Karnataka High Court
J Chandrappa S/O J.Siddalingappa vs G Bheemanagouda S/O Late Maregouda on 26 March, 2025
-1-
NC: 2025:KHC-D:5600
RSA No. 2185 of 2007
C/W RSA No. 319 of 2007
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 2185 OF 2007 (SP-)
C/W
REGULAR SECOND APPEAL NO. 319 OF 2007
IN R.S.A. NO. 2185/2007 (SP-)
BETWEEN:
1. J. CHANDRAPPA S/O. J. SIDDALINGAPPA,
SINCE DEAD BY HIS LR'S.
1(A) SMT. J. HEMALATHA W/O. LATE J. CHANDRAPPA
AGED ABOUT 60 YEARS,
1(B) J. BHARAMA REDDY S/O. LATE J. CHANDRAPPA
AGED ABOUT 42 YEARS,
1(C) J. PRAKASH REDDY S/O. LATE J. CHANDRAPPA
AGED ABOUT 41 YEARS,
Location:
HIGH
MOHANKUMAR COURT OF 1(D) SMT. SUMA HOSAMANI D/O. LATE J. CHANDRAPPA
B SHELAR KARNATAKA
DHARWAD AGED ABOUT 37 YEARS,
BENCH
ALL ARE RESIDENT OF
CHIKKAJAYAGANUR VILLAGE,
HOSAPETE TALUK, BALLARI DISTRICT,
NOW VIJAYANAGAR DISTRICT.
...APPELLANTS
(BY SRI. B. CHIDANANDA, ADVOCATE FOR A1(A-D))
AND:
1. G. BHEEMANAGOUDA S/O. LATE MAREGOUDA,
SINCE DEAD BY HER LR'S.
-2-
NC: 2025:KHC-D:5600
RSA No. 2185 of 2007
C/W RSA No. 319 of 2007
1(A) SMT. JALAJAKSHAMMA
W/O. LATE G. BHEEMANA GOUDA,
AGED ABOUT 58 YEARS,
1(B) MANJUNATH GOUDA
S/O. LATE. G. BHEEMANA GOUDA,
AGED ABOUT 28 YEARS,
1(C) SMT. SHANTHAMMA
D/O. LATE. G. BHEEMANA GOUDA,
AGED ABOUT 35 YEARS,
1(D) NANDINI
D/O. LATE. G. BHEEMANA GOUDA,
AGED ABOUT 32 YEARS,
ALL ARE RESIDENT OF
CHIKKAJAYAGANUR VILLAGE,
HOSAPETE TALUK, BALLARI DISTRICT,
NOW VIJAYANAGAR DISTRICT.
2. SMT. R. LEELAVATHY
W/O. GOWDARA JAMBANA GOUDA,
SINCE DEAD BY HER LR'S.
2(A) G. SHOBA
D/O. LATE GOUDARA JAMBANA GOUDA,
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD WORK/AGRICULTURIST,
2(B) G. UMESHA
S/O. LATE GOUDARA JAMBANA GOUDA,
AGED ABOUT 34 YEARS,
OCC: HOUSEHOLD WORK/AGRICULTURIST,
2(C) G. UDAYKUMAR
S/O. LATE GOUDARA JAMBANA GOUDA,
AGED ABOUT 29 YEARS,
-3-
NC: 2025:KHC-D:5600
RSA No. 2185 of 2007
C/W RSA No. 319 of 2007
ALL ARE RESIDENT OF
CHIKKAJAYAGANUR VILLAGE,
HOSAPETE TALUK, BALLARI DISTRICT,
NOW VIJAYANAGAR DISTRICT.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH,
ADVOCATE FOR R2(A-C);
R1(A-D) ARE SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO CALL FOR RECORDS IN R.A.NO.10/2005 ON
THE FILE OF PRL. CIVIL JUDGE (SR.DN), JMFC, HOSPET, AND ON
PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE JUDGMENT
AND DECREE DATED 19/09/2006, AND ALSO SET ASIDE THE
JUDGMENT AND DECREE DATED 04.10.2004 IN O.S.NO.246/2001
PASSED BY THE COURT OF PRL. CIVIL JUDGE (JR.DN.) AND JMFC.,
HOSPET.
IN R.S.A. NO. 319/2007 (DEC/INJ-)
BETWEEN:
1. J. CHANDRAPPA S/O. J. SIDDALINGAPPA,
SINCE DEAD BY HIS LR'S.
1(A) SMT. J. HEMALATHA W/O. LATE J. CHANDRAPPA
AGED ABOUT 60 YEARS,
1(B) J. BHARAMA REDDY S/O. LATE J. CHANDRAPPA
AGED ABOUT 42 YEARS,
1(C) J. PRAKASH REDDY S/O. LATE J. CHANDRAPPA
AGED ABOUT 41 YEARS,
1(D) SMT. SUMA HOSAMANI D/O. LATE J. CHANDRAPPA
AGED ABOUT 37 YEARS,
ALL ARE RESIDENT OF
CHIKKAJAYAGANUR VILLAGE,
-4-
NC: 2025:KHC-D:5600
RSA No. 2185 of 2007
C/W RSA No. 319 of 2007
HOSAPETE TALUK, BALLARI DISTRICT,
NOW VIJAYANAGAR DISTRICT.
...APPELLANTS
(BY SRI. B. CHIDANANDA, ADVOCATE FOR A1(A-D))
AND:
1. SMT. R. LEELAVATHY
W/O. GOWDARA JAMBANA GOUDA,
SINCE DEAD BY HER LR'S.
1(A) G. SHOBA
D/O. LATE GOUDARA JAMBANA GOUDA,
AGED ABOUT 37 YEARS,
OCC: HOUSEHOLD WORK/AGRICULTURIST,
1(B) G. UMESHA
S/O. LATE GOUDARA JAMBANA GOUDA,
AGED ABOUT 34 YEARS,
OCC: HOUSEHOLD WORK/AGRICULTURIST,
1(C) G. UDAYKUMAR
S/O. LATE GOUDARA JAMBANA GOUDA,
AGED ABOUT 29 YEARS,
ALL ARE RESIDENT OF
CHIKKAJAYAGANUR VILLAGE,
HOSAPETE TALUK, BALLARI DISTRICT,
NOW VIJAYANAGAR DISTRICT.
2) G. BHEEMANAGOUDA S/O. LATE MARE GOUDA,
SINCE DEAD BY HER LR'S.
2(A) SMT. JALAJAKSHAMMA
W/O. LATE G. BHEEMANA GOUDA,
AGED ABOUT 58 YEARS,
2(B) MANJUNATH GOUDA
S/O. LATE. G. BHEEMANA GOUDA,
AGED ABOUT 28 YEARS,
-5-
NC: 2025:KHC-D:5600
RSA No. 2185 of 2007
C/W RSA No. 319 of 2007
2(C) SMT. SHANTAMMA
D/O. LATE. G. BHEEMANA GOUDA,
AGED ABOUT 35 YEARS,
2(D) NANDINI
D/O. LATE. G. BHEEMANA GOUDA,
AGED ABOUT 32 YEARS,
ALL ARE RESIDENT OF
CHIKKAJAYAGANUR VILLAGE,
HOSAPETE TALUK, BALLARI DISTRICT,
NOW VIJAYANAGAR DISTRICT.
3. R. VAJRAGOWDA
S/O. R. MALLIKARJUNAGOWDA,
MAJOR,
OCC: AGRICULTURIST,
R/O. CHIKKAJAYAGANUR VILLAGE,
HOSAPETE TALUK, BALLARI DISTRICT.
...RESPONDENTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH,
ADVOCATE FOR R1(A-C);
R2(A-D) & R3 ARE SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO CALL FOR RECORDS IN R.A.NO.08/2005 ON
THE FILE OF COURT OF PRL. CIVIL JUDGE (SR.DN), HOSPET, AND
ON PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE
JUDGMENT AND DECREE DATED 19/09/2006 THEREBY ALSO
SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.10.2004
PASSED IN O.S.NO.41/1997 PASSED BY THE COURT OF PRL. CIVIL
JUDGE (JR.DN.) HOSPET.
THESE APPEALS COMING ON FOR DICTATING JUDGMENT THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
-6-
NC: 2025:KHC-D:5600
RSA No. 2185 of 2007
C/W RSA No. 319 of 2007
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
The appeal in RSA 319/2007 is preferred by defendant
No.1, challenging the judgment and decree dated 19.09.2006
in R.A.No.8/2005 on the file of Prl.Civil Judge (Sr.Dn) and
JMFC, Hospet (for short "the First Appellate Court") dismissing
the appeal and confirming the judgment and decree dated
04.10.2004 in O.S.No.41/1997 on the file of Prl.Civil Judge
(Jr.Dn) and JMFC, Hospet (for short "the Trial Court") decreeing
the suit in part.
2. The appeal in RSA No.2185/2007 is preferred by
the plaintiff, challenging the judgment and decree dated
19.09.2006 in R.A.No.10/2005 on the file of the First Appellate
Court dismissing the appeal and confirming the judgment and
decree dated 04.10.2004 in O.S.No.246/2001 on the file of the
Trial Court dismissing the suit.
3. For the sake of convenience, the parties are
referred to as per their rank in O.S.No.246/2001.
NC: 2025:KHC-D:5600
FACTS IN RSA NO.319/2007:
4. The plaintiffs have filed suit in O.S.No.41/1997
seeking relief of declaration with consequential relief of
permanent injunction and also for recovery of possession of suit
schedule property. It is the case of the plaintiffs that plaintiff
No.1 is the wife of brother of the 2nd plaintiff. The plaintiff No.1
had purchased the suit schedule property from one
Channanagouda and pursuant to the same, plaintiff No.1 is in
possession of the suit schedule property. It is the case of the
plaintiffs that the defendants without having right over the suit
schedule property put up basement in the suit schedule
property and same was protested by the plaintiffs. It is also
stated that the defendants illegally trespassed into the suit
schedule property and dispossessed the plaintiffs from the suit
schedule property. Hence, plaintiffs filed suit in
O.S.No.41/1997.
4.1. After service of notice, defendant No.1 has filed
written statement and denied the averments made in the
plaint. It is the specific case of defendant No.1 that the
husband of the plaintiff No.1 and plaintiff No.2 are the owners
NC: 2025:KHC-D:5600
of the suit schedule property and they have executed
agreement of sale dated 24.08.1990 having received the entire
sale consideration of ₹2,000/- and put the defendant No.1 in
possession of portion of the suit schedule property. It is the
case of the defendant No.1 that since he has purchased the suit
schedule property, the defendant No.1 has put up basement in
the suit schedule property. It is also the contention of the
defendant No.1 that, the plaintiffs have suppressed the
material fact of agreement of sale and accordingly sought for
dismissal of the suit.
4.2. The Trial Court based on the pleadings on record
framed the issues for its consideration. In order to establish
their case, plaintiffs have examined three witnesses as PW1 to
PW3 and produced 8 documents and same were marked as
Ex.P1 to Ex.P8. The defendants have examined three witnesses
as DW1 to DW3 and produced 6 documents and same were
marked as Ex.D1 to Ex.D6. The Trial Court, after considering
the material on record, by its judgment and decree dated
04.10.2004 partly decreed the suit holding that the plaintiff
No.1 is the absolute owner of the suit schedule property.
Feeling aggrieved by the same, the defendant No.1 has
NC: 2025:KHC-D:5600
preferred R.A.No.8/2005, which came to be dismissed by the
First Appellate Court by its judgment and decree dated
19.09.2006 and feeling aggrieved by the same, the defendant
No.1 has preferred appeal in RSA No.319/2007.
FACTS IN RSA NO.2185/2007:
5. The plaintiff filed a suit in O.S.No.246/2001 seeking
relief of specific performance of agreement of sale. It is the
case of the plaintiff that the defendant No.1 and husband of the
defendant No.2 had executed agreement of sale in favour of
the plaintiff for total sale consideration of ₹2,000/- and agreed
to execute the registered sale deed in respect of the suit
schedule property on demand by the plaintiff. It is the case of
the plaintiff that the plaintiff was put in possession of the
portion of the suit schedule property. In the meanwhile,
husband of the defendant No.2 died. Thereafter, the plaintiff
requested the defendants to execute registered sale deed in
respect of the suit schedule property and same was refused by
the defendants and as such, the plaintiff has filed
O.S.No.246/2001 before the Trial Court.
- 10 -
NC: 2025:KHC-D:5600
5.1. After service of notice, the defendants entered
appearance and filed detailed written statement denying the
averments made in the plaint. It is the case of the defendants
that the defendants have filed O.S.No.41/1997 seeking relief of
declaration and therefore, sought for dismissal of the suit.
5.2. The Trial Court, based on the pleadings on record,
formulated issues for its consideration. In order to establish
their case, plaintiff has examined two witnesses as PW1 and
PW2 and marked the documents as stated in O.S.No.41/1997.
The defendants have examined one witness as DW1 and
marked the documents as stated in O.S.No.41/1997.
5.3. The Trial Court, after considering the material on
record, by its judgment and decree dated 04.10.2004,
dismissed the suit and feeling aggrieved by the same, the
plaintiff has preferred R.A.No.10/2005 before the First
Appellate Court and the First Appellate Court after considering
the material on record, dismissed the appeal, and as such
confirmed the judgment and decree in O.S.No.246/2001.
Hence, the plaintiff has preferred RSA No.2185/2007.
- 11 -
NC: 2025:KHC-D:5600
6. The substantial questions of law framed by this
Court on 13.09.2012 in RSA No.319/2007 read as under:
i) Whether power of attorney holder can
substitute the original witness who had
deposed before the court and for no reason
whatsoever withdrew and did not proceed with
the recording of evidence is legally
permissible?
ii) When the witness who is available, has
permitted herself to be examined can suddenly
withdraw and execute a power of attorney
holder in favour of another person to be a
witness, will it be considered as discharging the
burden of proof as contemplated under sec.100
of evidence Act?
iii) Whether both the Courts below committed
error in relying upon inadmissible evidence in
decreeing the suit? As there was no need for
power of attorney to have been examined
when plaintiff was hale and healthy to depose
before the trial Court?
iv) When the Power of attorney executed in favour
of Smt.Gowramma by Smt.Leelavathy did not
empower her to give evidence in the matter,
whether the trial Court ought to have allowed
the power of attorney holder to depose? And
- 12 -
NC: 2025:KHC-D:5600
based on the evidence/deposition it's findings?
Whether the 1st Appellate Court committed
error in not rectifying this error?
v) That both the Courts below failed to read
document D-1 which was agreement of sale
which was proved in connected suit
O.S.No.246/01 possession as per said
document vested in the Appellant long ago,
wherefore decree for possession in favour of
plaintiff in O.S.No.41/1997 ought not to have
been granted?
vi) This Hon'ble Court be pleased to frame such
substantial questions of law as deemed fit
under Section 100 CPC?
7. The substantial questions of law framed by this
Court on 13.09.2012 in RSA No.2185/2007 read as under:
i) Whether both the Courts below erred in
rendering a finding that the suit was barred by
limitation?
ii) Whether the first Appellate Court committed
manifest error in not allowing IA of the
Appellant under Order XXVI Rule 9 of CPC for
appointing Commissioner to ascertain the
identity of the schedule property thereby
- 13 -
NC: 2025:KHC-D:5600
denied opportunity to the Appellant/plaintiff to
prove his case?
iii) Whether both the Courts below committed
error in not framing issue in respect of adverse
possession of plaintiff when issue of peaceful
possession was framed and not giving finding
on it?
iv) Whether both the Courts below erred in
concluding that area/plot to the extent of 0.81
cents out of Sy.No.109-A in the
Chikkajayaganur village purportedly purchased
by respondents from the owner same
properties hence, appellant has knowledge of
the same for the purpose of limitation?
v) Whether both the Courts below erred in
confusing with the property of the plaintiff
being one and the same when the schedule of
both the properties was admittedly different?
vi) Whether the Courts below could have relied
upon testimony of a witness who was only a
power of attorney holder and who stepped into
witness box midway after the witness who was
examined in examination of chief? Could it
amount to discharge of burden of proof under
Section 100 of Indian Evidence Act?
- 14 -
NC: 2025:KHC-D:5600
8. I have heard Sri. B Chidanand, learned counsel
appearing for the appellant, and Sri. Mallikarjunaswami B
Hiremath, learned counsel appearing for the respondents.
9. It is the submissions of the learned counsel Sri. B.
Chidanand, appearing for the appellant, that both the Courts
below have committed an error in rejecting the claim made by
the appellant herein seeking relief of specific performance of
the contract as the husband of Smt. Leelavathi (plaintiff in
O.S.No.41/1997) and his brother have executed agreement of
sale dated 24.08.1990 by receiving the entire sale
consideration amount and also parted with the possession of
the suit schedule property. It is also contended by the learned
counsel for the appellant that, the appellant has proved the
execution of the agreement of the sale and as the appellant
herein has paid the entire sale consideration amount, as per
the agreement of sale dated 24.08.1990 and therefore, there
was no impediment for the Courts to pass a decree for specific
performance in favour of the appellant herein and accordingly,
sought for interference of this Court.
- 15 -
NC: 2025:KHC-D:5600
10. Nextly, Sri. B.Chidanand learned counsel appearing
for the appellant invited the attention of this Court to the
evidence of PW1 and PW2 and argued that the evidence of PW1
(Smt.Leelavathi) was discarded and her power of attorney was
examined as PW2, who had no knowledge about the facts of
the case and therefore, sought for interference of this Court.
11. In order to buttress his arguments, the learned
counsel appearing for the appellant places reliance on the
following judgments of the Hon'ble Supreme Court:
1. Shrimant Shamrao Suryavansi v. Prahlad
Bhairoba Suryavanshi1
2. Janki Vashdeo Bhojwani and another v.
Indusind Bank Ltd., and others2
12. Per contra, Sri. Mallikarjunaswami B Hiremath,
learned counsel appearing for the respondents contended that
the plaintiffs in O.S.No.41/1997 had purchased the suit
schedule property as per registered sale deed dated
22.08.1996 and therefore, execution of the agreement of sale
dated 24.08.1990 does not arise at all. Hence, it is contended
that both the Courts below having taken note of the factual
(2002) 3 SCC 676
(2005) 2 SCC 217
- 16 -
NC: 2025:KHC-D:5600
aspects on record rightly answered the prayer made by the
plaintiffs in O.S.No.41/1997 and accordingly sought for
dismissal of the appeal.
13. In the light of the submissions made by the learned
counsel appearing for the parties, I have carefully examined
the findings recorded by both the Courts below and perused the
original records. Plaintiff in O.S.No.246/2001 is the defendant
O.S.No.41/1997. Plaintiffs in O.S.No.41/1997 are the
defendants in O.S.No.246/2001. Suit schedule property is the
land property belonging to the plaintiffs in O.S.No.41/1997 as
the plaintiffs had acquired the suit schedule property as per the
registered sale deed dated 22.08.1996 (Ex.P2). It is also to be
noted that plaintiff in O.S.No.246/2001 and defendant in
O.S.No.41/1997 (appellant herein) is a witness to the
registered sale deed dated 22.08.1996 (Ex.P2). Since the
plaintiffs have acquired the suit schedule property as per
registered sale deed dated 22.08.1996 (Ex.P2) and as such,
there was no legal right for the husband of the plaintiff No.1
and plaintiff No.2 in O.S.No.41/1997 to execute the agreement
of sale dated 24.08.1990 (Ex.D1) in favour of the defendant in
O.S.No.41/1997 and plaintiff in O.S.No.246/2001 much before
- 17 -
NC: 2025:KHC-D:5600
purchasing the schedule property. The said aspect of the
matter was rightly considered by both the Courts below after
appreciating the entire material on record and therefore, the
arguments advanced by the learned counsel appearing for the
appellant cannot be accepted and further the judgments
referred to by the learned counsel appearing for the appellant
are not applicable to the facts of the case, since the plaintiffs in
O.S.No.41/1997 had acquired the suit schedule property after
the due execution of agreement of sale dated 24.08.1990 as
urged by the appellant herein and therefore, the substantial
question of law framed above favours the respondents herein
and as such, there is no perversity in the judgement and
decree passed by both the Courts below and accordingly, both
the appeals are dismissed.
14. In view of disposal of the appeals, pending
interlocutory applications, if any, do not survive for
consideration and are disposed of accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
YAN
