 11th

April, 2002, the survey number has been changed from old

Survey No.128 to new Survey No.110 and no alteration has

been made in respect of the schedule land. In that view of the

matter, the boundaries stipulated in the Sale Deed dated 09th

March, 1965 as having been changed and to that aspect, no

proper explanation has been made by the contesting

defendants. Therefore, taking into consideration the finding

recorded by the Trial Court on issue Nos.1 and 2, I am of the

view that the Trial Court after, proper appreciation of the

material on record, rightly decreed the suit of plaintiffs.

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16. Nextly, I have given my anxious consideration to the

language employed under Section 26 of the Specific Relief Act,

1963, which provided as under:

"either party or his representative in interest may institute a suit to have the instrument rectified."

17. Hon'ble Supreme Court in the case of JOSEPH

JOHN PETER SANDY (supra) at paragraph 7 held as under:

"7. Thus, in view of the above, it can be held that Section 26 of the Act has a limited application, and is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intentions of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by non else."

18. Following the law declared by the Hon'ble Supreme

Court in the aforesaid case, since all the legal representatives

of late Doddappegowda except the defendant No.6, are not

parties in the Rectification Deed dated 11th April, 2002, the said

document cannot be considered as legally enforceable in

nature. Therefore, I am of the view that the Trial Court rightly

decreed the suit of plaintiffs. Having arrived at a conclusion

that the Rectification Deed dated 11th April, 2002 is null and

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void, consequently, Sale Deed dated 31st December, 2003 is