Karnataka High Court

Shri. Shivappa Nigappa Chougula vs Smt. Tayawwa W/O Shiddappa Chougula on 31 October, 2025

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                                                             NC: 2025:KHC-D:14803
                                                           RSA No. 100156 of 2018


                          HC-KAR




                         IN THE HIGH COURT OF KARNATAKA,AT DHARWAD

                           DATED THIS THE 31ST DAY OF OCTOBER, 2025

                                             BEFORE

                                THE HON'BLE MR. JUSTICE C M JOSHI

                        REGULAR SECOND APPEAL NO.100156 OF 2018 (DEC)

                         BETWEEN:

                         1.   SHRI SHIVAPPA NINGAPPA CHOUGULA
                              AGE: 48 YEARS, OCC. AGRICULTURE,
                              R/O. SANNA ONI, KARADIGUDDI,
                              TQ. AND DIST: BELAGAVI-591103.

                         2.   SHRI BASAPPA NIGAPPA CHOUGULA
                              AGE: 41 YEARS, OCC. AGRICULTURE,
                              R/O. SANNA ONI, KARADIGUDDI,
                              TQ. AND DIST: BELAGAVI-591103.
                                                                      ...APPELLANTS
                         (BY SRI. SANGRAM S. KULKARNI, ADVOCATE)

                         AND:
           Digitally
           signed by
           YASHAVANT
                              SMT. TAYAWWA W/O. SHIDDAPPA CHOUGULA
           NARAYANKAR
YASHAVANT
NARAYANKAR Date:              SINCE DECEASED BY HER LRS.
           2025.11.03
           14:55:03
           +0530

                         1.   SHRI MALLIKARJUN SHIDDAPPA CHOUGULA,
                              AGE: 60 YEARS, OCC. AGRICULTURE,
                              R/O. DODDA ONI, KARADIGUDDI,
                              TQ. AND DIST. BELAGAVI-591103.

                         2.   SMT. KASTUREVVA
                              W/O. GANGAPPA URNINATTI,
                              AGE: 56 YEARS, OCC. HOUSEHOLD WORK,
                              R/O. DODDA ONI, KARADIGUDDI,
                              TQ. AND DIST. BELAGAVI-591103.
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                                 RSA No. 100156 of 2018


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3.   SMT. SUVERNEVVA
     W/O. SHIVANINGAPPA RACHANNAVAR,
     AGE: 56 YEARS, OCC. HOUSEHOLD WORK,
     R/O. DODDA ONI, KARADIGUDDI,
     TQ. AND DIST. BELAGAVI-591103.

4.   SHRI NAGAPPA SHIDDAPPA CHOUGULA
     AGE: 46 YEARS, OCC. AGRICULTURE,
     R/O. DODDA ONI, KARADIGUDDI,
     TQ. AND DIST. BELAGAVI-591103.

5.   SHRI SOMAPPA SHIDDAPPA CHOUGULA
     AGE: 40 YEARS, OCC. AGRICULTURE,
     R/O. DODDA ONI, KARADIGUDDI,
     TQ. AND DIST. BELAGAVI-591103.

6.  SMT. SAVITREVVA W/O. RUDRAGOUDA PATIL,
    AGE: 36 YEARS, OCC. HOUSEHOLD WORK,
    R/O. YERAGOPPA, TQ. BAILHONGAL,
    DIST. BELAGAVI-591102.
                                        ...RESPONDENTS
(BY SRI. M.M. PATIL, ADVOCATE FOR C/R1)

      THIS RSA IS FILED UNDER SECTION 100 R/W. ORDER 41

RULE 1 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND

DECREE PASSED IN RA.NO.41/2017 DATED 06.01.2018 BY THE

III ADDL. SENIOR CIVIL JUDGE, BELAGAVI AND ALSO SET

ASIDE    THE   JUDGMENT    AND    DECREE    PASSED    IN

O.S.NO.1354/2012 DATED 23.02.2017 PASSED BY IV ADDL.

CIVIL JUDGE AND JMFC, BELAGAVI AND ETC.


      THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,

JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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                                         NC: 2025:KHC-D:14803
                                      RSA No. 100156 of 2018


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                       ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

Heard the learned counsel appearing for the appellants.

2. The appellants are defendants in O.S.No.1354/2012,

which came to be decreed by the Trial Court and which was

confirmed by the First Appellate Court in R.A.No.41/2017.

3. The factual aspect that is necessary for the purpose

of this appeal is that the suit property was originally owned by

one Shiddappa who died on 11.07.2001. The first plaintiff is the

wife of the said Shiddappa and plaintiff Nos.2 to 7 are the sons

and daughters of Shiddappa. After the death of Shiddappa, the

name of plaintiff Nos.2, 5 and 6 were mutated in the record of

rights. It was alleged that defendant No.1 got his name entered

in the revenue records of the suit schedule property in the year

2007 by certain fictitiously created documents and accordingly,

mutation entry No.18/2007-2008 came to be effected. When the

defendants started obstructing the possession and enjoyment of

the plaintiffs, they came to know that the suit property had been

mutated in the name of defendant No.1 on the basis of an

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alleged Kabuli Patra (relinquishment deed) executed by plaintiff

Nos.2, 5 and 6. Such Act was protested and when it was not

successful, the plaintiffs filed the suit before the Trial Court

contending that they are the owners in possession of the suit

schedule property and the defendants be restrained by an

injunction.

4. The defendants appeared before the Trial Court and

contended that defendant No.1 was in possession of the suit

schedule property on the basis of the relinquishment deed/Kabuli

Patra executed by plaintiff Nos.2, 5 and 6 and later defendant

No.2 has purchased the property from defendant No.1 under a

valid sale deed. Therefore, they contended that defendant No.2

is in possession and enjoyment of the suit schedule property and

the plaintiffs cannot maintain the suit. It was also contended that

defendant No.2 had mortgaged the suit schedule property to a

Bank for the purpose of raising loans and they being in

possession, the suit deserves to be dismissed.

5. Thereafter, the plaintiffs got amended the plaint and

they challenged the sale deed executed by defendant No.1 in

favour of defendant No.2.

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6. The trial was held before the trial Court and the trial

Court came to the conclusion that the

relinquishment/Kaboolipatra executed by the plaintiffs No.2, 5

and 6 in favour of the defendant No.1 is non-est and there was

no such relinquishment under law. It was held by the trial Court

that the relinquishment has not been proved and if at all there is

any relinquishment, it was not under any of the modes known to

law. Therefore, the trial Court held that the evidence available

would show the title in favour of the plaintiffs and as such, their

possession has to be protected by issuing any injunction. It also

declared that the sale deed executed by defendant No.1 in

favour of defendant No.2 dated 17.05.2012 is illegal, void and

not binding on the plaintiffs. Being aggrieved, the defendants

approached the First Appellate Court in R.A.No.41/2017 and

after hearing the arguments and appreciating the evidence on

record, the First Appellate Court had dismissed the first appeal.

7. Being aggrieved, the defendants are before this Court

in second appeal.

8. Learned counsel appearing for the appellants would

submit that the testimony of the PW1 show that there were

revenue entries in favour of the defendants and those revenue

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entries had not been challenged by the plaintiffs anywhere and

as such, there is a presumption under Section 133 of the

Karnataka Land Revenue Act, 1964 and such presumption of

possession goes in favour of the appellants. It is his contention

that the PW1 in the cross-examination has admitted the records

being changed in the name of the defendants and therefore, the

trial Court could not have held that the plaintiffs are in

possession of the suit schedule property. In this regard, he also

places reliance on the judgment in the case of Akkamma and

Others V/s Vemavathi and Others1 rendered by Hon'ble

Supreme Court in Civil Appeal No.5884/2009.

9. It is pertinent to note that in a suit for declaration of

title and consequential relief of injunction, the provisions of

Section 34 of the Specific Relief Act create an embargo on the

maintainability of the suit. The judgment in the case of

Akkamma and Others V/s Vemavathi and Others referred

supra in paragraph 17, it was held as below:

2021 SCC Online 1146

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"17. So far as the reliefs claimed in the suit out of which this appeal arises, prayer for declaration was anchored on two instances of interference with the possession of land of the plaintiffs and injunctive relief for restraint from interference with the property was also claimed.

But possession of the said property by the original plaintiff was not established. The alternative relief sought to be introduced at a later stage of the suit was also found to be incapable of being entertained for the reason of limitation. Thus, the foundation of the case of the plaintiffs based on these two factual grounds collapsed with the fact- finding Courts rejecting both these assertions or allegations. But that factor ought not to be a ground for denying declaration of ownership to the plaintiffs. There is no bar in the Specific Relief Act, 1963 in granting standalone declaratory decree."

10. Therefore, obviously the maintainability of the suit

cannot be questioned by the appellants on the ground that the

proviso to Section 34 of the Specific Relief Act would create a

bar. If the plaintiffs had not sought for the consequential relief of

injunction, but had prayed only the declaration of title, then

there would have been certain weight in the argument that the

suit would not be maintainable.

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11. So far as the other contentions are concerned, it is to

be noted that the cross-examination of the PW1 do not show any

clear admission regarding the possession of the defendants. If