- 1 - HC-KAR NC: 2025:KHC:37793 RSA No. 1552 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1552 OF 2016 (SP) BETWEEN: 1. MITRAYINI SINCE DECEASED REP. BY LRS. APPELLANTS NO.2 TO 6 2. SMT. VINAYASHEELA S. W/O SOORYANARAYANA, AGED ABOUT 49 YEARS, 'SUSHIL', CHURCH ROAD, UJIRE VILLAGE, BELTHANGADY TLAUK, DAKSHINA KANNADA - 574240. 3. SRI. DEEPAK S. S/O LATE B. SANJEEVA SUVARNA AGED ABOUT 45 YEARS, DEEPAK GARAGE DARBE, PUTTUR. 4. SMT. SANDHYA S W/O VISHWANATHA P. AGED ABOUT 42 YEARS 'SHIVALI', PRAGATHINAGARA LAILA P.O. BELTHANNGADY TALUK DAKSHINA KANNADA -574214. 5. MR. SUHANDAS M. S/O MOHANDAS AGED ABOUT 28 YEARS, Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:37793 RSA No. 1552 of 2016 'SANJEEVINI' BEHIND ST.DOMINIC CHURCH ASHOKNAGAR MANGALURU - 575006. 6. MS. SUSHMITHA M. D/O MOHANDAS AGED ABOUT 24 YEARS, 'SANJEEVINI' BEHIND ST. DOMINIC CHURCH ASHOKNAGAR MANGALURU-575006. …APPELLANTS (BY SRI. SHRIHARI K., ADVOCATE) AND: 1. SRI. PRAKASH KUMAR BOLOOR AGED ABOUT 48 YEARS, S/O ALTE NARNAPPA KARKERA R/O DOOR NO.1-33-3000, LINGU HENGSU COMPOUND, ASHOKNAGARA MANGALURU-575006. …RESPONDENT (BY SRI. K SHASHIKANTH PRASAD, ADVOCATE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 19.07.2016 PASSED IN R.A.NO.45/2010 ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE, D.K., MANGALORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.12.2009 PASSED IN O.S. NO.216/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (SR.DVN.) AND C.J.M., MANGALORE. - 3 - HC-KAR NC: 2025:KHC:37793 RSA No. 1552 of 2016 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant Nos.1, 3, 4 and 5 and legal representatives of deceased defendant No.2, challenging the Judgment and Decree dated 19.07.2016 in R.A.No.45/2010, on the file of III Addl. District and Sessions Judge, D.K. Mangaluru, allowing the appeal and setting aside the Judgment and Decree dated 16.12.2009 in O.S.No.216/2002 on the file of Prl. Senior Civil Judge and C.J.M., Mangaluru, dismissing the suit of the plaintiff and allowing the counter claim of the defendants in part. 2. For the sake of convenience, parties are referred with reference to their rank before the Trial Court. 3. The plaintiff has filed suit seeking relief of specific performance of the agreement. It is further stated that the suit schedule property was originally belonging to one Smt. Lingu Hengsu on moolageni. The said Smt. Lingu Hengsu died - 4 - HC-KAR NC: 2025:KHC:37793 RSA No. 1552 of 2016 intestate leaving behind her children Smt.Bhavani, Smt.Radha and Sri. Sanjeeva Suvarna (husband of defendant No.1 and father of defendant Nos.2 to 5) as her legal heirs. It is also stated that the said Sri. Sanjeeva Suvarna was in actual possession of the suit schedule property and after the demise of said Sanjeeva Suvarna, the defendant Nos.1 to 5 being the legal representatives of deceased Sri. Sanjeeva Suvarna are in possession of the suit schedule property. 4. It is also stated that the original owner of the land in question Smt. Lingu Hengsu had filed application seeking occupancy rights in respect of the subject land and the Land Tribunal granted the schedule property in favour of Smt. Lingu Hengsu in LRT No.716/1975. It is also the grievance of the plaintiff that the defendants were intending to sell the suit schedule property and as such, discussion was held on 01.07.1999, wherein the defendants sought to sell the suit schedule property in favour of the plaintiff. The plaintiff had agreed to purchase the suit schedule property for a sum of Rs.2,40,000/- and the case of the plaintiff is based on the oral agreement between the plaintiff and the defendants. It is also stated in the plaint that defendants refused to execute the - 5 - HC-KAR NC: 2025:KHC:37793 RSA No. 1552 of 2016 registered Sale Deed despite having received portion of the sale consideration amount and accordingly, the plaintiff filed O.S.No.216/2002, seeking relief of specific performance of the contract. 5. After service of notice, defendants entered appearance, filed detailed written statements denying the averments made in the plaint. The Trial Court, based on the pleadings on record, has formulated issues for its consideration. In order to establish their case, the plaintiff himself got examined as P.W.1 and examined three more witnesses as P.W.2 to P.W.4 and got marked 14 documents as Exs.P1 to P14. The defendant No.4 was examined as D.W.1 and no documents were marked on behalf of the defendants. 6. The Trial Court, after considering the material on record, by its Judgment and Decree dated 16.12.2009, dismissed the suit and feeling aggrieved by the same, the plaintiff has filed R.A.No.45/2010 before the First Appellate Court. The said appeal was resisted by the defendants. The First Appellate Court, after re-appreciating the material on record, by Judgment and Decree dated 19.07.2016, allowed the appeal - 6 - HC-KAR NC: 2025:KHC:37793 RSA No. 1552 of 2016 and reversed the Judgment and Decree passed in O.S.No.216/2002. Feeling aggrieved by the same, the defendants have preferred this Regular Second Appeal. 7. This Court, vide order dated 16.09.2025, has formulated the following issue for its consideration: " Whether the First Appellate Court committed an error in allowing the appeal without considering the fact that the respondent No.2 therein was dead? " 8. I have heard Sri. K. Shrihari, learned counsel for the appellants and Sri. K. Shashikant Prasad, learned counsel for the respondent. 9. It is contended by Sri. K. Shrihari, learned counsel for the appellants, that respondent No.2 - Smt. Sujatha died on 02.11.2014 and therefore, the Judgment and Decree passed by the First Appellate Court is against a dead person and accordingly, learned counsel sought for remanding the matter to the First Appellate Court for fresh consideration. 10. Per contra, Sri. K. Shashikant Prasad, learned counsel for the respondent, sought to justify the impugned Judgment and Decree passed by the First Appellate Court. - 7 - HC-KAR NC: 2025:KHC:37793 RSA No. 1552 of 2016 11. Having taken note of the submissions made by the learned counsel appearing for the parties, the appellants herein have filed death certificate dated 02.11.2014 issued by the competent Authority which would establish that, respondent No.2 in R.A.No.45/2010 (Smt. Sujatha) died on 02.11.2014. In that view of the matter, taking into consideration the factual aspects on record, as the impugned Judgment and Decree passed by the First Appellate Court is against a dead person, and in view of the judgment of the Hon'ble Supreme Court in the case of KIRAN SINGH AND OTHERS Vs. CHAMAN PASWAN AND OTHERS, reported in AIR 1954 SC 340, I am of the view that, the matter requires re-consideration by the First Appellate Court, after hearing the legal representatives of deceased respondent No.2 therein, and all the parties concerned, in accordance with law. 12. In the result, the following: ORDER (i) The Regular Second Appeal is allowed. (ii) The Judgment and Decree dated 19.07.2016 in R.A.No.45/2010 on the file of III Addl. District and Sessions - 8 - HC-KAR NC: 2025:KHC:37793 RSA No. 1552 of 2016 Judge, D.K., Mangaluru is hereby set aside and the matter is remitted to the First Appellate Court for fresh consideration. (iii) In order to avoid further delay in the matter, parties are directed to appear before the First Appellate Court on 03.11.2025 at 11.00 a.m. SD/- (E.S.INDIRESH) JUDGE sac List No.: 1 Sl No.: 48