- 1 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 26TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 2185 OF 2007 (SP-) C/W REGULAR SECOND APPEAL NO. 319 OF 2007 IN R.S.A. NO. 2185/2007 (SP-) BETWEEN: 1. J. CHANDRAPPA S/O. J. SIDDALINGAPPA, SINCE DEAD BY HIS LR’S. 1(A) SMT. J. HEMALATHA W/O. LATE J. CHANDRAPPA AGED ABOUT 60 YEARS, 1(B) J. BHARAMA REDDY S/O. LATE J. CHANDRAPPA AGED ABOUT 42 YEARS, 1(C) J. PRAKASH REDDY S/O. LATE J. CHANDRAPPA AGED ABOUT 41 YEARS, 1(D) SMT. SUMA HOSAMANI D/O. LATE J. CHANDRAPPA AGED ABOUT 37 YEARS, ALL ARE RESIDENT OF CHIKKAJAYAGANUR VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT, NOW VIJAYANAGAR DISTRICT. …APPELLANTS (BY SRI. B. CHIDANANDA, ADVOCATE FOR A1(A-D)) AND: 1. G. BHEEMANAGOUDA S/O. LATE MAREGOUDA, SINCE DEAD BY HER LR’S. MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 1(A) SMT. JALAJAKSHAMMA W/O. LATE G. BHEEMANA GOUDA, AGED ABOUT 58 YEARS, 1(B) MANJUNATH GOUDA S/O. LATE. G. BHEEMANA GOUDA, AGED ABOUT 28 YEARS, 1(C) SMT. SHANTHAMMA D/O. LATE. G. BHEEMANA GOUDA, AGED ABOUT 35 YEARS, 1(D) NANDINI D/O. LATE. G. BHEEMANA GOUDA, AGED ABOUT 32 YEARS, ALL ARE RESIDENT OF CHIKKAJAYAGANUR VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT, NOW VIJAYANAGAR DISTRICT. 2. SMT. R. LEELAVATHY W/O. GOWDARA JAMBANA GOUDA, SINCE DEAD BY HER LR’S. 2(A) G. SHOBA D/O. LATE GOUDARA JAMBANA GOUDA, AGED ABOUT 37 YEARS, OCC: HOUSEHOLD WORK/AGRICULTURIST, 2(B) G. UMESHA S/O. LATE GOUDARA JAMBANA GOUDA, AGED ABOUT 34 YEARS, OCC: HOUSEHOLD WORK/AGRICULTURIST, 2(C) G. UDAYKUMAR S/O. LATE GOUDARA JAMBANA GOUDA, AGED ABOUT 29 YEARS, - 3 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 ALL ARE RESIDENT OF CHIKKAJAYAGANUR VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT, NOW VIJAYANAGAR DISTRICT. …RESPONDENTS (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R2(A-C); R1(A-D) ARE SERVED AND UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO CALL FOR RECORDS IN R.A.NO.10/2005 ON THE FILE OF PRL. CIVIL JUDGE (SR.DN), JMFC, HOSPET, AND ON PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED 19/09/2006, AND ALSO SET ASIDE THE JUDGMENT AND DECREE DATED 04.10.2004 IN O.S.NO.246/2001 PASSED BY THE COURT OF PRL. CIVIL JUDGE (JR.DN.) AND JMFC., HOSPET. IN R.S.A. NO. 319/2007 (DEC/INJ-) BETWEEN: 1. J. CHANDRAPPA S/O. J. SIDDALINGAPPA, SINCE DEAD BY HIS LR’S. 1(A) SMT. J. HEMALATHA W/O. LATE J. CHANDRAPPA AGED ABOUT 60 YEARS, 1(B) J. BHARAMA REDDY S/O. LATE J. CHANDRAPPA AGED ABOUT 42 YEARS, 1(C) J. PRAKASH REDDY S/O. LATE J. CHANDRAPPA AGED ABOUT 41 YEARS, 1(D) SMT. SUMA HOSAMANI D/O. LATE J. CHANDRAPPA AGED ABOUT 37 YEARS, ALL ARE RESIDENT OF CHIKKAJAYAGANUR VILLAGE, - 4 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 HOSAPETE TALUK, BALLARI DISTRICT, NOW VIJAYANAGAR DISTRICT. …APPELLANTS (BY SRI. B. CHIDANANDA, ADVOCATE FOR A1(A-D)) AND: 1. SMT. R. LEELAVATHY W/O. GOWDARA JAMBANA GOUDA, SINCE DEAD BY HER LR’S. 1(A) G. SHOBA D/O. LATE GOUDARA JAMBANA GOUDA, AGED ABOUT 37 YEARS, OCC: HOUSEHOLD WORK/AGRICULTURIST, 1(B) G. UMESHA S/O. LATE GOUDARA JAMBANA GOUDA, AGED ABOUT 34 YEARS, OCC: HOUSEHOLD WORK/AGRICULTURIST, 1(C) G. UDAYKUMAR S/O. LATE GOUDARA JAMBANA GOUDA, AGED ABOUT 29 YEARS, ALL ARE RESIDENT OF CHIKKAJAYAGANUR VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT, NOW VIJAYANAGAR DISTRICT. 2) G. BHEEMANAGOUDA S/O. LATE MARE GOUDA, SINCE DEAD BY HER LR’S. 2(A) SMT. JALAJAKSHAMMA W/O. LATE G. BHEEMANA GOUDA, AGED ABOUT 58 YEARS, 2(B) MANJUNATH GOUDA S/O. LATE. G. BHEEMANA GOUDA, AGED ABOUT 28 YEARS, - 5 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 2(C) SMT. SHANTAMMA D/O. LATE. G. BHEEMANA GOUDA, AGED ABOUT 35 YEARS, 2(D) NANDINI D/O. LATE. G. BHEEMANA GOUDA, AGED ABOUT 32 YEARS, ALL ARE RESIDENT OF CHIKKAJAYAGANUR VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT, NOW VIJAYANAGAR DISTRICT. 3. R. VAJRAGOWDA S/O. R. MALLIKARJUNAGOWDA, MAJOR, OCC: AGRICULTURIST, R/O. CHIKKAJAYAGANUR VILLAGE, HOSAPETE TALUK, BALLARI DISTRICT. …RESPONDENTS (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE FOR R1(A-C); R2(A-D) & R3 ARE SERVED AND UNREPRESENTED) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC PRAYING TO CALL FOR RECORDS IN R.A.NO.08/2005 ON THE FILE OF COURT OF PRL. CIVIL JUDGE (SR.DN), HOSPET, AND ON PERUSAL OF THE SAME BE PLEASED TO SET ASIDE THE JUDGMENT AND DECREE DATED 19/09/2006 THEREBY ALSO SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.10.2004 PASSED IN O.S.NO.41/1997 PASSED BY THE COURT OF PRL. CIVIL JUDGE (JR.DN.) HOSPET. THESE APPEALS COMING ON FOR DICTATING JUDGMENT THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 6 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT The appeal in RSA 319/2007 is preferred by defendant No.1, challenging the judgment and decree dated 19.09.2006 in R.A.No.8/2005 on the file of Prl.Civil Judge (Sr.Dn) and JMFC, Hospet (for short “the First Appellate Court”) dismissing the appeal and confirming the judgment and decree dated 04.10.2004 in O.S.No.41/1997 on the file of Prl.Civil Judge (Jr.Dn) and JMFC, Hospet (for short “the Trial Court”) decreeing the suit in part. 2. The appeal in RSA No.2185/2007 is preferred by the plaintiff, challenging the judgment and decree dated 19.09.2006 in R.A.No.10/2005 on the file of the First Appellate Court dismissing the appeal and confirming the judgment and decree dated 04.10.2004 in O.S.No.246/2001 on the file of the Trial Court dismissing the suit. 3. For the sake of convenience, the parties are referred to as per their rank in O.S.No.246/2001. - 7 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 FACTS IN RSA NO.319/2007: 4. The plaintiffs have filed suit in O.S.No.41/1997 seeking relief of declaration with consequential relief of permanent injunction and also for recovery of possession of suit schedule property. It is the case of the plaintiffs that plaintiff No.1 is the wife of brother of the 2nd plaintiff. The plaintiff No.1 had purchased the suit schedule property from one Channanagouda and pursuant to the same, plaintiff No.1 is in possession of the suit schedule property. It is the case of the plaintiffs that the defendants without having right over the suit schedule property put up basement in the suit schedule property and same was protested by the plaintiffs. It is also stated that the defendants illegally trespassed into the suit schedule property and dispossessed the plaintiffs from the suit schedule property. Hence, plaintiffs filed suit in O.S.No.41/1997. 4.1. After service of notice, defendant No.1 has filed written statement and denied the averments made in the plaint. It is the specific case of defendant No.1 that the husband of the plaintiff No.1 and plaintiff No.2 are the owners - 8 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 of the suit schedule property and they have executed agreement of sale dated 24.08.1990 having received the entire sale consideration of ₹2,000/- and put the defendant No.1 in possession of portion of the suit schedule property. It is the case of the defendant No.1 that since he has purchased the suit schedule property, the defendant No.1 has put up basement in the suit schedule property. It is also the contention of the defendant No.1 that, the plaintiffs have suppressed the material fact of agreement of sale and accordingly sought for dismissal of the suit. 4.2. The Trial Court based on the pleadings on record framed the issues for its consideration. In order to establish their case, plaintiffs have examined three witnesses as PW1 to PW3 and produced 8 documents and same were marked as Ex.P1 to Ex.P8. The defendants have examined three witnesses as DW1 to DW3 and produced 6 documents and same were marked as Ex.D1 to Ex.D6. The Trial Court, after considering the material on record, by its judgment and decree dated 04.10.2004 partly decreed the suit holding that the plaintiff No.1 is the absolute owner of the suit schedule property. Feeling aggrieved by the same, the defendant No.1 has - 9 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 preferred R.A.No.8/2005, which came to be dismissed by the First Appellate Court by its judgment and decree dated 19.09.2006 and feeling aggrieved by the same, the defendant No.1 has preferred appeal in RSA No.319/2007. FACTS IN RSA NO.2185/2007: 5. The plaintiff filed a suit in O.S.No.246/2001 seeking relief of specific performance of agreement of sale. It is the case of the plaintiff that the defendant No.1 and husband of the defendant No.2 had executed agreement of sale in favour of the plaintiff for total sale consideration of ₹2,000/- and agreed to execute the registered sale deed in respect of the suit schedule property on demand by the plaintiff. It is the case of the plaintiff that the plaintiff was put in possession of the portion of the suit schedule property. In the meanwhile, husband of the defendant No.2 died. Thereafter, the plaintiff requested the defendants to execute registered sale deed in respect of the suit schedule property and same was refused by the defendants and as such, the plaintiff has filed O.S.No.246/2001 before the Trial Court. - 10 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 5.1. After service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendants that the defendants have filed O.S.No.41/1997 seeking relief of declaration and therefore, sought for dismissal of the suit. 5.2. The Trial Court, based on the pleadings on record, formulated issues for its consideration. In order to establish their case, plaintiff has examined two witnesses as PW1 and PW2 and marked the documents as stated in O.S.No.41/1997. The defendants have examined one witness as DW1 and marked the documents as stated in O.S.No.41/1997. 5.3. The Trial Court, after considering the material on record, by its judgment and decree dated 04.10.2004, dismissed the suit and feeling aggrieved by the same, the plaintiff has preferred R.A.No.10/2005 before the First Appellate Court and the First Appellate Court after considering the material on record, dismissed the appeal, and as such confirmed the judgment and decree in O.S.No.246/2001. Hence, the plaintiff has preferred RSA No.2185/2007. - 11 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 6. The substantial questions of law framed by this Court on 13.09.2012 in RSA No.319/2007 read as under: i) Whether power of attorney holder can substitute the original witness who had deposed before the court and for no reason whatsoever withdrew and did not proceed with the recording of evidence is legally permissible? ii) When the witness who is available, has permitted herself to be examined can suddenly withdraw and execute a power of attorney holder in favour of another person to be a witness, will it be considered as discharging the burden of proof as contemplated under sec.100 of evidence Act? iii) Whether both the Courts below committed error in relying upon inadmissible evidence in decreeing the suit? As there was no need for power of attorney to have been examined when plaintiff was hale and healthy to depose before the trial Court? iv) When the Power of attorney executed in favour of Smt.Gowramma by Smt.Leelavathy did not empower her to give evidence in the matter, whether the trial Court ought to have allowed the power of attorney holder to depose? And - 12 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 based on the evidence/deposition it’s findings? Whether the 1st Appellate Court committed error in not rectifying this error? v) That both the Courts below failed to read document D-1 which was agreement of sale which was proved in connected suit O.S.No.246/01 possession as per said document vested in the Appellant long ago, wherefore decree for possession in favour of plaintiff in O.S.No.41/1997 ought not to have been granted? vi) This Hon’ble Court be pleased to frame such substantial questions of law as deemed fit under Section 100 CPC? 7. The substantial questions of law framed by this Court on 13.09.2012 in RSA No.2185/2007 read as under: i) Whether both the Courts below erred in rendering a finding that the suit was barred by limitation? ii) Whether the first Appellate Court committed manifest error in not allowing IA of the Appellant under Order XXVI Rule 9 of CPC for appointing Commissioner to ascertain the identity of the schedule property thereby - 13 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 denied opportunity to the Appellant/plaintiff to prove his case? iii) Whether both the Courts below committed error in not framing issue in respect of adverse possession of plaintiff when issue of peaceful possession was framed and not giving finding on it? iv) Whether both the Courts below erred in concluding that area/plot to the extent of 0.81 cents out of Sy.No.109-A in the Chikkajayaganur village purportedly purchased by respondents from the owner same properties hence, appellant has knowledge of the same for the purpose of limitation? v) Whether both the Courts below erred in confusing with the property of the plaintiff being one and the same when the schedule of both the properties was admittedly different? vi) Whether the Courts below could have relied upon testimony of a witness who was only a power of attorney holder and who stepped into witness box midway after the witness who was examined in examination of chief? Could it amount to discharge of burden of proof under Section 100 of Indian Evidence Act? - 14 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 8. I have heard Sri. B Chidanand, learned counsel appearing for the appellant, and Sri. Mallikarjunaswami B Hiremath, learned counsel appearing for the respondents. 9. It is the submissions of the learned counsel Sri. B. Chidanand, appearing for the appellant, that both the Courts below have committed an error in rejecting the claim made by the appellant herein seeking relief of specific performance of the contract as the husband of Smt. Leelavathi (plaintiff in O.S.No.41/1997) and his brother have executed agreement of sale dated 24.08.1990 by receiving the entire sale consideration amount and also parted with the possession of the suit schedule property. It is also contended by the learned counsel for the appellant that, the appellant has proved the execution of the agreement of the sale and as the appellant herein has paid the entire sale consideration amount, as per the agreement of sale dated 24.08.1990 and therefore, there was no impediment for the Courts to pass a decree for specific performance in favour of the appellant herein and accordingly, sought for interference of this Court. - 15 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 10. Nextly, Sri. B.Chidanand learned counsel appearing for the appellant invited the attention of this Court to the evidence of PW1 and PW2 and argued that the evidence of PW1 (Smt.Leelavathi) was discarded and her power of attorney was examined as PW2, who had no knowledge about the facts of the case and therefore, sought for interference of this Court. 11. In order to buttress his arguments, the learned counsel appearing for the appellant places reliance on the following judgments of the Hon’ble Supreme Court: 1. Shrimant Shamrao Suryavansi v. Prahlad Bhairoba Suryavanshi1 2. Janki Vashdeo Bhojwani and another v. Indusind Bank Ltd., and others2 12. Per contra, Sri. Mallikarjunaswami B Hiremath, learned counsel appearing for the respondents contended that the plaintiffs in O.S.No.41/1997 had purchased the suit schedule property as per registered sale deed dated 22.08.1996 and therefore, execution of the agreement of sale dated 24.08.1990 does not arise at all. Hence, it is contended that both the Courts below having taken note of the factual 1 (2002) 3 SCC 676 2 (2005) 2 SCC 217 - 16 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 aspects on record rightly answered the prayer made by the plaintiffs in O.S.No.41/1997 and accordingly sought for dismissal of the appeal. 13. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the findings recorded by both the Courts below and perused the original records. Plaintiff in O.S.No.246/2001 is the defendant O.S.No.41/1997. Plaintiffs in O.S.No.41/1997 are the defendants in O.S.No.246/2001. Suit schedule property is the land property belonging to the plaintiffs in O.S.No.41/1997 as the plaintiffs had acquired the suit schedule property as per the registered sale deed dated 22.08.1996 (Ex.P2). It is also to be noted that plaintiff in O.S.No.246/2001 and defendant in O.S.No.41/1997 (appellant herein) is a witness to the registered sale deed dated 22.08.1996 (Ex.P2). Since the plaintiffs have acquired the suit schedule property as per registered sale deed dated 22.08.1996 (Ex.P2) and as such, there was no legal right for the husband of the plaintiff No.1 and plaintiff No.2 in O.S.No.41/1997 to execute the agreement of sale dated 24.08.1990 (Ex.D1) in favour of the defendant in O.S.No.41/1997 and plaintiff in O.S.No.246/2001 much before - 17 - NC: 2025:KHC-D:5600 RSA No. 2185 of 2007 C/W RSA No. 319 of 2007 purchasing the schedule property. The said aspect of the matter was rightly considered by both the Courts below after appreciating the entire material on record and therefore, the arguments advanced by the learned counsel appearing for the appellant cannot be accepted and further the judgments referred to by the learned counsel appearing for the appellant are not applicable to the facts of the case, since the plaintiffs in O.S.No.41/1997 had acquired the suit schedule property after the due execution of agreement of sale dated 24.08.1990 as urged by the appellant herein and therefore, the substantial question of law framed above favours the respondents herein and as such, there is no perversity in the judgement and decree passed by both the Courts below and accordingly, both the appeals are dismissed. 14. In view of disposal of the appeals, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. Sd/- (E.S.INDIRESH) JUDGE YAN List No.: 1 Sl No.: 33