Karnataka High Court
Sri Raghavendra Devadiga vs Smt Bhanumathi S Shetty on 13 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1400 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.1400 OF 2024 (INJ)
BETWEEN:
1. SRI. RAGHAVENDRA DEVADIGA
S/O NARAYANA DEVADIGA
AGED ABOUT 38 YEARS
MALAGADDE MANE
KANCHIKAN, BIJOOR VILLAGE
UDUPI DISTRICT-576232.
...APPELLANT
(BY SRI. K.V.NARASIMHAN, ADVOCATE)
AND:
1. SMT. BHANUMATHI S SHETTY
D/O SHESHU SHETTY
Digitally signed AGED ABOUT 56 YEARS
by DEVIKA M HOTLABAIL, VADERHOBLI VILLAGE
Location: HIGH KUNDAPURA TOWN AND POST
COURT OF UDUPI DISTRICT-576201.
KARNATAKA
...RESPONDENT
(BY SRI. PRASANNA V.R., ADVOCATE FOR C/R)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 18.06.2024
PASSED IN R.A.NO.10/2022 ON THE FILE OF SENIOR CIVIL
JUDGE, KUNDAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 12.01.2022
PASSED IN O.S.NO.276/2014 ON THE FILE OF PRL. CIVIL
JUDGE AND JMFC, KUNDAPURA.
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RSA No. 1400 of 2024
HC-KAR
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for the appellant and
also the learned counsel for the respondent.
2. This matter is listed for admission. The present
second appeal is filed against the concurrent finding. The
factual matrix of case of plaintiff before the Trial Court
that the plaintiff is in actual and lawful possession and
enjoyment of 'A' schedule property and it is pleaded that
she is an absolute owner and in possession of suit 'A'
schedule property by virtue of the sale deed dated
19.09.2005 and the same was purchased from one
Shantamma through her GPA Holder. Despite order of
Assistant Commissioner, the RTC of the suit 'A' schedule
property and other properties were not mutated in the
name of Shantamma at the time of sale deed. All these
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facts were within the knowledge of Shantamma. After
purchase of land in Sy.No.24/13 measuring 0.86 acre, out
of it, she executed a gift deed dated 22.09.2005 in favour
of the Secretary of Aluru Grama Panchayath to an extent
of 0.5 acre. The remaining portion is suit 'A' schedule
property. Thereafter, the said Shanthamma got mutation
in her name in RTC. By coming to know the fact of this,
she applied for change of RTC in her name which is
pending for disposal. It is contended that one Smt.Anita.K.
Adhyanthaya made an attempt to interfere with the
possession and enjoyment of the suit 'A' schedule property
and she also filed a suit in O.S.No.287/2012 against the
said Smt.Anita.K.Adhyantaya and vendor
Smt.Shanthamma for the relief of permanent injunction.
The said suit came to be decreed on 19.01.2013. On
01.09.2014, the defendant along with his men made an
attempt to trespass into the suit schedule property and
tried to dig the suit property for removing laterite stones
thereon. Immediately, she and herself rushed to the spot
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and registered the same and that time defendant
proclaimed that he purchased the suit schedule property
from Anitha.K.Adhyanthaya for valid consideration and
RTC stands in his name. She came to know about the said
Anitha.K.Adhyanthaya and the defendant were joined
together and created a fraudulent and fictitious sale deed
with an intention to cheat her and hence, filed a suit
seeking the relief of permanent injunction. In pursuance of
the suit summons, the defendant appeared and filed a
written statement contending that property was purchased
and also all details were given with regard to the claim
made by the plaintiff contend that the plaintiff has to
prove the Will dated 30.04.1985 and also the power of
attorney holder was none other than the husband of the
plaintiff by name Mr.Sachidananda Shetty. Shanthamma
was not aware about the said power of attorney and all
these factors are raised in the suit for permanent
injunction.
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3. The Trial Court having considered the pleadings
framed issues and allowed the parties to lead evidence.
Having taken note of material available on record, comes
to the conclusion that there was already a judgment and
decree in O.S.No.287/2012. Thereafter, the subsequent
sale deed came into existence in 2014 and also the decree
was passed prior to the sale deed. All these factors were
taken note of in paragraph Nos.17, 18 and 19 and also an
observation is made that it clearly established that the
plaintiff has purchased the suit schedule property from one
Shanthamma through the GPA holder.
4. The learned counsel has relied upon the
genuineness of GPA dated 04.01.2002 and sale deed dated
19.09.2005 and Ex.P.7 is certified copy of the settlement
executed by A.Shantha in favour of her son Guruprasad,
wherein it discloses that the said Shanthamma had settled
her all properties in favour of her son Guruprasad, except
suit 'A' schedule property. All these factors were taken
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note of and hence not accepted the case of defendant and
granted the relief as sought.
5. Being aggrieved by the said judgment and
decree, an appeal is filed in R.A.No.10/2022. The First
Appellate Court also taken note of the sale deed executed
on 19.09.2005 by GPA holder of Smt.Shanthamma and
she was a party in O.S.No.287/2012, which is decreed in
favour of the plaintiff. Apart from that the vendor of the
plaintiff one Anitha K. Adhyanthaya was also a party to the
said O.S.No.287/2012. Whether the said judgment and
decree passed under ex-parte or otherwise. But, having
comes to know about the said O.S.No.287/2012, there
was a decree either the Smt.Shanthamma, vendor of
Smt.Anitha K. Adhyanthaya taken any action of set-aside
the above said judgment and the same has attained its
finality. Whether there is a variation in extent or not is
totally immaterial to claim that the defendant has acquired
right over suit schedule property and hence, confirmed the
judgment.
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6. The counsel appearing for the appellant would
vehemently contend that the Trial Court made an
observation with regard to the very title of the appellant
is concerned and ought to have taken only the right of the
plaintiff and ought not to made any comment on the same
and also counsel would vehemently contend that First
Appellate Court passed a cryptic order and not exercised
the power under Order 41 Rule 31 of CPC. The counsel
also would vehemently contend that when already there
was a judgment and decree of permanent injunction and
ought not to have filed one more suit for bear injunction
and all these factors are not taken note of by both the
Courts. Hence, this Court has to admit and frame
substantive question of law.
7. Per contra, the counsel appearing for the
respondent would vehemently contend that the Court has
to take note of conduct of the parties. When they have
already suffered an order of permanent injunction and
both of them have indulged in creation of document and
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the document came into existence in 2014 after the
judgment and decree passed. The Trial Court also taken
note of the possession is concerned and rightly granted
the relief of permanent injunction and it does not require
any interference.
8. Having heard the appellant's counsel and also
the counsel appearing for the respondent and also
considering the material on record, suit is filed for the
relief of permanent injunction and particularly taking into
note of the sale deed which was executed by power of
attorney holder of Shanthamma, plaintiff claims the right
as well as possession in respect of the suit schedule
property. It is not in dispute that both the Shanthamma
and also the vendor of the plaintiff have suffered the
earlier judgment and decree in the earlier suit is also not
in dispute and also subsequently document came into
existence and all these factors were taken note of. When
there was already an order of injunction granted in favour
of the plaintiff and subsequently sale deed came into
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existence and no doubt there is a force in the contention
of the appellant counsel that when a suit for bear
injunction, only Court has to examine the possession and
not on the validity of the title is concerned. But, when the
plaintiff was having the judgment and decree and the
same was not questioned by either of the parties, but
executed the document of sale deed dated 30.03.2014 and
to that effect the Appellate Court also discussed the same.
No doubt, no detailed discussion as contemplated under
Order 41 Rule 31 of CPC. But, here is the case of bare
injunction only Court has to take note of the possession of
the parties. When such being the case, I do not find any
ground to admit and frame substantive question of law.
However, liberty is given to the appellant to file a
comprehensive suit.
9. In view of the discussions made above, I pass
the following:
ORDER
i) Second Appeal is dismissed with liberty to file
the suit for comprehensive relief.
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ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same
stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
