- 1 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL No.1347 OF 2022(DEC/INJ) BETWEEN: 1. KHALEEL S/O LATE SABJAN SAB AGED ABOUT 64 YEARS R/O FLOWER MERCHANT TIPPU NAGARA CHIKKAMAGALURU TOWN PIN-577101 2. MUSHEER S/O LATE SABHAN SAB AGED ABOUT 53 YEARS R/O FLOWER MERCHANT TIPPU NAGARA CHIKKAMAGALURU TOWN PIN-577101 …APPELLANTS (BY SRI VINAYA KEERTHI FOR SMT.SHRUTHI.R.P, ADVOCATES) AND: 1. E SHIVAMURTHY S/O LATE ESHWARAPPA AGED 48 YEARS AGRICULTURIST R/O HULLURU VILLAGE CHITRADURGA TALUK-577501 2. E UMAPATHY S/O LATE ESHWARAPPA AGED ABOUT 64 YEARS Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 VEERABHADRA NILAYA NO.1380/1C, 9TH CROSS BHUVANESHWARI NAGARA BANGALORE-560 057 3. E HANUMANTHAPPA S/O LATE ESHWARAPPA AGED ABOUT 49 YEARS NO.182, VENKATESHWARA NILAYA CHIKKABIDAREKAL BUDDA JYOTHI LAYOUT BANGALORE-560073 4. ERAMMA W/O LATE BASAPPA AGED ABOUT 74 YEARS R/O HULLURU VILLAGE CHITRADURGA TALUK-577501 5. CHIGATERAPPA S/O LATE BASAPPA AGED ABOUT 49 YEARS R/O HULLURU VILLAGE CHITRADURGA TALUK-577501 6. NARAMMA W/O SHIVANNA (D/O LATE BASAPPA) AGED ABOUT 59 YEARS R/O GODABANAHAL VILLAGE CHITRADURGA TALUK-577501 7. PARAMMA W/O SHEKHARAIAH (D/O LATE BASAPPA) AGED ABOUT 57 YEARS R/O BHEEMASAMUDRA TALUK CHITRADURGA-577501 8. GIRIJAMMA W/O UMAPATHI - 3 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 D/IO LATE BASAPPA AGED ABOUT 54 YEARS R/O GANESHA GUDI ROAD HOLALKERE TOWN-577526 9. GAYATRAMMA W/O SHEKHARAPPA (D/O LATE BASAPPA) AGED ABOUT 37 YEARS GANESHA GUDI ROAD HOLALKERE TOWN-577526 10. GURUSHANTHAPPA S/O LATE NANJAPPA AGED 39 YEARS R/O HULLURU VILLAGE CHITRADURGA TALUK-577501 …RESPONDENTS (BY SRI B K MANJUNATH, ADVOCATE FOR R1; VIDE ORDER DATED 18.08.2025, NOTICE TO R2, R3, R7(A TO C) R8 AND R9 IS DISPENSED WITH; R4, R5, R6 AND R10 ARE SERVED AND UNREPRESENTED) THIS RSA IS FILED UNDER SECTION 100 OF CIVIL PROCEDURE CODE AGAINST THE JUDGMENT AND DECREE DATED 21.07.2022 PASSED IN RA.No.68/2018 ON THE FILE OF THE SPECIAL IIND ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHITRADURGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 13.07.2018 PASSED IN O.S.No.33/2013 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHITRADURGA. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA - 4 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 ORAL JUDGMENT Heard Sri Vinaya Keerthi, advocate for Smt.Shruthi R.P, learned counsel for the appellants, Sri B.K.Manjunath, learned counsel for the respondent no.1. 2. Defendant Nos.1 and 2 are the appellants in the present Regular Second Appeal challenging the validity of the judgment and decree passed in R.A.No.68/2018 dated 21.07.2022 on the file of the Spl. II Addl. District and Sessions Judge, Chitradurga, reversing the judgment and decree passed in O.S.No.33/2013 dated 13.07.2018 on the file of the II Addl. Senior Civil Judge and JMFC, Chitradurga, dismissing the suit of the plaintiff for the relief of declaration and injunction in respect of the following property, hereinafter referred to as ‘suit property’. “The areca nut garden land measuring 2 acres and 03 guntas in the Sy.No.81/1P1 of Hulluru village, Hireguntanur Hobli, in Chitradurga taluk and bounded by: East : Land of late Eshwarappa, West : Land of Hanumanthappa, North : Land of Rudrappa, South : Land of Chigaterappa”. - 5 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 3. Facts of the case in brief that are utmost necessary for disposal of the present appeal are as under: 3.1 Plaintiff filed a suit for declaration and permanent injunction in respect of the suit property by contending that he is the owner of the suit property in view of the fact that he got the property from common propositus viz., Chigaterappa who died about 5 to 6 decades earlier. 3.2 Said Chigaterappa had three sons viz., Hanumanthappa, Narappa and Nanjappa. Among them, Hanumanthappa had two sons viz., Basappa and Eshwarappa. Basappa died leaving behind his wife and children who are arraigned as defendant Nos.5 to 10 in the suit. 3.3 Eshwarappa also died on 12.02.2013 leaving behind his three sons viz., Umapathi, Hanumanthappa who are defendant Nos.3 and 4 in the suit and Shivamurthy who is the plaintiff. 3.4 Suit property bearing Sy.No.81/1 totally measuring 6 acres 25 guntas and initially belonged to one Reddera Bheempaa. Said Reddera Bheemappa and his children viz., Hanumanthappa and others sold the said land on 15.10.1923. - 6 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 Thereafter, Bheemappa, S/o Rudrappa and Kariyappa, S/o Mahalingappa were in possession of the suit property. After the death of Chigaterappa, his three sons became the owners of the suit property and they were enjoying the suit property jointly. 3.5 When the matter stood thus, second son of Chigaterappa viz., Narappa separated away from the family by taking his share in the suit property. By taking monetary consideration, Narappa relinquished his share in favour of Eshwarappa and Basappa. The said relinquishment deed is dated 06.01.1939. Thereafter, Basappa, Eshwarappa and Nanjappa were enjoying the suit property. 3.6 Since Narappa died issueless, Basappa, Eshwarappa and Nanjappa executed a mortgage deed in respect of the suit property on 04.01.1941 and 10.01.1959 to a co-operative Bank and obtained loan. The loan was also repaid and suit property measuring 6 acres 12 guntas remained with them. 3.7 When the matter stood thus, defendants, without there being any right, title or interest, only on the basis of the - 7 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 revenue entries started interfering with the suit property which necessitated the plaintiff to file the suit. 4. Pursuant to the suit summons, defendants entered appearance and denied the plaint averments in toto. 5. They contended that based on the revenue entries, property was mutated in their names and as such they are the owners of the suit property. 6. It is also pertinent to note that even though the defendants claimed that they are the owners of the suit property, there was no counter claim filed by the defendants. So also, no title deed is placed to establish their title to the suit property. 7. Thereafter, learned Trial Judge raised necessary issues and dismissed the suit of the plaintiff on contest after recording the evidence of the parties. 8. Being aggrieved by the same, plaintiff approached the First Appellate Court in R.A.No.68/2018. - 8 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 9. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and on re-appreciation of the material on the record, reversed the judgment of the Trial Court and decreed the suit of the plaintiff inter alia holding in paragraph Nos.25 to 28 as under: “25. Further in the written arguments it is contended that though the plaintiff has deposed that since from the time of ancestors he is paying kandayam, no document has been produced to prove the same. But it is pertinent to note that DW­1 himself has produced Ex.D3 to 11 which includes two patta books in the name of Chigaterappa and Gurushanthappa which are marked as Ex.D­8 and Ex.D9. Even the RTC in the names of Basappa, Eshwarappa and Nanjappa has been produced by the defendant which was marked as Ex.D­6. As regards Ex.D­3 to 11 as repeatedly stated above those documents clearly make out the title and possession of the plaintiff's ancestors over suit schedule property. Therefore, the said arguments also holds no water. 26. Therefore, from the above re­appreciation of the oral and documentary evidence by this first Appellate Court, it can be clearly opined that the plaintiff has proved his title and possession to the plaint schedule property and defendants have failed to prove that the property as described in the plaint schedule belonged to their predecessor in title that is Buddain Sab and that they are - 9 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 in possession of the same. Accordingly, I answer Point No.1 in the affirmative and Point No.2 in the Negative. 27. The appellant has produced receipt patta and RTCs pertaining to the plaint schedule property before this court along with an application under Order 41 Rule 27 of CPC. But as already stated above, the defendant himself has produced the copies of those documents which have been marked as Ex.D­3 to 11. Moreover, the appellant has not stated as to why he could not produce those documents before the trial court. Therefore, the appellant has failed to make out that the application filed by him under Order 41 Rule 27 of CPC deserves to be allowed. Accordingly, I answer Point No.3 in the Negative. 28. The trial court without appreciating the oral and documentary evidence in the light of the above settled preposition of law has dismissed the suit wrongly opining that the suit is based on alleged unregistered partition deed and that the plaintiff has not examined the adjacent land owners as argued by the counsel for defendant. Therefore, the judgment of the trial court requires interference. Accordingly, I answer Point No.4 in the affirmative.” 10. Being aggrieved by the same, defendants are before this Court in this appeal on the following grounds and substantial questions of law:  It is submitted that the case of plaintiff before the trial court that he is the owner in possession of the suit property - 10 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 and he acquired this property as per the registered partition deed dated:01.02.1999, it is further alleged that he is the owner of the suit property within the boundaries mentioned in the said partition, the plaintiff in order to prove the said fact except his evidence he not at all examined any independent witness, but the lower appellate court without considering these facts allowed the appeal and decreed the suit of the plaintiff is bad in law.  It is submitted that the plaintiff sought declaration of his title over the suit property alleging that his propositor one Chigaterappa was purchased the land bearing Sy No.81/1 measuring 6 Acres and 3 guntas from Kariyappa and others on 05.01.1924, it is pertinent to submit here that the plaintiff in order to prove said facts except producing the certified copy of the said registered sale deed, he not produced any revenue documents to show that his ancestor was purchased the land in Sy No.81/1, the lower appellate court not at all considered the said facts, as such same is bad in law.  It is submitted that the plaintiff has further alleged in the plaint that, in the family partition between Nanjappa, Basappa and Eshwarappa i.e. father of plaintiff land in Sy No.81/1 measuring 5 Acres and 5 guntas was fallen to the share of children of Hanumanthappa, the plaintiff not produced any relevant revenue documents to show about the partition, therefore it goes to show that the plaintiff withheld the documents and concealed the true facts, the plaintiff not approached the with clean hands, but the - 11 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 lower court appellate court not considered the said facts, as such same is bad in law.  It is submitted that the plaintiff claimed the ownership over the suit land on the basis of registered partition deed dated:01.02.1999 in the said registered partition deed the suit property was fallen to the share of plaintiff, it is pertinent to submit here that the plaintiff further alleged that children of Hanumanthappa was partitioned the land bearing Sy No.81/1 vide unregistered partition deed dated:20.05.1983, in the said partition the land measuring 2.23 was fallen to the share of his father, under these circumstances it goes to show that the claim of plaintiff is mainly based on un registered partition deed dated:20.05.1983, the plaintiff in order to prove said partition not produced neither the documentary evidence nor the oral evidence as such the findings recorded by the lower appellate court decreeing the suit of plaintiff is bad in law.  It is submitted that the lower appellate court has grossly erred in recording the finding that the plaintiff has proved the title over the suit property on the basis of registered partition deed dated:01.02.1999, it is pertinent to submit here that, the plaintiff not at all produced any relevant revenue records to show that after this partition deed his name is entered in the revenue records on the basis of said partition, therefore it goes to show that the plaintiff was not acted upon the said partition deed and revenue entries are not changed in his name, as such the findings recorded - 12 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 by the trial court without considering this admitted facts is bad in law.  It is submitted that the plaintiff suit is for declaration of title within the boundaries stated in the plaint, it is the bounden duty of the plaintiff to prove he is in possession of the suit property as on the date of filing of the suit and also the plaintiff ought to his ownership over the suit prove property, the revenue documents produced by the plaintiff itself goes to show that the suit property is standing in the name of defendant No.1 and 2, the trial court rightly came to conclusion on the basis of admission given by the plaintiff that the plaintiff failed to prove his ownership and possession over the suit property, but lower appellate court not considered the said admitted facts, as such same is bad in law.  It is submitted that the defendants No.1 and 2 filed the written statement contending that the land bearing Sy No.81/1 totally measuring 10 acres and 9 guntas belongs to their ancestor one Buden Sab S/o Hayath Sab, out of said total extent the legal heir of Buden Sab was sold 4 Acres and the remaining 13 guntas to Thippamma and Akkamma the remaining 6 Acres and 13 guntas was phoded as Sy No.81/1P1 measuring 5 Acres and 5 guntas and 81/1P2 measuring 1 Acre and 8 guntas, these properties are adjacent to each other and schedule to the said property is described as property written statement schedule property, the PW­1 in his cross­ examination unequivocally admitted that he is not in - 13 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 possession of the suit property within the boundaries stated in his plaint, but he claims that he is in possession within the written statement schedule property, under these circumstances it goes to show that the plaintiff failed to prove his possession over the suit property and the suit for declaration without seeking consequential relief of possession is not maintainable, as such the findings recorded by the lower appellate court is bad in law.  It is submitted that the lower appellate court framed the 5 points for consideration, the 1st point is whether the plaintiff has proved that he is the owner in possession of the plaint schedule property by virtue of registered partition deed dated:01.02.1999, the plaintiff in order to prove the partition and allotment of share within the boundaries mentioned in the said partition except his evidence, not at produced any relevant revenue records and tax paid receipts, the plaintiff admitted that he is not in possession of the suit property within boundaries mentioned in the said registered partition deed, therefore it goes to show that the plaintiff failed to prove his possession over the suit property, but the lower appellate court though there is a clear admission by the plaintiff regarding boundaries of the suit property decreed the suit is bad in law.  It is submitted that the lower appellate court without any sufficient reasons reversed the well­reasoned findings recorded by the trial court, the trial court on the basis of oral and documentary evidence produced by the plaintiff - 14 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 came to conclusion that the plaintiff failed to prove his title and possession over the suit property, as such the judgment and decree passed by the lower appellate court is liable to be set aside.  It is submitted that the PW­1 during his Cross examination admitted that he is not in possession of the suit property within the boundaries as stated in the plaint or in the registered partition deed dated:01.02.1999, but the lower appellate court without considering the said facts granted permanent injunction by restraining the defendants from interfering with the possession of the suit property, it is further submitted that the PW­1 admitted that the defendants are in possession of the written statement schedule property, as such the judgment and decree passed by the lower appellate court is bad in law. SUBSTANTIAL QUESTIONS OF LAW 1. Whether the lower appellate court is right in law in decreeing the suit of the plaintiff, though plaintiff failed to establish his title and possession over the suit property? 2. Whether the lower appellate court is right in law decreeing the suit of plaintiff, though the PW­1 unequivocally admitted that he is not in possession within the boundaries stated in the plaint schedule? 3. Whether the lower appellate court is right in law in considering the Ex.P­1,though the plaintiff failed to prove said document by adducing cogent evidence? - 15 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 4. Whether the lower appellate is justified in decreeing the suit of plaintiff, though the plaintiff not produced any relevant revenue documents? 5. Whether the lower appellate court is justified in reversing the findings recorded by the trial court without giving any proper findings? 6. Whether the lower appellate court is justified in placing the reliance on unregistered partition deed? 7. Whether the lower appellate court is justified in granting the permanent injunction, though the plaintiff failed to establish his possession over the suit property? 8. Whether the lower appellate court is right in law in decreeing the suit of the plaintiff, though the plaintiff suit for declaration without consequential relief of possession is not maintainable?” 11. Sri Vinaya Keerthi, learned counsel for the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that the learned Judge in the First Appellate Court misdirected itself in not properly appreciating the material evidence on record and wrongly decreed the suit of the plaintiff without assigning proper reasons, resulting in the impugned judgment being perverse in law. 12. Therefore, sought for admitting the appeal on the aforesaid substantial questions of law. - 16 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 13. Per contra, Sri B.K.Manjunath, learned counsel for the respondent No.1/ plaintiff contended that the claim of the defendants that they are the owners of the property could not have been considered by the learned Trial Judge in the absence of any counter claim. 14. Therefore, dismissal of the suit by the Trial Court is set right by the First Appellate Court after affording opportunity for the defendants to establish their case, if any, as against the title of the plaintiff and therefore, sought for dismissal of the appeal. 15. Having heard the learned counsel for the parties, this Court perused the material on record, meticulously. 16. On such perusal of the material on record, it is crystal clear that the claim of the plaintiff is not only based on the revenue entries, but also on the basis of the title which has been ignored by the learned Trial Judge in its judgment while dismissing the suit of the plaintiff. - 17 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 17. Defendants, no doubt, claimed contra title in them in respect of the suit property but without paying any court fee or counter claim, their claim ought not to have been considered by the learned Trial Judge as against the title of the plaintiff, more so, when suit is one for declaration and permanent injunction filed by the plaintiff. 18. Admittedly, revenue entries could not prevail over the title to the suit property. 19. It is settled principles of law and requires no emphasis that when both the parties are claiming the right, title and interest over a given property only on the basis of revenue entries, the oldest revenue entry will prevail over the subsequent revenue entry. 20. But in a case where one of the parties to a suit somebody is claiming right over the suit property on the basis of the title, revenue entries should yield for the title document and it cannot prevail over the right, title and interest based on a title deed. - 18 - HC-KAR NC: 2025:KHC:38460 RSA No. 1347 of 2022 21. The said nicety and subtle difference is ignored by the learned Trial Judge while dismissing the suit of the plaintiff which has been set right by the learned Judge in the First Appellate Court in the impugned judgment. 22. In view of the above discussion, this Court does not find any good ground to admit the appeal for further consideration. 23. Accordingly, the following: ORDER Appeal is meritless and is hereby dismissed. Sd/- (V SRISHANANDA) JUDGE kcm List No.: 1 Sl No.: 54