Sri H.R. Gopalappa vs Sri D Venkatachalapathi
2025 Latest Caselaw 10213 Kant

Karnataka High Court

Sri H.R. Gopalappa vs Sri D Venkatachalapathi on 14 November, 2025

Author: H.P.Sandesh

Bench: H.P.Sandesh

                               1



       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 14TH DAY OF NOVEMBER, 2025
                                                          R
                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

     REGULAR SECOND APPEAL NO.459/2021 (DEC/INJ)

BETWEEN:

SRI. H.R. GOPALAPPA
S/O RAMAIAH
AGED ABOUT 54 YEARS
RESIDING AT
H. HOSAKOTE VILLAGE
LAKKURU HOBLI
MALUR TALUK
KOLAR DISTRICT-563114.                        ... APPELLANT

             (BY SRI. B.C.VENKATESH, ADVOCATE)

AND:

1.     SRI. D. VENKATACHALAPATHI
       S/O LATE DASAPPA
       AGED ABOUT 64 YEARS

2.     SRI. D. MUNIRAJU
       S/O LATE DASAPPA
       AGED ABOUT 56 YEARS

       BOTH ARE RESIDING
       AT NO.73, 13TH CROSS,
       AGRAHARA DASARAHALLI
       BENGALURU-560 079.                 ... RESPONDENTS

     (BY SRI. SRINIVASA A.E., ADVOCATE FOR C/R1 AND R2)
                                    2



     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.09.2020
PASSED IN R.A.NO.131/2019 ON THE FILE OF THE I ADDL.
DISTRICT JUDGE AT KOLAR, PARTLY ALLOWING THE APPEAL
AND MODIFYING THE JUDGMENT AND DECREE DATED
25.07.2019 PASSED IN O.S.NO.38/2016 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC, MALUR AND ETC.

    THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT   ON    05.11.2025 THIS  DAY, THE   COURT
PRONOUNCED THE FOLLOWING:

CORAM:       HON'BLE MR JUSTICE H.P.SANDESH

                            CAV JUDGMENT

This second appeal is filed against the divergent finding

wherein at first instance, the suit was dismissed by the Trial

Court in O.S.No.38/2016 vide order dated 25.07.2019 and the

said judgment and decree was reversed by the First Appellate

Court in R.A.No.131/2019 declaring that the plaintiffs are the

absolute owners of the suit schedule property, however, the

relief of permanent injunction sought by the plaintiffs was

dismissed.

2. Heard the learned counsel appearing for the

appellant. The counsel for the respondents is absent and hence,

the arguments from the respondents side are taken as nil since

inspite of sufficient opportunities are given, not appeared before

the Court.

3. The factual matrix of the case of the plaintiffs before

the Trial Court while seeking the relief of declaration and

permanent injunction is that the suit schedule property is a

granted land in favour of their father Dasappa on 25.09.1980.

The said Dasappa had filed a petition before the Assistant

Commissioner against the father of the defendant viz., Ramaiah

in Case No.LND SC/ST.14/1996-97 which came to be dismissed

vide order dated 30.07.1997. The further appeal preferred

before the Deputy Commissioner in R.A.SC/ST.13/1998-99 was

allowed in favour of the plaintiffs. Based upon the said order, the

Assistant Commissioner has passed another order in favour of

plaintiffs in case number LND.SC/ST.MLR.1/2004-05. The

defendant then challenged the said order passed by the

Assistant Commissioner before the Deputy Commissioner in

R.A.SC/ST.22/2004-05 which came to be dismissed on

19.08.2004. The defendant also preferred a Writ Petition in

W.P.No.12315/2006 before this Court which came to be

dismissed as withdrawn on 01.12.2008. The father of the

plaintiffs viz., Dasappa expired during 1996 and mother of

plaintiffs expired during 2009 and thereafter, the plaintiffs are in

possession of the suit schedule property. The revenue records

relating to the suit schedule property stands in the name of their

father-Dasappa and they are also paying the tax. It is contended

that though the defendant has no right, title, interest or

possession over the suit schedule property, trying to interfere

with their possession. Hence, filed the suit seeking the relief of

declaration to declare that they are the absolute owners and also

for permanent injunction.

4. The defendant, in pursuance of the suit summons,

appeared before the Court and filed the written statement

denying the entire averments made in the plaint and also denied

the very title of the plaintiffs. It is contended that the suit is not

properly valued. The defendant was in unauthorised possession

of the said land measuring 1 acre 20 guntas in Sy.No.138 and

pursuant to the application submitted to the Tahsildar, the said

land was granted in favour of defendant as per the Grant

Certificate dated 05.02.2003. Since then, the defendant is in

continuation possession of the said property. The revenue

records are also stand in the name of the defendant and he is

paying tax. Hence, prayed the Court to dismiss the suit.

5. The Trial Court having considered the pleadings of

the parties, framed the following Issues:

1. Whether plaintiffs prove that, they are the absolute owner in possession of the suit property as pleaded in the plaint?

2. Do the plaintiffs prove the alleged interference?

3. Whether defendant proves that valuation of suit property and Court fee paid by t he plaintiff is not correct?

4. Whether plaintiffs are entitled for the relief's as sought for?

5. What order or decree?

6. In order to prove the case of the plaintiffs, plaintiff

No.2 examined as PW1 and also examined one witness as PW2,

but he was not subjected to the cross-examination and got

marked the documents at Ex.P1 to P17. On behalf of the

defendant, defendant examined himself as DW1 and got marked

the documents at Ex.D1 to D43 and also examined three

witnesses as DW2 to DW4. The Trial Court having considered

both oral and documentary evidence available on record

dismissed the suit of the plaintiffs in coming to the conclusion

that the plaintiffs have not proved the title as well as possession

and hence, they are not entitled for the relief of declaration and

permanent injunction. The said judgment and decree was

challenged before the First Appellate Court in R.A.No.131/2019.

The First Appellate Court after reassessing both oral and

documentary evidence placed on record reversed the judgment

and decree of the Trial Court in coming to the conclusion that the

possession has not been proved by the defendant, however, title

is in favour of the plaintiffs and hence, granted the relief of

declaration. The First Appellate Court also given definite finding

that in view of document of Ex.D3 which relies upon by the

defendant cannot be considered since the suit schedule property

itself could not have been granted by the Government as it was

already granted to Dasappa as per Ex.P1, thus, the claim of the

defendant cannot be accepted. Being aggrieved by the divergent

finding of the Trial Court as well as the First Appellate Court, this

second appeal is filed before this Court.

7. This Court, having considered the grounds which

have been urged at the time of admission, vide order dated

17.08.2021, framed the substantive questions of law which read

as follows:

(i) Whether the First Appellate Court has committed an error in reversing the finding of the Trial Court granting the relief of declaration of ownership and permanent injunction without he seeking better relief of possession?

(ii) Whether the First Appellate Court was justified in allowing the appeal partly without deciding the validity of the grant certificate 05.02.2003 (Ex.D.3) issued in favour of the defendant?

8. The learned counsel appearing for the appellant in

his arguments would vehemently contend that the father of the

respondents namely, Dasappa had sold the subject property in

the name of the appellant's father - Ramaiah on the premise

that the same was his self-acquired property vide sale deed

dated 22.01.1979. The said document is marked as Ex.D29. The

counsel also not disputes the fact that the agricultural land

measuring to an extent of 1 acre 14 guntas in Sy.No.138

(138/P27) of Hulimangala, Lakkur hobli, Hoskote taluk, Kolar

district was granted in the name of Dasappa vide LNDSPL

No.64/77-78. The counsel also brought to notice of this Court

the boundaries which have been mentioned and the said

document is marked as Ex.P1 and the same is not in dispute.

The counsel also submits that the Assistant Commissioner,

Kolar, after lapse of 16 years, forfeited the grant made in favour

of the plaintiffs' father in terms of Ex.D30 observing that the

original grantee has violated the conditions vide order dated

30.07.1997. The counsel also brought to notice of this Court that

thereafter, the defendant had submitted an application before

the Tahsildar in prescribed Form No.53 with a request to grant

the land measuring 1 acre 20 guntas in the same survey

number. But, in the boundary, except on the West side,

mentioning as Nanjundappa's property in Ex.P1, it shows as

Eramma's property and description of the property is one and

the same. The counsel would vehemently contend that the

Tahsildar issued a Grant Certificate in the name of defendant

vide order dated 05.02.2003 in terms of Ex.D3 in Official

Memorandum No.LND RUO SR 16/2002-03 dated 02.11.2002. It

is the contention of the appellant's counsel that based on the

said grant, revenue officials have changed the mutation entry

vide M.R.No.16/2002-03 in the name of the appellant. It is also

the contention that children of original grantee-Dasappa who are

the respondents herein have challenged the order dated

30.07.1997 before the Deputy Commissioner, Kolar on the

ground that the said order was passed against a dead person

and the Deputy Commissioner was pleased to allow

RA.SC.:13/1998-99 and remanded the case to the Assistant

Commissioner, Kolar to take steps to re-allot the land to the

legal heirs of original grantee. In the said appeal, alienee was

not made as a party to the proceedings though his name was

found in the order dated 30.07.1997 at Ex.D30.

9. The counsel contend that the Assistant

Commissioner passed an order in its proceedings No.LND-SC/ST-

MLR:1/2004-05 invalidating the sale deed dated 22.01.1979

executed by the father of the respondents in favour of Ramaiah

i.e., the father of the appellant herein. In the said order, it was

directed that possession of the land be taken back by the

Government and the said land may be re-granted in favour of

respondents and the said document is marked as Ex.P6. The

appellant has challenged the order dated 01.12.2004 passed by

the Assistant Commissioner and the same was dismissed by the

Deputy Commissioner vide order dated 19.08.2006 in terms of

Ex.P7. Challenging the order of the Deputy Commissioner, the

appellant filed a Writ Petition No.12315/2006 and the said

petition was withdrawn on 01.12.2008 with liberty to file a fresh

petition on the same cause of action. The Deputy Tahsildar,

Malur, passed an order dated 16.09.2014 by canceling

M.R.No.H9/2013-14 standing in the name of the defendants. The

counsel would vehemently contend that once SC/ST granted land

was forfeited by the Assistant Commissioner and allotted to a

person belongs to SC/ST under another grant of unauthorised

occupation, the original grantee can restore the said land without

an order of re-grant in their favour. The counsel would

vehemently contend that there is no any re-grant made in the

name of the appellant. Hence, the First Appellate Court

committed an error in granting the relief of declaration declaring

that the respondents are the owners. Thus, it requires

interference of this Court.

10. Inspite of given sufficient opportunity to the

respondents' counsel, he did not choose to address his

arguments, hence, arguments from the respondents' side is

taken as nil.

11. The learned counsel appearing for the appellant in

support of his arguments relies upon the judgment of the Apex

Court reported in (2024) 5 SCC 282 in the case of VASANTHA

(DEAD) THROUGH LEGAL REPRESENTATIVE vs

RAJALAKSHMI ALIAS RAJAM (DEAD) THROUGH LEGAL

REPRESENTATIVES wherein it is held that the suit for

declaration of title without seeking the relief of possession,

reiterated, not maintainable when plaintiff not in possession. The

counsel also relied upon the judgment of this Court reported in

2025 SCC ONLINE KAR 1124 in the case of SOMAYYA

BELCHADA vs SANTHOSH AND OTHERS. The learned counsel

for the appellant referring the judgments of Apex Court would

contend that the suit for declaration is not maintainable without

seeking the relief of possession.

12. Having heard the learned counsel for the appellant

and also on perusal of material available on record and

considering the substantive questions of law framed by this

Court, this Court has to analyze the material on record. The

specific contention of the appellant that the property was sold by

the father of the respondents in favour of his father vide sale

deed dated 22.01.1979 in terms of Ex.D29. But the appellant

also not disputes the fact that though it is mentioned in the sale

deed that it was a self-acquired property of the father of the

plaintiffs/respondents, nothing is placed on record with regard to

the title of the said Dasappa either before the Trial Court or the

First Appellate Court or before this Court. But the appellant's

counsel also not disputes the fact that the suit schedule property

was granted in favour of Dasappa vide Ex.P1 dated 25.09.1980.

It is not in dispute that a proceeding was initiated against the

Dasappa and grant made in favour of Dasappa was cancelled

vide order dated 30.07.1997 in terms of Ex.D30. It is also not in

dispute that the said Dasappa passed away in the year 1996

itself, thus, as on the date of passing of the order dated

30.07.1997, he was no more and hence, the order was passed

against a dead person.

13. It is also emerged during the course of evidence that

the father of the appellant had filed an application for re-grant of

the very same land in Form No.53 in terms of Ex.D4. It has to be

noted that the grant was made in the name of the father of the

appellant vide order dated 05.02.2003 in terms of Ex.D3 and

appellant claims the title based on this document. But the fact is

that the plaintiffs have challenged the Order dated 30.07.1997

before the Deputy Commissioner on the ground that their father

passed away on 22.07.1996 and order was passed against the

dead person. It is not in dispute that in terms of Ex.P5, Deputy

Commissioner passed an order setting aside the order of the

Assistant Commissioner and remanded the matter to the

Assistant Commissioner. It is also not in dispute that Assistant

Commissioner invalidated the sale made in favour of father of

the appellant vide Ex.P6 dated 01.12.2004. It has to be noted

that the said order was challenged before the Deputy

Commissioner by filing an appeal in RA-SC/ST:22/2004-05 by

the appellant and the same was dismissed vide order dated

19.08.2006 in terms of Ex.P7.

14. It is also important to note that the said order was

challenged before this Court in W.P.No.12315/2006 and the said

petition was withdrawn on 01.12.2008 with a liberty to file a

fresh petition on the same cause of action. M.R.No.H9/2013-14

was cancelled by the Deputy Tahsildar on 16.09.2014 which was

standing in the name of the defendant. Hence, it is clear that the

property was restored to the original grantee i.e., Dasappa in

view of setting aside the sale deed executed in favour of the

father of the appellant. Ex.P6 is very clear that the order dated

01.12.2004 was passed directing that the possession of the land

be taken back by the Government and the same may be re-

granted in favour of respondents. When that order was

challenged and the appellant was unsuccessful before the

Deputy Commissioner as well as before the High Court, inspite of

liberty was taken, no challenge was made thus, the same has

attained its finality. Hence, both the Courts have taken note of

the fact that consequent upon the sale deed executed, delivered

the possession in favour of the appellant and though the

property was restored back to the plaintiffs' family, possession

was not handed over as per Section 5 of the Special Enactment

of the Karnataka Scheduled Castes and Scheduled Tribes

(Prohibition of Transfer of Certain Lands) Act, 1978.

15. It is also important to note that the appellant's

counsel also filed an application under Order 41 Rule 27 of CPC

seeking permission of this Court to file additional documents i.e.,

RTC; MR; RTC of the year 2024-2025; Representation dated

04.06.2025; Letter dated 17.11.2023; Representations dated

27.09.2024 and 28.09.2024; Report dated 15.10.2024;

Memorandum dated 12.03.2025; Letter of Communication dated

12.03.2025; Report dated 26.03.2025 submitted by the Revenue

Inspector; Memorandum dated 16.04.2025 and Letter of

Communication dated 16.04.2025. All these documents came

into existence subsequent to the filing of the suit since, suit was

filed in the year 2016 and except the M.R. of 2003-04, other

documents are subsequent to the suit. It has to be noted that

consequent upon restoring of the property in favour of the

original grantee in view of the order passed by the Assistant

Commissioner, notice was also issued to take back the

possession and hand over the same in favour of the

respondents/plaintiffs consequent upon the order passed on

01.12.2004 in terms of Ex.P6 and also the order of the Deputy

Commissioner dated 27.03.2004 in terms of Ex.P5. Hence, all

these documents are not necessary to decide the second appeal,

thus, the question of permitting to produce the additional

documents does not arise since the same will not tilt the case of

the plaintiffs/respondents or the appellant herein and those

records will not come into aid of the appellant. Hence, the

question of consideration of the application filed under Order 41

Rule 27 of CPC does not arise and the same requires to be

rejected.

16. Having considered both oral and documentary

evidence available on record, it is not in dispute that in terms of

Ex.P1, property was granted in favour of Dasappa and though

the sale was made even prior to the grant, the same was set

aside by the competent authority invalidating the sale in terms

of Ex.P6 and also the order is specific that the possession of the

land to be taken back by the Government and re-grant the same

in favour of the respondents/plaintiffs. It is important to note

that the original grant was restored in terms of the order dated

27.03.2004 passed by Deputy Commissioner and consequent

upon the said order, the Assistant Commissioner passed an

order in terms of Ex.P6 and the same is considered by the First

Appellate Court with regard to the title of the appellant is

concerned. The very contention of the appellant's counsel that

without determining the grant made in favour of the father of

appellant in terms of Ex.D3 ought not to have granted the relief

in favour of respondents cannot be accepted. It is also emerged

during the course of evidence that when grant was cancelled as

against the dead person vide order dated 30.07.1997 in terms of

Ex.D30 and in an ingenious method, the father of the defendant

filed an application on 15.12.1998 in terms of Ex.D4 claiming the

very land by filing Form No.53 and also he has managed to get

an order in terms of Ex.D3 vide order dated 05.02.2003. When

the same comes to the knowledge of the plaintiffs, they have

approach the Deputy Commissioner challenging the order which

was passed against the dead person i.e., their father and the

Deputy Commissioner rightly allowed the appeal and set side the

earlier order of cancellation of grant. Having considered Ex.P1,

P5 and P6, it disclose that the appellant was unsuccessful in

terms of the order at Ex.P7 and writ petition was withdrawn and

the orders at Ex.P5 and P6 were attained its finality, thus, the

question of considering Ex.D3 grant made in favour of the

appellant's father does not arise and even such grant was made,

the same will not create any right in favour of the appellant

since, already property was granted in favour of the original

grantee Dasappa in the year 1980 itself and hence, once again,

the very same property cannot be granted. Though it is

contented that both properties are different during the course of

arguments, this Court directed the appellant counsel to clarify

that whether properties are different or not. But the counsel for

the appellant made the submission that property is one and the

same. When such being the case, the contention of the counsel

for the appellant cannot be accepted.

17. No doubt, both the Trial Court as well as the First

Appellate Court comes to the conclusion that the plaintiffs have

not proved the possession and there is a concurrent finding in

this regard. The main argument of the counsel for the appellate

before this Court is that without seeking the relief of possession,

the suit for declaration is not maintainable. It is also settled law

that without seeking the relief of possession when the plaintiffs

are not in possession, they cannot maintain a suit for the relief

of declaration. In the case on hand, it has to be noted that the

prayer sought before the Trial Court is for declaration and

permanent injunction claiming that the plaintiffs are in

possession of the property. The definite finding was given that

the plaintiffs are in possession of property. No doubt, in the

judgment of this Court in the case of SOMAYYA BELCHADA

referred supra, this Court also relied upon the judgment of the

VASANTHA's case referred supra wherein it is held that the suit

for declaration without seeking the relief of possession is not

maintainable.

18. But the Court has to take note of the special

circumstances in the case on hand. Here is a case that the grant

was made in favour of a person belongs to SC/ST. It has to be

noted that the property was sold and the said sale was also

cancelled by the competent authority. It is also to be noted that

when the sale was made and possession was delivered, a

specific direction was given that possession of the land to be

taken back by the Government and same may be re-granted in

favour of the respondents while invalidating the sale. The

documents which have been produced before this Court as

additional documents clearly depicts that a decision was taken to

take back the possession and re-grant the same in favour of the

original grantee. At this juncture, this Court would like to extract

Sections 4 and 5 of the Special Enactment which reads as

follows:

"Section 4. Prohibition of transfer of granted lands.- (1) Notwithstanding anything in any law, agreement, contract or instrument, any

transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer.

(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.

(3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a civil court or of any award or order of any other authority.

Section 5. Resumption and restitution of granted lands.- (1) Where, on application by any interested person or on information given in writing by any person or suo-motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of section 4, he may,-