Karnataka High Court
Paruvashetty vs Chief Officer, Town Panchayath on 26 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2025:KHC:49216
RSA No. 969 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 969 OF 2024 (DEC/INJ)
BETWEEN:
PARUVASHETTY
S/O MALLAPPASHETTY,
AGED ABOUT 68 YEARS,
R/AT NO.327,
JAYANAGARA EXTENSION,
K R PETE TOWN,
MANDYA DISTRICT - 571 426
...APPELLANT
(BY SRI. KUMARA K.G., ADVOCATE)
AND:
1. CHIEF OFFICER,
TOWN PANCHAYATH
K.R PETE TOWN,
Digitally signed
by DEVIKA M
Location: HIGH 2.
COURT OF SHIVARDURAIAH
KARNATAKA S/O DODDAIAHSHETTY
AGED ABOUT 78 YEARS,
3. DHANALAKSHMI
W/O K SHIVARUDRAIAH ,
AGED ABOUT 64 YEARS,
4. JAYARAMU
S/O NANJEGOWDA,
AGED ABOUT 53 YEARS,
-2-
NC: 2025:KHC:49216
RSA No. 969 of 2024
HC-KAR
5. GOVINDARAJU
S/O RAMASHETTY
AGED ABOUT 48 YEARS,
RESPONDENTS NO.2 TO 5 ARE RESIDING AT
JAYANAGARA EXTENSION,
K.R PETE TALUK
MANDYA DISTRICT - 571 426
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 11.03.2024
PASSED IN RA.NO.5033/2022 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA,
(SITTING AT SRIRANGAPATNA) DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 14.10.2022
PASSED IN OS.NO.139/2006 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, KRISHNARAJPET.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This second appeal is filed against the concurrent
findings of the Trial Court and the First Appellate Court.
2. Heard the learned counsel for the appellant.
This matter is listed for admission.
3. The factual matrix of the case of the plaintiff,
while seeking the relief of declaration and permanent
NC: 2025:KHC:49216
HC-KAR
injunction in O.S. No.139/2006. It is contented that the
plaintiff is the owner and in possession of the suit schedule
property that, more fully described in the schedule as 8
guntas of land and that the defendants are interfering with
his possession of the suit schedule property.
4. In pursuance of the suit summons, defendant
No.1 was placed ex-parte. Defendant Nos.2 to 5 appeared
and filed their objections contending that the plaintiff had
no right to alienate the suit schedule property and also not
in possession of the property. It is contended that
defendant No.1 formed road long back and electric poles
have been erected. The plaintiff has filed a false suit with
larger extent and hence, he is not entitled for the relief.
5. The Trial Court having considered both oral and
documentary evidence available on record, comes to the
conclusion based on the report of the Commissioner. Since
two commissioners were appointed and the report of the
first one was rejected and second Commissioner has also
filed the report, which was objected by the plaintiff.
NC: 2025:KHC:49216
HC-KAR
However, his contentions were not accepted and comes to
the conclusion that plaintiff has not made out any ground
to reject the Commissioner's report.
6. The Trial Court having considered the evidence
of CW2, who is the Commissioner and also the reports
marked as Exs.C5 and C6 is very clear that, though as per
the documents had ownership of 29 guntas in all, but in
factuality had possession of 6½ guntas is less than total
extent of land of 29 guntas. The land bearing Survey
No.263/3 is measuring 22½ guntas as against the
revenue entries of 29 quntas. He has specifically deposed
that sale deed is in excess of 6½ guntas as against the
survey documents.
7. Hence, it clearly transpires that vendor of the
plaintiff did not have the right to alienate the property in
excess, as claimed by the plaintiff. Thus, the plaintiff has
failed to prove his possession over the suit schedule
property in its entirety. Without there being any
possession, without the property being in existence, the
NC: 2025:KHC:49216
HC-KAR
plaintiff cannot claim ownership over the suit schedule
property.
8. Hence, the Court answers Issue Nos.1 and 2 as
'negative' with regard to the interference is concerned and
also comes to the conclusion that plaintiff is not entitled to
the relief of declaration and permanent injunction. The
Court by referring the judgment of Ananthula Sudhakar
vs. P.Buchi Reddy (Dead) by LRs reported in (2008) 4
SCC 594, and dismissed the suit of the plaintiff.
9. Being aggrieved by the said judgment and
decree the plaintiff filed an appeal is filed in RA
No.503/2022. The Appellate Court having considered the
grounds urged, formulated the following points for
consideration:
"1 Whether the findings of the trial Court
that plaintiff has failed to prove his
ownership and possession over the
suit schedule property?
2. Whether the trial Court is justified in
holding that plaintiff has failed to
prove alleged interference?
NC: 2025:KHC:49216
HC-KAR
3. Whether the suit of the plaintiff is not
maintainable?
4. Whether the judgment and decree of
the Trial Court calls for interference?"
10. The first appellate court having reassessed both
oral and documentary evidence in light of the grounds
urged, comes to the conclusion that the Trial Court held
that plaintiff has failed to prove his ownership and
possession of the suit schedule property. Similarly,
regarding the alleged interference, no such interference
was established. Accordingly, Point Nos.1 and 2 were
answered as 'affirmative' and Point Nos.3 and 4 were
answered as 'negative'.
11. The Appellate Court while coming to such a
conclusion, considered both the oral and documentary
evidence. As noted in paragraph 30, taken note of that in
order to measure and identify the properties, two Court
Commissioners were appointed and subsequent
Commissioner also examined as CW2. It is the definite
NC: 2025:KHC:49216
HC-KAR
evidence of PW1 that he is the owner in possession of the
suit schedule property by virtue of the registered sale
deed dated 28.08.1992. But, the defendants categorically
denied the title and possession of the suit schedule
properties.
12. The plaintiff claimed possession in terms of
Exhibit P3, but the Court Commissioner's report (Ex.C5
and C6) and the sketch (Ex.C5) indicated that although
the vendor of the plaintiff had ownership over 29 guntas,
actual possession was only 22½ guntas. A vendor cannot
convey more property than he actually possesses. CW5
and CW6 shows that Bhairashetty and his family had no
right to alienate the excess land as claimed by the
plaintiff. CW2 further confirmed that only 22½ guntas in
Sy. No.263/3 were in existence.
13. The plaintiff contended that the defendants
have encroached upon 6½ guntas covered by the sale
deed of himself and his wife. However, no land in Sy.
NC: 2025:KHC:49216
HC-KAR
No.263/3 exists to the extent of 8 guntas of land as
claimed and the plaintiff failed to prove exclusive
possession over the 8 guntas of land. Accordingly, the
Trial Court's findings regarding possession and
interference are not erroneous.
14. The Appellate Court also referred to the
principles laid down in Ananthula Sudhakar (supra),
noting that since relief for possession was not claimed, the
plaintiff's suit in its present form is not maintainable.
Therefore, the Appellate Court confirmed the judgment of
the Trial Court.
15. Being aggrieved by the said findings, the
present appeal is filed. The main contention of the
appellant is that the First Appellate Court committed an
error in dismissing the appeal and confirming the
judgment of the Trial Court. It is urged that both the
Courts committed an error in holding that the plaintiff is
not in possession, even though when the sale deed dated
NC: 2025:KHC:49216
HC-KAR
24.02.1982 is not disputed by the defendant-respondent.
When the sale deed discloses the plaintiff's ownership, the
suit for declaration and possession ought not to have been
dismissed. Hence, this Court has to admit the appeal and
frame substantial questions of law.
16. The learned counsel for the appellant further
submits that the correct survey number is 262/3 and not
263/3, and that an error had occurred in referring to the
survey number both before the Trial Court and the
Appellate Court. Hence, the survey number shall be
treated as 262/3, as mentioned in the sale deed.
17. Having heard the learned counsel for the
appellant, and on considering the pleadings of the plaintiff
before the Trial Court as well as the contentions of the
defendant, and further taking into account the issues
involved between the parties along with both the oral and
documentary evidence on record, it is noted that though
the plaintiff claims declaration and possession in respect of
8 guntas of land, the Court Commissioner, who was
- 10 -
NC: 2025:KHC:49216
HC-KAR
appointed for the second time and examined as CW2, has
clearly deposed that the actual extent of land is only 22½
guntas and not 29 guntas as mentioned in the revenue
entries. This aspect was also considered in paragraph
No.15, wherein it was observed that the vendor cannot
convey more than what he was in possession. Hence,
despite the existence of a sale deed, when there was a
shortfall of possession to the extent of land which was
conveyed and when there was no possession and
existence of the property, the Trial Court rightly dismissed
the suit, as observed in paragraph No. 15.
18. The Appellate Court, on re-assessing both oral
and documentary evidence, particularly the evidence of
CW2, the sketch marked as Exhibit C5, and the report at
Exhibit C6, which clearly indicate that the vendor of the
plaintiff was in possession of only 22½ guntas, has in
paragraphs 34, 35, and 36 discussed the matter in detail
and applied the principles laid down in Anantala
Sudhakar (supra). It comes to the conclusion that when
- 11 -
NC: 2025:KHC:49216
HC-KAR
the property itself was not in existence and not in
possession, the question of granting a relief declaration or
permanent injunction does not arise. Both the questions of
fact and law have been duly considered, and when such
being the case, and there being no perversity in the
findings of both the Courts, I do not find any ground to
invoke Section 100 of the CPC. Hence, there is no merit in
the second appeal.
19. However, the claim of the appellant-plaintiff is
that he may be granted liberty to file a fresh suit, after
obtaining a proper survey report, for identifying the
property actually in his possession and thereafter seeking
appropriate reliefs. Hence, the said liberty, as sought, is
granted.
20. With these observations, the second appeal
stands disposed of.
Sd/-
(H.P.SANDESH)
JUDGE
