Karnataka High Court
Sri Basavarajappa vs M B Gangadhara on 14 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 191 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.191 OF 2022 (DEC/INJ)
BETWEEN:
1. SRI. BASAVARAJAPPA
S/O LATE KALAPPA
AGED ABOUT 69 YEARS
PRESENTLY RESIDING AT DOOR NO.72
BIDAGALU VILLAGE, WARD NO.11
SARAGUR TOWN, SARAGUR TALUK
MYSURU DISTRICT-571 121.
...APPELLANT
(BY SRI. KUMBAR VASANT FAKEERAPPA, ADVOCATE)
AND:
M.B.GANGADHARA
Digitally signed SINCE DEAD BY HIS LRS.
by DEVIKA M
Location: HIGH 1. SRI. M.G.SRIKANTA
COURT OF SINCE DEAD BY HIS LRS.
KARNATAKA
1(a) SMT.LEELAVATHI
W/O LATE M.G.SRIKANTA
AGED ABOUT 56 YEARS
1(b) SINDHU
D/O LATE M.G.SRIKANTA
AGED ABOUT 30 YEARS
1(c) LAKSHMI
D/O LATE M.G.SRIKANTA
AGED ABOUT 27 YEARS
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RSA No. 191 of 2022
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RESPONDENTS NO.1(a) TO 1(c) ARE
RESIDING AT NO.82, D-BLOCK
S.B.M. LAYOUT, BHOGADI (CT)
MYSURU-570 026.
2. SMT. M.G. SHYLAJA
D/O LATE GANGADHARA
W/O NAGARAJU
AGED ABOUT 61 YEARS
3. SRI. M.G. NAGESH
S/O LATE GANGADHARA
AGED ABOUT 58 YEARS
RESPONDENTS NO.2 AND 3 ARE
PRESENTLY RESIDING AT
BIDAGALU VILLAGE, WARD NO.11
SARAGUR TOWN, SARAGUR TALUK
MYSURU DISTRICT-571 121.
4. THE SECRETARY
SARAGUR GRAM PANCHYATH
SAGARE, H.D.KOTE TALUK
MYSURU DISTRICT-571 114.
...RESPONDENTS
(BY SRI. G.B.NANDISH GOWDA, ADVOCATE FOR
R1(a to c) TO R3;
NOTICE TO R4 SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.09.2021
PASSED IN R.A.NO.6/2017 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, H.D.KOTE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
06.04.2017 PASSED IN O.S.NO.8/2002 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, HEGGADADEVANAKOTE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 191 of 2022
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellant and learned counsel for the
respondent Nos.1(a) to (c) to 3.
2. This appeal is filed against concurrent finding. The
case of plaintiff while seeking the relief of declaration and
injunction is to declare the plaintiff as the absolute owner of the
suit schedule property bearing Site No.58, situated at Bidagalu
Village, H.D.Kote measuring East to West 55 feet, North to
South 37½ feet, which is more fully described in the schedule.
It is also contended that the suit schedule property originally
belongs to late Patel Madappa of Bidagalu Village, who was in
possession of the same during his lifetime. Patel Madappa was
married, but he had no children and therefore, he executed a
Will dated 10.10.1970 in favour of his brother's son, Kalappa,
who was looking after his welfare. Based on the said Will, he
claimed title in respect of the suit schedule property and also it
is stated that Patel Madappa died on 08.11.1974. Hence, Will
came into force. Soon after the death of Patel Madappa,
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Kalappa took over possession of the schedule property and
continued to be in possession till his death i.e., 08.05.1975.
During his lifetime, Kalappa could not get the khatha mutated
in his name. After the death of Kalappa, the suit schedule
property has been in possession and enjoyment of the legal
representatives including the plaintiff, who is his second son
and is managing the affairs of his family. The defendant no. 1,
who has no right, title and interest over the suit schedule
property started interfering with plaintiff's peaceful possession
and enjoyment of the property and when he has applied to the
defendant No.2 for change of khatha in his name on
08.11.2001 and is trying to get the same mutated in collusion
with defendant No.2. The defendant No.1 is an influential
person and if the khatha is changed to his name, the plaintiff
would be put to inconvenience.
3. In pursuance of the suit summons, defendant Nos.1
and 2 appeared and filed their written statement. The
defendant No.1 in the written statement denied the entire
plaint averments and also denied that she was in possession
and enjoyment of the property and also subsequent to her
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death, her daughters Subamma and Basamma executed a
registered sale dated 20.12.1974 in favour of defendant No.1.
Thereafter, defendant No.1 has been in possession and
enjoyment of the suit schedule property. The defendant No.1
also died and his legal representatives were also brought on
record.
4. The Trial Court having considered the pleadings of
the parties, framed the issues whether the plaintiff proves that
he is the absolute owner of the suit schedule property, whether
the plaintiff is in lawful possession and whether the plaintiff
proves interference and the defendant No.1 took the contention
that he is the absolute owner of the suit schedule property by
means of registered sale deed dated 20.12.1974 and that he
has been in possession and enjoyment of the property. The
Trial Court having given an opportunity to both the plaintiff as
well as defendants, assessed the evidence available on record,
answered issue Nos.1 to 3 as 'negative' and issue No.4 as
'affirmative', in coming to the conclusion that defendant No.1
had purchased the property on 20.12.1974. The Trial Court also
taken note of the admission on the part of P.W.1 that no title
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documents are placed on record and only relying upon the
document of Will which is discussed in Paragraph No.13 that
there is no document or explanation as to whether the plaintiff
went to the Panchayath Office as per Ex.P5 and also observed
that on perusal of Ex.P6 on the second page, there has been an
interpolation in blue ink with respect to the boundaries of the
property and the same is also not accepted and so also in
respect of documents Exs.P8 to P10, discussed in detail in
paragraph No.14 and in paragraph No.15 discussed about
Ex.P16 is the property tax demand register extract for the year
2014-2015 and also taken note of name of the owner noted as
Kalappa, S/o. Mariyanna. If at all the khatha was changed in
the name of plaintiff as shown in Ex.P11 for the year 2004-
2005, why is the demand register extract for the year 2005-
2006 as per Ex.P13 and property tax demand register extract
as per Ex.P16 for the year 2014-2015 are showing the name of
Kalappa for the year 2005-2006 and 2014-2015 is also
considered by the Trial Court.
5. The Trial Court also in detail discussed the material
available on record and in paragraph No.19 discussed with
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regard to the evidence of P.W.2, in so far as execution of the
Will is concerned is of no much consequence for mainly two
reasons. Firstly, because the defendants have not disputed the
execution of the Will, rather it is their contention that Patel
Madappa could not have bequeathed the suit schedule property
as he did not have any title over the same and it was not a
property capable of being disposed by him by Will. Secondly for
the reason that in the cross-examination, P.W.2 stated that his
father informed him about the bequest of suit schedule
property under the Will, but stated that his father did not
inform him about the bequest of other properties under the
Will. Hence, an observation is made that the said admission
itself shows that evidence of P.W.2 cannot be relied upon
because there is no special reason why father of P.W.2 would
inform him only about the suit schedule property and not about
the other properties under the Will.
6. The Trial Court having considered both oral and
documentary evidence in paragraph No.22 comes to the
conclusion that under the purported Will dated 10.10.1970
though the father was absolute owner in possession of the suit
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schedule property and that he was capable of disposing the suit
schedule property by testamentary disposition within the
meaning of Section 30 of Hindu Succession Act and the
provisions of the Indian Succession Act. In the absence of such
proof that Patel Madappa had title to the schedule property and
in the absence of any title, question of granting the relief of
declaration does not arise and the same is dismissed.
7. Being aggrieved by dismissal of the suit, the First
Appellate Court also having considered the grounds urged in
the appeal memo, a short point for consideration was framed
whether the impugned judgment and decree passed by the
Trial Court is perverse, opposed to the facts and law and having
taken note of the same, while answering in paragraph No.14,
the case of the plaintiff and also the defence of the defendants
was also taken note of and particularly in paragraph No.17 in
detail dealt with the matter regarding title is concerned, even
with regard to the application filed under Order 41 Rule 27 CPC
also, an observation is made that the plaintiff failed to produce
the documents showing his uncle ownership qua the suit
property despite having the knowledge that defendant No.1 (a)
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to (c) have denied the title and learned Trial Court held that
plaintiff has failed to prove the title of his uncle over the suit
property and in detail discussion was made that with regard to
the title is concerned and nothing is placed on record and
confirmed the judgment of the Trial Court. Being aggrieved by
the concurrent finding, the present second appeal is filed.
8. The counsel appearing for the appellant would
vehemently contend that whether the schedule property is an
ancestral property, khatha of the property and enjoyment of
the property was continuous and also the title deeds are
necessary to establish title over the suit schedule property
ought to have been considered by the Trial Court and also First
Appellate Court. The counsel would vehemently contend that
both the Courts have committed an error and when P.W.2 is
examined in discharging the burden to prove Ex.P1 which is
against the procedure of law of evidence, nothing is considered
and the attesting witnesses were not alive and hence only
examined one of the son of the attesting witnesses and the
same also not considered by the First Appellate Court.
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9. Per contra, learned counsel appearing for
respondent Nos.1(a) to (c) to 3 would vehemently contend that
when the suit is filed for the relief of declaration and permanent
injunction, the plaintiff must establish title and unless title is
established before the Court, question of granting the relief of
declaration does not arise. The counsel also vehemently
contend that while granting the relief of declaration, the Court
cannot consider the weakness of the defendants and plaintiff
has to stand on his own legs and no such material is placed
before the Court. Hence, the Trial Court rightly dismissed the
suit and First Appellate Court also confirmed the same.
10. Having heard learned counsel appearing for the
appellant and learned counsel appearing for respondent
Nos.1(a) to (c) to 3 and considering the material on record, the
suit is filed for the relief of declaration, that too in respect of
only one item of the suit schedule property i.e., Site bearing
No.58 and in order to prove the claim based on the Will, the
plaintiff mainly relies upon the document of Ex.P1 registered
Will and also the document Ex.P13-demand register and also
relies upon the document of tax paid receipt, assessment
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extract and also tax register at Ex.P20. On the other hand,
defendant No.1 also contend that property was purchased in
the year 1974 and to that effect also produced the document
Ex.D1 and tax paid receipts. No doubt, counsel appearing for
the appellant would contend that RTCs-Exs.P23 and P24 are
very clear that the property belongs to the family, however, the
RTC establishes possession under whom the property is under
cultivation. But, in order to come to a conclusion of title is
concerned, there must be a document of title deed and the
same is not placed on record. When such being the case and
when the title document is not placed, question of granting the
relief of declaration does not arise.
11. No doubt, there is a force in the contention of
learned counsel appearing for respondent Nos.1(a) to (c) to 3
that when the plaintiff approaches the Court for the relief of
declaration, he must establish his case to prove his title and not
depend on the weaknesses of the defendants whether he has
got title or not. On the other hand, the Trial Court also taken
note of sale deed while answering issue No.4 that property was
purchased and sale deed is also placed on record and based on
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the title deed comes to the conclusion that issue No.4 is proved
by the defendant. When such reasoning is given, I do not find
perversity in appreciating both oral and documentary evidence
and taken note of both question of fact and question of law and
with regard to devolving of the property also, the Trial Court
has taken note of question of law that no title deeds are placed
on record. When such being the case, I do not find any ground
to admit and frame substantial question of law.
12. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
