Karnataka High Court

Sri Chikkappa S/O.Lakkappa By Lrs vs Smt Narasamma on 4 June, 2025

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

                                                  -1-
                                                         NC: 2025:KHC:18998
                                                         RSA No. 48 of 2007


                    HC-KAR


                    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 4TH DAY OF JUNE, 2025

                                             BEFORE


                         THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                         REGULAR SECOND APPEAL NO.48 OF 2007 (INJ)

                   BETWEEN:

                   1.   SRI CHIKKAPPA
                        S/O.LAKKAPPA
                        SINCE DECEASED AND REP BY LRs

                   (a) SMT. LAKSHMIKANTHAMMA
                       W/O M.L. RAJU
                       AGED ABOUT 40 YEARS,

                   (b) SMT. BHAGYA
                       W/O SRI CHANDRASHEKAR
                       AGED ABOUT 37 YEARS
Digitally signed
by RAMESH
MATHAPATI          (c) SMT. MANJULA
Location: HIGH         D/O LATE CHIKKAPPA
COURT OF               W/O SRI NANJAPPA
KARNATAKA              AGED ABOUT 35 YEARS

                   (d) SRI PRAKASH
                       S/O LATE CHIKKAPPA
                       AGED ABOUT 31 YEARS

                   (e) SMT. JANAKI
                       S/O.LATE CHIKKAPPA
                       AGED ABOUT 28 YEARS

                        ALL ARE R/O 2ND CROSS,
                        KAMAKSHI STREET, SHIMOGA.
                                                               ...APPELLANTS
                   [BY SRI B. VACHAN, ADVOCATE]
                               -2-
                                         NC: 2025:KHC:18998
                                         RSA No. 48 of 2007


 HC-KAR


AND:
SMT.NARASAMMA,
W/O S.G. MUNIYAPPA,
AGED ABOUT 60 YEARS,
R/O JAIL ROAD, SHIMOGA.
SINCE DEAD BY LRs
(CAUSE TITLE AMENDED V/O DATED 23.06.2016)

a.     SMT. PARVATHI,
       S/O SUBRAMANYA,
       AGED ABOUT 62 YEARS,

b.     SMT. SUSHEELA,
       W/O GOPI,
       AGED ABOUT 56 YEARS,

c.     SMT. GOWRI,
       D/O LATE NARASAMMA,
       AGED ABOUT 51 YEARS,

d.     SRI RAVIKUMAR,
       S/O LATE NARASAMMA,
       AGED ABOUT 45 YEARS,

e.     KUMARI GEETHA,
       D/O LATE NARASAMMA,
       AGED ABOUT 40 YEARS,

f.     SMT. ANURADHA,
       D/O LATE NARASAMMA,
       AGED ABOUT 38 YEARS,

g.     SRI MADHU,
       S/O LATE NARASAMMA,
       AGED ABOUT 35 YEARS,

h.     SRI MOHAN,
       S/O LATE NARASAMMA,
       AGED ABOUT 35 YEARS

       ALL ARE R/O BESIDES SUBBAIAH COMPLEX,
       JAIL ROAD, SHIMOGA.
                                               ...RESPONDENTS

[BY SRI S.V. PRAKASH, ADVOCATE FOR R1 (a) TO (h)]
                                -3-
                                           NC: 2025:KHC:18998
                                           RSA No. 48 of 2007


HC-KAR




      THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT
& DECREE DATED 14.8.2006 PASSED IN R.A.NO.112/2005 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, SHIMOGA,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 13.7.1999 PASSED IN OS.NO. 647/1993 ON THE
FILE OF THE PRL.CIVIL JUDGE (JR.DN.), SHIMOGA.


      THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.03.2025, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:


CORAM:     HON'BLE MR JUSTICE RAVI V HOSMANI


                       CAV JUDGMENT

Challenging judgment and decree dated 14.08.2006

passed by Presiding Officer, Fast Track Court-I, Shivamogga, in

RA no.112/2005, this appeal is filed.

2. Appellants are legal representatives of original

plaintiff in OS no.647/1993 filed for permanent injunction

restraining defendant, her agents, etc. from interfering with

plaintiff's peaceful possession and enjoyment of property

bearing Sy.no.58 (VS no.3) measuring 1 Acre 15 guntas of

Kashipura Village, Shivamogga Taluk ('suit property' for

short).

NC: 2025:KHC:18998

HC-KAR

3. In plaint, it was stated in pursuance of agreement

of sale dated 22.01.1992 executed by Chandrappa S/o

Muniswami agreeing to sell suit property for total sale

consideration of Rs.1,10,000/- and receiving Rs.80,000/- as

advance sale consideration, plaintiff was put in possession and

was cultivation of same. And, without any manner of right, title

or interest over suit property, defendant tried to take

possession forcibly with help of adjacent owners for forming

layout sell away sites to innocent strangers for wrongful gain.

And that on 24.06.1993, defendant came to suit property with

rowdy elements, attempted to dig drain and form road. With

great difficulty, plaintiff resisted said illegal Acts of defendant.

As he perceived imminent threat of dispossession, suit was

filed.

4. On appearance, original defendant filed written

statement denying plaint averments as well as plaintiff's claim

of being in possession in pursuance of agreement of sale. Title

of plaintiff's vendor was also disputed. Allegation of defendant

disturbing plaintiff's possession was denied. It was stated,

defendant was in possession and enjoyment as owner of

property. It was stated Surveyor had assigned V.S.no.1 to

NC: 2025:KHC:18998

HC-KAR

properties no. 58, 59, 60 and 61; V.S.no.2 to properties no.55,

56 and 57 and V.S.no.3 to properties no.54, 53, 51 and 50.

And as per sale deed dated 19.04.1975 defendant had sold

Sy.no.2 and 3, but not sold any property to Chandra - plaintiff's

vendor. Boundaries and extent mentioned in Sale Deed would

indicate defendant's possession of very same extent claimed by

plaintiff, indicating that plaintiff had wrongly mentioned

boundaries of defendant's property. It was stated, plaintiff had

filed false suit in collusion with Chandra for unlawful gain and

that neither of them had any right over Sy.no.2 measuring 3

Acres 19 guntas and PR no.1 measuring 1 Acre 19 guntas

totally measuring 4 Acres 38 guntas. It was stated, boundary

description of defendant's property comprising of land in two

survey numbers was on East by land of Hulugamma; West by

land of defendant - Sy.no.1, North by boundary of

Somenakoppa village and South by Keretheluve. It was alleged,

suit was filed without cause of action and plaintiff not having

any right over suit property, without paying proper Court fee

etc. and sought dismissal of suit.

5. Based on pleadings, trial Court framed following

issues:

NC: 2025:KHC:18998

HC-KAR

1. Whether the plaintiff is in lawful possession of the suit land?

2. Does he prove the alleged interference by the defendant?

3. What decree or order?

6. In trial, plaintiff deposed as PW.1 and got mark

Exhibits P1 to P37, while GPA holder of defendant deposed as

DW.1 and got marked Exhibits D1 to D7.

7. On consideration, issues no.1 and 2 were answered

in affirmative and issue no.3 by decreeing suit. Aggrieved

defendant filed RA no.112/2005 on various grounds based on

which, first appellate Court framed following points:

1. Whether the trial Court has committed any error in holding that the plaintiff has proved his lawful possession over the suit property and also alleged interference is proved?

2. Whether there are any reasons to interference with the judgment and decree?

3. What order?

8. On consideration, points no.1 and 2 were answered

in affirmative and point no.3 by allowing appeal, setting aside

trial Court decree and dismissing suit. Aggrieved thereby,

plaintiff is in second appeal.

NC: 2025:KHC:18998

HC-KAR

9. Sri B. Vachan, learned counsel for plaintiff

submitted appeal was against divergent findings in suit for bare

injunction wherein, plaintiff was claiming to be in possession of

suit property under Ex.P16 - agreement of sale dated

22.01.1992 executed by Sri Chandrappa after receiving

advance sale consideration of Rs.80,000/- and delivering

possession. When defendant attempted to dig drain and form

road. It was submitted, defendant's claim that land bearing VS

no.1 included Sy.nos.58 to 61, which he had retained after

selling lands bearing VS no.2 which included Sy.nos.55 to 57

and VS no.3 included Sy.nos.52 and 54 to Chandru (plaintiff's

vendor), was incorrect. In fact, Sy.no.58 was included in VS

no.3 after survey, in year 1991-92. On appreciation of entire

material trial Court decreed suit holding plaintiff was in

possession of suit property and defendant's name was mutated

after filing of suit and as per Section 133 of Karnataka Land

Revenue Act, 1964 ('KLR Act', for short), revenue entries

attracted presumption. It also noted, as on date of filing of suit,

name of plaintiff's vendor was shown and ADLR-Court

Commissioner's report showed plaintiff's possession.

NC: 2025:KHC:18998

HC-KAR

10. It was contended, without re-appreciation, first

appellate Court erroneously concluded plaintiff failed to

establish lawful possession over suit property. It was

submitted, as per settled principles of law governing permanent

injunctions, only key ingredient required to be established was

possession and not title. In impugned judgment, first appellate

Court dealt with title of plaintiff's vendor and held, he had no

right to execute Ex.P16 in respect of suit property as he had

not purchased it. It was submitted said conclusion was perverse

and contrary to material on record. It was submitted suit

properties were originally jodi inam lands and before allotting

survey numbers, they were referred to as VS nos.1, 2 and 3.

Sale of lands bearing VS nos.2 and 3 by defendant to plaintiff's

vendor - Chandra under Ex.P2 was not in dispute. It was

submitted, measurement and boundaries of property referred

in Ex.P16 tallied with Ex.P11 - RTC of VS no.3 from year 1975-

76 to 1989-90 showing name of plaintiff's vendor and its

measurement as 1 Acre 19 guntas and Ex.P12 - RTC of

Sy.no.58 of year 1989-90 showing its measurement as 1 Acre

15 guntas. Further Ex.P10 - MR no.10/1991-92 showed sale of

VS no.2 measuring 3 Acres 19 guntas and VS no.3 measuring 1

NC: 2025:KHC:18998

HC-KAR

Acre 19 guntas i.e. Sy.no.58 by defendant in favour of

plaintiff's vendor.

11. It was further submitted, defendant had not denied

title of plaintiff's vendor, but claimed to be in possession of suit

property and disputed identity of suit property. It was

submitted on 22.10.1993, ADLR - Court Commissioner

submitted report showing extent in possession of parties with

boundaries. It was contended defendants had not filed

objection to report. Only in cross examination, DW.1 denied

Court Commissioner's report. Failure to file objections would

imply acceptance of report. Commissioner's report would

establish plaintiff's possession. It was submitted, trial Court

decreed suit based on its finding about possession and relying

on consistent revenue records.

12. As against above material, first appellate Court

noted that there was challenge of mutation entries and without

proper basis held suit property was VS no.1 and not VS no.3. It

was submitted, Ex.D3 - co-relation statement was allegedly

prepared based on statements of neighboring land owners

renumbering VS no.1 as Sy.no.58 under MR no.90/1998-99.

- 10 -

NC: 2025:KHC:18998

HC-KAR

Same was without notice to plaintiff and as such illegal. It was

further submitted, change of revenue entries during pendency

of civil suit would be contrary to Full Bench decision of this

Court in Jayamma v. State of Karnataka, reported in 2020

SCC OnLine Kar 211.

13. Insofar as contention about dismissal of suit for

declaration of title filed by plaintiff's vendor against defendant

in OS no.773/1999, it was submitted, said suit was filed by

present plaintiff's vendor against defendant, Deputy

Commissioner, Shivamogga ('DC') and Assistant Commissioner,

Shivamogga ('AC') for declaration of title in respect of land

bearing Sy.no.58 measuring 1 Acre 15 guntas (VS no.3); And

also for declaration of orders dated 23.06.1997 passed by DC,

in R.Misc.no.4/1996-97 and order dated 30.04.1996 passed by

AC in PDA no.20/1995-96 as illegal and void. Said suit came to

be dismissed for non-prosecution without adjudication of any

issues. Though Misc.no.3/2011 is also stated to have been

dismissed on 01.08.2013, said suit being subsequent to present

proceedings and concluded without adjudication, would not

come in way of present plaintiff proceeding with his suit for

permanent injunction. Even pendency of this suit was noted as

- 11 -

NC: 2025:KHC:18998

HC-KAR

one of reasons assigned by DC in his impugned order. Hence,

present suit would be tenable.

14. Since defendant had tried to form layout on western

side of his property and interfered with plaintiff's property,

cause of action for filing suit had accrued. It was submitted, as

against specific contention of plaintiff that VS no.3 was

renumbered as Sy.no.58, in written statement it was contended

VS no.1 was Sy.no.58. It was submitted, Sy.no.54 was in name

of Smt.Gurugamma, defendant had retained Sy.nos.59 to 61

and Sy.no.58 was sold to Chandrappa. In his report, Court

Commissioner marked property of defendant with letters 'A to

F' and that of plaintiff's vendor with letters 'G to J'. This

indicated that boundaries on North and South were same, while

Eastern and Western boundaries were defendant's land. It was

submitted, plaintiff had deposed about boundaries of suit

property and about his vendor's possession based on revenue

entries. It was submitted, though Ex.D3 indicated Sy.no.58 as

part of VS no.1, same was without basis. It was submitted,

property of plaintiff's vendor was divided and one portion sold

to Huligamma and Lakshmamma and other to plaintiff. It was

submitted, VS no.1 was totally measuring 17 Acres 19 guntas,

- 12 -

NC: 2025:KHC:18998

HC-KAR

VS nos.2 and 3 measuring 4 Acres 38 guntas and description of

VS no.10 was only as measuring 1 Acre 24 guntas without

boundaries. It was submitted, since re-numbering of survey

numbers was during pendency of suit, it could not be relied

upon. Further, Exs.P12 to 14 were RoRs of Sy.no.58 of years

1988 and 1989 showing name of plaintiff's vendor in column

no.9 would support plaintiff's claim of possession. In view of

above, conclusion of first appellate Court was without basis.

15. It was submitted even Ex.P18 - Survey Sketch of

Sy.no.58 would tally with Commissioner's report. And Ex.P19

shara indicated presence of plaintiff's vendor even though he

had not signed. Even plaintiff's vendor's vendor was also

present. Same was not considered by first appellate Court. It

was submitted, there was merely bare denial without any

attempt to contradict plaintiff's case, in cross-examination.

Moreover, DW.1 admitted he was unaware of boundaries and

particulars of defendant's property. Under such circumstances,

conclusions of first appellate Court were contrary to material on

record. On above grounds, sought for answering substantial

question of law and allow appeal.

- 13 -

NC: 2025:KHC:18998

HC-KAR

16. In support of submissions, learned counsel relied on

decision of Hon'ble Supreme Court in case of KM Krishna

Reddy v. Vinod Reddy & Anr., reported in (2023) 10 SCC

248 for proposition that it was not mandatory for plaintiffs to

seek for declaration of title and suit for bare injunction would

be maintainable. He also relied on decision of Hon'ble Supreme

Court in case of Rambhau Namdeo Gajre v. Narayan Bapuji

Dhotra (dead), reported in (2004) 8 SCC 614 for proposition

that doctrine of part performance would entitle plaintiff to avail

remedy not only against his transferor but against third parties

also claiming under him.

17. On other hand, Sri SV Prakash, learned counsel for

defendant opposed appeal. At outset, suit was opposed on

ground that plaintiff was claiming to be agreement holder and

at best he could file suit for specific performance against his

vendor and not against third parties. Relying upon decision of

Hon'ble Supreme Court in case of Suraj Lamp & Industries

(P) Ltd. (2) v. State of Haryana, reported in (2012) 1 SCC

656, it was contended, benefit of Section 53-A of TP Act would

be available only against his vendor and not against third

parties.

- 14 -

NC: 2025:KHC:18998

HC-KAR

18. Further relying on decision of Hon'ble Supreme

Court in Municipal Committee, Hoshiarpur v. Punjab State

Electricity Board and Ors. reported in (2010) 13 SCC 216,

it was submitted, findings under challenge did not give rise to

any substantial question of law. And relying on decision of

Hon'ble Supreme Court in case of P. Kishore Kumar v. Vittal

K. Patkar reported in 2023 SCC OnLine SC 1483, it was

submitted, High Court in second appeal would not be justified

in conducting third trial on facts and scope for appeal would be

limited to establishing substantial question of law. Relying on

decision of Hon'ble Supreme Court in case of P.

Chandrasekharan and Ors. v. S. Kanakarajan and Ors.

reported in (2007) 5 SCC 669, it was submitted, interference

in second appeal would be permissible only if findings are

based on misreading of evidence or on ground of perversity.

Therefore, appeal under Section 100 of CPC would not lie.

19. It was submitted, material on record showed

defendant had sold property bearing VS no.2 and 3 to plaintiff's

vendor, which did not include Sy.no.58. Even in para 2 of

plaint, it was stated that property purchased was part of VS

- 15 -

NC: 2025:KHC:18998

HC-KAR

no.2. As stated in para 4 and 5 of written statement, consistent

stand of defendant was that she retained VS no.1. It was

further submitted, there was no material to establish that

property agreed to be sold under Ex.P16 was situated in VS

no.1. It was further submitted, ADLR - Court Commissioner's

Report showed that land bearing Sy.no.59, 60 and 61 belonged

to defendant. Therefore, plaintiff's claim that suit property was

in VS no.3 was illogical and without proper explanation.

20. It was submitted, Ex.D3 was Co-Relation Register

indicated that VS no.1 was comprised of Sy.nos.58 to 61

measuring 7 Acres 18 guntas; VS no.2 comprised of Sy.nos.55

to 57 measuring 3 Acres 19 guntas and VS no.3 comprised of

Sy.nos.50 to 54 measuring 5 Acres 36 guntas. Even PW.1

stated defendant had sold properties bearing VS no.2 and 3 to

plaintiff's vendor - Chandru. Relying upon decision of this Court

in Puttappa v. Ramappa reported in 1996 SCC OnLine Kar

120, it was submitted, Court Commissioner appointed for

inspection of suit property would not be authorized or justified

in submitting report about possession.

- 16 -

NC: 2025:KHC:18998

HC-KAR

21. It was submitted, material on record established,

land in VS no.1 was retained and while VS nos.2 and 3 was

sold. When dispute was about plaintiff's claim that suit property

was part of VS no.3 and about identity of suit property, suit for

bare injunction would not be maintainable. It was submitted,

when plaintiff admits in cross examination that as per Ex.D3,

VS no.1 was re-numbered as Sy.no.58. Such being a case,

merely on Commissioner's Report, possession of plaintiff could

not be established and ought to have sought declaration relief.

It was submitted, even appellant had failed to challenge

additional documents produced before first appellate Court

which would establish acceptance of documents and entries in

mutation with registers. It was submitted, Ex.P10 mentioned

that VS no.2 and 3 were assigned Sy.no.58 against which

appeal was filed. Ex.D4 would show that defendant's appeal

against MR no.10 (Ex.P10) was allowed and Ex.D5 would

indicate plaintiff's revision against said order was dismissed on

23.06.1997. Referring to proviso to Section 135 of KLR Act

provided that any person aggrieved by revenue entry would be

required to file civil suit for declaration of his rights. Admittedly,

as on date of Ex.D5 order, suit was pending. Attempt for

- 17 -

NC: 2025:KHC:18998

HC-KAR

amendment for including relief of declaration was not made.

Hence, suit for bare injunction would not be maintainable. On

above grounds submitted, no substantial question of law would

arise for consideration and sought dismissal of appeal.

22. Heard learned counsel perused impugned judgment

and decree and records.

23. This appeal is by unsuccessful plaintiff against

divergent findings in suit for bare injunction, wherein trial Court

decreed suit, appellate Court reversed same and dismissed suit.

24. It is seen appeal was admitted on 09.12.2010 to

consider following substantial question of law.

"Whether the appreciation of evidence made by lower Appellate Court is perverse?"

25. Since main ground of challenge is perversity of

findings of first appellate Court, it would be necessary to refer

to conclusions arrived at and reasons assigned for same.

26. Trial Court noted that in suit for permanent

injunction, burden was on plaintiff to establish lawful

possession over suit property. It noted plaintiff had deposed as

- 18 -

NC: 2025:KHC:18998

HC-KAR

PW.1 and got marked Exhibits P1 to P37, while Power of

Attorney of defendant was examined as DW.1 and Exhibits D1

to D7 got marked. It observed Exs.P12 to P14 - RTCs bore

name of plaintiff's vendor as on date of suit were consistent

with Ex.P16 - Agreement of sale and name of defendant was

mutated during pendency of suit. On said basis, it concluded

plaintiff established his possession over suit property and

holding interference by defendant as established, decreed suit.

27. In appeal by defendant, main grounds urged were

agreement of sale would not confer any enforceable right over

property agreed to be sold and suit would not be maintainable.

That MR no.10/1991-92 was set-aside by AC and appeal

against same was dismissed by DC. Further, Ex.D3 - Corelation

Statement showed Sy.nos.58 to 61 were part of VS no.1,

falsifying plaintiff's claim that it was part of VS no.3. It was also

contended that boundaries of suit property were incorrect and

reliance on report of Court Commissioner was illegal.

28. After referring to pleadings, first appellate Court

observed dispute was confined to establishing whether suit

property was part of VS no.1 or VS no.3. And in order to

- 19 -

NC: 2025:KHC:18998

HC-KAR

establish Sy.no.58 was part of VS no.3, plaintiff produced Ex.P1

- sale deed whereunder defendant purchased lands in VS nos.1

to 3 from Gurappa; Ex.P2 - sale deed, whereunder plaintiff's

vendor - Chandrappa purchased lands in VS no.2 and 3 from

defendant and Ex.P16 - agreement of sale executed by

Chandrappa in favour of plaintiff, agreeing to sell 1 Acre 15

guntas in Sy.no.58 (VS no.3) and delivering possession. It

observed, as there was no dispute about defendant being

original owner of lands bearing VS nos.1, 2 and 3 and sale of

lands bearing VS nos.2 and 3 by defendant to Chandrappa -

plaintiff's vendor.

29. Therefore, first appellate Court observed, plaintiff

was required to establish when survey numbers were assigned

to VS nos.1, 2 and 3. It noted, Exs.P12 to P15 were - RTCs of

Sy.no.58 from 1989-90 to 1995-96, showed land bearing

Sy.no.58 reflected name of Chandrappa. It observed that under

Ex.D4 - order AC set-aside MR no.10/1991-92 entering name

of plaintiff's vendor in respect of Sy.no.58 and in Ex.D5 - DC

dismissed appeal upholding order of AC. It therefore held,

plaintiff cannot rely on Exs.P12 to P15. Thereafter, it referred to

Ex.P37 - village map of Kashipura and noticed that lands

- 20 -

NC: 2025:KHC:18998

HC-KAR

bearing Sy.nos.50 to 61 were adjacent to each other and that it

would not clarify that Sy.no.58 was part of VS no.3. It observed

Ex.P25 to 27 - Revenue Receipts would be of no consequence.

30. Insofar as boundaries, it observed Court

Commissioner's report showed boundaries of VS nos.1 to 3

were same on North and South and would differ only on

Eastern and Western sides. It notes Sy.no.57 was situated on

eastern side of Sy.no.58 and on western side was Sy.no.59. It

observes Ex.D3 showed Sy.no.57 was part of V.S.no.2 whereas

Sy.no.58 to 61 were part of V.S.no.1, plaintiff's claim that on

Western side of Sy.no.58, there was land of Keriyamma would

not arise. It held, there was rebuttal of presumption under

Section 133 of KLR Act in view of orders passed by AC and DC.

On said conclusion, it holds reliance by trial Court on Exs.P12 to

P.15 was erroneous. It further observes, effect of orders passed

by AC and DC were to effect that entries in revenue entries of

name of Chandrappa insofar as Sy.no.58 were erroneous from

date of original entry.

31. Thereafter it referred to report of ADLR - Court

Commissioner showing areas under possession of

- 21 -

NC: 2025:KHC:18998

HC-KAR

plaintiff/defendant. Referring to decision of this Court in

Puttappa's case (supra), it holds reliance by trial Court on

Court Commissioner's report to decide possession would be

illegal.

32. It also observed, admission by PW.1 that

Chandrappa had purchased 4 Acres 38 guntas in VS nos.2 and

3 and land bearing VS no.1 was situated on western side of VS

no.2, would render it impossible for Sy.no.58 to be part of VS

no.3. It held material produced indicated Sy.no.58 was part of

V.S.no.1 and plaintiff had failed to produce any record to show

that after re-survey of V.S.nos.1 to 3, Sy.no.58 was made part

of V.S.no.3. It thus held plaintiff failed to establish Sy.no.58 as

part of VS no.3 and concluded Chandrappa could not convey

either title or possession to plaintiff. Based on said

observations, it held plaintiff had failed to prove lawful

possession without which suit for injunction would not be

tenable. It therefore, it allowed appeal and reversed trial Court

decree.

33. In order to decide whether decision by first

appellate Court suffers from perversity due to ignorance of

- 22 -

NC: 2025:KHC:18998

HC-KAR

material on record as well as coming to conclusion contrary to

material on record, it would be appropriate to refer to material

on record.

34. As noted above, plaintiff in this case had sought for

relief of permanent injunction against defendant against

interfering with plaintiff's possession over suit property. In his

pleadings he stated that suit property was part of VS no.3,

originally belonging to defendant (as per Ex.P1) and sold to

plaintiff's vendor under registered sale deed (as per Ex.P2

along with VS no.2). He claimed Chandrappa executed Ex.P16 -

agreement of sale in favour of plaintiff by receiving substantial

amount of sale consideration and delivering possession and

when plaintiff was in possession and cultivation of suit

property, defendant sought to interfere by attempting to lay

road in suit property, while forming layout in his land. To

establish same, plaintiff deposed in terms of plaint averments

as PW.1 and produced following documents:

Ex.P1 - Sale deed dated 21.09.1964 executed by Gurappa S/o SG Muniyappa in favour of Narasamma in respect of property bearing VS no.1 measuring 7 Acres 18 guntas, VS no.2 measuring 3 Acres 19 guntas, VS no.3 measuring 1 Acre 19 guntas and VS no.10 measuring 1 Acre 24 guntas.

- 23 -

NC: 2025:KHC:18998

HC-KAR

Ex.P2 - Sale deed dated 19.04.1975 executed by Narasamma in favour of M.Chandra in respect of property bearing VS no.2 (new PR no.2) measuring 3 Acres 19 guntas and VS no.3 (new PR no.3) measuring 1 Acre 19 guntas, totally measuring 4 Acres 38 guntas.

Ex.P3 - Sale deed dated 21.05.1987 executed by M.Chandra S/o N.Muniswamy in favour of Lakshmamma in respect of property bearing Sy.no.1 and VS no.2 (new PR no.2) measuring 3 Acre 19 guntas.

Ex.P4 - RoR of 1997-98 of Sy.no.55 measuring 35 guntas showing entry of name of Lakshmamma as per MR no.1/1987-88 (Sale deed).

Ex.P5 - RoR of 1997-98 of Sy.no.56 measuring 37 guntas showing entry of name of Lakshmamma as per MR no.1/1987-88 (Sale deed).

Ex.P6 - RoR of 1997-98 of Sy.no.57 measuring 1 Acre 8 guntas showing entry of name of Lakshmamma as per MR no.1/1987-88 (Sale deed).

Ex.P7 - RoR of 1997-98 of Sy.no.59 measuring 1 Acre 18 guntas showing entry of name of Narasamma as per MR no.2/1987-88 (Pauti).

Ex.P8 - RoR of 1997-98 of Sy.no.60 measuring 1 Acre 21 guntas showing entry of name of Narasamma as per MR no.2/1987-88 (Pauti).

Ex.P9 - RoR of 1997-98 of Sy.no.61 measuring 2 Acres 10 guntas showing entry of name of Narasamma as per MR no.2/1987-88 (Pauti).

Ex.P10 - MR no.10/1991-92 for entering name of Chandru in respect of VS.no.2 measuring 3 Acres 19 guntas and VS no.3 (Blk.no.3) measuring 1 Acre 19 guntas.

Ex.P11 - RoR of 1983-84 of VS.no.3 (PR no.3) measuring 1 Acre 19 guntas showing entry of name of M.Chandru in Col.no.9 and 12 (2).

Exs.P12

- 24 -

NC: 2025:KHC:18998

HC-KAR

& P13 - RoR of 1989-90 and 1991-92 of Sy.no.58 measuring 1 Acre 15 guntas showing entry of name of M.Chandru as per MR no.2/1975-76.

Exs.P14 & P15 - RoR of 1994-95 and 1995-96 of Sy.no.58 measuring 1 Acre 15 guntas showing entry of name of M.Chandru as per MR no.2/1975-76.

Ex.P16 - Agreement of sale dated 22.01.1992 executed by M.Chandru in favour of plaintiff in respect of property bearing (Old VS no.3) new Sy.no.58 measuring 1 acre 15 guntas.

Ex.P17 - Index of land, showing VS nos.2 and 3 of Kashipura village were Inam lands.

Exs.P18 & P19 - Survey Sketch and Report of Sy.no.58 prepared by ADLR, Shivamogga, prepared as per ADLR-HB/no.138 of 1991-92.

Ex.P20 - Sale deed dated 23.05.1987 by M.Chandru in favour of Smt.Lakshmamma in respect of Sy.no.1 and VS no.2 (PR no.2) measuring 3 Acres 19 guntas.

Ex.P21 - Loan Clearance Certificate dated 18.08.1998 issued by Diary Co-operative Agriculture and Rural Development Bank Ltd., Shivamogga to Smt.Narasamma and release of properties bearing VS nos.1, 3 and 10 measuring 10 Acres 21 guntas from mortgage.

Ex.P22 - Sale deed dated 31.12.1974 executed by Smt.Narasamma in favour of Huligamma for selling VS no.10 (PR no.43) measuring 1 Acre 24 guntas.

Ex.P23 - MR no.1/1983-84 in pursuance of above sale.

Ex.P24 MR no.2/1987-88 for entering name of Smt.Narasamma in respect of Old no.1 measuring 5 Acres 9 guntas renumbered as Sy.no.59 measuring 1 Acre 18 guntas; Sy.no.60 measuring 1 Acre 21 guntas and Sy.no.61 measuring 2 Acres 10 guntas.

Exs.P25

- 25 -

NC: 2025:KHC:18998

HC-KAR

to - P29 Tax Raid Receipts.

Exs.P30 to - P32 - Tippani Utaars of Sy.nos.58, 57 and 59.

Ex.P33 - Appeal filed by Smt.Narasamma against MR no.10/1991-92.

Ex.P34 - Objections filed by M.Chandru.

Ex.P35 - Order dated 15.02.1999 dismissing CRP no.2822/1995 filed by Smt.Narasamma challenging grant of temporary injunction in OS no.647/1993 and confirming order dated 17.04.1995 in MA no.23/1994.

Ex.P36 - Order dated 17.04.1995 passed in MA no.23/1994.

Ex.P37 - Village map of Kashipura wherein demarking Sy.no.58 as Ex.P37(a).

35. On other hand, defendant has denied plaintiff's

claim as agreement holder as well as title of vendor over suit

property. His son deposed as DW.1 under Ex.D1 - SPoA.

Documentary evidence led was marking copy of Ex.P2 sale

deed as Ex.D2, Ex.D3 - Co-relation Statement issued by ADLR

showing Sy.no.58 as part of VS no.1. Exs.D4 and D5 are orders

passed by AC/DC setting aside Ex.P10 and dismissing appeal,

while Exs.D6 and D7 are RoRs issued after order of DC

mutating name of defendant in revenue records in place of

plaintiff's vendor.

- 26 -

NC: 2025:KHC:18998

HC-KAR

36. Since dispute is whether suit property i.e., land

bearing Sy.no.58 was part of VS.no.1 or VS.no.3, Ex.P3 - Sale

Deed in respect of VS.no.2, Exs.P4 to P9 - RoRs in respect of

Sy.no.55 to 57 and Sy.no.59 to 61, Ex.P20 - Sale Deed in

respect of VS.no.2, Ex.P22 and 23 - Sale Deed and Mutation in

respect of VS.no.10, Exs.P25 to P29 - Tax paid receipts would

not be relevant and plaintiff cannot claim to be aggrieved by

their non consideration.

37. Even Exs.P18, P19, P30 and P32, Survey sketch,

report and Tippani Uttar of Sy.nos.58, 57 and 59 would not be

useful for not mentioning boundaries and plaintiff failing to

produce Moola Tippani of VS nos.1 to 3 or examining any

official from Revenue Department or even any adjacent land

owner to establish possession of suit property. It is seen there

is no dispute about Ex.P1 and P2 - Sale Deeds and in any case

first appellate Court take note of same.

38. Ex.P10 is MR no.10/1991-92 for mutation of name

of plaintiff's vendor - Chandru in respect of VS nos.2 and 3. As

per plaintiff, defendant filed appeal against it as per Ex.P33 and

plaintiff's vendor contested it as per Ex.P34. Defendant has

- 27 -

NC: 2025:KHC:18998

HC-KAR

produced order passed in appeal as Ex.D4 wherein MR

no.10/1991-92 was set-aside and Ex.D5 showing dismissal of

appeal against said order with observation that it would be

open for plaintiff's vendor to approach trial Court for declaration

of his rights. In meanwhile, plaintiff had filed this suit.

39. It is seen that first appellate Court has referred to

Exs.P11 to Ex.P18, Ex.P33 and P34 in light of orders at Exs.D4

and D5, observing that an order passed for setting aside entry

in revenue record would relate back to date of such entry. Said

observation would be in accordance with law. First appellate

Court has also referred to village map at Ex.P37 to hold that

same would not be helpful to determine location of Sy.no.58

whether in VS no.1 or VS no.3. Thus all material relevant for

determination of dispute herein have been duly considered.

Therefore, ground of perversity against order passed by first

appellate Court would not stand.

40. In fact, reference would also have to be made to

contention of learned counsel for defendant referring to

documents produced along with his application for additional

evidence that 'plaintiff along with his vendor' had filed OS

- 28 -

NC: 2025:KHC:18998

HC-KAR

no.773/1999 for declaration of his title over Sy.no.58 against

defendant herein and questioning orders at Exs.D4 and D5

passed by AC and DC respectively and for permanent

injunction. It would appear that said suit has come to be

dismissed for non-prosecution on 27.06.2006, and even

Misc.no.3/2011 filed there-against is dismissed on 01.08.2013.

Indeed in reply, learned counsel for plaintiff contended

dismissal of suit for declaration would not come in way of

plaintiff seeking to protect his possession (invoking Section 53-

A of TP Act) by filing suit for injunction. However, whether

holder of an agreement of sale can file suit against third parties

invoking Section 53-A has been clarified by Hon'ble Supreme

Court in case of RBANMS Educational Institution v. B.

Gunashekar, reported in 2025 SCC OnLine SC 793, wherein

it is held:

"15. ... ... ... In the present case, the respondents' claim based on an agreement to sell. The legal effect of such an agreement must be examined in light of Section 54 of the Transfer of Property Act, 1882, which explicitly states that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. This principle has been consistently upheld by this Court in the following judgments:

(i) Rambhau Namdeo Gajre (supra) "13. The agreement to sell does not create an interest of the proposed vendee in the suit property.

As per Section 54 of the Act, the title in immovable property valued at more than Rs. 100 can be

- 29 -

NC: 2025:KHC:18998

HC-KAR

conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. It is not disputed before us that the suit land sought to be conveyed is of the value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of Pishorrilal (the proposed transferee) the title of the suit land continued to vest in Narayan Bapuji Dhotra (original plaintiff) and remain in his ownership. This point was examined in detail by this Court in State of U.P. v. District Judge [(1997) 1 SCC 496] and it was held thus : (SCC pp. 499-500, para 7) "7. Having given our anxious consideration to the rival contentions we find that the High Court with respect had patently erred in taking the view that because of Section 53-A of the Transfer of Property Act the proposed transferees of the land had acquired an interest in the lands which would result in exclusion of these lands from the computation of the holding of the tenure-holder transferor on the appointed day. It is obvious that an agreement to sell creates no interest in land. As per Section 54 of the Transfer of Property Act, the property in the land gets conveyed only by registered sale deed. It is not in dispute that the lands sought to be covered were having value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement-holders, the title of the lands would not get divested from the vendor and would remain in his ownership. There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellant State. That section provides for a shield of protection to the proposed

- 30 -

NC: 2025:KHC:18998

HC-KAR

transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally conveyed by sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the appellant State when it seeks to enforce the provisions of the Act against the tenure- holder, proposed transferor of these lands."

(emphasis supplied) There was no agreement between the appellant and the respondent in connection with the suit land. The doctrine of part-performance could have been availed of by Pishorrilal against his proposed vendor subject, of course, to the fulfilment of the conditions mentioned above. It could not be availed of by the appellant against the respondent with whom he has no privity of contract. The appellant has been put in possession of the suit land on the basis of an agreement of sale not by the respondent but by Pishorrilal, therefore, the privity of contract is between Pishorrilal and the appellant and not between the appellant and the respondent. The doctrine of part-performance as contemplated in Section 53-A can be availed of by the proposed transferee against his transferor or any person claiming under him and not against a third person with whom he does not have a privity of contract."

(ii) Suraj Lamp & Industries (P) Ltd. v. State of Haryana, wherein, this Court comprehensively examined the nature of rights created by an agreement to sell and concluded that such agreements create, at best, a

- 31 -

NC: 2025:KHC:18998

HC-KAR

personal right enforceable against the vendor. The relevant paragraphs read as under:

"16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247, observed: (SCC pp.254- 55, paras 32-33 & 37) "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad v. Ram Mohit Hazra, (1967) 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.

33. In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership...

37....that only on execution of conveyance, ownership passes from one party to another...."

17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614] this Court held:

"10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who

- 32 -

NC: 2025:KHC:18998

HC-KAR

remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."

18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.

19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter."

(iii) Cosmos Co. Operative Bank Ltd v. Central Bank of India "25. The observations made by this Court in Suraj Lamp (supra) in paras 16 and 19 are also relevant. .....

26. Suraj Lamp (supra) later came to be referred to and relied upon by this Court in Shakeel Ahmed v. Syed Akhlaq Hussain, 2023 SCC OnLine SC 1526 wherein the Court after referring to its earlier judgment held that the person relying upon the customary documents cannot claim to be the owner of the immovable property and consequently not maintain any claims against a third-party. The relevant paras read as under:--

"10. Having considered the submissions at the outset, it is to be emphasized that irrespective of

- 33 -

NC: 2025:KHC:18998

HC-KAR

what was decided in the case of Suraj Lamps and Industries (supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.

11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:

(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar, (2018) 7 SCC 639

(ii). Balram Singh v. Kelo Devi Civil Appeal no.6733 of 2022

(iii). Paul Rubber Industries Private Limited v. Amit Chand Mitra, SLP(C) no.15774 of 2022.

12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered

- 34 -

NC: 2025:KHC:18998

HC-KAR

documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.

13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view."

15.1. Undoubtedly, a sale deed, which amounts to conveyance, has to be a registered document, as mandated under Section 17 of the Registration Act, 1908. On the other hand, an agreement for sale, which also requires to be registered, does not amount to a conveyance as it is merely a contractual document, by which one party, namely the vendor, agrees or assures or promises to convey the property described in the schedule of such agreement to the other party, namely the purchaser, upon the latter performing his part of the obligation under the agreement fully and in time. Section 54 of the Transfer of Property Act, 1882 explicitly lays down that a contract for sale will not confer any right or interest. Section 53-A of the Transfer of Property Act, 1882 offers protection only to a proposed transferee who has part performed his part of the promise and has been put into possession, against the actions of transferor, acting against the interest of the transferee. For the proposed transferee to seek any protection against the transferor, he must have either performed his part of obligation in full or in part. The applicability of Section 53-A of the Transfer of Property Act, 1882 is subject to certain conditions viz., (a) the agreement must be in writing with the owner of the property or in other words, the transferor must be either the owner or

- 35 -

NC: 2025:KHC:18998

HC-KAR

his authorized representative, (b) the transferee must have been put into possession or must have acted in furtherance of the agreement and made some developments, (c) the protection under Section 53-A is not an exemption to Section 52 of the Transfer of Property Act, 1882 or in other words, a transferee, put into possession with the knowledge of a pending lis, is not entitled to any protection, (d) the transferee must be in possession when the lis is initiated against his transferor and must be willing to perform the remaining part of his obligation, (e) the transferee must be entitled to seek specific performance or in other words, must not be barred by any of the provisions of the Specific Relief Act, 1963 from seeking such performance. The protection under Section 53-A is not available against a third party who may have an adversarial claim against the vendor. Therefore, unless and until the sale deed is executed, the purchaser is not vested with any right, title or interest in the property except to the limited extent of seeking specific performance from his vendor. An agreement for sale does not confer any right to the purchaser to file a suit against a third party who is either the owner or in possession, or who claims to be the owner and to be in possession. In such cases, the vendor will have to approach the court and not the proposed transferee.

15.2. In the present case, juxtaposing the above legal principles to the facts of the case, we find that the respondents' claim suffers from multiple fatal defects that go to the root of the case, which are as follows:

15.2.1. First, there is no privity between the respondents and the appellant. The agreement to sell, is not between the parties to the suit. According to Section 7 of the Transfer of Property Act, 1882, only the owner, or any person authorised by him, can transfer the property. We have already held that an agreement to sell does not confer any right on the proposed purchaser under the agreement. Therefore, as a natural corollary, any right, until the sale deed is executed, will vest only with the owner, or in other words, the vendor to take necessary action to protect his interest in the property. According to the respondents, the property belongs to the vendors and according to the appellant, the property vests in them. Since the respondents are not divested any right

- 36 -

NC: 2025:KHC:18998

HC-KAR

by virtue of the agreement, they cannot sustain the suit as they would not have any locus. Consequently, they also cannot seek any declaration in respect of the title of the vendors. But when the title is under a cloud, it is necessary that a declaration be sought as laid down by this Court in the judgment in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs27. Therefore, the suit at the instance of the respondents/plaintiffs is not maintainable and only the vendors could have approached the court for a relief of declaration. In the present case, strangely, the vendors are not arrayed as parties to even support any semblance of right sought by the respondents/plaintiffs, which we found not to be in existence. Further, the respondents/plaintiffs claim to have paid the entire consideration of Rs. 75,00,000/- in cash, despite the introduction of Section 269ST to the Income Tax Act in 2017 and the corresponding amendment to Section 271 DA. As held by us, the agreement can only create rights against the proposed vendors and not against third parties like the appellant herein. As the agreement to sell does not create any transferable interest or title in the property in favour of the respondents/plaintiffs, as per Section 54 of the Transfer of Property Act, 1882, we hold that the attempt of the plaintiffs to disclose the cause of action through clever drafting, based solely on an agreement to sell, must fail, as such disclosure cannot be restricted to mere statement of facts but must disclose a legal right to sue.

15.2.2. Secondly, and perhaps more fundamentally, as we have seen and held above, the respondents have no legal right that can be enforced against the appellant as their claim is impliedly barred by virtue of Section 54 of the Transfer of Property Act, 1882. Their remedy, if any, lies against their proposed vendors. The plaint averments remain silent regarding the execution of a registered sale deed in favour of the respondents, which alone can confer a valid right on them to file a suit against the appellant as held by us earlier. Another, remedy available to them is to institute a suit against the vendors for specific performance. This principle was clearly established in K. Basavarajappa (supra), wherein this Court held that an agreement holder lacks locus standi to maintain actions against third parties. The

- 37 -

NC: 2025:KHC:18998

HC-KAR

relevant paragraph of the said judgment is extracted below:

"8. ... By mere agreement to sell the appellant got no interest in the property put to auction to enable him to apply for setting aside such auction under Rule 60 and especially when his transaction was hit by Rule 16(1) read with Rules 51 and 48. Consequently he could not be said to be having any legal interest to entitle him to move such an application. Consequently no fault could be found with the decision of the Division Bench of the High Court rejecting the entitlement of the appellant to move such an application."

15.2.3. The contention of the learned counsel for the respondents that the judgments relied upon by the appellant are not applicable, cannot be accepted for the simple reason that the ratio laid down by this court, is applicable irrespective of the stage at which it is relied upon. What is relevant is the ratio and not the stage. Such contentions go against the spirit of Article 141 of the Constitution of India. Once a ratio is laid down, the courts have to apply the ratio, considering the facts of the case and once, found to be applicable, irrespective of the stage, the same has to be applied, to throw out frivolous suits. There is no gainsaying in contending that the other party must be put to undergo the ordeal of entire trial, when the plaintiff's claim is either barred by law or the plaint fails to disclose a cause of action, as it would amount to abuse of process of law, wasting the precious time of the courts. On the other hand, the judgments relied upon by the respondents do not come into their aid as the judgments referred to by them also lay down the proposition that the plaint can be rejected if on a meaningful reading of it, fails to disclose a cause of action or is barred by law. In the present case, from the facts, we also find this to be a case of champertous litigation, between the plaintiffs and the vendors, who are not parties to the suit. Though champertous litigations have been recognized in our country to some extent by way of amendment to CPC by certain states, considering the facts of the present case and the averments in the plaint, we only find the litigation to be inequitable, unconscionable or extortionate.

- 38 -

NC: 2025:KHC:18998

HC-KAR

15.2.4. Further, the respondents are not in possession of the property. Whereas, the appellant's possession since 1905 is admitted in the plaint itself. In such circumstances, where the plaintiffs are not in possession and the defendant is in settled possession for over a century, a suit for bare injunction by a proposed transferee is clearly not maintainable. Section 41(j) of the Specific Relief Act, 1963 prohibits grant of injunction when the plaintiff has no personal interest in the matter. In the present case, the respondents, being mere agreement holders, have no personal interest in the suit schedule property that can be enforced against third parties. The "personal interest" is to be understood in the context of a legally enforceable right, as when there is a bar in law, the mere existence of an interest in the outcome cannot give a right to sue. As held by us above, no declaratory relief has been sought as contemplated under Section 34 of the Specific Relief Act, 1963. This principle was clearly established in Jharkhand State Housing Board (supra), in which, this Court emphasized that where title is in dispute, a mere suit for injunction is not maintainable. The relevant portion of the said judgment is reproduced hereunder:--

"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."

15.2.5. Yet another defect in the plaint is regarding the identity of the property. The respondents/plaintiffs, as seen above, have admitted to the possession of the appellant over the suit property. The plaint, on one hand, raises a dispute as to whether the property claimed by the respondents is the same as that possessed by the appellant, and on the other hand,

- 39 -

NC: 2025:KHC:18998

HC-KAR

seeks only a relief of permanent injunction restraining the appellant/defendant from alienating the property, without seeking a declaration affirming the title of their vendors. The entitlement of the plaintiffs to the possession rests on the title of their vendors and it is not an independent right. Without possession and without seeking a declaration of title, not only is the suit barred but the cause of action is also fictitious."

(emphasis supplied)

41. Above ratio is laid down after duly referring to

decisions in case of Suraj Lamp and Rambhau Namdeo

Gajre (supra). Following same, it is held that a mere

agreement holder in respect of a property would have no

personal or enforceable right in respect of said property and

cannot maintain a suit against third parties. Though it was

contended that defendant herein cannot be treated as third

party as plaintiff's vendor derived title from defendant under

Ex.P2 sale deed, specific provisions of Section 53-A of TP Act

reads:

"Section 53A. Part performance: -- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, or, where there is an instrument of transfer, that the transfer has

- 40 -

NC: 2025:KHC:18998

HC-KAR

not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.