Karnataka High Court
Sri. B S Kumar vs Channabasavaiah on 15 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1424 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1424 OF 2024 (POS)
BETWEEN:
1. SRI. B.S. KUMAR
S/O LATE SANNA THIMMA BOVI
AGED ABOUT 57 YEARS
R/O BYRAGONDANAHALLI
BOVI COLONY VILLAGE
BANAVARA HOBLI
ARSIKERE TALUK
HASSAN DISTRICT-573112.
...APPELLANT
(BY SRI. KALEEMULLAH SHARIFF, ADVOCATE)
AND:
1. CHANNABASAVAIAH
Digitally signed S/O LATE RUDRAPPA
by DEVIKA M AGED ABOUT 71 YEARS
Location: HIGH R/O BYRAGONDANAHALLI VILLAGE
COURT OF BANAVARA HOBLI
KARNATAKA ARASIKERE TALUK
HASSAN DISTRICT-573 112.
CHENGABOVI
S/O LATE CANGABOVI
DEAD BY HIS LRS.
2. SHARADAMMA
W/O LATE CANGABOVI
AGED ABOUT 65 YEARS
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3. KANTHAMMA
W/O LATE VENKATESHA
AGED ABOUT 45 YEARS
4. UMESHA
S/O LATE CANGABOVI
AGED ABOUT 43 YEARS
5. SHANKARA
S/O LATE CANGABOVI
AGED ABOUT 40 YEARS,
RESPONDENTS NO.2 TO 5 ARE
R/O BYRAGONDANAHALLI
BOVI COLONY VILLAGE
BANAVARA HOBLI
ARSIKERE TALUK
HASSAN DISTRICT-573 112.
6. DEVIRAPPA
S/O LATE BASAVALINGEGOWDA
AGED ABOUT 80 YEARS
R/O BYRAGONDANAHALLI VILLAGE
BANAVARA HOBLI
ARSIKERE TALUK-573 112.
...RESPONDENTS
(BY SRI. KALEEMULLA SHARIFF, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 14.08.2024 PASSED IN
R.A.NO.19/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC,ARSIKERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 09.01.2020
PASSED IN O.S.NO.239/2013 ON THE FILE OF THE 1ST
ADDITIONAL CIVIL JUDGE AND JMFC, ARASIKERE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1424 of 2024
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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard the
learned counsel appearing from the appellant.
2. This second appeal is filed against the concurrent
finding of the Trial Court and the First Appellate Court.
3. The plaintiff in O.S. No.239/2013 while seeking the
relief of possession and the sale date dated 08.12.2010 is not
binding on the plaintiff has pleaded that propositor of one
Hanumantha Bovi was having three children by name
Hanumantha Bovi, Dodda Thimmabovi and father of plaintiff by
name Sanna Thimmabovi. There was no division in the family
of said Hanumantha Bovi and three sons of said Hanumantha
Bovi died long back. Venkatabovi, who is the son of
Hanumantha Bovi, S/o. Hanumantha Bovi and the father of the
plaintiff had sold the suit schedule property in the year 1973
i.e., on 21.05.1973 without any legal necessity in favour of
defendant No.3. In turn, the defendant No.3 had sold the suit
schedule property to defendant No.1 on 21.11.1975 as per
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Ex.D5 and defendant No.1 sold the property to defendant No.2
through registered sale dated 08.12.2010. It is the contention
of the plaintiff in the suit that he was a minor at the time of
first sale and he was aged about 7 years and subsequently, he
came to know about the subsequent sale deeds in favour of
defendant No.1 and defendant No.2 on 08.12.2010.
4. The defendant No.2 took the defence in the written
statement that he has purchased the property from defendant
No.1 and he is a bonafide purchaser of the suit property. It is
also contented that the property was sold in favour of
defendant No.3 long back in the year 1973 and the earlier sale
deed was not challenged and afterthought, the present suit is
filed in the year 2013. Hence, the plaintiff is not entitled for the
relief of declaration and possession.
5. The plaintiff, in order to prove his case examined
himself as P.W.1 and got marked the documents as Exs.P1 to
P17 and examined two witnesses as P.W.2 and P.W.3. On the
other hand, defendant No.2 examined himself as D.W.1 and
produced Exs.D1 to D11.
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6. The Trial Court having considered the material
available on record, both oral and documentary evidence comes
to the conclusion that the sale has taken place long back in the
year 1973 and subsequent sale deed is challenged which was
executed in 2010 and in between, there was one more sale
deed in the year 1975 and sale transactions have taken place
between defendant Nos.1 to 3 respectively. The Trial Court also
taken note of the fact that at the time of first sale, the plaintiff
was aged about 7 years and he did not challenge the sale deed
immediately after attaining the majority and also taken note of
the fact that the original purchaser i.e., defendant No.3 who
has to explain about the situation of the family when first sale
transaction was taken place between themselves and defendant
No.3 was not made as party. The Trial Court also taken note of
the fact that PW2 and PW3 are also pleaded ignorance in the
cross examination about the family affairs of the plaintiff in the
year 1973. The Trial Court also taken note of the documents at
Ex.P14 as well as Ex.D4 with regard to the legal necessity and
family benefit of late Sanna Thimma Bovi. The recital of Ex.D4
is clear that to repay the hand loan of father of the plaintiff,
suit schedule property was sold. The cross-examination of PW1
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is clearly goes to show that his family was not in well position
at the time of sale in the year 1973. The plaintiff has also not
produced any document to show that at the time of the sale,
his family was having sufficient income. Apart from that, the
Trial Court taken note of the fact that when the plaintiff had
filed one more suit against his cousins in O.S.No.238/2013, has
not included the present suit schedule property and also the
said suit was filed earlier to the present suit. The Trial Court
considering the provisions of Order II Rule 2 of CPC, answered
Issue No.1 as negative. With regard to the additional issue is
concerned, same is also answered as negative regarding
limitation to file the suit by the plaintiff. After framing of this
additional issue also learned counsel for the plaintiff has
submitted that there is no evidence on additional issue. But
DW1 filed his additional examination-in-chief by way of affidavit
and content that plaintiff is having knowledge about the sale
deed dated 21.05.1973 but not taken any steps within the
limitation period. The other issue is with regard to specific
defence of defendant No.2 that he is the bona fide purchaser.
Admittedly the suit property was sold by the father of plaintiff
and Venkatabovi in favour of defendant No.3 and in turn sale
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was taken place between defendant Nos.1 and 2. Having
considered all the materials, the Trial Court comes to the
conclusion that the plaintiff has not made out any case and
dismissed the suit.
7. Being aggrieved by the said judgment and decree of
the dismissal of the suit, an appeal is filed in R.A.No.19/2020.
The First Appellate Court also having considered the grounds
urged in the appeal memo, formulated the points that whether
the Trial Court has justified in dismissing the suit and there is
any ground to interfere with findings. The First Appellate Court
considering both oral and documentary evidence placed on
record answered the first point for consideration as affirmative
holding that the Trial Court has justified in dismissing the suit.
The First Appellate Court also taken note of the fact that suit
was filed after the lapse of 40 years and also taken note of the
fact that the property was exchanged between the defendant
Nos.1, 2 and 3 during this period. The First Appellate Court also
taken note of the fact that the plaintiff was aged about 7 years
at the time of the sale and in detail discussed the evidence of
the PW1 as well as DW1 while re-appreciating the material
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available on record from paragraphs 15 to 17 wherein PW1
categorically admitted that his family was under financial crisis.
PW2 and PW3 have deposed ignorance for the suggestion with
regard to the financial condition of the family of the plaintiff.
The First Appellate Court also taken note of the discussion
made by the Trial Court with regard to the earlier suit filed by
the plaintiff against his cousins without including the suit
schedule property. Even First Appellate Court also in detail
discussed with regard to the fact that the plaintiff is residing at
Bangalore in paragraph 18 and both oral and documentary
evidence available on record was considered by the First
Appellate Court and dismissed this first appeal. Being aggrieved
by the concurrent finding of the Trial Court and the First
Appellate Court, the present second appeal is filed before this
Court.
8. The learned counsel appearing for the appellant
would vehemently contend that both the Courts were not
justified in dismissing the suit as well as the appeal. Both the
Courts without noticing the fact that the suit schedule property
is a granted property under Darkaths with a condition of
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permanent non-alienation, committed an error in dismissing the
suit as well as the appeal. Hence, prays this Court to admit the
appeal and frame the substantive question of law.
9. Having heard the learned counsel for the appellant
and also considering the material on record, it discloses that
the suit was filed to declare that the sale deed dated
08.12.2010 executed in favour of defendant No.2 by defendant
No.1 is null and void and also sought for the relief of
possession. The material available on record is very clear that
first sale was made in the year 1973. The present suit was filed
after the lapse of 40 years. In the meanwhile, i.e., from 1973
to 2013, two sales were taken place between the parties i.e., in
favour of defendant No.3 and defendant No.3 in turn sold the
property in favour of defendant No.1 in the year 1975 itself and
defendant No.1 sold the property in favour of defendant No.2 in
the year 2010 having enjoyed the property for more than 35
years. Thus, it is very clear that property was not with the
possession of the plaintiff's family from 1973. It is also
emerged during the course of evidence of PW1 that at the time
of first sale in the year 1973, he was aged about 7 years. But
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the fact that immediately after attaining the majority, the
plaintiff did not question the sale deed of year 1973 as well as
1975 as he attained the majority in the year 1984 itself and he
kept quiet till taking of the subsequent sale deed in favour of
defendant No.2 by defendant No.1 and suddenly he filed a suit
to declare the subsequent sale deed as null and void and not
binding on him. Both the Trial Court as well as First Appellate
Court taken the note of the admission given by PW1 wherein he
has categorically admitted that his father was having very
difficulty for his food and cloth. The said fact is taken note of by
the Trial Court in paragraph 14 with regard to the financial
condition of the father of the plaintiff as admitted by him. The
Trial Court also not only discussed with regard to the sales but
also discussed with regard to not challenging the sale deed
immediately after attaining majority and also admission on the
part of PW1 that family was under financial constraints in the
year 1973 and also when the suit was filed by the plaintiff in
O.S.No.238/2013, not included the present suit schedule
property, but only an after thought, after filing of the suit in
O.S.No.238/2013, the present suit was filed. Thus, the Trial
court in detail considered both oral and documentary evidence
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available on record. Even the First Appellate Court also in detail
discussed both oral and documentary evidence available on
record from paragraphs 15 to 20. Hence, this Court do not find
any perversity in the finding of Trial Court as well as First
Appellate Court on the question of fact and also on the question
of law regarding limitation also.
10. The learned counsel for the appellant during the
course of argument would vehemently contend that suit
schedule property is a granted property but to that effect, there
is no pleadings and not placed any documentary proof before
the Court to substantiate his contention and the said contention
is raised for the first time before this Court in the second
appeal. Hence, the same also involves factual aspect. Thus, no
ground is made ought to admit and frame substantive
questions of law.
11. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
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In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST/SN
