- 1 - NC: 2025:KHC-D:5171 RSA No. 5383 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5383 OF 2012 (POS-) BETWEEN: SHRI NARAYAN MALLAPPA KUNDEKAR, AGE: 53 YEARS, OCC: AGRICULTURE, R/O. PARAMESHWAR NAGAR, YALLUR-590 005, TQ & DIST: BELGAUM. …APPELLANT (BY SRI. ANAND ASHTEKAR, ADVOCATE) AND: SHRI BALIRAM BHIMA KUNDEKAR, AGE: 66 YEARS, OCC: AGRICULTURE, R/O. KURBAR GALLI, VADGAON, BELGAUM-590004. …RESPONDENT (BY SRI. HARISH S. MAIGUR, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF C.P.C. PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED 31.01.2012 PASSED BY II ADDL. SENIOR CIVIL JUDGE, BELGAUM IN 15/2010; SET ASIDE THE JUDGMENT AND DECREE DATED 17.12.2009 PASSED BY THE IV ADDL. CIVIL JUDGE (JR.DN.) & J.M.F.C., BELGAUM IN O.S. NO.664/2007; ALLOW THE APPEAL WITH COSTS THROUGHOUT BY DISMISSING THE SUIT IN O.S.664/2007 ON THE FILE THE IV ADDITIONAL CIVIL JUDGE JR.DN. & JMFC BELAGAUM. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 15:55:20 +0530 - 2 - NC: 2025:KHC-D:5171 RSA No. 5383 of 2012 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant challenging the judgment and decree dated 31.01.2012 in R.A.No.15/2010 on the file of the II Additional Senior Civil Judge, Belagavi1 dismissing the appeal and confirming the judgment and decree dated 17.12.2009 in O.S.No.664/2007 on the file of the IV Addl. Civil Judge (Jr.Dn.), Belagavi2 decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that the land in question was granted in favour of the father of the plaintiff by the Land Tribunal, Belagavi under Form No.7 dated 16.08.1974, confirming occupancy right. It is also stated that after the death of the father, the plaintiff succeeded to the estate of the suit schedule property. It is further stated in the plaint that the plaintiff has availed hand loan 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:5171 RSA No. 5383 of 2012 from the defendant and in this regard the defendant has illegally created an agreement of sale in respect of the suit schedule property. After came to know about the same, plaintiff caused legal notice 27.11.1996 to terminate the alleged agreement of sale said to have been created by the defendant. It is also the case of the plaintiff that the defendant had filed O.S.No.276/2005 seeking relief of permanent injunction against the plaintiff and the said suit came to be decreed on 16.08.2007 and being aggrieved by the same plaintiff has preferred appeal before the First Appellate Court. Hence, the plaintiff has filed suit seeking recovery of possession from the defendant in O.S.No.664/2007 before the Trial Court. 4. After service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendant that the plaintiff has executed agreement of sale dated 22.12.1993 and 11.04.1994 in respect of the subject matter of the land and thereafter the plaintiff has - 4 - NC: 2025:KHC-D:5171 RSA No. 5383 of 2012 not completed the execution of the registered sale deed and accordingly, sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined two witnesses as PW.1 and PW.2 and produced 8 documents and same were marked as Exs.P.1 to P.8. The defendant has examined two witnesses as DW.1 and DW.2 and got marked 7 documents as Exs.D.1 to D.7. 6. The Trial Court after considering the material on record, by its judgment and decree dated 17.12.2009, decreed the suit and as such directed the defendant to hand over the possession of the suit schedule property to the plaintiff within three months. Feeling aggrieved by the same, the defendant has preferred R.A.No.15/2010 on the file of the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 31.01.2012, dismissed the appeal, consequently confirmed - 5 - NC: 2025:KHC-D:5171 RSA No. 5383 of 2012 the judgment and decree in O.S.No.664/2007. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 7. This Court vide order dated 24.05.2012, formulated the following substantial question of law: i. Whether the right of the appellant to continue in property, is covered by the decision of the Apex Court in the matter of Mahadeva and Others vs. Tanabai – reported in AIR 2004 Supreme Court 3854? 8. I have heard Sri.Anand Ashtekar, learned counsel appearing for the appellant and Sri.Harish S Maigur, learned counsel appearing for the respondent. 9. Learned counsel appearing for the appellant contended that both the Courts below have committed an error in not considering the fact that the agreement of sale at Ex.D.1 was executed and the plaintiff admits his signature on Ex.D.1 and despite the same, the dismissal of the appeal by the First Appellate Court is erroneous which - 6 - NC: 2025:KHC-D:5171 RSA No. 5383 of 2012 requires to be interfered with in this appeal. It is also contended by the learned counsel appearing for the appellant that the respondent has examined witnesses to Ex.D.1 as PW.2 and the said aspect of the matter was ignored by both the Courts below and accordingly sought for interference of this Court. 10. Per contra, learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by both the Courts below and further contended that, the respondent herein has filed R.A.No.1026/2009 (old No.198/2007) before the First Appellate Court against the judgment and decree in O.S.No.276/2005 and the said appeal came to be allowed vide order dated 18.04.2015 and therefore sought for dismissal of the appeal. 11. 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. - 7 - NC: 2025:KHC-D:5171 RSA No. 5383 of 2012 12. It is not in dispute that the suit schedule property is belonging to the father of the plaintiff as per the occupancy right granted by the Land Tribunal, Belagavi dated 16.08.1974. It is the case of the plaintiff that the defendant has illegally created agreement of sale dated 22.12.1993 and 11.04.1994 which came to be cancelled as per the legal notice dated 27.11.1996. On careful examination of the finding recorded by the Trial Court, it is not in dispute that the plaintiff has caused notice dated 27.11.1996 (Ex.P.5) terminating the agreement of sale made in favour of the defendant. It is also to be noted that the defendant has not filed suit for specific performance of the agreement and further challenged the legal notice dated 27.11.1996 in a manner known to law. 13. In that view of the matter, taking into consideration the finding recorded by both the Courts below, I am of the view that both the Courts below on proper appreciation of material on record, rightly decreed - 8 - NC: 2025:KHC-D:5171 RSA No. 5383 of 2012 the suit in favour of the plaintiff. It is also to be noted that the Appellate Court in R.A.No.1026/2009 by its judgment and decree dated 18.04.2015, reversed the finding recorded by the Trial Court in O.S.No.276/2005 filed by the defendant herein against the plaintiff, seeking relief of injunction. 14. In that view of the matter, as the suit schedule property is belonged to the plaintiff and as such, the Trial Court has rightly decreed the suit by directing the defendant to vacate the suit schedule property and hand over the possession of the same to the plaintiff. In that view of the matter, I do not find any substance in the appeal as there is no perversity in the judgment passed by both the Courts below. 15. Accordingly, the substantial question of law framed above favours the plaintiff and accordingly, appeal fails. Sd/- (E.S.INDIRESH) JUDGE SH CT-MCK List No.: 1 Sl No.: 35