- 1 - HC-KAR NC: 2025:KHC-D:7739 MSA No. 100006 of 2023 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR MISCELLANEOUS SECOND APPEAL NO. 100006 OF 2023 BETWEEN: 1. SRI. VENKATESH SINCE DECEASED BY HIS LRS., SMT. LAKSHMI W/O LATE VENKATESH, AGE ABOUT 52 YEARS, OCC: HOUSEHOLD, R/O: MOKA VILLAGE (OLD MOKA), NEAR YADURU BASVANNA TEMPLE, TQ: AND DIST: BALLARI-583 117. 2. GADEPPA @ GADILINGAPPA, AGE ABOUT 27 YEARS, OCC: AGRICULTURIST, R/O: MOKA VILLAGE (OLD MOKA), NEAR YADURU BASVANNA TEMPLE, TQ: AND DIST: BALLARI-583 117. 3. SUDHAKAR S/O LATE VENKATESH, AGE ABOUT 25 YEARS, OCC: AGRICULTURIST, R/O: MOKA VILLAGE (OLD MOKA), NEAR YADURU BASVANNA TEMPLE, TQ: AND DIST: BALLARI-583 117. 4. SARSWATHI D/O LATE VENKATESH, AGE ABOUT 23 YEARS, OCC: AGRICULTURIST, R/O: MOKA VILLAGE (OLD MOKA), R Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA DHARWAD BENCH - 2 - HC-KAR NC: 2025:KHC-D:7739 MSA No. 100006 of 2023 NEAR YADURU BASVANNA TEMPLE, TQ: AND DIST: BALLARI-583 117. … APPELLANT (BY SRI. S.G. KADADAKATTI, ADVOCATE) AND: 1. BARIKARA ERANNA S/O BARIKARA DODDA NAGAPPA, AGED ABOUT 41 YEARS, OCC: AGRICULTURIST, R/O: MOKA VILLAGE, TQ: AND DIST: BALLARI-583 117. 2. VEERESH S/O LATE SANNA MARI VEERAPPA, AGE ABOUT 55 YEARS, OCC: AGRICULTURIST, R/O: MOKA VILLAGE (OLD MOKA), NEAR YADURU BASVANNA TEMPLE, TQ: AND DIST: BALLARI-583 117. … RESPONDENTS (BY SRI. SHRINAND A. PACHHAPURE, ADVOCATE FOR R1; R2-HELD SUFFICIENT) THIS MSA IS FILED UNDER SECTION 43 OF CPC ACT, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 17-09-2022 PASSED IN R.A. NO.21/2019 ON THE FILE OF THE 1ST ADDITIONAL SENIOR CIVIL JUDGE, AT BALLARI BY SETTING ASIDE THE JUDGMENT AND DECREE DATED 11-12-2018 PASSED IN O.S. NO.780/2015 ON THE FILE OF THE IVTH ADDITIONAL CIVIL JUDGE AND J.M.F.C. AT BALLARI. THIS APPEAL, COMING ON FOR ADMISSION THIS DAY, JUDGMENT IS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC-D:7739 MSA No. 100006 of 2023 ORAL JUDGMENT (PER: THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR) This appeal is filed by defendants No.1(a to d) challenging the order dated 17.09.2022 passed in RA No.21/2019 by the 1st Addl. Senior Civil Judge, Ballari1 thereby, judgment and decree dated 11.12.2018 passed in OS No.780/2015 by the 4th Addl. Civil Judge & JMFC, Ballari2, is set-aside and the matter was remanded to the trial Court for fresh consideration. 2. The parties would be referred to as per their rankings before the trial Court for the sake of convenience and easy reference. 3. The plaintiff has filed suit for permanent injunction on the basis that the defendants are the owners of the suit schedule land and the defendants have offered the suit land for sale and accordingly, an unregistered agreement of sale was executed on 19.5.2002 for total sale consideration of Rs.45,000/-. Thereafter, the plaintiff has filed suit for permanent injunction. The trial Court has dismissed the suit on the reason that the original agreement of sale was not 1 Hereinafter referred to as ‘first appellate Court’ 2 Hereinafter referred to as ‘trial Court’ - 4 - HC-KAR NC: 2025:KHC-D:7739 MSA No. 100006 of 2023 produced and also the plaintiff has failed to prove the possession over the suit schedule land. Being aggrieved by it, the plaintiff has preferred an appeal in RA No.21/2019 before the first appellate Court. Before the first appellate Court, interlocutory applications were filed by both the plaintiff and defendants. The first appellate Court has observed that since the plaintiff wants to produce additional documents to lead evidence. Therefore, the first appellate Court has remanded the case to the trial Court for fresh consideration of the suit, which is under challenge in this second appeal. 4. Heard the arguments of both side and perused the records. 5. Fundamentally, the plaintiff has filed suit for permanent injunction based on the unregistered agreement of sale dated 19.5.2002. For the reasons best known to the plaintiff, the plaintiff has not filed suit for specific performance of the contract. The plaintiff’s claim fundamentally is on the agreement of sale dated 19.5.2002. Admittedly, the agreement of sale dated 19.5.2002 is an unregistered one, therefore, by virtue of unregistered agreement of sale, possession of the suit - 5 - HC-KAR NC: 2025:KHC-D:7739 MSA No. 100006 of 2023 schedule land could not be given effect to. Therefore, the plaintiff has failed to prove possession of the suit schedule land by virtue of the agreement of sale. To this extent, the trial Court is correct. But in the appeal, the first appellate Court has observed that the plaintiff deserves to be produced original agreement of sale and wants to lead the evidence. On the basis of this, the first appellate Court has remanded the suit to the trial Court for fresh consideration. In this regard, the first appellate Court has committed an error. When the plaintiff was supposed to make substantive relief of specific performance of contract, however, he has filed suit only for consequential relief of permanent injunction, making this consequential relief as the main relief. Admittedly, the plaintiff has not filed suit for specific performance of contract. Therefore, the first appellate Court has committed an error. The suit only for permanent injunction is not maintainable. Therefore, remanding the case for trial Court is not correct. Thus, the impugned order of the first appellate Court is liable to be set-aside. 6. In this regard, learned counsel for the appellant/defendants places reliance on the judgment of the Hon’ble Apex Court in the case of Balram Singh Vs. Kelo - 6 - HC-KAR NC: 2025:KHC-D:7739 MSA No. 100006 of 2023 Devi3. In a similar facts and circumstances involved in that case, the Hon’ble Apex Court has observed at paragraphs 5 & 6 as follows: “5. We have heard the learned counsel for the respective parties at length. At the outset, it is required to be noted that the original plaintiff instituted a suit praying for a decree of permanent injunction only, which was claimed on the basis of the agreement to sell dated 23.03.1996. However, it is required to be noted that the agreement to sell dated 23.03.1996 was an unregistered document/agreement to sell on ten rupees stamp paper. Therefore, as such, such an unregistered document/agreement to sell shall not be admissible in evidence. 6. Having conscious of the fact that the plaintiff might not succeed in getting the relief of specific performance of such agreement to sell as the same was unregistered, the plaintiff filed a suit simplicitor for permanent injunction only. It may be true that in a given case, an unregistered document can be used and/or considered for collateral purpose. However, at the same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a suit for substantive relief, namely, in the present case the relief for specific performance. Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis of such an unregistered document/agreement to sell, more particularly when the defendant specifically filed the counter-claim for getting back the possession which was allowed by the learned trial Court. The plaintiff cleverly prayed for a relief of permanent injunction only and did not seek for the substantive relief of specific performance of the agreement to sell as the agreement to sell was an unregistered document and therefore on such unregistered document/agreement to sell, no decree for specific 3 Civil Appeal No.6733/2022, dated 23.09.2022 - 7 - HC-KAR NC: 2025:KHC-D:7739 MSA No. 100006 of 2023 performance could have been passed. The plaintiff cannot get the relief by clever drafting.” 7. Therefore, the First Appellate Court has failed to consider the nature and scope of the suit filed, as it is only for permanent injunction. When the plaintiff is claiming his right through agreement of sale, that too which is unregistered one, only the suit for permanent injunction is not maintainable. The plaintiff has not sought for substantive relief of specific performance. Therefore, in this regard there is no purpose would be served in remanding the case to the trial Court. Therefore, the order passed by the First Appellate Court is liable to be set aside. 8. However the plaintiff is given liberty to file a suit based on the agreement of sale for substantive relief as per law before the competent Court of law. 9. Hence the appeal is liable to be allowed. Accordingly, I proceed to pass the following: ORDER i) The appeal is allowed. - 8 - HC-KAR NC: 2025:KHC-D:7739 MSA No. 100006 of 2023 ii) The order dated 17.09.2022, passed in R.A.No.21/2019, by the I Additional Senior Civil Judge, Ballari, is hereby set aside. iii) However, the plaintiff is given liberty to file suit on the basis of agreement of sale as per law before the competent Court of law for substantive relief, if so desired. iv) No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE JTR-para 1 to 6. MRK-para 7 to end. CT:BCK LIST NO.: 1 SL NO.: 24