Karnataka High Court
Smt. Shamu Bai vs Sri. B T Ningappa on 20 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 82 of 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 82 OF 2023 (DEC/INJ)
BETWEEN:
1. SMT. SHAMU BAI
W/O LATE NARASINGH
AGE 62 YEARS
2. SRI. MANJUNATH SINGH
S/O LATE NARASINGH
AGE 45 YEARS
3. SRI. KRISHNA SINGH
S/O LATE NARASINGH
AGE 44 YEARS
4. SRI. SHASHIKUMAR SINGH
S/O LATE NARASINGH
AGE 41 YEARS
Digitally signed 5. SRI. MOHAN SINGH
by DEVIKA M S/O LATE NARASINGH
Location: HIGH AGE 33 YEARS
COURT OF
KARNATAKA 6. SRI. BALAJI SINGH
S/O LATE NARASINGH
AGE 37 YEARS
7. SRI. MADHUKUMAR SINGH
S/O LATE NARASINGH
AGE 30 YEARS
8. SMT. PREMA BAI
W/O LATE MUNISINGH,
AGE 55 YEARS
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RSA No. 82 of 2023
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9. SRI. MANJUNATH SINGH
S/O LATE MUNISINGH
AGE 32 YEARS
ALL ARE R/AT MAKALI VILLAGE,
DASANAPURA HOBLI, BANGALORE-562162
...APPELLANTS
(BY SRI. R.A. DEVANAND, ADVOCATE)
AND:
1. SRI. B.T. NINGAPPA
S/O LATE THIBBAIAH
AGE 43 YEARS
2. SRI. B.T. KRISHNAPPA
S/O LATE THIBBAIAH
AGE 41 YEARS
BOTH ARE SONS OF LATE THIBBAIAH,
R/AT MAKALI VILLAGE, DASANAPURA HOBLI
BANGALORE NORTH TALUK-562162
...RESPONDENTS
(BY SRI. M. SHIVAPRAKASH, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 16.12.2022 PASSED IN
R.A.NO.110/2016 ON THE FILE OF THE IX ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 10.06.2016 PASSED IN O.S.NO.53/2009 ON THE
FILE OF THE SENIOR CIVIL JUDGE, NELAMANGALA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard the learned counsel for the appellants and the
learned counsel for the respondents.
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2. This matter is listed for admission.
3. This second appeal is filed against the judgment
and decree dated 16.12.2022 passed by the IX Additional
District and Sessions Judge, Bengaluru (henceforth referred to
as 'First Appellate Court') in R.A.No.110/2016 confirming the
judgment and decree dated 10.06.2016 passed by the Senior
Civil Judge, Nelamangala (henceforth referred to as 'Trial
Court') in O.S.No.53/2009.
4. The factual matrix of case of plaintiff and her legal
representatives before the Trial Court while seeking the relief of
declaration of ownership and permanent injunction is that the
husband of the plaintiff by name Sham Singh was a tenant in
respect of 39 guntas of land, which was divided into two
portions as 27½ guntas and 12½ guntas in Sy.No.5.
Subsequently, the said land was granted in favour of husband
of the plaintiff by the Land Tribunal, Nelamangala and Form
No.10 was issued in favour of her husband in respect of the suit
schedule properties. The husband of the plaintiff had also paid
premium as per notice issued by the Special Tahsildar attached
to the Land Tribunal and the name of husband of plaintiff was
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mutated in M.R.No.1/82-83. The husband of the plaintiff had
also constructed houses over the suit schedule properties and
leased in favour of the tenants. After the death of husband of
the plaintiff, the plaintiff continued in possession of the suit
schedule properties and mutation was also accepted in her
name in IHC No.617/83-84. The defendants who are the
residents of the same village of the plaintiff had purchased 5
guntas of land in Sy.No.5/1A from Smt. Mallamma and visited
the schedule 'B' property and proclaimed that the property
purchased by them is located in suit 'B' schedule property. On
the basis of the sale deed, they have also mutated their names
in respect of 5 guntas of land and they have also filed a suit in
O.S.No.191/1998 on the file of the Civil Judge (Jr. Dvn.) at
Nelamangala against the husband of the plaintiff and brothers.
The defendants on the strength of the sale deed was trying to
interfere with the peaceful possession and enjoyment of the
property of the plaintiff.
5. The Trial Court considered the averments made in
the plaint and also the written statement. Since the defendants
claimed their right based on the sale deed, the Trial Court
framed the following issues:-
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1. Whether the plaintiff proves that she is the
absolute owner in possession of "A" and "B"
schedule property?
2. Whether the plaintiff proves that the
defendants are trying to interfere with her
peaceful possession and enjoyment of her suit
schedule property?
3. Whether the plaintiff is entitled for the relief of
declaration and permanent injunction as
prayed for?
4. What order or decree?
6. The Trial Court allowed the parties to lead evidence.
The plaintiff and her legal representatives have examined
Special Power of Attorney Holder as PW.1 and also examined
one witness as PW.2. They got marked 50 documents as
Exs.P1 to P50. On the other hand, defendant No.1 examined
himself as DW.1 and got marked 30 documents as Exs.D1 to
D30.
7. The Trial Court considered both oral and
documentary evidence. Since the suit was filed for the relief of
declaration of ownership and permanent injunction, the Trial
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Court taking note of the averments made in the plaint and also
the written statement and also the evidence of respective
parties, discussed in paragraph No.15 with regard to bifurcating
the suit schedule property as 'A' and 'B' schedule properties
and also the claim made by the plaintiff that suit 'A' and 'B'
schedule properties are comprised in Sy.No.5/17 totally
measuring 1 acre situated at Makali village, Dasanapura Hobli,
Nelamangala taluk. Having considered the boundaries of both
the properties, the Trial Court came to the conclusion that
nowhere it is mentioned that the suit 'A' and 'B' schedule
properties are situated adjacent to each other. It is also held
that if really the suit 'A' and 'B' schedule properties are situated
adjacent to each other, the boundary particulars of one of the
properties shall have to be mentioned as portion of 'A' or 'B'
schedule property. It was also held that according to the
boundaries mentioned in the plaint, the suit 'A' and 'B' schedule
properties are the properties located in distinct place. It is also
observed that the description of the properties given by the
plaintiff in the plaint is not supported by any documentary
evidence.
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8. In paragraph No.16, the Trial Court also made an
observation that it is for the plaintiff to produce necessary
documentary evidence before the Court with regard to the
boundaries mentioned as 'A' and 'B' schedule properties in the
plaint. The plaintiff in her claim specifically stated that her
husband was the tenant in respect of 39 guntas of land and the
Land Tribunal has granted the said land in his favour which is
divided into two portions i.e., 27 ½ and 12 ½ guntas, but in the
evident of PW1, it is stated that said Sham Singh was tenant in
respect of the aforesaid extent of land. The plaintiff in the
pleading as well as in the evidence of PW1 specifically claimed
that the husband of the plaintiff Sham Singh was tenant in
respect of 39 guntas of land in Sy.No.5/17 and later it was
granted in his favour under Ex.P2 grant order, which is divided
into two portions as 27 ½ and 12 guntas in Sy.No.5 and later
mentioned two portions as 25 ½ guntas and 12 guntas in the
evidence of PW.1 but nowhere in Ex.P2 grant order, which is
the title deed of the plaintiff, the two bits of lands as described
under the suit 'A' and 'B' schedule properties is not mentioned.
Having taken note of these admissions, the Trial Court in detail
discussed in paragraph Nos.18, 19, 20 that the plaintiff has not
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proved boundaries which have been shown in the plaint. The
Trial Court also taken note that during the cross-examination of
PW.1, it was elicited from his mouth that the Land Tribunal had
granted 1 acre 25 guntas of land in Sy.No.5/6 and 1 acre of
land in Sy.No.5/17 in favour of husband of plaintiff. It was
elicited from the mouth of PW1 that the suit schedule property
comes under Sy.No.5/6, but in the schedule of the plaint, the
plaintiff mentioned that the suit schedule property comes under
Sy.No.5/17, which clearly discloses that the plaintiff is not
certain about in which survey number the schedule property is
situated. Further, the Trial Court held that during the cross-
examination of PW.1, he has clearly accepted the fact that he
has no document to show that the description mentioned in the
plaint schedule is granted property to the husband of the
plaintiff. Hence, the Trial Court dismissed the suit of the
plaintiff and came to the conclusion that though there was
grant in favour of the husband of the plaintiff as claimed by the
plaintiff in the plaint, nothing is placed on record to identify the
property.
9. Being aggrieved by the dismissal of the suit, the
legal representatives of the plaintiff filed an appeal in
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R.A.No.110/2016 before the First Appellate Court. The First
Appellate Court having considered the grounds urged in the
appeal memo as well as the submissions of the respective
learned counsel, formulated the following points for
consideration:-
1. Whether the Trial Court is justified in holding
that the plaintiff has failed to prove that the
property shown in the grant order and the suit
schedule properties are one and the same?
2. Whether the Learned Trial Court is justified in
dismissing the suit of the plaintiff filed in
O.S.No.53/2009 dated 10.06.2016?
3. What order?
10. The First Appellate Court considered the grounds
urged in the appeal as well as both oral and documentary
evidence particularly, the very contention raised by the plaintiff
relying upon the document at Ex.P2 - grant order and also
Ex.P12 granting of occupancy right in favour of her husband in
respect of 1 acre 25 guntas in Sy.No.5/6 and 1 acre in
Sy.No.5/17 and also documentary evidence and defence taken
by the defendants which has been discussed in paragraph
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Nos.29 and 30. In paragraph No.32, the First Appellate Court
comes to the conclusion that Exs.P2 and P12 disclosed that
Land Tribunal has granted occupancy right in favour of the
husband of the plaintiff in respect of 1 acre of land in
Sy.No.5/17. However, the said land is not identified with its
boundaries in the orders passed by the Land Tribunal. It is also
taken note of that if the Land Tribunal has granted occupancy
rights in respect of 27 ½ guntas and 12 ½ guntas as shown in
the plaint schedule, then the contention raised by the plaintiff
would be believed. The plaintiff has given different boundaries
to plaint 'A' and 'B' schedule properties without furnishing any
authenticated sketch to prove the same and also taken note of
admission given by PW.1 in his cross-examination where he
categorically stated that they have not produced any
documents to show that the description shown in the plaint
schedule is the granted property of the husband of the plaintiff
and he has also admitted that there is no document to show
the boundaries description of the suit property, which is
claimed in the plaint. Hence, the First Appellate Court comes to
the conclusion that the very admission on the part of PW.1 is
fatal to the case of the plaintiff with regard to the very
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identification of the property. It is also observed in paragraph
No.33 that boundaries of 'A' and 'B' schedule properties
discloses that they are not adjacent lands. Exs.P2 and P12 does
not discloses that the Land Tribunal has granted occupancy
rights in favour of husband of the plaintiff in respect of two
portions of land in Sy.No.5/17. In paragraph No.34, the First
Appellate Court also taken note that the plaintiff has proved
granting of occupancy right in favour of her husband in respect
of 1 acre of land in Sy.No.5/17. However, she has failed to
prove that the Land Tribunal has granted occupancy rights in
favour of her husband in respect of two bits of land what has
been claimed in plaint. She has also failed to prove that the
boundaries described in the plaint schedule relates to 1 acre of
land granted in favour of her husband and also comes to the
conclusion that when the suit property is not identified with its
boundaries as described in the suit schedule, then the question
of granting relief of declaration of ownership as well as
permanent injunction does not arise. Hence, the First Appellate
Court dismissed the appeal and confirmed the judgment and
decree of the Trial Court.
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11. Being aggrieved by the concurrent finding of the
Trial Court as well as the First Appellate Court, the legal
representatives of the plaintiff are before this Court.
12. Learned counsel appearing for the appellants
submitted that there is no dispute with regard to granting of
land in terms of Ex.P2. He also brought to the notice of this
Court to Ex.P2 where discuss was made regarding claim made
by the vendor of the defendants before the Land Tribunal and
the Land Tribunal comes to conclusion that no material was
placed by the vendor of the defendants. Learned counsel for
the appellants vehemently contended that both the Courts have
failed to consider the document at Ex.P2, order of the land
Tribunal. Learned counsel for the appellants contended that
Trial Court and First Appellate Court have failed to consider the
admission made by DW.1 in his cross-examination that the
property under Ex.D7 dated 19.09.1997 is neither a part nor a
portion of schedule 'B' property. Learned counsel also brought
to the notice of this Court to the admission given by DW1 in the
cross-examination. The learned counsel for the appellants
contended that the defendants claimed that they had
purchased the property in Sy.No.5/1A and earlier it was
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numbered as Sy.No.5/13. Learned counsel for the appellants
vehemently contend that the appellants have filed an
application (I.A.No.1/2025) seeking appointment of
Commissioner to identify the property. Learned counsel also
vehemently contend that the Commissioner may be appointed
at the cost of the appellants to identity the property and prayed
this Court to admit the appeal and frame substantial questions
of law that both the Courts below have committed an error in
not considering the admission given by DW.1 as well as
document at Ex.P2 grant order and also it is not their claim that
they are the owners of the property in respect of Sy.No.5/17
and their claim is only in respect of Sy.No.5/1A. Learned
counsel also submitted that the property of the appellants have
never been acquired and when such being the case, this Court
in a second appeal has to frame substantial questions of law in
respect of document at Ex.P2, which bears Sy.No.5/1A, which
was purchased by the defendants under the sale deed and also
claim made by the appellants is distinct in respect of
Sy.No.5/17.
13. Per contra, the learned counsel for the respondents
would vehemently contend that the Trial Court in detail taken
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note of both the oral and documentary evidence in paragraph
Nos.16, 17, 18 and 19 and comes to definite conclusion that in
respect identity of the property under which declaration and
permanent injunction is sought, there is no documentary
evidence to prove the same. The learned counsel for the
respondents also vehemently contended that the First Appellate
Court having considered the grounds urged in the appeal and
also on reassessment of both oral and documentary evidence,
came to the conclusion that the identity of the property is not
proved and though there is grant order made in favour of the
husband of the plaintiff in respect of Sy.No.5/17, nothing is
placed on record with regard to identity of the property.
Hence, both the Trial Court as well as the First Appellate Court
have passed the reasoned order.
14. Having heard the learned counsel for the appellants
and the learned counsel for the respondents, it is not in dispute
that the suit is filed for the relief of declaration of ownership
and permanent injunction. It is also not in dispute that the
appellants claimed declaration and injunction in respect of two
bits of land and also brought to the notice of this Court Ex.P2
grant order passed by the Land Tribunal. No doubt there is
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grant in favour of husband of the plaintiff to the extent of 39
guntas of land. It is also not the claim of the defendants that
they had purchased property in Sy.No.5/17 but their claim is in
respect of Sy.No.5/1A. Both of them are not claiming that the
suit schedule property belongs to them, but only contention is
that description given under the suit schedule is not correct and
the same is not supported by the documentary evidence. With
regard to the claim of the plaintiff of two bits of land, the Land
Tribunal having considered the document, had not granted
occupancy rights in respect of two bits of land. The boundaries
given in the plaint also are distinct and not as adjacent
property to each other and both the boundaries are different
boundaries mentioned in the plaint. In the cross-examination of
PW.1, he has categorically admitted with regard to marking of
two bits of land while seeking relief of declaration. Since the
plaintiff has sought for relief of ownership over suit 'A' and 'B'
schedule properties particularly in respect of 27½ guntas and
12½ gutans of land in total 39 guntas, the Trial Court in
paragraph Nos.16 to 19 has passed the detailed order. Though
the learned counsel for the appellants vehemently contend that
both the Courts below committed an error, nothing is placed on
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record before the Court to substantiate his contention that
there are two bits of land granted by the Land Tribunal. The
First Appellate Court also considered the oral and documentary
evidence and framed point for consideration as to whether the
Trial Court is justified in dismissing the suit of the plaintiff. In
order to prove fact that the suit schedule property shown in the
plaint is the land which was granted in favour of the husband of
the plaintiff in terms of the Ex.P2, nothing is placed on record
and no document is also placed even at the time of considering
the matter for admission.
15. No doubt, the learned counsel for the appellants
prayed for appointment of Commissioner with regard to the
identity of the property. The records reveal that no such
attempt was made before the Trial Court as well as First
Appellate Court for appointment of Commissioner. When both
the Courts below have given factual finding with regard to the
identity of the property and boundaries have not been proved
and having considered both oral and documentary evidence,
the question of appointment of Commissioner does not arise.
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16. When there is no documentary evidence with regard
to the identity of property and possession, question of
admitting this second appeal does not arise and there is no any
perversity in finding of the Trial Court as well as the First
Appellate Court. In the absence of such perversity, the question
of admitting this second appeal and framing of substantial
questions of law does not arise. Hence, no grounds to admit
the appeal and frame the substantial questions of law.
17. In view of the above, I pass the following
ORDER
The appeal is dismissed. Consequently,
I.A.No.1/2025 also stands dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
PMR
