Karnataka High Court
Sri. Huche Gowda vs Nagendra on 30 October, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
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RSA No. 752 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF OCTOBER 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.752 OF 2021 (DEC/INJ)
BETWEEN:
1. SRI. HUCHE GOWDA
S/O. LATE BASAVEGOWDA
AGED ABOUT 47 YEARS
R/AT SALUNDI VILLAGE
JAYAPURA HOBLI
MYSURU TALUK
MYSURU DISTRICT-570 001.
...APPELLANT
(BY SRI. SUBHASH CHANDRA BOSE &
SRI. MANJUNATHA K., ADVOCATES)
AND:
1. NAGENDRA
Digitally signed DEAD BY LRS.
by DEVIKA M
Location: HIGH 1(a) SMT. MAALA
COURT OF
KARNATAKA W/O. LATE NAGENDRA
AGED ABOUT 55 YEARS
R/AT NO.437, 17TH CROSS
4TH MAIN, VIDYARANYAPURAM
MYSURU-570 008.
1(b) NETHRA
D/O. LATE NAGENDRA
AGED ABOUT 35 YEARS
R/AT NO.437, 17TH CROSS
4TH MAIN, VIDYARANYAPURAM
MYSURU-570 008.
-2-
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RSA No. 752 of 2021
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2. THE KARNATAKA HOUSING BOARD
SARASWATHIPURAM, MYSURU
MYSURU DISTRICT-570 001.
...RESPONDENTS
(BY SRI. B.J. KRISHNA, ADVOCATE FOR R1(a) AND R1(b))
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.04.2021
PASSED IN R.A.NO.205/2020 ON THE FILE OF THE IV
ADDITIONAL DISTRICT AND SESSION JUDGE, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 18.11.2019 PASSED IN O.S.NO.265/2005
ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC,
MYSURU.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
Heard learned counsel for the appellant and learned
counsel for respondent Nos.1(a) and 1(b).
2. The present second appeal is filed against the
concurrent finding.
3. The factual matrix of case of the plaintiff before the
Trial Court is that suit schedule property belongs to the
plaintiff's father and the same was granted in the year 1981. At
the first instance, the suit is filed for the relief of only injunction
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stating that plaintiff is in possession of the property and also an
averment is made that defendants are interfering with
possession of the plaintiff.
4. Immediately, the defendants appeared and filed
suit stating that already there was sale in their favour and suit
is not maintainable and in view of the objection raised in the
written statement, suit was also converted for declaration and
then additional issue was framed whether the plaintiff is the
absolute owner of the suit schedule property, whether the
plaintiff proves that sale deed dated 15.01.2001 executed by
Ankegowda in favour of the defendant is null and void and not
pending on him and also whether change of khatha in favour of
brother of the defendant referring the earlier partition in terms
of M.R.No.14/2005-06 is not binding on him.
5. The Trial Court having considered both oral and
documentary evidence available on record, having taken note
of sale deed dated 15.01.2001 and prior to that there was sale
by Ningegowda, comes to the conclusion that plaintiff is not the
owner of the property and also comes to the conclusion that
there is an admission on the part of P.W.1 during the course of
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cross-examination that there was an oral partition between
brothers Ningegowda and Basave Gowdaa and in paragraph
No.20 in detail discussion was made with regard to the same
and comes to the conclusion that plaintiff has not proved the
additional issue that he is the owner in possession of the
property and dismissed the suit.
6. The same is challenged before the First appellate
Court. The First Appellate Court also having considered the
grounds urged in the appeal memo, formulated the points
whether the Trial Court committed an error in dismissing the
suit and whether it requires interference of this Court. The First
Appellate Court also having taken note of the pleadings of the
parties and also both oral and documentary evidence, in detail
discussed in paragraph No.37, wherein relevant portion of
cross-examination of appellant and admissions thereunder
makes it very clear with regard to family partition and separate
possession of respective properties of the joint family during
1986 and the admissions of the appellant goes against his
contention and though the property is a joint family property
and the same has been divided and taking advantage of grant
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made in favour of the father of the plaintiff in the year 1981,
suit is filed. In paragraph No.38, the First Appellate Court also
observed that material available on record is clear that there
was a partition in the year 1986 and property was allotted in
favour of Ningegowda and he in turn, sold the property in
favour of Ankegowda, in turn, he sold the property in favour of
respondent No.1. Having taken note of both oral and
documentary evidence, confirmed the judgment of the Trial
Court.
7. Now, learned counsel appearing for the appellant
would vehemently contend that both the Courts committed an
error in coming to the conclusion that plaintiff has not made out
any case to grant the relief of declaration and injunction. The
counsel would contend that property was granted by Land
Tribunal vide order dated 28.12.1981 to the plaintiff's father
and the same exclusively belongs to him and Ningegowda was
not having any right to sell the property in favour of
Ankegowda and Ankegowda in turn sold the property in favour
of respondent No.1. Hence, the very findings of the Trial Court
and the First Appellate Court is not correct.
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8. Having heard the learned counsel for the appellant
and learned counsel for respondent Nos.1(a) and 1(b) and also
on perusal of material available on record, no dispute that
property was granted in favour of the plaintiff's father in the
year 1981 and subsequent to 1981, there was partition
between the father of the plaintiff and his uncle Ningegowda in
the year 1986 and all the documents and also the admission on
the part of the appellant clearly discloses that there was oral
partition between the brothers and property for which the
declaration is sought is allotted in favour of Ningegowda and
Ningegowda in turn sold the property in favour of Ankegowda
and Ankegowda sold the property in favour of respondent No.1.
When such material is available on record, the same is
appreciated by Trial Court and the First Appellate Court and the
very contention that Ningegowda was not having any right
cannot be accepted and the appellant/plaintiff has suppressed
the fact that said Ningegowda was his brother and there was
partition in the year 1986 and subject matter of the property
was allotted in favour of Ningegowda and the said Ningegowda
in turn sold the property in favour of Ankegowda and
Ankegowda sold the same in favour of respondent No.1 and
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suppressing the same, the appellant/plaintiff has approached
the Court. Hence, the Trial Court made an observation that
appellant has not approached the Court with clean hands and
therefore, he is not entitled for the relief and the First Appellate
Court also taken note of the reasoning given by the Trial Court
in paragraph No.19 as well as in paragraph Nos.36, 37 and 38
the First Appellate Court also in detail taken note of both oral
and documentary evidence available on record and in
paragraph No.38 comes to the conclusion that the plaintiff has
suppressed the partition which had taken place in the year
1986 and subsequent to the partition, uncle Ningegowda has
sold the same in favour of another uncle Ankegowda and he in
turn sold the property in favour of respondent No.1 and
respondent No.1 has continued to be in possession and
enjoyment of the property, till acquisition by the respondent
No.2. When such material is appreciated by the Trial Court as
well as the First Appellate Court, I do not find any error on the
part of the Trial Court and the First Appellate Court and both
the Courts have considered question of fact and question of
law. Hence, no grounds to admit the second appeal and frame
any substantial question of law.
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9. In view of the discussion made above, I pass the
following:
ORDER
The regular second appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
ST
