Karnataka High Court
Sri. Hanumanthaiah vs Sri. Karuppa Gounder on 3 November, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 395 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF NOVEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.395 OF 2022 (DEC/PAR)
BETWEEN:
1. SRI. HANUMANTHAIAH
AGED ABOUT 64 YEARS
S/O LATE MARIHUNCHEGOWDA
R/AT HARADANAHALLI VILLAGE
CHAMARAJANAGAR DISTRICT-573 113.
2. SRI. R. RAMSWAMY
AGED ABOUT 66 YEARS
S/O LATE MARIHUNCHEGOWDA
R/AT HARADANAHALLI VILLAGE
CHAMARAJANAGAR DISTRICT-573 113.
3. SMT. MANJULA R,
AGED ABOUT 30 YEARS
Digitally signed D/O SRI. P. RAMASWAMY
by DEVIKA M R/AT HARADANAHALLI VILLAGE
Location: HIGH CHAMARAJANAGAR DISTRICT-573 113.
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI. ANANTHARAM G.R., ADVOCATE)
AND:
SRI. KARUPPA GOUNDER
S/O LATE RANGASWAMY GOUNDER
SINCE DECEASED ON 01-12-2021
SURVIVED BY HIS LRS
1. SMT. LAKSHMI
AGED ABOUT 65 YEARS
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2. SRI. VELUSWAMY
AGED ABOUT 60 YEARS
3. SRI. PALANISWAMY
AGED ABOUT 55 YEARS
ALL RESIDING AT SY.NO.23/2
BOMMANAHALLI VILLAGE
HARADANAHALLI HOBLI
CHAMARAJANAGAR DISTRICT-571 127.
...RESPONDENTS
(BY SRI. R.C.NAGARAJ, ADVOCATE FOR R2;
R1 - SERVED; VIDE ORDER DATED 09.09.2025,
NOTICE TO R3 IS HELD SUFFICIENT)
THIS RSA IS FILED UNDER SECTION 100 R/W ORDER
XLII OF CPC 1908, AGAINST THE JUDGMENT AND DECREE
DATED 26.10.2021 PASSED IN R.A.NO.59/2017 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND CJM, CHAMARAJANAGARA,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 12.06.2017 PASSED IN O.S.NO.26/2005
ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN)
CHAMARAJANAGAR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 395 of 2022
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. I have heard learned
counsel for the appellants and learned counsel for respondent
No.2.
2. This second appeal is filed against concurrent
finding of the Trial Court and the First Appellate Court.
3. The factual matrix of the case of the plaintiff in
O.S.No.26/2005 before the Trial Court while seeking the relief
of declaration and permanent injunction is to declare that
plaintiff is the absolute owner in peaceful possession and
enjoyment of the suit 'A' property having acquired through
grant (Durasth) by the Government under the Grant Certificate
dated 27.01.1962 i.e. 'A' schedule property measuring 4 acres
of land and 'B' schedule property measuring 0.55 hectares
illegally encroached by the defendant in the 'A' schedule
property on the western side situated at Bommanahalli Village.
It is also contented that defendant is the neighboring land of
the plaintiff having his lands on the western side of the suit
property in Sy.No.23/2 measuring 2 acres. It is further averred
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in the plaint that during the month of June, 2003, the plaintiff's
niece expired at Bangalore. The plaintiff went along with his
family for a period of 10 days to Bangalore and was not in
station and after he returned back to his village, he came to
know that portion of the property was encroached. Hence,
sought for the relief of declaration and also possession in
respect of 'B' schedule property.
4. The defendant appeared and filed written statement
contending that suit 'A' property was originally granted to
plaintiff by the Government under the Grant Certificate dated
27.01.1962 and plaintiff was in possession and enjoyment of
the 'A' schedule property till 24.05.1972. It is contended that
on 24.05.1972, the plaintiff sold suit 'A' property to one
Sri P.T.Subbaiah under a registered sale deed and the
possession of suit property was delivered to P.T. Subbaiah. The
said Sri P.T. Subbaiah let out the western portion of 1 acre, 36
guntas out of 4 acres of suit property to one Meenakshamma,
who claimed occupancy rights which was granted to her
through the occupancy certificate dated 05.02.1982. Hence,
Meenakshamma became the owner of the western portion of 1
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acre, 36 guntas of suit 'A' property. That the said
Meenakshamma sold the said property to this defendant under
a registered sale deed dated 30.04.1999. It is also contented
that the defendant is in continuous possession of 1 acre 36
guntas on the western portion of 'A' schedule property. The
total extent of land in Sy.No.23 is 6.05 acres. At the time of
phoding out the western 0.5 guntas of land provided for road
was numbered as 23/1. On the eastern side of Sy.No.23/1,
there is a katte tank measuring 2 acres and it was numbered as
23/2. The remaining extent of 4 acres of eastern portion in
Sy.No.23 was numbered as 23/3. At the time of phoding and
changing of khatha, Revenue Authorities and Survey
Authorities, wrongly entered the name of Meenakshamma to
23/2 instead of 23/3. Since Sy.No.23/2 is the land reserved for
katte or tank, the concerned authority should not have changed
the khatha of Sy.No.23/2 in the name of Meenakshamma. The
said Meenakshamma has been in possession and enjoyment of
1 acre, 36 guntas in Sy.No.23/3. Both the defendant and his
vendor Meenakshamma were not aware of this mistake
committed by revenue and survey authorities. Hence, in the
sale deed dated 30.04.1999, it is mentioned that Sy.No.23/2
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was sold and hence, the defendant is in occupation of
Sy.No.23/3 and no question of encroachment of 'B' schedule
property by the defendant as he is the owner of the property.
5. The Trial Court having considered the averments
made in the plaint as well as the written statement framed the
issues whether the plaintiff is the absolute owner in possession
and enjoyment of 'A' schedule property, whether the defendant
has illegally encroached 'B' schedule property, whether the
defendant proves that plaintiff sold 'A' schedule property to
P.T. Subbaiah through registered sale deed dated 24.05.1972
and delivered possession of 'A' schedule property to
P.T. Subbaiah, whether the defendant proves that the Land
Tribunal, Chamarajanagara has granted occupancy rights in
favour of Meenakshamma dated 05.02.1982, whether the
defendant proves that Meenakshamma sold the western portion
of 1 acre, 30 guntas in 'A' schedule property to this defendant
through a registered sale deed dated 30.04.1999 and from the
date of purchase till today, this defendant is in possession and
enjoyment of the said property and whether the plaintiff is
entitled for possession of 'B' schedule property.
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6. The Trial Court having considered both oral and
documentary evidence available on record, particularly
considered the admission on the part of defendant that the
property was originally granted in favour of the plaintiff to the
extent of 4 acres and the same is not disputed. But, a specific
contention was taken by the defendant that the same was sold
in the year 1972 in favour of P.T. Subbaiah and to that effect,
oral evidence and evidence is also placed before the Court and
when the property was sold, the Trial Court comes to the
conclusion that the plaintiff is not having absolute right and
sale deed was also executed in the year 1972 in favour of
P.T. Subbaiah and also considered the grant order made in
favour of Meenakshamma by the Land Tribunal and
subsequently, the said Meenakshamma sold the property in
favour of defendant and answered issue Nos.1 and 2 as
'negative' and answered issue Nos.3 to 6 in favour of defendant
and dismissed the suit with cost of Rs.3,000/-.
7. Being aggrieved by the said judgment and decree,
an appeal is filed before the First Appellate Court in
R.A.No.59/2017. The First Appellate Court also having
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reassessed both oral and documentary evidence, in keeping the
grounds which have been urged in the first appeal, formulated
the point whether the case pleaded by the plaintiff in the plaint
and written statement was properly considered by the Trial
Court, whether Exs.P1 to P21 properly which clearly reveal that
plaintiff is the owner in possession and enjoyment of the
property, whether the Trial Court has totally failed to appreciate
the oral evidence of plaintiff and evidence of Court
Commissioner and Court Commissioner report as per Exs.C1 to
C3. The First Appellate Court having reassessed both oral and
documentary evidence placed on record comes to the
conclusion that Trial Court has rightly answered issues involved
between the parties and answered all the points for
consideration as 'negative' and it does not require any
interference of this Court.
8. The present second appeal is filed by appellant
No.1/plaintiff and also subsequent purchasers i.e., appellant
Nos.2 and 3 and these two appellants have purchased the
property from the plaintiff and this Court granted leave to come
on record, since they are subsequent purchasers. Hence,
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appellant Nos.2 and 3 are also brought on record. The counsel
appearing for the appellant would vehemently contend that the
document Ex.P1 is very clear that there was a grant in favour
of appellant No.1 and even if any sale is made in the year 1972
and the same is in violation of grant order, the same will not
create any title in favour of said P.T. Subbaiah. The counsel
also would contend that both the Courts committed an error in
considering that property purportedly granted to one
B.T. Ganesh by the Government in the land bearing Sy.No.23/2
and the property is 'A' schedule property which was originally
granted in favour of the plaintiff and if any such violation of
condition of grant prohibiting alienation, it would be void
inasmuch as Ex.D1 was void ab initio and will not create any
right and title. The counsel also would vehemently contend that
both the Courts committed an error in relying upon
Commissioner report i.e., Ex.C1 and though the signature of
the original plaintiff i.e., P.W.1 tallies with the subsequent
admitted document, the same would not defeat the rights of
appellant No.1 and appellants Nos.2 and 3 are subsequent
purchasers from the original owner. Hence, the very approach
of the Trial Court and the First Appellate Court is erroneous.
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9. Per contra, learned counsel appearing for
respondent No.2 would submit that the respondent also not
dispute that property originally belongs to plaintiff No.1. But,
plaintiff No.1 sold the property in the year 1972 itself. Learned
counsel would submit that vendor of the respondent was a
tenant of the subsequent purchaser P.T. Subbaiah and
occupancy right was granted in favour of Meenakshamma and
Meenakshamma, in turn sold the property in favour of
P.T. Subbaiah. When such being the case, question of any
encroachment as contented by the appellant does not arise.
The counsel also vehemently contend that when the sale was
made in terms of Ex.D1, the same was sent to handwriting
expert and handwriting expert has also given the report that
signature available in Ex.D1 and also admitted signature of the
plaintiff are one and the same. When such being the case,
whether the document is void document or not is not the issue
and when the property was already sold, question of granting
any relief of declaration does not arise and the said aspect has
been considered by both the Trial Court as well as the First
Appellate Court.
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10. Having heard learned counsel for the appellant and
also learned counsel for respondent No.2 and also the reason
assigned by the Trial Court as well as the First Appellate Court,
looking into the factual aspects, it is not in dispute that
property was originally granted by the Government in favour of
the plaintiff in the year 1962. It is the specific case of the
respondent that the very same property was sold in the year
1972 in favour of one P.T. Subbaiah as per Ex.D1. The counsel
also brought to notice of this Court that though counsel
appearing for the appellant would vehemently contend that the
sale deed was a void document and the fact that already there
was a sale in favour of P.T. Subbaiah is not in dispute and the
same was not questioned. Apart from that, when the sale deed
was executed in terms of Ex.D1 in favour of P.T. Subbaiah and
the said document was also sent to handwriting expert and
handwriting expert and Commissioner report also goes against
the appellant herein, when such being the case, the very
contention of learned counsel for the appellant that both the
Courts have committed an error in relying upon the document
of Ex.D1 and Commissioner report is erroneous and the said
contention cannot be accepted once the property was sold long
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back in the year 1972 and the very contention of the appellant
that the plaintiff ought to have been declared as owner of the
property, consequent upon the grant made in the year 1962
cannot be accepted.
11. No doubt, appellant Nos.2 and 3 are the subsequent
purchasers and in view of defective title in respect of the title of
appellant Nos.2 and 3, this Court cannot grant any relief in
their favour for the reason that very appellant No.1, who is the
plaintiff before the Court was not having any title with regard to
the property is concerned. Hence, no error was committed by
the Trial Court and the First Appellate Court in appreciating
both oral and documentary evidence available on record and
the second appeal could be admitted only if there is any
perversity in the finding and if the material available on record
is not considered by both the Courts and only under such
circumstances, the Court can consider the second appeal. With
regard to substantial question of law is concerned, once the
property was sold long back in the year 1972 and the plaintiff
lost the right, question of seeking the relief of declaration also
does not arise and though the appellant contend that the sale
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deed is a void document and the same will not confer any title,
the said contention cannot be accepted, in view of the fact that
sale was already made long back and it was not challenged and
the material available on record goes against the appellant.
Hence, it is not a case to admit the second appeal and frame
any substantial question of law and question of invoking
Section 100 of CPC does not arise.
12. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
