Karnataka High Court
Mr M Venkatappa S/O Late Muniveerappa vs Sri Shivashankar G on 27 June, 2025
-1-
NC: 2025:KHC:22789
RSA No. 349 of 2009
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO. 349 OF 2009
BETWEEN:
MR M VENKATAPPA,
S/O LATE MUNIVEERAPPA,
AGED ABOUT 75 YEARS,
R/O CHIKKAKAADIGANAHALLI,NANDI HOBLI,
CHIKKABALLAPURA DISTRICT-562101.
...APPELLANT
(BY SRI HARISH BHANDARY T A/W
SRI T K RAJAGOPALA, ADVOCATES)
AND:
1. SRI SHIVASHANKAR G,
S/O LATE B.R. GOPALA RAO,
AGED ABOUT 63 YEARS,
Digitally R/O NO. 103/1,
signed by C NEAR GAYATHRI RELE VISION,
HONNUR NANDI ROAD,CHIKKABALLAPURA-562 101.
SAB
Location: 2. SMT. R.G. LALITHAMMA,
HIGH COURT W/O K. GANESH,
OF AGED ABOUT 59 YEARS,
KARNATAKA D/O LATE B.R. GOPALA RAO,
R/O NO. 1123, 10TH MAIN, 2ND CROSS,
RAGHAVENDRA BLOCK,
SRINAGARA, BANGALORE,
3. SRI G. SURYANARAYANA RAO,
S/O LATE B.R. GOPALA RAO,
AGED ABOUT 55 YEARS,
R/O OLD HOSTEL BUILDING,
-2-
NC: 2025:KHC:22789
RSA No. 349 of 2009
HC-KAR
NEAR E.T.C.M. CIRCLE,
BANGARPETH MAIN ROAD,
KOLAR-563 130.
4. SRI G. ASHWATHANARAYANA,
S/O LATE GOPALA RAO,
AGED ABOUT 52 YEARS,
R/O NO. 44/10, SLN NILAYA,
BEHIND KTC GODOWN,
RAJIV GANDHI NAGAR,
CHURCH ROAD, BOMMANAHALLI,
BANGALORE-560068.
5. SRI RAGHAVENDRA RAO,
S/O LATE SATHYANARAYANA RAO,
AGED ABOUT 40 YEARS,
6. SRI SRINIVASA RAO,
S/O LATE SATHYANARAYANA RAO,
AGED ABOUT 38 YEARS,
7. SMT NAGALAKSHMI,
W/O SATHYANARAYANA RAO,
AGED ABOUT 60 YEARS,
NOS. 5 TO 7 R/O 19/119, SUBBARAYANAPETE,
CHIKKABALLAPURA-562 101.
...RESPONDENTS
(BY SRI K SUBRAMANYAM, ADVOCATE FOR R1 TO R4,
R5 AND R6 ARE SERVED AND UNREPRESENTED
V/C/O DT05.06.2025 R5 & R6 ARE THE LRS OF DECEASED R7)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD:11.12.2008 PASSED IN
R.A.NO.101/2005 ON THE FILE OF THE DISTRICT AND
SESSIONS JUDGE, CHIKKABALLAPUR, PARTLY ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE
DTD:7.6.2005 PASSED IN OS. 200/1998 ON THE FILE OF THE
C/C ADDL. CIVIL JUDGE (JR. DN.) & JMFC.,
CHIKKABALLAPURTRAIL COURT DISMISSED THE SUIT.
-3-
NC: 2025:KHC:22789
RSA No. 349 of 2009
HC-KAR
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This second appeal was dismissed vide order dated
06.04.2010. Said dismissal was for non-prosecution and
not on merit. An application is filed at I.A. No.2/2024 to
recall the order dated 06.04.2010 and I.A. No.1/2024 is
also filed to condone the delay of 5119 days in filing the
application for recalling the order dated 06.04.2010.
2. Along with the application, learned counsel for
the appellant has also produced the document to show
that the appellant was not keeping well.
3. Respondents have filed the objection to both
applications. In addition to considering the applications
for condonation of delay on merit, this Court has also
considered the case on merit.
NC: 2025:KHC:22789
HC-KAR
4. The facts would reveal that suit for specific
performance was filed in the year 1998 to enforce alleged
agreement for sale dated 20.06.1980. Plaintiff/appellant
claims that the property was agreed to be sold for
Rs.12,000/- and he had paid Rs.5,000/- somewhere in the
year 1974 as a hand loan to the defendants and
defendants could not repay the loan amount, as such, the
defendants executed a Guttha Deed (something similar to
lease deed) in favour of the plaintiff. The plaintiff further
claims to be in possession of the property with effect from
04.11.1974 based on the Guttha Deed. It is claimed that
since defendants could not repay the loan amount, he
agreed to sell the property for Rs.12,000/- in the year
1980 and Rs.5,000/- already paid as hand loan was also
treated as part of the consideration amount of Rs.12,000/-
and it is claimed that Rs.5,000/- was paid on 20.06.1980
and Rs.2,000/- was agreed to be paid later.
NC: 2025:KHC:22789
HC-KAR
5. Suit is filed in the year 1998 on the premise
that the land is re-granted to the defendants and
defendants acquired right to alienate the property.
6. The defendants contested the suit denying
execution of agreement for sale and also Guttha Deed.
7. The trial Court concluded that the plaintiff is not
entitled to the relief and the suit is dismissed. The trial
Court held that loan transaction of 1974 is not established
and the execution of Guttha Deed is not established and
Court also held that execution of agreement dated
20.06.1980 is also not established.
8. The plaintiff filed an appeal in R.A.
No.101/2005. The same is also dismissed. Hence, the
present second appeal.
9. As already noticed, the second appeal was
dismissed vide order dated 06.04.2010. It was dismissed
even before the case was admitted and as already noticed,
NC: 2025:KHC:22789
HC-KAR
nearly after 14 years, the application is filed to recall the
order dismissing the appeal for non prosecution.
10. Learned counsel for the appellant would submit
that the appellant was not keeping well and for this
reason, he could not follow up the pending case and his
earlier Advocate is also not traceable and later he has filed
the present application on coming to know that the appeal
is dismissed for non prosecution by engaging present
Advocate.
11. Learned counsel for respondents on the other
hand would submit that the plaintiff who has lost the suit
for specific performance where he has admitted the
ownership of the defendants, later has filed a suit for
declaration of title based on adverse possession in O.S.
No.245/2016 and said suit was dismissed and an appeal is
filed against the said decree in R.A. No.22/2024. It is
urged that in the very suit seeking declaration of title
based on adverse possession, the defendants/respondents
have taken a contention that this appeal in R.S.A
NC: 2025:KHC:22789
HC-KAR
No.349/2009 is dismissed for non prosecution. Thus, he
would urge that the appellant has not shown sufficient
cause for condoning the delay of nearly 14 years.
12. It is his further contention that the appellant
was not keeping well and could not pursue the present
appeal cannot be accepted as he was prosecuting the
second suit as well as an appeal from the decree in the
second suit.
13. This Court has considered the contentions
raised at the bar and perused the records.
14. The admitted factual position is that the
property was granted to the defendants in the year 1997.
The alleged agreement for sale was executed in the year
1980. Admittedly, on that day the defendants had no title
of the property and they could not have entered into an
agreement to sell the property over which, they had no
title.
NC: 2025:KHC:22789
HC-KAR
15. It is also noticed that the land is an agricultural
land. The plaintiff claims that he came in possession of
the property under Guttha Deed dated 04.11.1974 which
for all practical purposes can be construed as a lease
deed. Karnataka Land Reforms Act was amended with
effect from 01.03.1974. The amended provisions of the
Karnataka Land Reforms Act prohibits the lease of an
agricultural land. Thus, the alleged Guttha Deed itself is
not permissible under law and Court cannot hold that the
plaintiff came in possession of the property under the said
document.
16. Both the Courts have concurrently held that the
agreement dated 20.06.1980 is not proved. Even
otherwise, the admitted legal position would be the
defendants had no title over the property on 20.06.1980
to enter into an agreement to sell.
17. It is also noticed that relief of specific
performance is discretionary relief. The person who seeks
specific performance must establish that he was ready and
NC: 2025:KHC:22789
HC-KAR
willing to perform his part of the contract throughout. The
appeal as already noticed was dismissed in the year 2010.
Application to recall the said order dismissing the appeal
for non prosecution is filed after 14 years. Instead of
moving the application for restoration, the plaintiff was
prosecuting the suit in respect of the same property
seeking relief of declaration of title based on adverse
possession. Thus, there is no difficulty in holding that the
plaintiff gave up his claim for specific performance of the
alleged contract. Even if it is assumed that the agreement
for sale is proved then also the plaintiff having filed a suit
for declaration of title cannot claim specific performance as
the readiness and willingness to perform his part of the
contract is not established.
18. Under these circumstances, this Court is of the
view that the Court cannot show any indulgence to the
appellant who is seeking the discretionary relief for specific
performance of the contract.
- 10 -
NC: 2025:KHC:22789
HC-KAR
19. For the aforementioned reasons, this Court is of
the view that there is no merit in the appeal as well as
there is no merit in the application to recall the order
dated 06.04.2010.
20. Hence, appeal is dismissed. Applications are
also dismissed.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
CHS
