Karnataka High Court
Kariyappa vs P S Thimmaiah Naidu on 12 June, 2025
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RSA No. 2147 of 2007
C/W RSA No. 2141 of 2007
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 2147 OF 2007 (DEC/INJ)
C/W
REGULAR SECOND APPEAL NO. 2141 OF 2007 (DEC)
IN RSA No. 2147/2007:
BETWEEN:
KARIYAPPA
SINCE DEAD BY HIS LRS
(a) BASAVARAJ,
S/O LATE KARIYAPPA,
AGED ABOUT 55 YEARS,
(b) ANJAN KUMAR,
S/O LATE KARIYAPPA,
AGED ABOUT 50 YEARS,
(c) CHANNAKESHAVA,
Digitally S/O LATE KARIYAPPA,
signed by C AGED ABOUT 44 YEARS,
HONNUR SAB (d) PUSHPAVATHI,
Location: D/O LATE KARIYAPPA,
HIGH COURT W/O MUNESHWARAPPA,
OF
KARNATAKA AGED ABOUT 37 YEARS,
(e) MANJUNATHA,
S/O LATE KARIYAPPA,
AGED ABOUT 34 YEARS
ALL ARE RESIDING AT
DURGAMMA DEVASTANA BEEDI,
HOSADURGA (TMC), HOSADURGA,
CHITRADURGA DISTRICT.
(CAUSE TITLE AMENDED AS PER COURT ORDER DT: 23.09.2021)
...APPELLANTS
(BY SRI P H VIRUPAKSHAIAH, ADVOCATE)
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RSA No. 2147 of 2007
C/W RSA No. 2141 of 2007
HC-KAR
AND:
1. P S THIMMAIAH NAIDU,
S/O P T SUBBAIAHNAIDU,
SINCE DEAD BY HIS LRS
a) MEENAKSHAMMA,
W/O P S. THIMMAIAH NAIDU,
b) BHARATHI R,
W/O RANGAPPA
c) SUMANGALA,
W/O LATE DHARANAPPA,
d) P T LEELAVATHI,
S/O NARAYANASWAMY,
e) P T CHAYALAKSHMI,
W/O LATE THIPPESWAMY,
f) P T SUDHA,
W/O NAGARAJ,
g) P T PUSHPAVATHI,
W/O HANUMATHA ROY,
h) P T NAGARATHNA,
W/O PRATHAPA REDDY,
i). MAMATHA NAIDU,
W/O RANGANATH,
ALL ARE MAJORS
RESIDING AT MAIN ROAD,
OPP. MAHALAKSHMI TALKIES,
HOSADURGA TOWN,
HOSADURGA TALUK.
2. CHANDRAMOULI,
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RSA No. 2147 of 2007
C/W RSA No. 2141 of 2007
HC-KAR
S/O PARAMESWARAPPA, MAJOR,
R/AT JODI SRIRAMPURA,
KASABA HOBLI, HOSADURGA TALUK.
3. NINGAPPA,
S/O KALAIAHNAVARA SIDDARAMAIAH,
AGED ABOUT 59 YEARS,
AGRICULTURIST,
R/AT SINGAPURA,
DURGAMMA TEMPLE STREET,
HOSADURGA.
4. RAMANNA,
S/O HANUMANNA,
AGED ABOUT 55 YEARS,
AGRICULTURIST,
R/A DURGAMMA TEMPLE STREET,
HOSADURGA TOWN.
5. THIMAPPA,
S/O GOVINDAPPA
AGED ABOUT 78 YEARS,
AGRICULTURIST,
R/A BANASHANKARI STREET,
HOSADURGA TOWN.
...RESPONDENTS
(BY SRI R V JAYAPRAKASH, ADVOCATE FOR R1 (A, H & I),
SRI HARISH KUMAR M S, ADVOCATE FOR R1(A, C TO I)
R3 IS SERVED, V/O/DT: 05.04.2013 NOTICE TO R1(B)
IS HELD SUFFICIENT,
V/O/DT 24.07.2013, APPEAL ABATED AGAINST R2,
APPEAL AGAINST R4 & R5 IS DISMISSED FOR
NON-PROSECUTION)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 4.8.2006 PASSED IN
R.A.NO.135/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
HOLALKERE, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 23.10.1998 PASSED IN
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HC-KAR
OS.NO. 102/1984 ON THE FILE OF THE ADDL.CIVIL JUDGE
(JR.DN.), HOSADURGA.
IN RSA NO.2141/2007:
BETWEEN:
KARIYAPPA
SINCE DEAD BY HIS LRS
(a) BASAVARAJ,
S/O LATE KARIYAPPA,
AGED ABOUT 55 YEARS,
(b) ANJAN KUMAR,
S/O LATE KARIYAPPA,
AGED ABOUT 50 YEARS,
(c) CHANNAKESHAVA,
S/O LATE KARIYAPPA,
AGED ABOUT 44 YEARS,
(d) PUSHPAVATHI,
D/O LATE KARIYAPPA,
W/O MUNESHWARAPPA,
AGED ABOUT 37 YEARS,
(e) MANJUNATHA,
S/O LATE KARIYAPPA,
AGED ABOUT 34 YEARS
ALL ARE RESIDING AT
DURGAMMA DEVASTANA BEEDI,
HOSADURGA (TMC), HOSADURGA,
CHITRADURGA DISTRICT.
...APPELLANTS
(BY SRI P H VIRUPAKSHAIAH, ADVOCATE)
AND:
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HC-KAR
1. P S THIMMAIAH NAIDU,
S/O P T SUBBAIAHNAIDU,
SINCE DEAD BY HIS LRS
a) MEENAKSHAMMA,
W/O P S. THIMMAIAH NAIDU,
b) BHARATHI R,
W/O RANGAPPA,
c) SUMANGALA,
W/O LATE DHARANAPPA,
d) P T LEELAVATHI,
S/O NARAYANASWAMY,
e) P T CHAYALAKSHMI,
W/O LATE THIPPESWAMY,
f) P T SUDHA,
W/O NAGARAJ,
g) P T PUSHPAVATHI,
W/O HANUMATHA ROY,
h) P T NAGARATHNA,
W/O PRATHAPA REDDY,
i). MAMATHA NAIDU,
W/O RANGANATH,
ALL ARE MAJORS
RESIDING AT MAIN ROAD,
OPP. MAHALAKSHMI TALKIES,
HOSADURGA TOWN,
HOSADURGA TALUK.
2. CHANDRAMOULI,
S/O PARAMESWARAPPA, MAJOR,
R/AT JODI SRIRAMPURA,
KASABA HOBLI, HOSADURGA TALUK,
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PIN CODE - 577527.
3. NINGAPPA,
S/O KALAIAHNAVARA SIDDARAMAIAH,
AGED ABOUT 59 YEARS,
AGRICULTURIST,
R/AT SINGAPURA,
DURGAMMA TEMPLE STREET,
HOSADURGA, PIN CODE - 577527.
4. RAMANNA,
S/O HANUMANNA,
AGED ABOUT 55 YEARS,
AGRICULTURIST,
R/A DURGAMMA TEMPLE STREET,
HOSADURGA TOWN, PIN CODE - 577527.
5. THIMAPPA,
S/O GOVINDAPPA
AGED ABOUT 78 YEARS,
AGRICULTURIST,
R/A BANASHANKARI STREET,
HOSADURGA TOWN, PIN CODE - 577527.
(CAUSE TITLE AMENDED AS PER COURT ORDER DT: 23.09.2021)
...RESPONDENTS
(BY SRI M S HARISH KUMAR, ADVOCATE FOR R1 (A-C, F &I),
R1(D) IS SERVED, R1(E), R1(G) AND R1(H) ARE SERVED,
V/O/DT 09.11.2012, APPEAL DISMISSED AGAINST R2-R5)
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 04.08.2006 PASSED IN
RA.NO.135/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
HOLALKERE, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGEMENT AND DECREE DATED 23.10.1998 PASSED IN
OS.NO.528/89 ON THE FILE OF THE ADDL.CIVIL JUDGE
(JR.DN.) HOSADURGA, PARTLY DECREEING THE SUIT FOR
DECLARATION AND PERMANENT INJUNCTION.
THESE APPEALS, COMING ON FOR FURTHER ORDERS,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
ORAL COMMON JUDGMENT
R.S.A. No.2147/2007 is arising from the judgments
and decrees in O.S. No.102/1984 on the file of Additional
Civil Judge (Junior Division), Hosadurga and R.A.
No.135/2001 on the file of Civil Judge (Senior Division),
Holalkere.
2. R.S.A. No.2141/2007 is arising from the
judgments and decrees in O.S. No.528/1989 on the file of
Additional Civil Judge (Junior Division), Hosadurga and
R.A. No.135/2001 on the file of Civil Judge (Senior
Division), Holalkere.
3. Both suits were clubbed together and disposed
of by a common judgment. The plaintiff in O.S.
No.102/1984 who is also defendant No.1 in O.S.
No.528/1989 has filed R.A. No.135/2001 and the appeal is
dismissed. Hence, these two second appeals are filed.
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4. The plaintiff in O.S. No.102/1984 who is the
defendant No.1 in O.S. No.528/1989 is referred to as the
appellant in this case. The contesting defendants in O.S.
No.102/1984 who are the plaintiffs in O.S. No.528/1989
are referred to as respondents.
5. The appellant filed a suit in respect of property
bearing Survey No.106/2, measuring 2 acres 5 guntas in
Govinakalla village, Taluk Hosadurga. The suit in O.S.
No.102/1984 is essentially filed on the premise that the
plaintiff has acquired the title and possession over the
property on the basis of a registered sale deed dated
06.05.1948. Appellant claims that he purchased the
property from one Devaragonda Mariyappa. It is further
stated that the respondents are interfering in the
possession and enjoyment of the property and
accordingly, sought relief of declaration of title and
injunction.
6. During the pendency of the suit, an application
is filed to amend the plaint and the appellant sought
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possession of 25 guntas on the premise that he has been
dispossessed during the pendency of the suit.
7. The respondents who filed O.S. No.528/1989
claimed title over the property on the basis of a registered
sale deed dated 03.03.1981. The respondents traced the
title to the property from the original sale deed dated
25.01.1934 executed by D. Mariyappa, referred to above.
8. It is further stated by the respondents that
Mariyappa sold the property bearing survey No.106/1
measuring 3 acre 15 guntas and 106/2 measuring 3 acres
19 guntas to Mudimallanaika and Mudimallanaika in the
year 1936 sold the property to Govindappa and
Govindappa has sold the suit property to P.S. Thimmaiah
Naidu on 03.03.1981. The respondents also claimed
adverse possession in the alternative.
9. Both the Courts concluded that the plea of
adverse possession is not established. The Courts also
concluded that the appellants claim to the title over the
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property on the basis of registered sale deed of 1948 is
not established. The Courts also concluded that on
21.01.1934, original vendor Mariyappa has sold his entire
property to Mudimallanaika and Mudimallanaika in the
year 1936 has sold the property to Govindappa and
Govindappa sold the suit property to P.S. Thimmaiah
Naidu. Thus, came to the conclusion that appellant who
claims to have purchased the property under the sale deed
of 1948 has not acquired any title over the property.
Consequently, O.S. No.102/1984 is dismissed and O.S.
No.528/1989 is also dismissed.
10. As already noticed above, both suits clubbed
together and disposed of by common judgment, there are
two separate decrees. The law requires the person to file
two separate appeals against two separate decrees in case
if he is aggrieved. The plaintiff in O.S. No.102/1984 has
filed only one appeal in R.A. No.135/2001. Not
withstanding this technical objection, the appeals are
heard on merits for admission.
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11. Learned counsel for the appellants would
submit that there is a registered sale deed in the name of
the appellant in the year 1948 and when the sale deed
was executed, the name of the vendor Muniyappa was
appearing in the property records and based on the sale
deed, he came in possession of the property and enjoyed
the property. Since there was obstruction by the
respondents, he was constrained to file a suit and despite
production of original sale deed of 1948, both Courts
committed an error in holding that the appellant is not the
owner of the property.
12. It is his further submission that sale deed of
1934 is not a sale deed in reality, but it is only a mortgage
and had it been a genuine sale deed, there would have
been change in the entry in the property records and
entries in the property records are not changed and even
in 1948, the name of Muniyappa was found in the property
records and there was a valid execution of the sale deed
by Muniyappa in favour of appellant.
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13. Thus, it is urged that both the Courts erred in
dismissing the suit of the appellant and decreeing the suit
of the respondents. It is his further submission that
respondents who have raised the contention of adverse
possession have not established the plea of adverse
possession. The trial Court as well as Appellate Court
have given a finding that adverse possession is not
established and once adverse possession is not
established, the Court ought to have decreed the suit of
the appellants, is the submission.
14. Learned counsel appearing for the contesting
respondents would submit that both Courts have rightly
concluded that the appellant has not acquired any title and
possession over the property on the basis of a registered
sale deed of 1948. It is their contention that in the year
1934, Muniyappa sold entire property to Mudimallanaika
and Mudimallanaika in turn, has sold the entire property to
Govindappa and respondents have purchased the property
measuring 1 acre 10 guntas from Govindappa and suit is
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filed only in respect of 1 acre 10 guntas and Courts have
rightly concluded that the respondents have acquired title
over the property under the registered sale deed of 1981.
15. It is further submitted that the plea of adverse
possession is taken as an alternative defence and merely
because the respondents took a contention relating to
adverse possession it does not mean that their contention
based on the title deed has to be rejected.
16. This Court has considered the contentions
raised at the bar and perused the records.
17. Both the Courts have concluded that execution
of sale deed date 25.01.1934 is not disputed. The
respondents have produced the certified copy of the sale
deed of 1934 as well as the certified copy of sale deed of
1936. Original sale deed is not produced. However, the
appellant would contend that the sale deed of 1934 is not
a sale deed in reality but it is only a mortgage deed.
Looking at the defence of the contention of the appellant,
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it is very much apparent that the dispute is not relating to
the execution, but is relating to the nature of the
transaction. This being position, non production of the
original sale deed of 1934 does not come in the way of
considering the claim of the respondents which is based on
the sale deed of 1981 and original sale deed of 1981 is
produced.
18. Since the appellants have taken up a contention
that sale deed dated 25.01.1934 is not a sale deed, it is a
mortgage deed. It is for the appellant to substantiate the
said contention which is contrary to the recital in the sale
deed. To substantiate this contention, the appellant has
not examined the vendor of the sale deed dated
25.01.1934 or any of the persons claiming under him or
any of the witnesses to the said sale deed or he has not
made an attempt to examine the scribe to the said sale
deed.
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19. Even to establish the contention that he is in
possession, the appellant has not led evidence of any
witnesses. On the other hand, the respondents have led
evidence of independent witnesses namely Timmappa and
Chikkappa.
20. Considering the evidence on record, both the
Court have concluded that the execution of sale deed
dated 25.01.1934 is true and there is nothing to believe
that the sale deed dated 25.01.1934 is a mortgage deed
and not a sale deed. This being the position, the Court
has to take a view that Muniyappa has sold entire property
in 1934 and he was not left with any property. Thus, the
sale deed dated 06.05.1948 in the name of appellant does
not confer any title and possession in favour of the
appellant. This finding recorded by the trial Court and the
First Appellate Court is based on acceptable materials on
record.
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21. Asfar as the contention of the respondents that
they have perfected the title over the property by way of
adverse possession, it is to be noticed that the said
contention is not established, because respondents have
purchased the property in the year 1981 under a
registered sale deed. Having purchased the property
under a registered sale deed from a lawful owner, it was
not necessary for them to raise a plea of adverse
possession. And evidence is also not led on the said plea.
This being the position, the negative finding on the plea of
adverse possession raised by the respondents does not
come in the way of respondents establishing their title
based on the registered sale deed of 1981.
22. For the aforementioned reasons, this Court
does not find any reason to interfere with the finding
recorded by the trial Court as well as the First Appellate
Court.
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23. No substantial question of law would arise and
accordingly, appeals are dismissed.
24. In view of disposal of the appeals, I.A. 2/2025
in R.S.A. No.2141/2007 for stay, does not survive for
consideration.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS
