- 1 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR FIRST APPEAL No.1499 OF 2003 (DEC) BETWEEN: 1. K G VIRUPAKSHAPPA S/O BASAPPA AGED ABOUT 60 YEARS, SINCE DEAD APPELLANT NO. IS TREATED AS L.R OF APPELLANT NO.1 2. K G MALLIKARJUNA S/O K.G.VIRUPAKSHAPPA AGED ABOUT 35 YEARS R/O KANDAGAL VILLAGE, DAVANAGERE TALUK AND DISTRICT-577 514 …APPELLANTS (BY SRI N.K.SIDDESWARA, ADVOCATE FOR A2; VIDE ORDER DATED 05.09.2023, A1 IS DEAD AND A2 IS THE SOLE LEGAL REPRESENTATIVE OF DECEASED A1) AND: 1. K G SURESH SINCE DEAD BY HIS L.Rs 1(a) SAVITHRAMMA W/O LATE K.G.SURESH AGED ABOUT 42 YEARS 1(b) TANU D/O LATE K.G.SURESH AGED ABOUT 8 YEARS Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 1(c) PAWAN KUMAR S/O LATE K G SURESH AGED ABOUT 5 YEARS RESPONDENTS 1 (b) and 1(c) SINCE MINORS REPRESENTED BY THEIR NATURAL GUARDIAN MOTHER R1 (a) SAVITHRAMMA ALL ARE R/O KANDAGAL VILLAGE DAVANGERE TALUK AND DISTRICT-577 514 2. K G BASAVANAGOWDA S/O K G BASAVARAJAPPA AGED ABOUT 28 YEARS, BAPUJI BANK EMPLOYEE, OPP. DENTAL COLLEGE, DAVANAGERE CITY-577 002. 3. SMT.SAROJAMMA W/O K G BASAVARAJAPPA AGED ABOUT 65 YEARS, R/AT KANDAGAL VILLAGE, DAVANAGERE TALUK AND DISTRICT-577 514 4. K G ASHA W/O NAGARAJ @ NARAPPA AGED ABOUT 35 YEARS, R/AT KYASINAKERE, HONNALI TALUK DAVANAGERE DISTRICT-577 224 5. KUMARI PRATHIBA D/O BASAVARAJAPPA AGED ABOUT 29 YEARS, 6. SMT.NAGARATHNA @ BABY W/O G JAGADISH AGED ABOUT 47 YEARS, R/AT SHYAGALE VILLAGE, DAVANAGERE TALUK AND DISTRICT-577 002 - 3 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 7. HALAPPA C S/O CHURI AJJAPPA 8. MAHESHWARAPPA SINCE DEAD BY HIS L.R’s: 8(a) NANJAMMA W/O LATE MAHESHWARAPPA AGED ABOUT 76 YEARS 8(b) SURESH S/O LATE MAHESHWARAPPA AGED ABOUT 45 YEARS 8(c) C M SHOBA D/O LATE MAHESHWARAPPA AGED ABOUT 43 YEARS 8(d) C M VASANTHA D/O LATE MAHESHWARAPPA AGED ABOUT 41 YEARS 8(e) SUDHA D/O LATE MAHESHWARAPPA AGED ABOUT 39 YEARS 8(f) MAMATHA D/O LATE MAHESHWARAPPA AGED ABOUT 37 YEARS ALL ARE RESIDING AT C/O SURESH KANDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 9. CHANDRASHEKHARAPPA K G SINCE DEAD BY HIS LR’s 9(a) SUSHEELAMMA W/O LATE K G CHANDRASHEKARAPPA AGED ABOUT 65 YEARS - 4 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 9(b) K.G.RENUKA PRASAD S/O LATE K G CHANDRASHEKARAPPA AGED ABOUT 53 YEARS 9(c) K.G.HALASWAMY S/O LATE K.G.CHANDRASHEKARAPPA AGED ABOUT 51 YEARS 9(d) K.G.SUJATHA D/O LATE K.G.CHANDRASHEKARAPPA AGED ABOUT 48 YEARS ALL ARE R/O KANDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 10. K G SHANKARAPPA SINCE DEAD BY HIS L.Rs 10(1) LALITHAMMA W/O LATE K G SHANKARAPPA AGED ABOUT 70 YEARS 10(2) GIRISH PATEL SINCE DEAD BY HIS L.R’s 10(2)(a) THRILOTHAME W/O LATE GIRISH PATEL AGED ABOUT 48 YEARS 10(2)(b) ROOPA D/O GIRISH PATEL AGED ABOUT 26 YEARS 10(2)(c) SHILPA D/O GIRISH PATEL AGED ABOUT 24 YEARS 10(2)(d) MANGALA D/O GIRISH PATEL AGED ABOUT 22 YEARS 10(2)(e) SANTHOSH S/O GIRISH PATEL AGED ABOUT 20 YEARS - 5 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 10(3) SATHISH PATEL S/O K G SHANKARAPPA AGED ABOUT 50 YEARS 10(4) RAVI KUMAR S/O K G SHANKARAPPA AGED ABOUT 48 YEARS ALL ARE R/O KANDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 11. C CHANNABASAPPA SINCE DEAD BY HIS L.R’s 11(a) PARVATHAMMA W/O LATE C CHANNABASAPPA AGED ABOUT 56 YEARS 11(b) NAGARATHNA D/O LATE C CHANNABASAPPA AGED ABOUT 35 YEARS 11(c) CHETHAN KUMAR S/O LATE C.CHANNABASAPPA AGED ABOUT 32 YEARS 11(d) DEVARAJ S/O LATE C.CHANNABASAPPA AGED ABOUT 30 YEARS ALL ARE R/O KUNDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 12. C REVANASIDDAPPA S/O C KALLAVEERAPPA MAJOR 13. B CHANDRASHEKHARAPPA S/O BADARAGATTE BASAPPA MAJOR 14. C JAYAPPA S/O C SANNAVEERAPPA, MAJOR - 6 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 15. SANNA KALLAPPA S/O C SANNA VEERAPPA (SINCE DEAD REPRESENTED BY HIS LR’s) 15(a) GOWRAMMA W/O SANNA KALLAPPA SINCE DEAD REPRESENTED BY LR 15(b) LOKESH S/O SANNA KALLAPPA AGED ABOUT 40 YEARS RESIDING AT P.S.LOKESH, M.A, P.HD., SOCIALOGY BRANCH GOVERNMENT 1ST GRADE COLLEGE SIRSI TOWN UTTARA KARNATAKA DISTRICT. 16. C SANNA KALLAPPA S/O C SANNA VEERAPPA MAJOR R/O KANDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 17. M N BASAVARAJAPPA S/O MUDIMALLAPPALA NAGENDRAPPA MAJOR R/O KANDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 18. C B SHIVASHANKAR S/O C V BASAPPA MAJOR R/O KANDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 19. C S CHANDRAMMA W/O C V BASAPPA MAJOR - 7 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 R/O KANDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 20. N S REVANASIDDAPPA SINCE DEAD BY HIS L.R’s 20(a) BASAMMA W/O LATE N S REVANASIDDAPPA AGED ABOUT 65 YEARS 20(b) PUSHPA D/O LATE N S REVANASIDDAPPA AGED ABOUT 40 YEARS 20(c) ARUN KUMAR S/O LATE N S REVANASIDDAPPA AGED ABOUT 35 YEARS 20(d) DINESH S/O LATE N S REVANASIDDAPPA AGED ABOUT 38 YEARS R/O KANDAGAL VILLAGE DAVANAGERE TALUK AND DISTRICT-577 514 …RESPONDENTS [BY SRI. RAVI G. SABHAHIT, ADVOCATE FOR R1(A), R7, R11(A) TO (D), R12 TO R19), R20(A TO D); R1(b) AND R1(c) ARE MINORS REPRESENTED BY R1(a); R2, R3, R4, R16, R5, R6, R8(a),(b),(d),(f), R9(a),(b), R10(1); R10(1), R10(2)(a), R10(2)(d), R10(2)(e), R10(3), R10(4), R9(c), R10(2)(b), R10(2)(c), R15(b), R8(c), R8(e) ARE SERVED AND UNREPRESENTED; 15(a) IS DEAD AND 15(b) IS TREATED AS THE LEGAL REPRESENTATIVES OF DECEASED R15(A) VIDE ORDER DATED 17.01.2025] - 8 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 THIS RFA IS FILED UNDER SECTION 96 R/W O XLI RULE 1 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 25.7.2003, PASSED IN O.S.NO.52/2000 ON THE FILE OF THE PRL. CIVIL JUDGE(SR.DN), DAVANAGERE, DISMISSING THE SUIT FOR DECLARATION, POSSESSION AND PERMANENT INJUNCTION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri N.K.Siddeswara, learned counsel for the appellants and Sri Ravi G.Sabhahit, learned counsel for contesting respondent Nos.1(a), 7, 11(a) to (d), 12 to 19 and 20(a) to (d). 2. Unsuccessful plaintiffs in O.S No.52/2000 on the file of the Prl. Civil Judge(Senior Division), Davanagere, are the appellants. 3. During pendency of the present appeal, first appellant who is none other than the father of the second appellant died leaving behind the second appellant as the sole surviving legal heir. So also, few of the respondents passed away and their legal representatives are brought on record. - 9 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 4. Parties are referred to as per their ranking before the Trial Court, for the sake of convenience. 5. Facts which are utmost necessary for disposal of the present appeal are as under: 6. A suit for declaration came to be filed with the following prayer in respect of the following properties: “WHEREFORE, the appellant prays that this Hon’ble Court may be pleased to set aside the impugned judgment and decree passed in O.S.No.52/2000 dated 25.07.2003 on the file of the Prl. Civil Judge (Sr.Dn.) at Davanagere and decree the suit in the interest of justice and equity.” DESCRIPTION OF THE PROPERTIES: “1. Agricultural land bearing Sy.No.1, measuring 0A- 20Gs, situated at Kandagal village, Davangere Taluk and bounded by: East : Remaining portion of Sy.No.1 of Shanmukhappa, West: Land of Churi Gangappa and Bavihal Halappa, North: Land of Churi Gangappa and Eshwarappa, South: Land of Plaintiff, bearing Sy.No.2. - 10 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 2. Agricultural land bearing Sy.No.2/P, measuring 0A- 20Gs., situated at Kandagal village, Davangere Taluk and bounded by : East : Land of K.G.Shankarappa, West: Lana of K.G.Basavarajappa, North:Land bearing Sy.No.1 of Plaintiff, South: Land bearing Sy.No.3 of plaintiff. 3. Agricultural land bearing Sy.No.3/P, measuring 0A-7 Gs. situated at Kandagal village, Davangere Taluk and bounded by : East: Land K.G. Shankarappa West:Land of K.G.Basavarajappa North:Survey No.2 of Plaintiff South:Survey No.4 of plaintiff 4. Agricultural land bearing Sy.No.4/P, measuring 0A-14Gs. Situated at Kandagal Village, Davangere Taluk and bounded by: East : Land of K.G.Shankarappa, West:Land of K.G.Basavarajappa, North: Sy.No.3 of Plaintiff, South:Land of Giriyappala Basappa and Yalavatti Channabasappa. 5. Agricultural land bearing Sy.No.128/P, measuring 3A-0Gts. Situated at Kandagal village, Davangere Taluk and bounded by: - 11 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 East: Land of K.G.Shanmukhappa West: Land of K.G.Basavarajappa North: Land of Gowdra Mallappa and Gowdra Murigeppa South:Land of Kumbara Mudlappa and Kalyanaiah. 6. Agricultural land bearing Sy.no.215/P measuring 1A-0G situated at Kandagal Village, Davanagere Taluk and bounded by: East: Land of K.G.Shankarappa West: Land of K.G.Basavarajappa North: Shyagale halla South:Land of Savakki Thippanna.” 7. Case of the plaintiffs as could be culled out from the plaint averments is that, the second plaintiff is the son of the first plaintiff and because of the old age ailments, second plaintiff was managing the affairs of the family. 8. Among the defendants, defendant Nos.1 to 6 are the legal heirs of K.G. Basavarajappa who is none other than the brother of first plaintiff. Defendant Nos.9 and 10 are also the brothers of first plaintiff. One Sri Patel Mallappa was the common prepositus. He had two sons namely Patel - 12 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 Channabasappa @ Channabasappa and Patel Basappa. Patel Channabasappa had three sons by name Mallappa, Deveerappa and Murigeppa. Another brother Patel Basappa had five sons viz., K.G.Chandrashekharappa, K.G.Shankarappa, K.G. Basavarajappa, K.G.Virupakshappa and K.G.Shanmukappa. Plaintiff No.1 is one among them. 9. Defendant Nos.1 to 6 are the legal heirs of K.G.Basavarajappa and other two sons of Patel Basappa are defendants Nos.9 and 10. 10. Family of the plaintiffs owns several movable and immovable properties in Kandagal village, Davanagere Taluk. Out of those properties, lands in Sy.No.2, 3, 4, 128 and 215 are the relevant properties for the purpose of the present suit. 11. It is further contended that land in Sy.No.2 measured 6 acres 25 guntas, land in Sy.No.3 measured 3 acres 24 guntas, land in Sy.No.4 measured 5 acres 17 guntas. All the three lands put together measured about 15 acres 26 guntas. 12. It is further case of the plaintiffs that there was an oral partition that took place among the sons of Patel - 13 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 Channabasappa on the one side and Patel Basappa on the other. 13. In the said partition, first plaintiff and his brothers being the sons of Patel Basappa, got 7 acres 33 guntas of land in Sy.Nos.2, 3 and 4. They together sold 1 acre of land on the eastern side from Sy.Nos.2, 3, 4, i.e., in all 3 acres to one Kodabalu Basavarajappa. Remaining land was divided among plaintiff No.1 and his brothers. 14. According to plaintiffs, in the said partition, 20 guntas of land in Sy.No.1, 20 guntas of land in Sy.No.2, 7 guntas of land in Sy.No.3 and 14 guntas of land in Sy.No.4 were allotted to the share of the plaintiff No.1. Properties which were allotted to the share of the plaintiff No.1 are described as Item Nos.1 to 6 in the plaint schedule. It is contended that plaintiff No.1 is the absolute owner of the suit properties and was in enjoyment of the same. 15. It is further contended by the plaintiffs that defendant Nos.7, 8 and 11 to 20 though not having any right, title or interest in respect of the suit properties started to interfere - 14 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 with the plaintiffs' possession and enjoyment of the suit properties. They also maintained that they have got right and title over the suit properties on account of purchase of the same from the defendant Nos.1 to 6. 16. Defendants, in the guise of the order passed by the Deputy Commissioner in RACR No.11/1999-2000 dated 26.10.1999, unlawfully dispossessed the plaintiffs from the suit properties and refused to re-deliver the possession, in spite of the repeated demands. Therefore, plaintiffs filed the suit for declaration that they are the owners of the suit properties and also for possession of the suit properties. 17. Pursuant to the suit summons, defendant Nos.9 and 10 remained absent and they were placed ex-parte. 18. Whereas other defendants entered appearance through their respective advocates. 19. Defendant Nos.15 and 16 are one and the same person. - 15 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 20. Defendants filed their written statement admitting the relationship among the parties and denied the other contentions. 21. Defendant No.10-K.G.Shankarappa, had earlier filed a suit in O.S. No.39/1994 on the file of Addl. Civil Judge (Junior Division), Davanagere, against K.G.Chandrashekharappa, K.G. Basavarajappa and Defendant Nos.11, 12 and 13 claiming title in respect of some portion of the land in Sy.Nos.2, 3 and 4 of Kandagal Village. 22. It was further contended by the defendants that in the said suit, first plaintiff was examined as P.W.2. 23. It is further contended by the defendants that, in his oral evidence recorded in O.S.No.39/1994, first plaintiff has specifically admitted that up to the year 1975, the lands in Sy.Nos.2, 3, 4 of Kandagal village were being enjoyed by them jointly and while filing the declaration before the Land Tribunal, to save the excess land, there was an oral partition and each of the brothers of first plaintiff filed separate declaration in respect of the total extent of land held by the family. - 16 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 24. It is specifically contended that as per the oral partition each of the brothers have sold the land on different dates through registered sale deeds. Therefore, plaintiffs cannot lay claim over the suit properties and sought for the dismissal of the suit. 25. Based on the rival contentions of the parties, learned Trial Judge raised following issues and additional issues. 1. “Whether the plaintiffs prove their title to the schedule properties by virtue of family partition? 2. Whether the plaintiffs prove that they were unlawfully dispossessed from the schedule properties? 3. Whether the plaintiffs prove that the sale transactions between the defendants interse are null and void and not binding on the plaintiffs? 4. Whether the plaintiffs are entitled for the relief of declaration and possession? 5. What decree or order?” ADDITIONAL ISSUE 1. Whether the suit is barred by limitation?” 26. To prove the case of the plaintiffs, on behalf of the plaintiffs, second plaintiff got examined himself as PW-1 and he reiterated the contents of the plaint in his affidavit filed in lieu of examination-in-chief. - 17 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 27. On behalf of the plaintiffs, two more witnesses viz., Channabasappa and Kariyappa were examined as P.W-2 and P.W-3. 28. In all, 42 documents were placed on record on behalf of the plaintiffs which were exhibited and marked as Exs.P-1 to P- 42 comprising of pahani extracts marked as Exs.P-1 to P-24, tax paid receipts marked as Exs.P-25 to P28, bank notices as Exs.P-29 to P-31, index of land, ledger extract, notice issued by the bank, declarations as Exs.P-32 to 37, order passed by the Land Tribunal as Exs.P-38, Exs.P-39 and 40 being the RTC register extracts and Exs.P-41 and 42 are the endorsements. 29. On behalf of the defendants, five witnesses were examined as D.Ws.1 to 5. In their evidence, in all, 90 documents were produced which were exhibited and marked as Exs.D.1 to D.90 comprising of deposition marked as Ex.D.1, sale deed marked as Ex.D.2, pahani extract as Ex.D.3, application before the Village Panchayath marked as Ex.D.4, copy of the alienation order marked as Ex.D.5, receipt marked as Ex.D.6, kandayam receipt marked as Ex.D.7, pahani extracts marked as Ex.D.8 and 9, 66 to 68, 80, kandaya paid - 18 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 receipts marked as Exs.D.10 and 11, 52, 69 to 75, 81 to 83, plans marked as Exs.D.12 and 13, licence fee paid receipt marked as Ex.D.14, ledger extract marked as Ex.D.15, tax paid receipt marked as Ex.D.16, assessment extract marked as Ex.D.17, gazette notification marked as Ex.D.18, copy of the High Court Order marked as Ex.D.19, original sale deed marked as Ex.D.20, sale deeds marked as Exs.D.21 and 22, registered partition deed marked as Ex.D.23, revenue records marked as Exs.D.24 to 30, registered sale deed marked as Ex.D.31, mutation extract marked as Ex.D.32, 51, 76 to 78, 86 to 88, encumbrance certificate marked as Ex.D.33, RTC extracts marked as Ex.D.34 and 35, survey maps marked as Exs.D.36 to 39, RTC extracts marked as Exs.D.40 to 45, statement marked as Ex.D.46, certified copy of the sale deed marked as Ex.D.47, encumbrance certificate marked as Ex.D.48, receipt patta marked as Ex.D.49, sale deed marked as Ex.D.50, endorsement marked as Ex.D.53, plans marked as Exs.D.54 and 55, alienation order marked as Ex.D.56, RTC extract marked as Ex.D.57, ledger and assessment extracts marked as Exs.D.58 to 60, tax paid receipts marked as Ex.D.61 and 62, registered sale deeds marked as Exs.D.63 to 65, registered sale - 19 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 deed marked as Ex.D.79, patta receipt marked as Ex.D.84, registered sale deed marked as Ex.D.85, patta receipt and kandayam receipt marked as Exs.D.89 and 90. 30. In his cross-examination, PW-1 categorically admitted that the there was a suit filed by the tenth defendant against K.G. Basavarajappa, and defendant Nos.9, 11 to 13 in O.S No. 39/1994. 31. He admits that first plaintiff-K.G. Virupakshappa was examined as a witness on behalf of K.G. Shankarappa as PW-2 in the said suit. 32. PW-1 also admitted that in the year 1975, for the purpose of filing declaration to the Land Tribunal, there was an oral partition and as per the said oral partition, the sons of Patel Basappa started enjoying the property separately. 33. He further admits that there was a joint sale made in respect of the property earlier to partition and thereafter each one of them have sold 1 acre in Sy.Nos.2, 3 and 4 of Kandagal village and there afterwards, there were several sale deeds. - 20 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 34. Though PW-1 denied the suggestion that for the purpose of retaining the excess land to the family, partition has taken place, fact remains that there was a partition and order passed by the Land Tribunal marked at Ex.P-38 would conclusively establish that the declaration was filed before the Land Tribunal as is found in Ex.P-38. 35. P.W.1 admits the deposition of his father who is the first plaintiff, in O.S No.39/1994. However, he denies the answers given by his father in the said suit, which is marked as Ex.D- 1(a) and D1(b). 36. For the purpose of clarity and certainty, those answers which are marked as Ex. D-1(a) and D-1(b) are extracted here under: Ex.D-1(a) “¸ÀªÉð £ÀA: 2gÀ°è ¥À²ÑªÀÄzÀ PÀqÉUÉ 1 JPÀgÉ d«Ää£À°è 5£Éà ¥ÀæwªÁ¢ ZÀ£Àߧ¸À¥Àà 1983 jAzÀ ¸Áé¢üãÀzÀ°èzÁÝgÉ CAzÀgÉ CzÀÄ ¸Àj.” Ex.D-1(b) “¸ÀªÉð £ÀA: 2gÀ°è ZÀ£Àߧ¸À¥Àà£À d«Ää£À ¥ÀƪÀðPÉÌ 4£Éà ¥ÀæwªÁ¢ gÉêÀt¹zÀÝ¥Àà 10 UÀÄAmÉ d«Ää£À ¸Áé¢üãÀzÀ°è 1983 jAzÀ EzÁÝgÉ CAzÀgÉ CzÀÄ ¸Àj.” - 21 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 37. He denies the suggestion that in order to harass the purchasers, a false suit has been filed. 38. After the cross- examination was concluded, PW-1 was further examined wherein Exs. P-39, 40, 41, 42 were marked. 39. In his further cross-examination, he admits that in Ex. P- 41, there was a request for measurement of the land and land was measured in the year 1995 and again 3 to 4 times the lands were measured and the measurement of the land has not yet concluded. He admits that Ex.P-42 is a document that is obtained after filing of the suit. 40. He admits that there are alterations in Ex.P-40 which does not contain any initials of the officials and one Murugesh has obtained Ex.P-40. 41. P.W-2 deposed that he is acquainted with plaintiffs and defendants. In the year 1974 there was a partition and Virupakshappa had let out the land to PW-2 for cultivation on crop share basis. - 22 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 42. In the cross-examination, he admits that he is not aware of details of partition and also the extent of land that has fallen to the each of the sharers. 43. PW-3 is again another witness examined on behalf of the plaintiffs who deposed before the Court that he is acquainted with plaintiffs and defendants. He further deposed that there was a partition about 30 years earlier to date of deposition (16.04.2003). He stated that he has cultivated the land which has fallen to the share of the first plaintiff for about two years and thereafter he has given up the right. 44. In the cross-examination, he admits that he cannot say the survey number of the land which he was cultivating and the extent and boundaries thereof. 45. On behalf of the defendants, Channabasappa is examined as DW-1. He is the 11th defendant. 14th defendant is Jayappa who is his elder brother. So also, 15th defendant is Sanna Kallappa. He has deposed about the relationship of the parties and suit filed by one of the brothers of Patel Basappa in O.S No.39/1994. - 23 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 46. He further deposed that in the year 1974, there was a notice issued by the Government with regard to the declaration of the excess land. In order to save the excess land, there was a partition and each of the sons of Patel Basappa filed separate declaration and there was an order passed by the Land Tribunal to that effect. 47. He further deposed that in the year 1983, he had purchased 1 acre of land in the western portion of land in Sy.No.2 from Chandrashekharappa for a sum of Rs.12,000/-. Thereafter he got mutated the entries and he was personally cultivating the land. 48. He further deposed that for the purpose of construction of the house in the land, he has obtained permission from Kandagal Grama Panchayat and Tashildhar has given the permission to construct the house. He has also produced the necessary orders in that regard. So also, the payment of development charges and receipt thereof are placed on record. He has further deposed that the land was numbered as 2/3 and same got entered in the RTC extract. - 24 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 49. He has further deposed that prior to 1974, there was 2 acres of land which was acquired and the same was challenged in the High Court. He has produced the certified copy of the order vide Ex.D-19. 50. He further deposed that in the year 1985, his elder brother Sanna Kallappa and 17th defendant-Basavarajappa jointly purchased 1 acre 2 guntas of land from K.G. Basavarajappa, Chandrasekharappa and Shanmukhappa. 51. Again in the year 1986, there was sale of 12 guntas of land by Basavarajappa, Chandrashekharappa and Shanmukhappa in a sum of Rs.4,000/-. Land in Sy. No.3 was thus subdivided into 3/2 to the extent of 13 guntas. 52. He further deposed that there was an inter se partition between Sanna Kallappa and Basavarajapa in the year 1993 and he has placed on record the registered partition deed vide the Ex.D-23 and revenue entries were mutated. 53. He further deposed that 14th defendant-Jayappa purchased land in Sy.No.3 in the year 1985 to the extent of 21 guntas from Basavarajappa, Chandrashekharappa and - 25 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 Shanmukappa. He has placed on record necessary documents in that regard and also the revenue records. 54. It is in his further deposition that a suit in O.S No.39/1994 came to be filed by the 10th defendant in respect of land in Sy.Nos.2, 3 and 4. 55. He further deposed that Shankarappa's deposition in the said suit is placed on record as Ex.D-46. First plaintiff and his brothers have sold 1 acre each in Sy.Nos.2, 3 and 4, in the year 1972 and the same is evident from Ex.D-47. 56. He has specifically deposed that plaintiffs were never in possession of the suit properties much less in the year 1999, so also, they are not the owners of land in Sy. No.128 to the extent of 3 acres. 57. He has specifically stated that 1 acre 10 guntas of land in Sy.No.128 is belonging to one Churi Halappa and 1 acre 30 guntas is belonging to defendant Nos.1 to 6. So, also in respect of Sy.No.215, D.W-1 has specifically stated that it belongs to defendant Nos.1 to 6. He further deposed that 10th - 26 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 defendant-Shankarappa was a Revenue Inspector and was residing in Kandagal village, Davanagere. 58. It is his specific case that after the dismissal of his suit, he has egged up the plaintiffs to file separate suit and sought for dismissal of the suit. 59. In his cross-examination, he admits the relationship as is mentioned in paragraph 4 of the plaint. He also admits that he has verified the documentary evidence placed on record on behalf of the plaintiffs. 60. He admits that land in Sy.Nos.1 to 4, 128 and 215 of Kandagal village initially belonged to Patel Basappa. He has denied the suggestion that the suit sketch is incorrect. He has admitted the alienations made. However, he denies that there was transfer of revenue entries vide mutation register No.6/1971-1972. 61. He further admits about the declaration filed to the Land Tribunal. He has pleaded ignorance that after the declarations were filed and order passed by the Land Tribunal, he did not verify the mutation entries. - 27 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 62. Sri Revan Siddappa is examined as DW-2. He is 12th defendant. He deposed in line with the examination-in-chief of DW-1 and also deposed about the earlier suit filed by the 10th defendant in O.S No.39/1994. 63. In his cross-examination, he also denies about the entry in MR No.6/1971-72. 64. Defendant No.7-Halappa is examined as DW-3. He deposed that he is acquainted with plaintiffs and other defendants and he is a permanent resident of Kandagal village. 65. He has specifically stated that fifth item of the suit property viz., land in Sy.No.128 is his land having purchased 3 acres at first instance, 22 guntas at second instance and 1 acre 10 guntas in the third instance. He has given the necessary particulars in that regard and also the registered documents pertaining to the purchase of those lands and transfer of revenue entries. 66. In his cross- examination, he pleaded ignorance about the oral partition among the children of Patel Basappa and - 28 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 deposed that he has not seen any documents. He admitted about the declaration given to the Land Tribunal. 67. Defendant No.8 is Maheshwarappa, who is examined as DW-4. He deposed that he is acquainted with the parties. He deposed that in Sy.No.1 he has purchased 20 guntas of land through registered sale deed and he has given the necessary boundaries of his land. 68. In his cross-examination, he admits that there was a katha in favour of his vendor and he has no impediment to produce the same. He denies that land in Sy.No.1 was belonging to first plaintiff. 69. Defendant No.20-Revanasiddappa is examined as DW-5. He deposed that he is a retired teacher and he has got 30 guntas of land in Sy.No.4 of Kandagal village jointly with defendant Nos.18 and 19. He denied the fact of plaintiffs being in possession of the lands at any given point of time. 70. In his cross-examination, he has admitted that their vendor had told that they are the owners of the property on - 29 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 account of oral partition. He denies the assertion that plaintiffs have got 14 guntas of land in the said survey number. 71. The above evidence on record is sought to be re- appreciated on behalf of the plaintiffs/appellants. 72. Based on the aforesaid evidence, learned Trial Judge answered the issues against the plaintiffs and dismissed the suit of the plaintiffs. 73. Being aggrieved by the same, plaintiffs have filed the present appeal on the following grounds:  That the lower court has committed a grave error in observing that the appellant should have approached the civil court for cancelling the various registered sale deeds on or before 1992. Whereas, the lower court ought to have seen that the appellants definite stand is that under the guise of the order dated 26.10/1999 passed by the Deputy Commissioner in RA CR No.11/99- 2000 the suit lands unlawfully dispossessed from them and refused to redeliver possession in spite of the repeated demands.  The lower court ought to have seen that whether the brothers of plaintiff No.1 are having right, title and interest to alienate the schedule properties and sale deeds without doing so, has come to the conclusion that the suit is barred by limitation. - 30 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003  The lower court ought to have seen that though the defendants 7.8 & 11 to 20 have purchased the said lands from defendant Nos 1 to 6, 9 and 10. The plaintiffs were in peaceful enjoyment and possession of the schedule properties and also the RTC'S were Stands in the name of plaintiffs.  That the lower court has committed grave error relying on the deposition of the appellant No.1 in O.S.No.39/1994 filed by the defendant No.10, the appellant has admitted that the Revanasiddappa and Channabasappa are in possession and enjoyment of portions in Sy.No.2 since 1983. Since, the lower court falsely construed that as if they are in possession of entire extent of Sy.No.2. And, the Lower Court ought to have consider that the evidence adduced by the plaintiff that the respective purchasers have been in possession and enjoyment of the lands from 26/10/1999 and not from the date of purchase. And purchasers are in possession from the date of sale by the respective shares of the vendors/defendants. Instead of deciding his question the court below entertained extraneous grounds and proceeded to tally on a wrong footing and thereby resulting in dismissal of suit which is wholly untenable and liable to be set aside.” 74. Sri N.K.Siddeswara, learned counsel for the appellants/ plaintiffs reiterating the grounds urged in the appeal memorandum vehemently contended that the Trial Court did - 31 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 not properly appreciate the fact that plaintiff No.1 being the son of one of the sons of Sri Patel Basappa had right in each and every item of the suit properties and other sons of Patel Basappa having sold the properties, the right in respect of the share of the first plaintiff has not been affected. As such, plaintiffs are not bound by the sale made by the other sons of Patel Basappa in favour of the purchasers and sought for allowing the appeal. 75. He would further contend that the oral partition is no doubt admitted, but in the said oral partition, first plaintiff being the son of one of the sons of Patel Basappa, had share in each and every item of the suit property. Therefore dismissal of the suit by the learned Trial Judge accepting the version of the defendants and also on the ground that the suit is barred by limitation, dismissing the suit cannot be countenanced in law and sought for allowing the appeal. 76. Per contra Sri Ravi G. Sabahit, learned counsel for the contesting respondents not only supported the impugned judgment but also specifically drew the attention of this court to Ex. D1(a) and D1(b) wherein the first plaintiff in the suit filed - 32 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 by the 10th defendant in O.S No.39/1994 has categorically admitted that he came to know about the alienation in the year 1983 and did not chose to contest the matter. 77. No doubt, PW-1 has denied the answers marked at Ex. D1(a) and D1(b). 78. Admittedly, first plaintiff did not chose to enter the witness box only with an intention to avoid such an admission in an earlier suit. Therefore, the learned Trial Judge has rightly dismissed the suit and sought for dismissal of the appeal. 79. Having heard the arguments of both sides, the following points would arise for consideration in the present appeal: “(i) Whether the plaintiffs establish that they are the owners of suit schedule properties having derived the right, title and interest in a family partition (oral)? (ii) Whether the plaintiffs establish that in the year 1999, they were illegally dispossessed from the suit properties? (iii) Whether the plaintiffs further establish that the alienation made by the brothers of first plaintiff would not bind them? - 33 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 (iv) Whether the impugned judgment is suffering from legal infirmity and perversity and thus calls for interference? (v) Whether the suit is in time? (vi) What order?” 80. REGARDING POINT Nos.1 TO 5: These points are taken up together for consideration as they are interlinked to each other. 81. Admittedly, the suit is one for declaration and possession. In order to establish the legal title over the suit property, plaintiffs rely upon the oral partition said to have taken place in year 1975. 82. The defence is that the family possessed excess lands and when there was a requirement by the Government to file declaration with regard to the land possessed by each of the family members, in order to save the lands of the family, children of Patel Basappa filed a declaration before the Land Tribunal and for that purpose, they have shown that the there was a oral partition. - 34 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 83. At an undisputed point of time, declarations came to be filed vide Exs.P-35 to 37, which ultimately culminated in passing of the order by the Land Tribunal vide Ex.P-38. Plaintiffs tried to claim right over the suit properties based on Ex.P.38. Declarations which are marked vide Exs.P-35 to 38 when perused, it is crystal clear that there was no proper boundaries that were mentioned in respect of the each item of the suit properties. 84. In Ex.P-35, with regard to Sy.No.2 measuring 6 acres 23 guntas there is a declaration that the property was in the name and possession of Patel Basappa. 3 acres 11 ½ guntas of land was given to the children of his uncle. 85. Likewise, in Ex.P-36, in respect of Sy.Nos.3 and 4, measurement of the property is given but there is no detail as to who is holding which portion of the land and to what extent. 86. In Ex.P-37, there is no mention about the suit properties. However, there is a mention about Sy.Nos.3 and 4, which are portions of the suit property. - 35 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 87. Ex. P-38 is the Order passed by the Land Tribunal, Davanagere, wherein the declaration is accepted. 88. Based on Ex. P-38 which is the Order passed by the Land Tribunal, necessary revenue entries were mutated. 89. In Ex.P-40, there is a mention as to sub numbers held by Murigeppa, Chandrashekharappa bin Basappa Gowdra, K.G. Shankarappa, K.G. Basavarajappa, K.G. Virupakshappa and K.G.Shanmukhappa. 90. The seventh column in the Ex.P-40 is the land that was held by K.G. Virupakshappa-1st plaintiff. Among them, Sy. Nos. 1.2P, 3P, 128P and 215P are the relevant lands for the purpose of the present suit. Sy.No.1.2P measures 0.20 guntas, Sy.No.3P measures 0.07 guntas, Sy.No.128P measures 0.22 guntas and Sy.No.215P measures 0.08 guntas. 91. Thus, the documentary evidence that is placed on record as title on behalf of the plaintiffs is the declaration resulting in passing of an order by the Land Tribunal vide Ex.P.38 which was recorded in Ex.P-40. - 36 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 92. The alienation that has been made by other brothers of the first plaintiff is called in question in the suit. 93. As could be seen from the sale deeds placed on record by the defendants who have purchased the lands in respect of suit properties viz., Exs.D-2, D-20, D-31, D-47, D-63 to D-65, D-79 and D-85, it is crystal clear that the suit properties as is mentioned in schedule item Nos.1 to 6 are not belonging to the plaintiffs, but the defendants were successful in establishing their title over the suit properties. 94. D.Ws-1 to 5 not only deposed about how they acquired the respective lands, but they have also placed on record documentary evidence viz., sale deeds, revenue entries and to establish possession over the suit property necessary documents like plan and licence obtained, payment of tax etc., 95. When such is the title that has been established by the defendants as against the title that has been placed on record by the plaintiffs which is only by way of declarations vide Exs.P.35 to 37, order of land Tribunal vide Ex.P-38 and revenue entries vide Ex.P-40, this Court is of the considered opinion - 37 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 that plaintiffs have failed to establish their legal title over the suit properties. 96. Further, second plaintiff is examined as DW-1 who deposes utterly falsehood as against the documentary evidence placed on record by the defendants. 97. It is also pertinent to note that the documents that are placed on record on behalf of the plaintiffs themselves would not make out a case that plaintiffs are the owners of the suit properties. 98. PW-1 went to the extent of denying the answers given by the first plaintiff in the earlier suit in O.S.No.39/1994 filed by his uncle viz., Shankarappa who is the 10th defendant in the present suit. 99. In the earlier suit i.e., O.S No.39/1994 filed by 10th defendant, first plaintiff herein categorically admitted about the alienations made. Ex.D1(a) and D1(b) referred to supra would make it clear that plaintiffs somehow trying to lay claim over the suit properties. - 38 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 100. A suggestion is no doubt made by the counsel for defendants to the effect that Shankarappa (10th defendant in the present suit/ plaintiff in O.S.No.39/1994) being a Revenue Inspector of Kandagal village having failed to establish right over the suit properties, was instrumental in filing the present suit through first plaintiff who is none other than his own brother. 101. When there was a clear admission made in O.S No.39/1994 by the first plaintiff in the present suit vide Ex.D-1 that they came to know about the alienation in the year 1983, it should not lie in the mouth of the plaintiffs that they were in possession of the properties and they were dispossessed in the year 1999. 102. Plaintiffs having not approached the Court of law with clean hands that too with a prayer for declaration that the suit properties are belonging to the plaintiffs, were required to place on record, cogent and convincing material evidence to establish their title over the suit properties. - 39 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 103. Having failed to do so, in order to escape from the rigors of law, second plaintiff started not only giving evasive answers, but also ventured to answer false and wrong factual aspects in his cross-examination. 104. No doubt, the reasoning of the Trial Court in the impugned judgment are not happily worded. But the conclusion reached by the learned Trial Judge in the impugned judgment is just and proper. 105. Appeal being continuation of the suit, this Court can, having ample power under Section 96 of the Code of Civil Procedure, not only entitled to re-appreciate the factual aspects, but, can also delve upon the legal aspects. 106. With that power in the background, when the material evidence placed on record is re-appreciated, as discussed supra, plaintiffs claim their title to the suit property only by way of declarations which culminated in passing of an order by the Land Tribunal vide Ex.P-38 and revenue entries being mutated as per the order passed under Ex.P-38. - 40 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 107. On the contrary, defendants have placed on record the sale deeds, revenue records and also necessary permissions from the revenue authorities for usage of the lands for non- agricultural purposes. 108. Admittedly, Ex.P-38 is not an Order on adjudication of claims, but is only an acceptance of the declaration by the Land Tribunal as to the holding of the land by the children of Patel Basappa. 109. Entire land to the extent of 7 acres 36 guntas held by Patel Basappa being the father of plaintiff No.1 and his brothers was divided among themselves only with an intention to save the entire land for the family and to avoid rigors of law under Karnataka Land Reforms Act on the ground of holding excess land. 110. Therefore, Ex.P.38 would not per se grant any right, title or interest in the plaintiffs to seek for the declaratory relief as prayed in the suit. 111. A feeble attempt is no doubt made by Sri Siddeswara, learned counsel for the appellants with vehemence that the - 41 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 learned Trial Judge has not whispered anything about item Nos. 5 and 6 of the suit properties in the impugned judgment. Therefore, at least plaintiffs be declared as owners of item Nos.5 and 6. 112. Sri Ravi G. Sabhahit, learned counsel for the respondents would submit that he would not represent the alienees in respect of item Nos.5 and 6 of the suit properties. 113. Therefore, this Court bestowed its best attention with regard to the contentions urged on behalf of the appellants in respect of item Nos.5 and 6 of the suit properties in the impugned judgment. 114. There is some force in the argument put forth on behalf of the appellants that the Trial Court did not properly answer with regard to item Nos.5 and 6 of the suit properties. 115. But D.Ws-4 and 5 not only specifically deposed before the Court about the ownership over item Nos.5 and 6 of the suit properties, but have also placed on record the sale deeds to establish their ownership over the suit properties. - 42 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 116. Under such circumstances, the arguments that is put forward on behalf of the appellants that the impugned judgment is suffering from serious legal infirmities and perversity in not answering the claim of the appellants in respect of item Nos.5 and 6 of the suit property cannot be countenanced in law. 117. In regard to question of suit being barred by time, having regard to the admission made by the first plaintiff in O.S No.39/1994, present suit filed in the year 2000 is definitely barred by law of limitation inasmuch as admission of the first plaintiff as PW-2 in O.S No.39/1994, vide Exs.D1(a) and D1(b) shows that plaintiffs were aware of the defendants being in occupation of the suit properties on and from the year 1983. 118. Endorsement marked at Ex.P.42 is a post suit document which has no relevance or purpose and has no admissible probative value and therefore is yet another attempt made by the plaintiffs to some how to get the suit decreed. - 43 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 119. Moreover, first plaintiff was examined as a witness on behalf of his brother-K.G.Shankarappa who was Revenue Inspector in the very same revenue office. 120. In the teeth of such admission, filing a suit by the plaintiffs after the dismissal of the suit filed by the tenth defendant-K.G.Shankarappa, being brother of first plaintiff and uncle of second plaintiff is thus clearly barred by limitation. 121. Therefore, reasons assigned by the learned Trial Judge while answering additional issue that the suit is barred by limitation is thus just and proper, which requires no interference. 122. In view of the foregoing discussion, invariable conclusion that this Court can reach is to hold that the plaintiffs have failed to prove their title to the suit properties and accordingly, point Nos.1 to 5 are answered against the appellants/plaintiffs. 123. Hence, the following: ORDER (i) Appeal is meritless and is hereby dismissed. - 44 - HC-KAR NC: 2025:KHC:39663 RFA No. 1499 of 2003 (ii) No order as to costs. (iii) In view of dismissal of the appeal, all pending IAs are consigned to record. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 66