Karnataka High Court
Sri Rajegowda vs Sri Muddegowda on 9 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 104 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.104 OF 2024 (DEC/INJ)
BETWEEN:
SRI RAJEGOWDA
S/O LATE SINGRIGOWDA,
AGED 61 YEARS,
R/AT MASAGONAHALLI VILLAGE,
BINDIGANAVILE HOBLI,
NAGAMANGALA TALUK - 571802
...APPELLANT
(BY SRI Y K NARAYANA SHARMA, ADVOCATE)
Digitally signed
by DEVIKA M AND:
Location: HIGH
COURT OF SRI MUDDEGOWDA
KARNATAKA
S/O CHIKKEGOWDA
DEAD BY LRS
1. SRI KRISHNEGOWDA
S/O LATE MUDDEGOWDA
AGED 52 YEARS
2. SRI NAGARAJU
S/O LATE MUDDEGOWDA
AGED 50 YEARS
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RSA No. 104 of 2024
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3. SRI JAYANNAGOWDA
S/O LATE MUDDEGOWDA
AGED 46 YEARS
4. SRI MAHALINGEGOWDA
S/O LATE MUDDEGOWDA
AGED 44 YEARS
5. SRI CHIKKEGOWDA
S/O LATE MUDDEGOWDA
AGED 40 YEARS
6. SRI RAJEGOWDA
S/O LATE MUDDEGOWDA
AGED 38 YEARS
RESPONDENTS NO.1 TO 6 ARE
R/AT MASAGONAHALLI VILLAGE,
BINDIGANVILE HOBLI
NAGAMANGALA TALUK - 571802
...RESPONDENTS
(BY SRI NAGAIAH, ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 23.11.2023
PASSED IN R.A. NO. 18/2011 ON THE FILE OF
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
NAGAMANGALA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
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RSA No. 104 of 2024
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ORAL JUDGMENT
This matter is listed for admission. Heard the
learned counsel appearing for the respective parties.
2. The factual matrix of the case of the
respondent/plaintiff before the Trial Court that he is the
absolute owner of the suit schedule property and he has
purchased the said property from one Bettegowda S/o
Singrigowda on 15.04.1980 as per registered sale deed.
Since the date of purchase, the plaintiff claims to be in
possession of the suit schedule property and the revenue
entries stands in his name. It is also the contention of the
plaintiff that the defendant who is an utter stranger to the
suit schedule property causing interference with the
possession of the plaintiff and made an attempt to dig the
foundation and put up construction without obtaining a
licence. The plaintiff has given the complaint and the
police did not take any action. Hence, he has filed the suit
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for the relief of declaration and consequential relief of
permanent injunction.
3. In view of service of notice, the
appellant/defendant appeared before the Trial Court and
filed the written statement contending that the vendor of
the plaintiff Bettegowda had brothers by name
Narasimhegowda, Kempsingegowda and Singrigowda. The
father of the defendant i.e., Singrigowda had filed the suit
in O.S.No.956/1961 for partition and separate possession
of ancestral joint family properties including the suit
schedule properties against his brothers and the said suit
came to be decreed in his favour on 17.06.1963 and
against the said judgment and decree, regular appeal was
preferred and it came to be dismissed and hence, final
decree proceedings filed in FDP No.3/1980. The suit site
bearing Gramatana No.24 measuring 12 ankanas i.e., item
No.21 of the suit schedule property in O.S.No.956/1961 is
bounded on east by road; west by Narasimhaiah's site;
south by Kempegowda and north by Chikkegowda's site
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was acquired by the father of this defendant in the final
decree proceedings. Since 28.02.1985, the father of the
defendant was in possession of the said property and after
his death, the defendant and his two brothers by name
Krishnegowda and Swamy got divided the said property in
three portions in a oral partition. After the said partition,
the defendant is in possession of east to west 46 feet and
north to south 18 feet; his brother Krishnegowda is in
possession of 46 x 18 feet and Swamy is in possession of
46 x 18 feet, totally it measures 12 ankanas. It is
contended that the vendor of the plaintiff by name
Bettegowda had no right to sell the suit schedule property
in view of the decree passed in O.S.No.956/1961 and
hence, it is contended that plaintiff did not get any right
over the suit schedule property and not in possession of
the suit schedule property and without seeking the relief
possession, suit itself is not maintainable.
4. The Trial Court having considered the grounds
urged in the plaint as well as in the written statement,
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framed the issues and allowed the parties to lead their
evidence. In order to prove the case of the plaintiff, he
got examined himself as PW1 and got examined two
witnesses as PW2 and PW3 and got marked the
documents at Ex.P1 to P8. On the other hand, defendant
had not adduced any evidence and not marked any
documents. The Trial Court having considered the material
on records, decreed the suit of the plaintiff declaring that
the plaintiff is the owner of the property in site No.8
measuring east to west 42 feet and north to south 27 feet
situated at Masagonahalli village, Bindiganavile hobli,
Nagamangala taluk and also restrained the defendant from
interfering with the possession of the plaintiff.
5. Being aggrieved by the said judgment, an
appeal is filed in R.A.No.18/2011. The First Appellate
Court having considered the grounds urged in the appeal
formulated the points and re-appreciated both oral and
documentary evidence placed on record and taken note of
the boundaries mentioned in the suit as well as boundaries
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mentioned in O.S.No.956/1961 and also in FDP No.3/1980
and extracted the same in paragraph 17 of the judgment.
The First Appellate Court also discussed the admission
given by the defendant in the cross-examination that is
DW1 and comes to the conclusion that even though the
property number is not mentioned in the sale deed but
boundaries prevails over the extent and number and
comes to the conclusion that even though this Court given
opportunity to lead evidence to defendant, he has failed to
establish his defense and rebut the plaintiff evidence. The
First Appellate Court considering the material available on
record dismissed the appeal. Hence, the present appeal is
filed challenging the concurrent finding of both the Courts.
6. The learned counsel for the appellant would
vehemently contend that the witness has been examined
before the Appellate Court as DW1 and marked the
documents at Ex.D1 to D11 and certified copy of the
decree passed in FDP also marked but both the Courts
have committed an error in appreciating the material on
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record when the plaintiff failed to prove the identity of the
property the Trial Court ought not to have granted the
relief of declaration and injunction. The counsel would
contend that the Trial Court committed an error by
wrongly casting the burden of proof on the defendant
instead of casting the burden of the plaintiff in proving the
case when the suit is filed for the relief of declaration and
injunction and also the counsel contend that both the
Courts committed an error by not properly considering the
evidence on record by misreading and not considering the
documents produced as evidence. The counsel would
vehemently contend that the evidence extracted by the
First Appellate Court is not a proper perspective and the
counsel contend that it was stray admission on the part of
DW1 with regard to the boundaries and the same cannot
be accepted. Hence, it requires interference of this Court.
7. The counsel also in support of his arguments
relied upon the several judgments reported in AIR 1971
SC 1542 in the case of CHIKKAM KOTSWARA RAO vs
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CHIKKAM SUBBARAO AND OTHERS; AIR 1981 KANT
40 in the case of PARAMESHWARI BAI vs
MUTHOJIRAO SCINDIA AND 2007(3) AIR KAR R 21
in the case of PUTTANNA SHETTY vs PADMA SHETTY
with regard that admission must be clear and stray
admission cannot be relied upon and also relied upon the
judgments reported in (1994) 4 SCC 659 in the case of
BILLA JAGAN MOHAN REDDY AND ANOTHER vs
BILLA SANJEEVA REDDY AND OTHERS; ILR 1991
KAR 3014 in the case of MUNIVENKATAPPA vs
CHIKKAPAPAMMA AND AIR 2022 SC 1372 in the case
of SANJAY KUMAR SINGH vs STATE OF JHARKHAND
with regard to the production of additional documents in
appeal and also relied upon the judgments reported in
AIR 2008 SC 2033 in the case of ANATHULA
SUDHAKAR vs P BUCHI REDDY BY LRS AND OTHERS
AND AIR 2024 SC (CIVIL) 978 in the case of
VASANTHA (DEAD) THROUGH LRS vs RAJALAKSHMI
ALIAS RAJAM (DEAD) THROUGH LRS with regard to
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suit for declaration of title without consequential relief of
possession is not maintainable. The counsel referring
these judgments would vehemently contend that the
matter requires detail consideration. Hence, this Court
has to frame the substantive question of law by admitting
the appeal.
8. Per contra, the learned counsel appearing for
the respondent would vehemently contend that the sale
deed was executed in the year 1980 and said sale deed
was not challenged by the appellants herein at no point of
time. The counsel contend that when the sale was made
in the year 1980, subsequent documents also standing in
the name of the respondent in all the revenue records,
apart from that the counsel would vehemently contend
that the property which they are claiming is in respect of
property No.24 and the claim of the plaintiff is in respect
of property No.8. The counsel would vehemently contend
that when the property is distinct and also even though
not led any evidence before the Trial Court and adduced
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the evidence before the Appellate Court and admissions
are given with regard to the boundaries mentioned in the
suit is correct and though denied the measurement east to
west 42 feet and north to south 27 feet, categorically
admitted that the suit schedule property originally belongs
to Bettegowda S/o Singrigowda and also when the
admission was given that the property was sold in the year
1980 i.e., on 15.04.1980 and not disputes the same fact
that the property was sold and says may be sold in the
year 1980 itself. The counsel also would vehemently
contend that the First Appellate Court also in paragraph 18
taken note of the documents which have been placed by
the appellant before the First Appellate Court. In
paragraph 20 discussed in detail with regard to the title
and possession over the suit schedule property and also
comes to the conclusion that the defendant failed to
establish that the suit schedule property and item No.21 in
O.S.No.956/1961 are one and the same and also fails to
rebut the plaintiff's evidence and definite finding is given.
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9. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record, this Court has to consider the material on
record. Admittedly, the suit is filed for the relief of
declaration and permanent injunction. The very claim of
the plaintiff that property was purchased in the year 1980
and also the plaintiff was put in possession in terms of the
sale deed. It is also the contention of the respondent that
earlier there was a suit for partition in O.S.No.956/1961
and there was a decree in O.S.No.147/2006. The
contention of the plaintiff that he is in possession from the
date of purchase. It is not in dispute that the sale made in
favour of the plaintiff was not challenged by the appellants
herein as rightly pointed out by the counsel for the
respondent.
10. It is also important to note that when the
plaintiff seeks the relief of declaration producing the
relevant records, nothing is placed on record before the
Trial Court by the appellant herein and not adduced any
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evidence. The Trial Court also taken note of the said fact
into consideration held that even though claimed the right
and also the plaintiff is not in possession of the property,
nothing is placed on record. However it is important to
note that in the appeal, the evidence is adduced and
documents are also marked.
11. It is important to note that when an opportunity
is given and the First Appellate Court also considered the
evidence on record in paragraph 18 which the documents
have been relied upon by the appellant and also in
paragraph 19 taken note of the fact that the defendant
disputes the title of the vendor in executing the sale deed
and also taken note of the fact during the cross-
examination, answer was given by DW1 who has been
examined and the First Appellate Court extracted the
admission in respect of the suit schedule property is in
respect of revenue site No.8 and also same is in respect of
house and vacant land. No doubt, suggestion was made
that suit schedule property is not measuring 42 x 27 feet
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as claimed and the same was denied. But categorical
admission was given that the property was sold in the
measurement of gaja that is east to west 20 gaja and
north to south 13½ gaja and also categorical admission
was given that the boundaries which is mentioned in the
suit is correct.
12. It is also important to note that further
admission was given that the suit schedule property
originally belongs to Bettegowda S/o Singrigowda and also
sale deed was executed in the year 1980 and same is not
disputed and answer was given that may be sold the
same. These answers taken note of by the First Appellate
Court and specific admission was given in respect of
property No.8 which was claimed by the plaintiff that is
measurement of gaja that the suit schedule property
originally belongs to plaintiff's vendor Bettegowda. This
admission is corroborative evidence to Ex.P1. Though the
appellant counsel would vehemently contend that it is only
the stray admission and not given any clear admission
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with regard to the suit schedule property and the same
cannot be accepted. The First Appellate Court also taken
note that though in the sale deed definite area is not
mentioned but he is claiming the relief less extent than the
sale deed is acceptable under law. Even though the
property number is not mentioned in the sale deed but
boundaries prevails over the extent and number and the
said observation is not erroneous. In the case on hand
also, when the admissions are elicited that boundaries are
clearly mentioned, the very contention that property was
not identified cannot be accepted as contended and the
counsel also would vehemently contend that property is
not identified properly and this Court has to frame
substantive questions of law. When there is a clear
admission that the boundaries mentioned in the suit is
correct, the very contention that the boundaries are not
clear cannot be accepted. The other contention of the
appellant counsel that burden is casted upon the
defendant cannot be accepted and the plaintiff has proved
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his case by examining the witness and placing the records.
Though, at the first instance, the defendant has not led
any evidence, however, an opportunity is given to the
defendant to prove the case.
13. It is also important to note that the appellate
court having considered the boundaries mentioned in item
No.21 of the earlier suit in O.S.No.956/1961 comes to the
conclusion that the plaintiff has proved his title and
possession over the suit schedule property. On the other
hand, it is observed that the defendant failed to establish
the fact that the suit schedule property and item No.21 in
O.S.No.956/1961 are one and the same and failed to rebut
the plaintiff's evidence and definite conclusion was given
with regard to the factual aspects is concerned. When
both factual aspects have been considered by both the
Courts with regard to the identity of the property as well
as title, the contention that the suit for declaration and
injunction is not maintainable when plaintiff is not in
possession cannot be accepted when the plaintiff has
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produced the document with regard to the sale deed, tax
paid receipt, demand register extract and proved the
factum of possession by placing the documents on record.
When such being the case, the question of admitting the
appeal does not arise and no grounds is made out to
frame the substantive questions of law in the appeal since
both the Courts have taken note of factual aspects as well
as question of law. Hence, no grounds are made out.
14. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.As. if any,
do not survive for consideration and the same stand
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
