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Karnataka High Court
Smt. Rayasam Prameela vs Smt. Durga Bai @ Dikkammaal on 22 January, 2026
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RFA No. 397 of 2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JANUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 397 OF 2018 (DEC/INJ)
BETWEEN:
SMT. RAYASAM PRAMEELA,
W/O LATE R.RAMESH,
R/AT NO.1406/A, 2ND STAGE,
D BLOCK, RAJAJINAGAR,
BENGALURU-560010.
REP. BY HER SPA HOLDER,
MR.RAYASAM SRAVA,
S/O LATE RAMESH,
AGED ABOUT 42 YARS,
RESIDING AT NO.17,
BEHIND MUSSANJAY OLDAGE HOME,
GNANAJYOTHINAGAR, MALLATHAHALLI,
BENGALURU-560056.
...APPELLANT
(BY SRI S NAGESH, ADVOCATE)
Digitally AND:
signed by
PRAMILA G V
Location: 1. SMT. DURGA BAI @ DIKKAMMAAL
HIGH COURT W/O LATE M.DORAISWAMY,
OF AGED ABOUT 65 YEARS,
KARNATAKA
2. SRI D RAMESH BABU,
S/O LATE M.DORAISWAMY,
AGED ABOUT 42 YEARS,
3. SMT D SHIVAGAMI,
D/O LATE M.DORAISWAMY,
AGED ABOUT 44 YEARS,
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4. SMT D DEVAKI
D/O LATE M.DORAISWAMY,
AGED ABOUT 37 YEARS,
5. SMT D USHA,
D/O LATE M.DORAISWAMY,
AGED ABOUT 34 YEARS,
RESPONDENTS NO.1 TO 5
ARE RESIDING AT NO.213,
PERIAUMANI VILLAGE AND POST,
VIA ANEKAL PERIMARAM STREET,
VELLORE TALUK-632101.
6. SRI M P VENKATESH MURTHY,
S/O LATE PUTTASWAMAPPA,
AGED ABOUT 70 YEARS,
R/O MALLAHAHALLI VILLAGE,
YESHWATHPURA HOBLI,
BENGALURU NORTH - 560090.
...RESPONDENTS
(BY SRI PRADEEP H S, ADVOCATE FOR R1 TO R5,
R6 IS SERVED)
THIS RFA IS FILED UNDER SEC.96 ORDER XLI OF THE
CPC., AGAINST THE JUDGMENT AND DECREE DATED
30.11.2017 PASSED IN OS NO.5386/2005 ON THE FILE OF THE
XLIII ADDL.CITY AND SESSIONS JUDGE, BENGALURU
DECREEING THE SUIT FOR DECLARATION AND PERMANENT
INJUNCTION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
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ORAL JUDGMENT
Heard the learned counsel appearing for the appellant
and the learned counsel appearing for the respondents.
2. This Appeal is filed against the judgment and
decree dated 30.11.2017 in O.S.No.5386/2005 on the file of
XLIII Additional City Civil Judge, Bengaluru.
3. In terms of the aforementioned judgment and
decree, the suit of the plaintiffs for declaration and injunction is
decreed and plaintiffs are declared as the owner of 'B' schedule
property and it is held that the sale deed dated 14.05.1993
executed by defendant No.2 in favour of defendant No.1 is not
binding on the plaintiffs. Consequently, the defendants are
restrained from interfering plaintiffs' peaceful possession of 'A'
schedule property. Defendant No.1 is directed to vacate and
deliver the vacant the possession of 'B' schedule property.
Defendant No.1 is before this Court.
4. Learned counsel appearing for defendant No.1/
appellant would urge before the Court that defendants
contested the matter in respect of 'B' schedule property based
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on registered sale deed dated 14.05.1993 executed by
defendant No.2 son of Puttaswamappa. It is his further
contention that the plaintiffs are claiming right over the
property based on registered sale deed dated 27.04.2000 in
respect of 'A' and 'B' schedule properties executed by
defendant No.2.
5. Learned counsel appearing for appellant/defendant
No.1 would urge that the appellant is only aggrieved by the
decree in respect of 'B' schedule property which directs delivery
of possession to the plaintiffs. It is his submission that though
defendant No.1 contested the suit by filing written statement
and cross-examined the plaintiffs, to substantiate his
contention in the written statement, he could not lead evidence
before the Trial Court as defendant No.1 was residing abroad
and the decree is virtually an exparte decree.
6. Learned counsel would also submit that the
plaintiffs are claiming title of the property based on the
registered sale deed dated 27.04.2000 whereas defendant No.1
is claiming title over 'B' schedule property based on registered
sale deed dated 14.05.1993 sold by the same vendor who
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claims to have sold the property to the plaintiffs, as such, the
person who has earlier sale deed is to be declared as the
owner. Since the sale deed in favour of defendant No.1 is
dated 14.05.1993 the decree could not have been passed in
respect of 'B' schedule property in favour of the plaintiffs.
7. To substantiate the contention that defendant No.1
was residing abroad when the case was posted for evidence,
learned counsel for appellant/defendant No.1 would invite the
attention of the Court to the additional document under Article
XLI Rule 27 of the Code of Civil Procedure, where the appellant
has produced the copy of the visa/passport. In addition, the
sale deed dated 14.05.1993, is also produced. Appellant has
also produced some other documents relating to the
aforementioned property to urge his contention that he is in
possession of the property.
8. Learned counsel for plaintiff/respondent No.1 would
urge that the defendant No.1 has not shown due diligence while
conducting the case. Though he has cross-examined the
plaintiffs. Though the case is listed for defendants' evidence,
on 6 occasions, defendant No.1 has not chosen to lead
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evidence on 2 dates out of those 6 dates on which the case was
adjourned for evidence of defendant No.1. Defendant No.1 was
very much available in India and could have led evidence on
those 2 dates. In addition, it is urged that assuming that
defendant No.1 was abroad when the case was posted for
evidence, the defendant No.1 could have executed a power of
attorney to lead evidence on his behalf. The application is filed
before this Court only to delay the hearing, as such, he would
urge that the appeal has to be dismissed.
9. It is also his further submission that since
defendant No.1 has not made out a valid ground to remand the
matter, the remand cannot be granted and adverse inference
has been drawn against defendant No.1 for not producing the
so-called sale deed dated 14.05.1993 in his evidence when the
case was posted for evidence.
10. It is also urged by the learned counsel appearing for
plaintiff No.1/respondent No.1 that defendant No.1 has
contested the matter by urging a contention that there is no
need for the defendant No.1 to lead evidence as the issues
have been framed casting burden on the plaintiffs.
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11. The Court has considered the contentions raised at
the Bar and perused the records.
12. The following points arise for consideration:
(a) Whether appellant/defendant No.1 has made
out a case to remand the matter on the
premise that he was prevented from contesting
the matter by leading evidence before the Trial
Court for sufficient cause?
(b) Whether the appellant/defendant No.1 has
made out a case for production of additional
documents?
13. It is to be noticed that the suit is one for declaration
of title and for possession. Initially, the suit was one for
declaration and injunction wherein the plaintiff claimed that he
is the owner and in possession of 'A' schedule property. Later,
he moved an application to amend the plaint on the premise
that his tenant who was occupying portion of the 'A' schedule
property was dispossessed during the pendency of the suit. The
plaintiff then seeks possession of that portion of the property
and said property is described as 'B' schedule.
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14. Admittedly, the plaintiff is claiming title of the
property based on registered General Power of Attorney dated
12.06.1979 and also a registered sale deed dated 27.04.2000
said to have been executed by defendant No.2. Defendant No.1
is claiming right over the property based on registered sale
deed dated 14.05.1993. Thus, both parties are claiming right
over the properties based on the registered sale deed said to
have been executed by son of Puttaswamappa. Admittedly,
Puttaswamappa was the owner of the property. The question is
which transaction is valid.
15. It is noticed from the judgment that learned counsel
appearing for defendant No.1 has raised a contention that all
the issues have been framed casting the burden on the
plaintiffs, as such the defendants need not lead evidence. This
would give an impression that defendant No.1 carried an
impression that there was no need for him to lead evidence,
and he deliberately stayed away when case is posted for
evidence.
16. It is quite possible that since defendant No.1 did
not lead evidence, the contention must have been raised
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stating that there is no need for defendant No.1 to lead
evidence to non-suit the plaintiffs. That does not mean that
defendant No.1 deliberately withheld himself from appearing
before the Court and leading the evidence.
17. What is required to be seen is whether defendant
No.1 was staying abroad when the case was listed for evidence
of defendant No.1. The additional documents placed before the
Court would indicate that defendant No.1 was staying abroad
from 29.07.2017 to December 2017. The suit was decided on
30.11.2017.
18. It is to be noticed that when defendant No.1 was
residing in India, the case was listed for his evidence on two
occasions, that is on 05.07.2017 and 20.07.2017. Merely
because defendant No.1 did not appear on those two dates, it
cannot be held that he deliberately withheld himself from
appearing before the Court. It is a suit in respect of
immoveable property where defendant No.1 is claiming right
based on a registered sale deed of 1993. Whether the sale
deed is valid or not is a question to be decided by the Trial
Court.
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19. Since it is established that defendant No.1 was
residing abroad at least on 5 dates when the case was posted
for evidence, the Court is of the view that the matter can be
remanded to the Trial Court for fresh consideration in respect of
'B' schedule property. There is no need to interfere with the
judgment and decree in respect of 'A' schedule property.
20. It is also required to be noticed that the defendant
No.1 is responsible for the situation. He could have appeared
before the Trial Court on 05.07.2017 or on 20.07.2017 to lead
evidence. He has not chosen to. Since he was abroad, he could
have executed a power of attorney to lead evidence in support
of his case. He has not done so. However, that cannot be the
basis to confirm the judgment and decree when the decree is in
respect of immoveable property and that too in a situation
where defendant No.1 is claiming right over the property based
on a registered sale deed said to have been executed earlier to
the sale deed in favour of the plaintiff, and when the plaintiff is
seeking possession.
21. It is also required to be noticed that the plaintiff is
claiming right over the property based on a registered general
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power of attorney said to have been executed earlier to the
sale deed in favour of the plaintiff.
22. Under the circumstances, the Court is of the view
that appellant/defendant No.1 has made out a case for
production of additional documents and when the production of
documents are allowed, the matter requires to be remitted to
the Trial Court.
23. Though the matter is required to be remanded, it is
to be noticed that this situation has arisen because of inaction
on the part of defendant No.1 who could have led evidence
before the Trial Court by exercising due diligence. In the
process, the plaintiff is put to inconvenience. Accordingly, the
plaintiffs have to be suitably compensated.
24. Considering the facts and circumstances of the case
and also considering the fact that the suit is of the year 2005,
defendant No.1 shall pay cost of Rs.1,00,000/- to the plaintiffs.
Payment of costs is a condition precedent for contesting the
matter.
25. Hence, the following:
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ORDER
(i) The appeal is allowed in part.
(ii) The impugned judgment and decree dated
30.11.2017 in O.S.No.5386/2005 on the file of XLIII
Additional City Civil Judge, Bengaluru are set aside.
(iii) The matter is remitted to the Trial Court for fresh
consideration in accordance with law.
(iv) Both parties are permitted to lead evidence.
(v) It is made clear that the Court has not expressed
any opinion on the merits of the case.
(vi) All contentions of the parties are kept open.
(vii) It is also made clear that appellant/defendant No.1
shall not seek unnecessary adjournment.
(viii) Both parties shall co-operate for early disposal of
the suit.
(ix) The parties shall appear before the Trial Court on
02.02.2026.
(x) Registry to return the Trial Court records forthwith.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
GVP/List No.: 1 Sl No.: 22
