Karnataka High Court
Smt. Fatima Bi vs Sri. Shivappa on 13 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:46388
RSA No. 837 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.837 OF 2024 (INJ)
BETWEEN:
1. SMT. FATIMA BI
W/O LATE IMAN SAB
AGED ABOUT 63 YEARS
R/A TADASA VILLAGE
KASABA HOBLI
BHADRAVATHI TALUK
SHIVAMOGGA-577301
SRI HASAN SAB
S/O KASIM SAB
SINCE DEAD BY LRS
2. SMT. FATIMA BI
Digitally signed W/O LATE HASSAN SAB
by DEVIKA M AGED ABOUT 80 YEARS
Location: HIGH
COURT OF 3. SRI YUNUS SAB
KARNATAKA S/O LATE HASAN SAB
AGED ABOUT 50 YEARS
4. SRI ABBAS ALI
S/O LATE HASAN SAB
AGED ABOUT 38 YEARS
5. SRI KASIM SAB
S/O LATE HASAN SAB
AGED ABOUT 36 YEARS
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RSA No. 837 of 2024
HC-KAR
APPELLANTS NO.2 TO 5 ARE
R/A TADASA VILLAGE
KASABA HOBLI
BHADRAVATHI TALUK
SHIVAMOGGA - 577 301
6. SMT. YASIM BANU
W/O SALIM KHAN
D/O LATE HASAN SAB
AGED ABOUT 32 YEARS
7. SMT. AFRIN BANU
W/O SALIM KHAN
D/O LATE HASAN SAB
AGED ABOUT 30 YEARS
8. SMT. SALMA BANU
D/O LATE HASAN SAB
AGED ABOUT 26 YEARS
9. SMT. NASIM BANU
W/O AFZAL
D/O LATE HASAN SAB
10. SRI AZMATH ALI
S/O LATE HASAN SAB
AGED ABOUT 20 YEARS
APPELLANTS NO.6 TO 10
ARE/AT DADAMAGHATTA VILLAGE/POST
BHADRAVATHI TALUK
SHIVAMOGGA-577301
11. SRI ISMAIL SAB
S/O LATE RASOOL SAB
AGED ABOUT 50 YEARS
R/AT TADASA VILLAGE
KASABA HOBLI
BHADRAVATHI TALUK
SHIVAMOGGA-577301
...APPELLANTS
(BY SRI CHANDRAKANTH R GOULAY, ADVOCATE)
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RSA No. 837 of 2024
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AND:
SRI. SHIVAPPA
S/O SANNAPPA
AGED ABOUT 53 YEARS
R/A HATIKATTE VILLAGE
KASABA HOBL
BHADRAVATHI TALUK
SHIVAMOGGA-577301
BY HIS GPA HOLDER
S MOHAN
AGED ABOUT 30 YEARS
R/A HATTIKATTE VILLAGE
KASABA HOBLI
BHADRAVATHI TALUK
SHIVAMOGGA-577301
...RESPONDENT
(BY SRI. PRAKASH K A, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 4.03.2024 PASSED IN
R.A. NO.79/2023 ON THE FILE OF I ADDITIONAL SENIOR CIVIL
JUDGE AND CJM, SHIVAMOGGA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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RSA No. 837 of 2024
HC-KAR
ORAL JUDGMENT
This second appeal is filed against the concurrent finding
of the Trial Court as well as the First Appellate Court.
2. This matter is listed for admission. Heard the
learned counsel appearing for the respective parties.
3. The factual matrix of case of plaintiff before the
Trial Court that the plaintiff is in possession and enjoyment of
the suit schedule property and defendants are interfering with
their possession. Hence, filed the suit. In response to the suit
summons, the defendants appeared and filed written statement
denying the averments of the plaintiff. It is also the specific
case of the defendants in their written statement that the
plaintiff and his mother by name Smt. Pakeeramma, wife of
Sannappa and his elder brother by name Venkatesh and
younger brother by name Govinda, all of them together
constituted undivided joint family. In Sy.No.15 of Gudrukappa
Village, Holalur-II Hobli, Shivamogga Taluk measures 5 acres 6
guntas stands in the name of the plaintiff's deceased father by
name Sanappa. After his demise, with the consent of all the
members of the family, Katha came to be incorporated in the
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name of the plaintiff vide M.R.No.9/2006-07. The defendants
submit that the suit filed in his individual capacity as could be
gathered from all the plaint averments is absolutely not
maintainable. The defendants further submitted that the
plaintiff and his family members could not cultivate the suit
schedule property and also for the purpose of meeting the
legitimate expenses and also to discharge the family debts.
4. On 09.02.2009, the plaintiff and his family
members have agreed to sell written statement 'A' schedule
property to defendant No.1 for sale consideration of
Rs.1,35,000/-. Accordingly, they have entered into a sale
agreement and defendant No.1 has paid advance sale
consideration of Rs.67,000/- to the plaintiff and his family
members and agreed to pay the balance sale consideration
amount of Rs.67,500/- at the time of registration of the sale
deed. Similarly, on same day, the plaintiff and his family
members have executed the sale agreement in respect of the
written statement 'B' scheduled property in favour of defendant
No.2 for sale consideration of Rs.1,32,500/-. Accordingly,
defendant No.2 had paid a sum of Rs.66,500/- in cash as
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advance sale consideration and agreed to pay the balance sale
consideration amount of Rs.66,250/- at the time of registration
of the sale deed.
5. It is further contented that plaintiff and his family
members agreed to sell the written statement 'C' schedule
property to defendant No.3 for sale consideration of
Rs.1,32,500/- by executing the sale agreement in favour of
defendant No.2. defendant No.2 paid sum of Rs.66,250/- as
advance sale consideration and agreed to pay the balance sale
consideration at the time of registration. The plaintiff and his
family members delivered the possession of written statement
'A' to 'C' schedule property in favour of defendant No.1 to 3
respectively. The plaintiff and his family members wanted an
additional amount of money. Accordingly, plaintiff has executed
a shara dated 01.02.2010 in favour of defendants. Though
defendant No.1 paid in all Rs.77,500/- and defendant Nos.2
and 3 paid Rs.76,250/- respectively and balance amount was to
be paid at the time of registration of the deed.
6. It is also contended that the plaintiff and their
family members are postponing the date for obtaining the
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permission from the government to execute the registered sale
deed. The defendants are allowed to cultivate the written
statement 'A' to 'C' schedule property. The defendants are
innocent, illiterate and the plaintiff who is having worldly
knowledge has been trying to deceive and defraud the
defendants. Hence, prayed to dismiss the suit.
7. The Trial Court having considered the pleadings of
the parties, framed the Issues and allowed the parties to lead
evidence. The Trial Court considering both oral and
documentary evidence placed on record as well as the
admission on the part of DW1 in the cross-examination,
wherein categorically admitted the possession of the plaintiff,
granted the relief of permanent injunction. Being aggrieved by
the judgment and decree of the Trial Court, an appeal was
preferred before the Appellate Court in R.A. No.79/2023.
8. The First Appellate Court also having considered the
grounds which have been urged in appeal, formulated the
Points that whether the Trial Court committed an error in
granting the relief of permanent injunction and whether the
judgment and decree of the Trial Court requires interference.
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The Appellate Court having considered the pleadings of the
parties and also considering the admission on the part of DW1,
comes to the conclusion that DW1 categorically admitted that in
terms of the agreement, possession was delivered and they are
cultivating the property and also taken note of admission on
the part of DW1 that plaintiff is in possession of the suit
schedule property and the claim made by the defendants are
entirely different property and not the suit schedule property
with regard to the possession is concerned. Considering all
these factors, the First Appellate Court confirmed the judgment
of the Trial Court. Being aggrieved by the concurrent finding of
both the Courts, the present appeal is filed before this Court.
9. The learned counsel appearing for the appellants
would vehemently contend that both the Courts have
committed an error in considering both oral and documentary
evidence placed on record. On the face of the records, it is clear
that appellants are in possession and cultivation of the land in
question for the last more than four decades. It is also contend
that whether both the Courts are right in considering the suit of
the respondent/plaintiff independently without taking
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cognizance and considering the fact of suit for specific
performance filed by the appellants herein O.S.Nos.658/2016
and 659/2016 and pending before the Courts and
O.S.No.660/2016 filed by the defendant No.3 as the said suit
are between the same parties and the subject matter of the
suit property also being the same. The counsel further contend
that the Trial Court is not right in taking the cross-examination
of DW1 with reference to Section 58 of the Indian Evidence Act
and also contend that both the Courts have been ignoring the
order of appointment of an interpreter by name Suhail Ahmad
as the interpreter in the class examination of DW1 who is not
well versed with Kannada language and her class examination
has been wrongly taken as an admission and class examination
being conducted in the absence of interpreter and her class
examination taken to be as an admission on her part regarding
possession over the suit schedule property. Hence, this Court
has to admit the appeal and frame substantive question of law.
10. Per contra, the learned counsel appearing for the
respondent would vehemently contend that when the suit is
filed only for the relief of permanent injunction and possession
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is admitted by DW1 in the cross examination, the same is not a
stray admission and the entire admission takes away the case
of the appellants and the same is also appreciated by both the
Courts. Hence, it does not require any interference of this
Court.
11. Heard the learned counsel appearing for the
respective parties and perused the material on record. The suit
is filed for the relief of permanent injunction claiming that
plaintiff is in possession and enjoyment of the suit schedule
property. In order to prove the same, plaintiff examined himself
as PW1 and produced documents at Ex.P1 to P7. Further, GPA
holder of the plaintiff has examined as PW2 and he adopted
Ex.P1 to P7 and also produced documents at Ex.P8 to P11. On
the other hand, defendant No.3 examined himself as DW1 and
produced 14 documents which are marked as Ex.D1 to D14.
Having considered the pleadings of the parties and
documentary evidence, The Trial Court taken note of admission
on the part of DW1, who categorically admitted before the
Court that property originally belongs to the family of the
plaintiff and prior to that it was the Government land and land
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was also granted in favour of Hanuma Bhovi and he died in the
year 1982 and after his death, the plaintiff got changed katha
in his favour and the possession of the property from their
ancestors. He also categorically admits that suit schedule
property and the property which they are cultivating are
different properties. He further admits that in respect of the
suit schedule property, they are not having any right and also
admits that the defendants are not having any objection to
grant the relief in favour of the plaintiff. The documents which
have been produced on behalf of the defendants at Ex.D1 to
D14 are not in respect of the suit schedule property and there
is no reference of the suit schedule property in those
documents and either the plaintiff or his family members have
not executed any document in respect of suit schedule
property. These admissions of DW1 were taken note of by the
Trial Court. PW1 categorically admitted the possession over the
suit schedule property and in respect of any transaction also
categorically admitted that in respect of the suit schedule
property either the plaintiff or the defendants have not
executed any document. The admission is extracted in
paragraph 26 by the Trial Court. The First Appellate Court also
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reassessed the material available on record and comes to the
conclusion that there is a clear admission by DW1 with regard
to the suit schedule property is concerned. The learned counsel
appearing for the appellants would vehemently contend that
this admission could be expunged and he was not having any
particular knowledge but the same is not a stray admission. It
is very clear that there is no any transaction in respect of the
suit schedule property and they are cultivating the suit
schedule property from their ancestors. When such admissions
are given, I do not find any ground to admit the appeal and
frame substantial questions of law invoking Section 100 of CPC.
12. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any, does
not survive for consideration and the same stand dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
