Karnataka High Court
Smt Chikkamma vs Sri Thimmanayaka on 29 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 240 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF OCTOBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.240 OF 2024 (DEC/POS)
BETWEEN:
1. SMT CHIKKAMMA
W/O LAT BEERANAYAKA
AGED ABOUT 64 YEARS
2. PUSHPALATHA
D/O LATE BEERANAYAKA
AGED ABOUT 40 YEARS
3. CHANDRAKUMARI
D/O LATE BEERANAYAKA
AGED ABOUT 40 YEARS
ALL ARE RESIDING AT NO.954,
KALIDASA ROAD, NAYAKARA BEEDHI,
Digitally signed H.D.KOTE TOWN AND TALUK
by DEVIKA M MYSURU DISTRICT-571 114.
Location: HIGH ...APPELLANTS
COURT OF
KARNATAKA
(BY SRI. SAGAR B.B., ADVOCATE)
AND:
1. SRI. THIMMANAYAKA
S/O CHIKKABEERANAYAKA
AGED ABOUT 69 YEARS
R/AT HANUMANTHANAGARA
HOSABADAVANE
METIKUPPE ROAD
H.D.KOTE TOWN AND TALUK
MYSURU DISTRICT-571 114.
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RSA No. 240 of 2024
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2. SMT. DEVALAMMA
W/O ALTE HUCHHANAYAKA
AGED ABOUT 59 YEARS
3. SMT. DEVAMANI
W/O LATE PARASUMANAYAKA
AGED ABOUT 38 YEARS
4. GOWRAMMA
D/O LATE HUCHHANAYAKA
AGED ABOUT 36 YEARS,
SL.NOS.2 TO 4 ARE
RESIDING AT KALIDASA ROAD
NAYAKARA BEEDHI,
H.D. KOTE TOWN AND TALUK
MYSURU DISTRICT-571 114.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.09.2023
PASSED IN R.A.NO.11/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, H.D.KOTE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
11.09.2019 PASSED IN O.S.NO.192/2009 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, HEGGADADEVANAKOTE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 240 of 2024
HC-KAR
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission and I have heard
learned counsel for the appellants.
2. The factual matrix of the case of the plaintiffs while
seeking the relief of declaration and possession before the Trial
Court is that suit schedule property originally belonged to one
late Huchanaika, working as School Jawan, which was granted
to him by the Government during 1926-27 i.e., dated
12.06.1925. During his lifetime, he was in possession and
enjoyment of the suit property. However after his death, the
property got mutated in the name of mother of the first
defendant vide mutation order No.39/08-09 dated 21.10.2008,
which is not correct and made in collusion with the revenue
officials. The plaintiffs are the absolute owners of the suit
schedule property bearing Sy.No.127/2 to the extent of 1.36
acres, out of total extent of 6.27 acres. It is contended that the
defendants are totally strangers and further contend that
defendants are in possession of the suit property which is illegal
and plaintiffs approached them on 05.08.2009 and demanded
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to handover the property to them. The defendants denied the
ownership of the plaintiffs and refused to handover the
possession. Hence, filed the suit for declaration and possession.
3. The defendants appeared and filed the written
statement denying the ownership and also the possession of
the plaintiffs over the suit schedule property and further
contend that it is the ancestral property of the defendants. The
suit schedule property was granted to grand-father of first
defendant-Huchanaika. It is further claimed that Puttanaika @
Huchanaika was not in possession and enjoyment of the suit
schedule property. The plaintiffs have instituted two suits one
in O.S.No.156/2009 against one Thimmamma in respect of
Sy.No.127/1 and another in O.S.No.187/2009 with respect to
the instant suit schedule property against Beeranaika and five
others for the relief of permanent injunction. Both the suits are
filed before this Court. The defendants further claim that suit
schedule property stands in the name of paternal aunt of first
defendant. Amongst other grounds, the defendants prays for
dismissal of the suit.
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4. The Trial Court having framed the issues, allowed
the parties to lead evidence and even additional issue is also
framed whether the plaintiff is entitled for the relief of
declaration with respect to suit schedule property and he is
entitled for consequential relief. The Trial Court having
considered the material available on record answered all the
issues as 'negative' including the additional issue taking note of
the fact that it was pleaded that land was granted to
Huchchanayaka long back in the year 1927. Trial Court having
considered the material available on record comes to the
conclusion that it was pleaded that land measuring 6 acres 27
guntas was granted and even fact remain is inconsistent when
PW1 reveals in her cross-examination that her father-in-law
had acquired the suit property in a public auction. The plaintiffs
have produced the copies of plaint, written statement of earlier
suit in O.S.No.156/2009 and also taken note that even
boundaries mentioned in the earlier suit also different from the
present suit boundaries in paragraph 10 and also taken note of
the RTCs from the year 1980-81, 1990-91, 1995-96, 2008-09
which are marked as Ex.P3 to P6. The said documents uncover
the fact that out of the total extent of 3.32 acres, an extent of
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1.36 acres each are shown against the names of one
Thulasamma wife of Puttanaika and Devamma wife of
Chikkanaika. Their names were mutated on the basis of
M.R.No.46/1982-83. However under Ex.P6, the mutation
number is shown as M.R.No.39/2008-09 dated 21.10.2008 to
which plaintiffs claimed to be illegal. The mutation is also not
under challenge before any forum till today. According to the
plaintiffs, Thulasamma is the second wife of late
Huchchanayaka and an observation is made that if that is so,
Ex.P3 to P6 should have been revealed the name of
Thulasamma wife of Huchchanayaka and not as Thulasamma
wife of Puttanaika. The further observation is made that
interestingly, DW1 in the cross examination was suggested by
the learned counsel for the plaintiffs that the first wife of
Huchchanayaka is Manchamma. But the stand of plaintiffs in
O.S.No.156/2009 is that the name of first wife of late
Huchchanayaka is Chennamma. The Trial Court has taken note
of all these discrepancies found in the documents as well as
evidence and comes to the conclusion that plaintiffs have not
proved their title and ownership over the suit schedule property
either by way of oral or documentary evidence.
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5. The Trial Court also made an observation with
regard to seeking of possession is concerned. When the
plaintiffs seek the relief of recovery of possession, first prove
that the defendants are in illegal possession. In the chief
examination, PW1 has deposed that suit property originally
granted to her father-in-law and after his death, her husband
was in possession and enjoyment of the property. However,
after the death of Huchchanauaka, the property got mutated in
the name of mother of defendant No.1. According to PW1, the
possession of defendants is illegal and colluded with revenue
officials. But the fact that with regard to the possession is
concerned, nothing is placed on record to show that on what
date possession was taken by the defendant. The Trial Court
also taken note of the material available on record and comes
to the conclusion that pleading is contrary to the evidence
which has been placed before the Court and also comes to the
conclusion that other documents placed before the Court also
not substantiated the case of plaintiffs. Hence, dismissed the
suit.
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6. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was preferred before the First Appellate
Court. the First Appellate Court also having perused both oral
and documentary evidence available on record, formulated the
points that whether the Trial Court has committed an error in
coming to the conclusion that plaintiffs have not proved that
they are the absolute owners of the suit schedule property and
also with regard to the illegal possession of the suit schedule
property by the defendants and answered all the points as
negative discussing with regard to the evidence of PW1 in
paragraph 24 and comes to the conclusion that on careful
perusal of the cross-examination of PW1, the counsel for
defendants suggested that father-in-law of PW1 is
Huchchanayaka, but PW1 denied the said suggestion put by the
counsel for the defendants. Even during the cross-examination
deposed that scheduled property was acquired by
Huchchanayaka in public auction and she got the document to
establish the same. The Trial Court also taken note of the
contra material placed before it with regard to the pleadings as
well as the evidence. Hence, comes to the conclusion that the
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Trial Court has not committed an error in dismissing the suit of
the plaintiffs and dismissed the appeal.
7. The main contention of the counsel appearing for
the appellants in this present second appeal is that both the
Courts are not justified in dismissing the suit as well as
confirming the judgment without verifying the title of the
plaintiffs who are the legal heirs of Late Huchchanayaka.
Hence, this Court has to frame substantive questions of law.
The counsel also would submit that may be the pleading is
contrary to the documents which have been placed before the
Trial Court, but the title is proved by placing the document. If
the material placed on record is very clear that title is with the
plaintiffs, both the Courts ought not to have dismissed the case
of the plaintiff.
8. Heard the learned counsel appearing for the
appellants and also perused the material on record as well as
the reasons assigned by both the Courts. It is not in dispute
that the very specific pleading is made by the plaintiffs that
property was granted in favour of Huchchanayaka but in order
to prove the factum that property was granted in favour of
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Huchchanayaka, no document is placed before the Court. The
document which is placed is Ex.P1 that is only a kethuvar. Even
to show that property has been purchased, except placing on
record of Ex.P1, nothing is placed on record. It is settled law
that pleading must be proved by placing the oral and
documentary evidence before the Court and Order VII Rule 3 of
CPC is also very clear that there must be a pleading and proof
in consonance with the established principles of evidence and
the same is not done.
9. The counsel would vehemently contend that mere
relying upon the documents contrary to the pleading cannot be
a ground to dismiss the suit and the said contention cannot be
accepted for the reason that when the plaintiffs approach the
Court, particularly in a case of declaration to declare the
ownership based on the documents, the documents which they
rely upon must be corollary to the pleadings what they have
made. In the absence of specific pleading that how they derived
the title and the same is not supported by any document, the
question of granting the relief of declaration does not arise.
Hence, I do not find any error committed by the Trial Court and
also the First Appellate Court in appreciating both oral and
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documentary evidence when the relief is sought for declaration
as well as for possession. It is the specific pleading that after
the death of Huchchanayaka, the family members are in
possession of the property and their possession is continued.
But none of the documents reveal that it stands in the name of
the plaintiffs. On the other hand, documents which have been
found are standing in the name of other persons and the same
is also not tallies with the same and the said fact also taken
note of by the Trial Court. Under the circumstances. I do not
find any ground to admit the appeal and to frame any
substantive questions of law.
10. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST/SN
