1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.1859 OF 2024(DEC/INJ) BETWEEN: SRI. RAJA S/O LATE R. NAGARAJ, AGED ABOUT 49 YEARS, RESIDING AT NO.265, GOVERNMENT SCHOOL ROAD, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU DISTRICT- 560064. ...APPELLANTS (BY SRI. SURESH S. LOKRE, SR. COUNSEL FOR SRI. SHRAVAN S. LOKRE, ADVOCATE) AND 1 . SRI. RAMANANJANAPPA. R. S/O SRI. PUJARI RAMAIAH, AGED ABOUT 62 YEARS, 2 . SMT. KANTHAMMA, W.O LATE SRI. R. NAGARAJ, AGED ABOUT 62 YEARS, RESPONDENTS NO.1 AND 2 ARE RESIDING AT; NO.265, GOVERNMENT SCHOOL ROAD, JAKKUR VILLAGE, YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU DISTRICT-560064 2 KARNATAKA STATE KHADI AND VILLAGE INDUSTRIES WORKERS HBCS LTD., NO.10, JASMA BHAVAN, MILLER’S ROAD, BENGALURU-560052. REP. BY ITS PRESIDENT N. LINGARAJ BENGALURU DISTRICT. (DELETED AS PER THE COURT ORDER DATED 19.07.2016) 3. KARNATAKA STATE KHADI AND VILLAGE INDUSTRIES WORKERS HBCS LTD., NO.10, JASMA BHAVAN, MILLER’S ROAD, BENGALURU-560052. REP. BY ITS SPECIAL OFFICER, N. LAKSHMAN, BENGALURU DISTRICT. 4. SRI. NAGESH M. S/O LATE MALAYAPPA, JAKKUR VILLAGE, JAKKUR, YELAHANKA, BENGALURU-560064. 5. KARNATAKA STATE KHADI AND VILLAGE INDUSTRIES WORKERS HBCS LTD., NO.10, JASMA BHAVAN, MILLER’S ROAD, BENGALURU-560052. REP. BY ITS LIQUIDATOR, SRI. MURALIDHAR. 6. SMT. PUSHPA B. N. W/O LATE ANAND, AGED ABOUT 46 YEARS, 7. MISS. KIRANA, D/O LATE ANAND, AGED ABOUT 23 YEARS, 3 8. KUMARI. KEERTHANA D/O J. N. ANAND, AGED ABOUT 17 YEARS, (MINOR) REP. BY NATURAL GUARDIAN MOTHER, SMT. PUSHPA B. N. RESPONDENTS NOS.6 TO 8 ARE R/AT NO.265, GOVT. SCHOOL ROAD, JAKKUR VILLAGE YELAHANKA HOBLI, BENGALURU NORTH TALUK, BENGALURU-560064. 9. SRI. LOKESH T. L. S/O LATE SRI. LAKSHMAPPA, AGED ABOUT 49 YEARS, OCC: BUSINESS, RESIDING AT NO.79, 2ND MAIN ROAD, 2ND CROSS, BENGALURU-560097. 10. SRI. N. DINESH S/O NAGAPAHIAH, AGED ABOUT 49 YEARS, OCC: BUSINESS, RESIDING AT NO.619/1, BENGALURU-560092. (AMENDED AS PER ORDER DATED (19.09.2024) …RESPONDENTS (BY SRI.ANISH JONE ANTONY, ADVOCATE FOR C/R1; SRI. UNNIKRISHNAN M, ADVOCATE FOR R9 AND R10; V/O DATED 11.11.2024 NOTICE TO R2 TO R8 ARE DISPENSED WITH) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 RULE 5 OF CPC, PRAYING TO ALLOW THE ABOVE APPEAL AND GRANT A DECREE TO SET-ASIDE THE IMPUGNED FINDINGS AT ISSUE NO.1 PASSED BY THE ADDL. CITY CIVIL AND SESSIONS JUDGE, CCH-53, BENGALURU CITY, IN O.S.NO.2279/2014 AND ETC., THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 17.02.2025 THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: 4 CORAM: HON'BLE MR JUSTICE K.NATARAJAN CAV JUDGMENT This appeal is filed by the plaintiff No.2 – appellant under Section 96 Rule 5 of CPC, for setting aside the findings of the LII Additional City Civil and Sessions Judge, at Banglore (CCH-53) (Henceforth referred as ‘Trial Court’) on the issue No.1 in O.S.No.2279/2014 dated 22.04.2024. 02. Heard the learned Senior Counsel appearing for the appellant and the learned counsel for the respondents. 03. The appellant is the plaintiff No.2 and the respondents are the defendants in the Trial Court. The ranks of the parties are retained for convenience. 04. The case of the plaintiffs before the Trial Court is that the plaintiffs have filed a suit for declaration to declare that the registered agreement of sale dated 27.07.1992 as null and void and not binding on the plaintiffs and cancellation of the said agreement and also RESERVED FOR ORDERS ON: 17.02.2025 PRONOUNCED ON 24.04.2025 5 grant relief of permanent injunction. It is alleged that the land in Sy.No.105/10 measuring 36 guntas situated at Jakkur village was self-acquired property of the father of the plaintiffs viz., R. Nagaraj, purchased from one Malliyappa on 09.05.1962, which was in possession of the plaintiffs. The said land was acquired by the BDA for formation of Arkavathi Layout. Though final order was passed, but possession was not taken. The said R. Nagaraj approached by the Karnataka State Khadi and Village Industries Workers HBCS Limited (hereinafter referred as ‘Housing Society’) represented by N. Lingaraju and executed a joint agreement of sale on 27.07.1992. Later Sri. Ramananjanappa. R. has filed a suit for partition in O.S.No.892/2008, before the Civil Judge and JMFC., Devanahalli. The said suit was decreed by way of compromise decree on 20.04.2009. As per the clear cut terms, the suit schedule property has been acquired by R. Nagaraj and if the acquisition was not dropped by the BDA, the said Ramananjanappa. R. will not have any claim and the land shall vest with the R. Nagaraj. The respondent No.1 – Ramananjanappa R. has applied and 6 obtained Final Decree and registered the same at Sub- Registrar, Devanahalli on 02.12.2014. Thereby the decree in O.S.No.892/2008 attained finality and acted upon by the R. Nagaraj and defendants No.1 and 2. 05. It is the further case of the plaintiffs that the BDA has dropped the acquisition in respect of the suit schedule property. Hence, R. Nagaraj was alive when the suit was filed by his son. After release of the property by the BDA, the Anand and Ravi entered into sale agreement with one Lokesh T.L. and Dinesh. N. and received the entire sale consideration. The Kanthamma and Anand and other family members have executed the sale deed on 18.03.2024 and delivered the possession. But the register agreement of sale in favour of the housing society dated 27.07.1992 to be declared as cancelled. Hence, the plaintiffs have filed the suit for seeking various reliefs as stated above. 06. The defendants No.1 and 2 have filed the common written statement by admitting purchase of property by one R. Nagaraj, the husband of the defendant 7 No.2 and the land was acquired for formation of Arkavathi Layout. It is contended that the plaintiffs and the defendants No.1 and 2 were in possession of the property. The defendants No.1, 2 and the husband of defendant No.2 not entered into any agreement of sale. The defendant No.1 no need of any money and not entered into agreement of sale with defendant No.3. Hence, prayed for decreeing the suit of the plaintiffs. 07. The defendant No.5 filed the written statement contending that the suit schedule property belongs to one Munihuchhappa. It was given to his daughter Doddabayamma by executing a will deed in the year 1952. The said Doddabayamma sold the property to Munishamappa. The said Munishamappa sold the property to Ramaiah. The said Ramaiah’s family sold the property to Byathada Maleyappa in the year 1959. The said Byathada Maleyappa leased the suit schedule property to Muninanjamma. The property was taken back from Ramaiah and R. Nagaraj. The family of Byathada Maleyappa were in possession of the property. But revenue records starts in the name of Muninanjamma and 8 later transferred in the name of R. Nagaraj. They have manipulated the documents and entered into agreement of sale into defendants No.3 and 4. In the revenue proceedings, the name of R. Nagaraj and Muninanjamma has been challenged. Therefore, any transaction in respect of suit schedule property between the defendants No.1 to 4 is void-ab-initio. Hence, prayed for dismissing the suit. 08. Based upon the pleadings the Trial Court framed issues and Addl. Issues as under:- -: I S S U E S :- i. Whether the plaintiffs prove that suit schedule property is ancestral property of themselves and the defendants No.1 and 2 and they are the joint owners of the suit schedule property.? ii. Whether the plaintiffs prove that the registered sale agreement dated: 27.07.1992 executed by defendants No.1 and 2 in favour of defendant No.3 is barred by limitation null and void and illegal and not binding on the plaintiffs.? iii. Whether the Court fee paid the insufficient.? iv. Whether the plaintiffs are entitle for the relief as sought for.? v. What order or decree.? 9 -: ADDITIONAL ISSUES :- i. Whether the defendant No.5 proves that the transaction done in respect of the suit schedule property by the plaintiff and defendants No.1 and 2 in favour of defendants No.3 and 4 society are in violation of the provision of Land Reforms Act.? 09. In order to prove the case of the plaintiffs, the plaintiff No.1 examined as PW.1 and another witness examined as PW.2 and got marked 43 documents as per Ex.P.1 to Ex.P.43. On behalf of the defendants, defendants No.6 examined DW.1 and defendant No.1 examined as DW.2 and got marked 17 documents as per Ex.D.1 to Ex.D.17. 10. After hearing the arguments, the Trial Court answered the issue No.1 in the affirmative, issue No.2 in the affirmative, issue No.3 in the negative, issue No.4 partly in the affirmative and additional issue in the negative and finally decreed the suit in part by impugned judgment, which is under challenge. 10 11. This appeal is filed by plaintiff No.2 in respect of answering the issue No.1 holding that the suit schedule property is belongs to plaintiffs and the defendants No.1 and 2 and the property was in joint possession of the plaintiffs and the defendants No.1 and 2, at Para No.23 of the impugned judgment. 12. The learned Senior counsel appearing for the appellant contended that though the Trial Court rightly decreed the suit, but it should be decreeing fully, but not in part, since, the finding in issue No.1 was not correct. The Trial Court ignored the compromise decree obtained in O.S.No.892/2008 wherein it is categorically held that the BDA dropped the proceedings. The R. Nagaraj become the owner of the property and the defendant No.1 – Ramananjappa R. will not have any right over the property and the rights will occurs only if the acquisition was completed and compensation was paid. Therefore, the Trial Court wrongly understood the compromise decree, which was attained finality and registering in the Sub- 11 Registrar Office. To that extent the findings of the Trial Court in issue No.1 holding that the plaintiffs as well defendant No.2 were owners and in joint possession of the suit schedule property is liable to be set-aside and should be declared that the plaintiffs alone owners of the suit schedule property. Hence, prayed for allowing the appeal. 13. The learned counsel appearing for the respondents objected the appeal mainly on the ground that the decree should be challenged and findings cannot be challenged. Therefore, the appeal itself is not maintainable. Hence, prayed for dismissing the appeal. 14. Having heard the arguments, the short point that would arise for consideration is as under:- i. Whether the appeal is maintainable as regards to the findings in issue No.1 of the Trial Court.? ii. The judgment and decree passed by the Trial Court call for any interference.? 12 15. The learned counsel appearing for the respondents has vehemently contended that the appeal should be filed only challenging the decree, but not the findings and the judgment. In support of his case, the learned counsel appearing for the respondents has relied upon the judgment of the Hon’ble Supreme Court in the case of Banarsi and others vs. Ram Phal, reported in (2003) 9 SCC 606. The Hon’ble Supreme Court has held at Para No.8 as under:- “Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who canfile an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a file an appeal. (See Phoolchand v. Gopal Lal, Jatan Kumar Golcha v. Golcha Properties (P) Ltd., and Ganga Bai v. Vijay Kumar) No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.” 13 16. Another judgment of the Hon’ble Supreme Court in the case of Smt. Ganga Bai vs. Vijay Kumar and others, reported in (1974) 2 SCC 393, the Hon’ble Supreme Court has held at Para No.17, as under:- “These provisions show that under the Code of Civil Procedure an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No.72 of 1959 filed by Defendants No.2 and No.3 was not maintainable as it was directed against a mere finding recorded by the Trial Court.” 17. However, the learned Senior Counsel appearing for the appellant also relied upon the judgment of the Hon’ble Supreme Court in the case of Ram Phal and contended that as per Para No.15 of the judgment, the Trial Court has power to modify the judgment. For convenience, the Hon’ble Supreme Court held at Paras No.10, 11 and 15 as under:- 14 “10. The CPC amendment of 1976 has not materially or substantially altered the law except for a marginal difference. Even under the amended Order 41 Rule 22 sub-rule (1) a party in whose favour the decree stands in its entirety is neither entitled nor obliged to prefer any cross-objection. However, the insertion made in the text of sub-rule (1) makes it permissible to file a cross-objection against a finding. The difference which has resulted we will shortly state. A respondent may defend himself without filing any cross-objection to the extent to which decree is in his favour; however, if he proposes to attack any part of the decree he must take cross-objection. The e amendment inserted by the 1976 amendment is clarificatory and also enabling and this may be made precise by analysing the provision. There may be three situations: (i) The impugned decree is partly in favour of the appellant and partly in favour of the respondent. (ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent. (ii) The decree is entirely in favour of the respondent and all the issues have also been 15 answered in favour of the respondent but there is a finding in the judgment which goes against the respondent. 11. In the type of case (1) it was necessary for the respondent to file an appeal or take cross-objection against that part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in his favour he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In the type of cases (ii) and (iii) pre-amendment CPC did not entitle nor permit the respondent to take any cross- objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to a any finding adverse to him as the decree is entirely in his favour and he may support the decree without cross-objection; the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue. The advantage of preferring such cross-objection is spelled out 16 by sub-rule (4). In spite of the original appeal having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall still be available to be adjudicated upon on merits which remedy was not available to the respondent under the unamended CPC. In the pre-amendment era, the withdrawal or dismissal for question the correctness or otherwise of any finding recorded against the respondent. 15. Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of the widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject-matter of the appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the 17 court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the appellate court. While allowing the appeal or otherwise interfering with the decree or order appealed against, the appellate court may pass or make such further or other, decree or order, as the case would require being done, consistently with the findings arrived at by the appellate court. The object sought to be achieved by conferment of such power on the appellate court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the decree held liable to be set aside or interfered by the appellate court is so inseparably connected with the portion not appealed against or left untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees 18 would follow. The power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage of a person not a party before the court; secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the appellate court exercising power under Rule 33 of Order 41.” 18. In view of the judgment of the Hon’ble Supreme Court at Para No.15 referred supra, the Trial Court has power to modify such judgment, which was affected the appellant and the respondents who were parties in the said suit and also the parties in this appeal. They have not filed any appeal against the judgment passed by the Trial Court. For the convenience, the decree 19 passed by the Trial Court, the operative portion of the judgment is as under:- “ O R D E R The suit filed by the plaintiffs under Order VII Rule 1 r/w Section 26 of CPC, is hereby partly decreed with cost. It is ordered and decreed that registered agreement of sale dated 27.07.1992 is barred by limitation and it is not binding upon the plaintiffs. The registered agreement of sale dated 27.07.1992 executed in favour of society is hereby declared as cancelled. Further the defendants No.4 to 6 are herein restrained by way of permanent injunction order from interfering with the plaintiffs peaceful possession and enjoyment over the suit schedule property. The office is directing to send the copy of decree to the office of Sub-Registrar, Yelahanka in order to enable the said office to make note about cancellation of the registered sale agreement dated 27.07.1992 in its register as provided under Section 31 (2) of the Specific Relief Act. Draw decree accordingly.” 20 19. The findings and the partly decreeing the suit by the Trial Court was not challenged by any of the respondents. The appellant has challenged only the findings in issue No.1 holding that the suit schedule property belongs to one R. Nagaraj, who is absolute owner of the property as per the compromise decree in O.S.No.892/2008. But the Trial Court has held that the plaintiffs’ father as well as defendants No.1 and 2 were the joint owners of the suit schedule property. Thereby the suit was partly decreed by the Trial Court instead of decreeing the suit in toto. Therefore, regarding partly decreeing the suit, which is partly dismissing the suit, which is findings against the plaintiffs and in favour of the defendants No.1 and 2. Therefore, the part of the decree which is against plaintiffs in view of findings in issue No.1. Therefore, the appeal is maintainable. 20. As regards to the findings of the Trial Court, wherein it is held that O.S.No.892/2008 filed by the defendant No.1 - Ramananjappa R. against the father of the plaintiffs R. Nagaraj before the Senior Civil Judge and 21 JMFC, at Devanahalli. The compromise entered between the parties, as per the documents – Ex.D.14 and Ex.D.15. It is the case of the plaintiffs that the said decree as per the terms of compromise, if the BDA acquired the suit schedule property, the properties shall be shared by the plaintiffs and defendants No.1 and 2 and in any case, the BDA dropped the acquisition proceedings, then the said R. Nagaraj become the absolute owner of the property. For the convenience the compromise decree in O.S.No.892/2008 referred as under:- “In terms of compromise, item No.4 of the suit schedule property measuring 36 guntas of land in Sy.No.105/10 situated at Jakkur, Yalahanka Hobli, Bangalore North Taluk. The said property had been acquired by the Bangalore Development Authority. In view of the said acquisition the plaintiff and 2nd defendant have mutually agreed to share the award amount equally. In the mean time plaintiff and second defendant have agreed to alienate the said property to one of the prospective buyer, and they have agreed to share the consideration amount equally. Further in the said property there is a shed measuring 100 x 25 feet which 22 was constructed by the plaintiff at his own cost and risk. As such the 2nd defendant has agreed to compensate the amount equal lent to the said shed out of award amount / sale consideration. It is ordered and directed the plaintiff, if any extent of land is left out by the B.D.A. in item No.4, the 2nd defendant is having right on it. And the plaintiff shall not claim any right in respect of that portion. And further directed the plaintiff not to claim any right in respect of other properties owned by the 2nd defendant and his legal heirs.” 21. On perusal of the last para of the decree, which was registered before the Sub–Registrar that the BDA in case left out the acquisition proceedings, the plaintiff will not claim any right over the property owned by the defendant No.2 and his legal representatives. The defendant No.2 is Sri. R. Nagaraj and the plaintiffs in the present suit are the legal representatives of the said R. Nagaraj. Admittedly, the acquisition proceedings were dropped by the BDA and which is an admitted fact. In the earlier case, the agreement of sale entered into between 23 plaintiffs father and the defendant No.1 has been decreed as null and void and in the present case, the said agreement is as null and void and not acted upon. 22. Such being the case, though the Trial Court rightly held that the plaintiffs’ father was owner of the property, but it is wrongly held that the defendants No.1 and 2 also having right over the suit schedule property by ignoring the compromise held between plaintiffs’ father and defendant No.1, who is the parties in O.S.No.892/2008. 23. Such being the case, to that extent the Trial Court ought to have answered issue No.1 in the affirmative, due to which the suit was partly decreed instead of decreeing in toto. Therefore, to that extent the issue No.1 required for interference and to hold that the plaintiffs have proved that the plaintiffs are the absolute owners of the suit schedule property. Hence, the points No.1 and 2 answered accordingly. 24. For the aforesaid reasons, this Court proceed to pass the following; 24 O R D E R i. The appeal is allowed. ii. The suit of the plaintiffs was fully decreed holding that the plaintiffs are the absolute owners of the suit schedule property. iii. The remaining part of the order of the Trial Court is unaltered. Sd/- (K.NATARAJAN) JUDGE KJJ CT:SI