Karnataka High Court
Mahantappa vs Bheemappa on 2 July, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:23701
RSA No. 388 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 388 OF 2024 (DEC)
BETWEEN:
1. MAHANTAPPA
S/O RUDRAPPA
AGED ABOUT 59 YEARS,
AGRICULTURIST
2. MUPINAPPA
S/O A BASAPPA
AGED ABOUT 66 YEARS
Digitally signed THE APPELLANTS ARE RESIDING AT
by DEVIKA M KONDAJJI VILLAGE, HARIHARA TALUK,
Location: HIGH
COURT OF DAVANAGERE DISTRICT - 577 589
KARNATAKA ...APPELLANTS
(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)
AND:
1. BHEEMAPPA
S/O LATE BASAPPA
AGED ABOUT 61 YEARS
-2-
NC: 2025:KHC:23701
RSA No. 388 of 2024
HC-KAR
2. HIRE BIDARI RATHNAMMA
W/O RAMAPPA HIREBIDARI
AGED ABOUT 53 YEARS
THE RESPONDENT NOS.1 AND 2 ARE
RESIDING AT KONDAJJI VILLAGE
HARIHARA TALUK,
DAVANAGERE DISTRICT - 577589
3. THE SECRETARY
GRAMA PANCHAYATH
HARIHARA TALUK
DAVANAGERE DISTRICT
PIN-577589
...RESPONDENTS
(BY SRI. HALLI SHANTAPPA BASAPPA., ADV. FOR R1 AND R2;
SRI. N.R. JAGADEESWARA, ADV. FOR R3)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 23.01.2023 PASSED IN RA
NO.47/2018 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC,
HARIHARA., DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 4.09.2018 PASSED IN OS
NO.70/2011 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, HARIHAR
AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-3-
NC: 2025:KHC:23701
RSA No. 388 of 2024
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and also the
learned counsel appearing for the respondents.
2. This second appeal is filed against the concurrent
finding. It is the case of the plaintiffs before the Trial Court that
plaintiffs are the absolute owners of the suit schedule property
and they are in actual possession of the schedule property and
also it is their case that defendant No.1 has illegally executed a
sale deed dated 24.01.2011 in favour of defendant No.2 and
the same is not binding on them and defendant No.3 also has
illegally mutated the name of defendant No.1 in the house list
register pertaining to the suit schedule property. Defendants
appeared and filed the written statement contending that suit is
bad for non-joinder of necessary parties and also suit is barred
by law of limitation and also the very suit is not maintainable
and hence, plaintiffs are not entitled for any relief of
declaration. The Trial Court given an opportunity to both the
NC: 2025:KHC:23701
HC-KAR
parties to lead evidence and accordingly, the plaintiffs
examined two witnesses as PWs.1 and 2 and relied upon
documents Exs.P1 to P14. On the other hand, defendants
examined four witnesses as DWs.1 to 4 and got marked
documents Exs.D1 to D4. The Trial Court having considered
both oral and documentary evidence available on record,
discussed issue Nos.1 and 2 together, wherein taken note of
sale deed pertains to sale deed of Sy.No.25/5D and in the suit
schedule, it is described as 25/P Khanesumari but in the sale
deed, it is mentioned as survey number property, but in the
pleading throughout it is contended that property is
Khanesumari property and while discuss in detail comes to the
conclusion that schedule mentioned in Ex.P1 is not tallied with
the schedule of the plant. Since plaintiffs are claiming their title
and possession over the suit schedule property under Ex.P1
and also taken note of in paragraph No.15 in detail the
measurement which is mentioned in the schedule and also in
paragraph No.16 relying upon Ex.P2 - endorsement issued by
the Kondajji Grama Panchayath and Panchayat Raj had issued
an endorsement stating that, they have no authority to change
the katha in respect of land comes under the survey number
NC: 2025:KHC:23701
HC-KAR
and also in paragraph No.20 detail discussion was made
regarding the admission on the part of PW.1 during the course
of cross-examination in respect of the description of the
property and comes to the conclusion that when the property is
not identified, granting of relief of declaration and mandatory
injunction does not arise and dismissed the suit. Being
aggrieved by the said judgment, an appeal is filed in
R.A.No.47/2018 and the Appellate Court having considered the
grounds which have been urged in the appeal memo raise the
point for consideration whether the Trial Court committed an
error in dismissing the suit on the ground that property of the
plaintiffs has not been identified and sale
deed - Ex.P1 not tallies with the boundary description shown in
the paint and whether it requires interference. On
re-appreciation of both oral and documentary evidence and also
the detail discussion made in the appeal, comes to the
conclusion that Trial Court has not committed any error in
coming to the conclusion that a very suit claim is not proved
and also taken note of schedule mentioned in Ex.P1, wherein
Sy.No.25/5D is mentioned and no records stands in the name
of Panchayath records subsequent to the sale deed and also
NC: 2025:KHC:23701
HC-KAR
taken note of an endorsement given rejecting the claim for
transfer of khata and confirmed the judgment. Being aggrieved
by this concurrent finding, the present second appeal is filed
before this Court.
3. The main contention of the learned counsel for the
appellants is that Trial Court has not framed proper issues
regarding discrepancy of the survey number and identity of the
property and without framing issues to that effect ought not to
have comes to a conclusion that the proper description of the
property is not mentioned in the suit and hence, the learned
counsel would vehemently contend that both the Courts have
committed an error in considering the material on record. The
description of the property set out in the plaint does not tally
with the title deed of the plaintiffs and the said finding is
erroneous and hence, prayed this Court to admit and frame
substantial question of law.
4. Per contra, the learned counsel appearing for the
respondents brought to notice of this Court that when the suit
is filed for relief of declaration, the appellants have to prove the
NC: 2025:KHC:23701
HC-KAR
description of the property, which has been mentioned in the
document of title i.e., Ex.P1 and the same is not proved and
the Trial Court as well as the Appellate Court comes to the
conclusion that the description mentioned in Ex.P1 not tallies
with the description given in the suit schedule and in the
absence of any identification of the property, question of
granting relief of declaration and also the consequential relief
also doesn't arise and hence, the learned counsel contend that
there are no grounds to admit and frame substantial question
of law.
5. Having heard the learned counsel appearing for the
appellants and also the learned counsel appearing for the
respondents and also on perusal of the material particularly the
relief sought by the appellants for the relief of declaration and
mandatory injunction, it is contended that plaintiffs are the
absolute owners and in possession of the suit schedule property
and to declare that, the sale deed dated 24.01.2011 executed
by defendant No.1 in favour of the defendant No.2 as null and
void and to direct defendant No.3 to cancel the house list
extract issued in favour of defendant No.1 in respect of the suit
NC: 2025:KHC:23701
HC-KAR
schedule property and while seeking the relief sought for, the
declaration as well as mandatory injunction. Having considered
both the judgment of the Trial Court and Trial Court, taken note
of the very issue based on the pleadings framed regarding
ownership as well as actual possession of the suit schedule
property in detail discussed in paragraph No.14 while
considering issue Nos.1 and 2 taken note of identity of the
property and Ex.P1 - sale deed does not tally with the
boundaries which have been mentioned in the schedule and
also in paragraph No.15 taken note of the details mentioned
that the plaintiffs have not mentioned the exact measurement
and also the schedule mentioned in Ex.P1 is survey number and
also the measurement shown in the schedule was also taken
and Ex.P2 - endorsement issued by the Grama Panchayat that
they cannot register katha since the same is a survey number
property. In order to prove the fact that the property is a
Khanesumari property, which is formed and carved out of
Sy.No.25 nothing is placed on record and detailed discussion
was made in paragraph No.20 also, the admission on the part
of PW.1 as well as in paragraph No.22 while answering issue
Nos.3 and 4 considered the document of Ex.P3 and also Ex.D4,
NC: 2025:KHC:23701
HC-KAR
that the katha in respect of the suit schedule property is in the
name of defendant No.1 and he was put in possession of the
suit schedule property and the plaintiffs have not challenged
the order passed by the Grama panchayath, Kondajji in terms
of Ex.D4 also taken note of. The Appellate Court also having
reassessed the material available on record comes to the
conclusion that unless property is properly described in the sale
deed as well as in the description given in the suit and also
taken note of in Ex.P1 - sale deed the survey number is
mentioned as 25/5D but while filing the suit, it is described as
Khanesumari No.25/P and the same also not tallies with each
other and the Appellate Court also taken note of measurement
shown in detail discussed in paragraph No.18.
6. Having considered the reasoning given by the Trial
Court as well as Appellate Court when the suit is filed for the
relief of declaration and mandatory injunction and that too
seeking the relief of the sale deed is not binding, appellant
ought to have properly described the suit and when the same is
not tallied with Ex.P1, wherein Sy.No.25/5D is mentioned and
in the suit schedule, it is described as Khanesumari Sy.No.25/P,
- 10 -
NC: 2025:KHC:23701
HC-KAR
while filing the suit and the same was taken note of in detail by
the Trial Court while considering issue Nos.1 and 2, as well as
other issue Nos.3 and 4 detailed discussion was made in
paragraph No.20 and also taken note of the admission with
regard to the every identity of the property and when the
identity of the property is disputed before the Trial Court even
appellant has not made any attempt to file any application for
appointment of Commissioner and get the properties identified
before the Trial Court and even not made any effort in the
Appellate Court also to file such an application when there is a
clear dispute with regard to the very identity of the property
and no such attempt was made. When such being the case and
when both the Courts have taken note of details of description
given in the plaint as well as the document - Ex.P1, I do not
find any error committed by the Trial Court in coming to the
conclusion that very identity of the property of the plaintiffs
have not been proved and also the description mentioned in
Ex.P1 as well as in the suit schedule description not tallies with
each other, question of granting the relief of declaration and
mandatory injunction as sought doesn't arise and no factual
error and also with regard to the question of law also. Both the
- 11 -
NC: 2025:KHC:23701
HC-KAR
Courts taken note of the same and hence, no ground to admit
and frame substantial question of law. In view of the
discussions made above, I pass the following:
ORDER
The Regular Second Appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
KG
