- 1 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1537 OF 2013 (INJ) BETWEEN: PUJARI ERAIAH S/O.BOMMAIAH, AGED ABOUT 51 YEARS, R/O. SANTHEMARURU VILLAGE, DODAMAGGE HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT. &APPELLANT (BY SRI. K ABHINAV ANAND, ADVOCATE) AND: 1. SRI DODDAPPA S/O BASAPPA SINCE DECEASED BY HIS LRS, SMT.NAINGAJAMMA, W/O.LATE SRI.BASAPPA, AGED ABOUT 81 YEARS 2. SRI ERAPPA S/O.LATE SRI.BASAPPA, AGED ABOUT 76 YEARS, 3. SRI NINGAPPA S/O.LATE SRI.BASAPPA, AGED ABOUT 71 YEARS, 4. SRI BASAPPA S/O.LATE SRI.BASAPPA, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 4(a) 4(b) 4(c) AGED ABOUT 68 YEARS, SINCE DECEASED REPRESENTED BY HIS LEGAL REPRESENTATIVES SMT. KUSUMA W/O LATE SRI. BASAPPA AGED ABOUT 58 YEARS SRI. BASAPPA S/O LATE SRI. BASAPPA AGED ABOUT 35 YEARS SRI. DHARMA S/O LATE SRI. BASAPPA AGED ABOUT 32 YEARS RESPONDENTS 4(a) TO 4(c) ARE RESIDENTS OF SANTHEMAROOR VILLAGE DODDAMAGGE HOBLI ARAKALGUD TALUK HASSAN DISTRICT. 5. SRI SANNAPPA S/O.LATE SRI.BASAPPA, AGED ABOUT 66 YEARS, RESPONDENTS 1 TO 3 AND 5 ARE RESIDENT OF SANTHEMAROOR VILLAGE, DODDAMMAGGE HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT. 6. SMT NINGAJAMMA W/O BASAVARAJA, AGED ABOUT 56 YEARS, - 3 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 R/O.KESAVATHOOR VILLAGE, KONANUR HOBLI, ARAKALGUD TALUK, HASSAN DISTRICT. &RESPONDENTS (BY SMT. VANITHA K R, AND SMT. HASEENA BEGUM, ADVOCATES FOR R1, R4(A TO C) AND R6 SRI. G.B. NANDISH GOWDA, ADVOCATE FOR R5 AND ALSO FOR PROPOSED R3(A TO E) R2-DEAD ISSUELESS SRI. KIRAN KUMAR, HCGP FOR GOVERNMENT) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 17.6.13 PASSED IN R.A.NO.18/2012 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, ARKALGUD, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 31.8.2000 PASSED IN OS.NO.72/1999 ON THE FILE OF CIVIL JUDGE (SR.DN.), ARKALGUD. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the concurrent findings recorded in R.A.No.18/2012 dated 17.06.2013 by the learned Senior Civil Judge, Arkalgud, and the judgment and decree dated 31.08.2000 passed in O.S.No.72/1999 on the file of Civil Judge (Jr.Dn.), Arkalgud. - 4 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellant was the defendant and the respondents were the legal representatives of the deceased plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for a perpetual injunction. It is the case of the plaintiff that suit schedule property, measuring 3 acres 29 guntas of agricultural land in Sy.No.68/2, situated at Shenavinakuppe village, Doddamagge hobli, Arkalagud Taluk. It is contended that the suit schedule property originally belonged to Sri. Eregowda S/o Dyavegowda. As he had not paid the land revenue, it was left fallow and by virtue of sale agreement dated 16.01.1965, the plaintiff was put in possession of the suit schedule property. The suit schedule property was granted to the defendant by the Tahsildar, Arkalgud on 29.01.1993 against which the plaintiff had preferred an appeal before the Deputy - 5 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 Commissioner, Hassan. The Deputy Commissioner through the order dated 15.12.1998 set aside the order of the Tahsildar dated 29.01.1993, and remitted the matter back to the land grant committee for re-enquiry and disposal. In the meanwhile, the defendant started interfering with the plaintiff9s peaceful possession and enjoyment over the suit schedule property. Hence, a cause of action arose for the plaintiff to file suit for permanent injunction. 3.1. Summons was duly served to the respondents. Despite service of summons, the defendant remained unrepresented and he was placed ex-parte. 3.2. The plaintiff to substantiate his case examined himself as PW.1 and marked 6 documents as Exs.P1 to P6. The trial Court, after recording the evidence, hearing on plaintiff side, framed the following points for determination. 1) Whether the plaintiff has settled possession over the suit property as on the date of the suit as alleged? - 6 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 2) Whether there is interference by the defendant? 3) What order or decree? 3.3. The trial Court, after assessing the verbal and documentary evidence answered point Nos.1 and 2 in the affirmative, point No.3 as per the final order. The suit of the plaintiff was decreed. Decree for a permanent injunction was granted, restraining the defendant from interfering with the plaintiff9s peaceful possession and enjoyment over the suit schedule property. In case, the land grant committee grants the suit property to the defendant, the plaintiff is entitled to continue the possession over the suit schedule property till he is evicted by the appropriate authority under the process of law. 3.4. The defendant, aggrieved by the judgment and decree passed in O.S.No.72/1999, preferred an appeal in R.A.No.18/2012. The first appellate Court, after hearing the learned counsel for the parties framed the following points for consideration. - 7 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 1) Whether the appellant/defendant proves that the judgment and decree of the trial Court is erroneous, perverse, opposed to law, facts and evidence on record and liable to be set aside? 2) What order? 3.5. The first Appellate Court, after reassessing the verbal and documentary evidence, answered point No.1 in the negative, and point No.2 as per the final order. The appeal was dismissed vide judgment dated 17.06.2013. 3.6. The defendant, aggrieved by the impugned judgments passed by the courts below, has filed this regular second appeal. 4. This Court, vide order dated 28.05.2019, admitted the appeal to consider the following substantial questions of law:- (i) Whether the revenue entries, particularly the mutation would be effected on the basis of the sale agreement? (ii) Whether the plaintiff can claim the benefit of Section 53-A of Transfer of Property Act - 8 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 against a person other than the executant of the sale agreement? 5. Heard the arguments of the learned counsel for the defendant and learned counsel for the legal representatives of the deceased plaintiff. 6. Learned counsel for the defendant submits that the summons was not served on the defendant. He submits that the plaintiff got decree behind the back of the defendant by suppressing the material facts. He is guilty of misrepresentation of facts. He submits that the Deputy Commissioner has set aside the order passed by the Tahsildar and remitted the matter to the land grant committee and the matter is still pending before the land grant committee. The plaintiff is not in possession and enjoyment of the suit schedule property. He submits that the defendant had no opportunity to counter the claim of the plaintiff. He submits that if the matter is remanded and reasonable time is granted to the defendant to file a - 9 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 written statement, no injustice would caused to the plaintiff. He also submits that the appellant filed interlocutory application for production of additional evidence to show that the defendant was in possession of the suit schedule property, and the said documents are relevant for the purpose of deciding the controversy. Hence, on these grounds, he prays to allow the appeal and also the interlocutory application for production of additional evidence. 7. Per contra, the learned counsel for the legal representatives of the plaintiff submits that Eregowda executed a sale agreement in favour of the plaintiff. By virtue of the part performance of contract, the possession of the suit schedule property was delivered to the plaintiff and he was in possession of the suit schedule property by virtue of the sale agreement. The name of the plaintiff was mutated in the revenue records. He submits that the Deputy Commissioner set aside the order passed by Tahsildar and remitted the matter back to the Land Grant - 10 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 Committee for re-enquiry. He submits that in view of the order passed by the Deputy Commissioner, and further, to provide an opportunity to the defendant, to file a written statement, the matter may be remitted back to the Trial Court. Hence, on these grounds, prays to dispose of the appeal accordingly. Reg: Substantial questions of law Nos.1 and 2. 8. Substantial questions of law Nos.1 and 2 are interlinked and taken for common discussion to avoid the repetition of facts. 9. The plaintiff claimed to be in possession of the suit schedule property based on the sale agreement executed by Eregowda, who delivered the possession of the suit schedule property in part performance of the contract. The name of the plaintiff was entered in the revenue records. The plaintiff to substantiate his case, examined himself as PW.1 and marked six documents as - 11 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 Exs.P1 to P6. Though the summon was served on the defendant, he remained ex-parte. 10. The Trial Court, based on the evidence led by the plaintiff, decreed the suit of the plaintiff. The First Appellate Court, after re-assessing the entire evidence on record, confirmed the judgment and decree passed by the Trial Court. 11. The plaintiff claims to be in possession of the suit schedule property based on the sale agreement and the defendant also claims to be in possession of the suit schedule property as it was granted in his favour on 29.01.1993 by the Tahsildar. The plaintiff has challenged the grant made in favour of the defendant before the Deputy Commissioner. The Deputy Commissioner allowed the appeal and set aside the grant made in favour of the defendant and remitted the matter to the land grant committee. - 12 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 12. The learned High Court Government Pleader has now filed a memo stating that the Deputy Commissioner has passed an order dated 15.12.1998 and it is noticed that subsequent to the remand of the case, there is no progress. The Tahsildar, Arakalgud has now taken steps to place the file before the land grant committee for regularization of unauthorized occupation. 13. The matter is pending before the land grant committee. Without taking note of the said fact, both the Courts below have proceeded to pass the impugned judgments and decrees. Further, the Trial Court has also not considered, whether the plaintiff has proved the requirement of Section 53A of the Transfer of Property Act. Without considering the said aspects and also the proposition laid down by the Co-ordinate bench of this Court in the case of Sri. Venkatesh and others vs. Sri. D.A.C. Venkoosa [ILR 2007 KAR 4623], the Trial Court has simply decreed the suit only on the ground that the defendant has not appeared before the Court. As the suit - 13 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 involves the right of immoveable property, in case, if the impugned judgments and decrees are not set aside, the defendant would be put to hardship. If the appeal is allowed and the matter is remitted back, the defendant would get an opportunity to counter the case of the plaintiff. Thus in view of the above discussion, without expressing any opinion on the merits of the case, the matter requires fresh consideration by the Trial Court. 14. The defendant filed an application (I.A.No.5/2014) for production of the additional documents. In support of the application, the defendant filed an affidavit stating that the plaintiff has filed the suit against the defendant and obtained decree from the Trial Court and the defendant preferred an appeal against the judgment and decree passed by the Trial Court. It is stated that RTCs, which the defendant has produced are for the years 1996-97 to 1998-99 issued by the revenue authorities in the name of the defendant regarding the suit land. The original plaintiff has managed to produce RTCs - 14 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 for same years in his name as per Exs.P2 to 5 and it is contended that the suit schedule land was under unauthorized cultivation for more than 12 years and the defendant filed Form No.50 seeking regularization of unauthorized cultivation and he paid T.T. to the Government in respect of the unauthorized cultivation of the suit land and the Tahsildar had verified his cultivation of the suit land through spot inspection before coming to the conclusion that he is entitled for regularization. The Deputy Commissioner set aside the order of regularization granted by the Tahsildar on 29.01.1993 through an order dated 15.12.1998 and remitted the matter to the land grant committee for fresh enquiry. It is stated that the defendant is not dispossessed of the land in question from the revenue departments till now and he is cultivating the suit land. It is contended that he is illiterate and ignorant and he could not produce the documents before the Trial Court. - 15 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 15. Admittedly, the Tahsildar regularized the occupation of the defendant vide order dated 29.01.1993. The order of regularization passed by the Tahsildar was challenged before the Deputy Commissioner. The Deputy Commissioner set aside the order of regularization granted by the Tahsildar vide order dated 15.12.1998 and remitted the matter to the land grant committee for fresh enquiry. After remand, the land grant committee did not take up the matter for fresh enquiry. Now the learned High Court Government Pleader submits that the committee has taken steps to consider the application of the defendant for regularization of his unauthorized occupation of the suit land. Since the matter is pending before the land grant committee, this Court is of the opinion that the matter requires re-consideration by the Trial Court. In view of the above discussion, the substantial questions of law Nos.1 and 2 do not arise for consideration. Hence, I answer accordingly. - 16 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 16. In view of the above discussion, I pass the following ORDER (i) The appeal is allowed. (ii) The judgment and decree dated 17.06.2013 passed by the Senior Civil Judge, Arakalgud in R.A.No.18/2012 and the judgment and decree dated 31.08.2000 passed by the Civil Judge (Jr. Dvn.), Arakalgud in O.S.No.72/1999 are set aside. (iii) The suit in O.S.No.72/1999 is restored to its original file. (iv) The defendant is permitted to file a written statement within one month from the date of appearance before the Trial Court. (v) The Trial Court is directed to dispose of the suit in accordance with law. (vi) The parties are directed to appear before the Trial Court on 15.09.2025 without awaiting any notice. - 17 - HC-KAR NC: 2025:KHC:28001 RSA No. 1537 of 2013 (vii) It is made clear that this Court has not made any adjudication on merits in issue. (viii) All the contentions of the parties are kept open. (ix) In view of disposal of the appeal, I.A.No.4/2014 does not survive for consideration and the same stands disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE SKS/PMR List No.: 1 Sl No.: 5