- 1 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 257 OF 2013 (DEC/INJ) BETWEEN: SRI K T CHOWDAGOWDA, S/O LATE THIPPAGOWDA, SINCE DECEASED REPRESENTED BY HIS LEGAL HEIRS A1(a) HIRIYANNA K C, S/O LATE CHOWDAGOWDA, AGED ABOUT 56 YEARS, R/O NO.66, KABBALLI VILLAGE, HONNESARA - 577417, ANANDAPURA HOBLI, SAGAR TALUK, SHIMOGA DISTRICT. A1(b) VEDAVATHI K C, D/O LATE CHOWDAGOWDA, W/O LATE MAHESH, AGED ABOUT 47 YEARS, R/O NO.01, MATTIBHAVI (HAKKAREKOPPA VILLAGE), ULLURU POST - 577412, SAGAR TALUK, SHIMOGA DISTRICT, A1(c) KUMAR K C, S/O LATE CHOWDAGOWDA, AGED ABOUT 36 YEARS, R/O NO.66, KABBALI VILLAGE, HONNESARA - 577417, ANANDAPURA HOBLI, Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 SAGAR TALUK, SHIMOGA DISTRICT. (AMENDED AS PER COURT ORDER DATED 19.06.2024) …APPELLANTS (BY SRI S V PRAKASH, ADVOCATE) AND: 1. HUCHCHAGOWDA, SON OF KANNAGOWDA, AGED ABOUT 71 YEARS, AGRICULTURIST, R/O KABBALLI VILLAGE, SAGAR TALUK, SHIMOGA DISTRICT-577401. 2. THE TAHASILDAR, SAGAR TALUK, SAGAR-577401. 3. ASSISTANT DIRECTOR OF LAND RECORDS, SAGAR SUB DIVISION, SAGAR-577401 …RESPONDENTS (BY SRI B K MOHAN, ADVOCATE FOR R1, SRI MANJUNATH B, AGA FOR R2 AND R3) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 14.12.2012 PASSED IN R.A.NO.112/2003 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, SAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 14.8.2003 PASSED IN OS.NO.102/2002 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) SAGARA. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 3 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 ORAL JUDGMENT This second appeal is arising from divergent finding in a suit for declaration. 2. The plaintiff sought the following prayers: (i) It be declared that the plaintiff is the owner of the suit schedule property as per the registered partition deed dated 24.02.1968. (ii) It be declared that the entry in the property records in the name of defendant No.1 is erroneous and mandatory injunction is also sought. (iii) Correct the entries in the property records in consonance with the registered partition deed dated 24.02.1968. 3. Defendant No.1 is the son of the plaintiff's father's brother. Defendant No.2 is Tahsildar and defendant No.3 is the Assistant Director of Land Records. - 4 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 4. The defendants contested the suit. Defendant No.1 admitted the registered partition deed dated 24.02.1968 and also allotment of 4 acres 19 guntas in Sy.No.64/1B of Mavinapura Village, Anandapuram Hobli, Sagar Taluk to the plaintiff. 5. In paragraph No.6 of the written statement, defendant No.1 contended that he is in possession of 15 guntas of land in Survey No.64/1 since the date of partition and his possession is adverse to the interest of the plaintiff, as such he has acquired right over the property measuring 15 guntas by way of adverse possession. 6. It is also contended that the suit is time barred and hit by res judicata, as the plaintiff’s earlier suit in O.S.No.26/1988 was dismissed and the judgment and decree in the said suit are confirmed in R.A.No.92/1993. 7. The Trial Court after considering the evidence on record held that the plaintiff has established his claim over 4 acres 19 guntas of land in the suit property and granted the - 5 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 decree for declaration of title and also injunction to correct the entries in the property records. 8. Defendant No.1 filed an appeal before First Appellate Court. First Appellate Court in terms of the impugned judgment and decree, allowed the appeal and consequently dismissed the suit. 9. Aggrieved by the aforementioned judgment and decree, the present second appeal is filed. 10. This appeal was admitted on 03.09.2014 to consider the following substantial questions of law: “(i) Whether the First Appellate Court is justified in ignoring the prayer of the plaintiff that he be declared as the owner of the suit property? (ii) Whether the First Appellate Court is justified in treating the suit for only correction of revenue entries ignoring the first and fourth prayers made in the plaint? (iii) Whether the First Appellate Court is justified in presuming that defendant No.1 is in possession of the property to conclude that - 6 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 the plaintiff ought to have filed a suit for possession? (iv) Whether the First Appellate Court is justified in ignoring the partition deed dated 24.02.1968 while dismissing the suit for declaration and injunction, more particularly, when there is contrary evidence to show that the plaintiff has either lost title or has lost possession?” 11. The learned counsel appearing for the plaintiff/appellant raised the following contentions: 11.1 The registered partition deed dated 24.02.1968 is not in dispute and same is admitted in the pleading as well as in the evidence. As per the said partition of 24.02.1968, the suit property is allotted to the share of the plaintiff. This fact is also not in dispute. 11.2 Defendant No.1 raised the contention that he has perfected title of the property measuring 15 guntas in the suit survey number by way of adverse possession. The adverse possession plea is not established. - 7 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 11.3 The Trial Court has rightly held that the plaintiff is the owner of the property and the revenue entries are certified based on undisputed partition deed dated 24.02.1968. However, First Appellate Court proceeded on the erroneous ground to hold that the suit is not maintainable without notice under Section 80 of the Code of Civil Procedure, 1908 (for short 'Code'). Section 80 of the Code does not apply to the present case, as no relief is sought against the Government or the property of the Government. Though the direction is sought to correct the entries in the record of right, the said direction does not affect the interest of the Government, as the property in question is not the Government property. 12. Learned counsel would further contend that First Appellate Court also erred in holding that the existence of a road in the cross-examination of D.W.1 is admitted and erred in referring to the said statement relating to existence of a road/pathway said to be in the suit land to come to the conclusion that the plaintiff is not entitled to the relief of declaration of title and injunction. - 8 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 13. Defendant No.1 has not raised any defence relating to the alleged road in the suit property. There was no such issue relating to existence of alleged road and First Appellate Court could not have held that the admission on the part of the plaintiff relating to existence of a road/pathway in the said land comes in the way of granting a decree for declaration of title and injunction. 14. The learned counsel appearing for defendant No.1 raised the following contentions: 14.1 The suit is hit by principle of res judicata as the plaintiff has lost the earlier suit in O.S.No.26/1988, which was later confirmed in R.A. No.92/1993. 15. Defendant No.1 is in possession of 15 guntas of suit land since the partition and the plaintiff was never in possession of the said land and the plaintiff was aware of the possession of defendant No.1. Since the plaintiff has not chosen to file the suit for recovery of possession, the possession of defendant No.1 to the extent of 15 guntas of the said land is adverse and hostile to the interest of the - 9 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 plaintiff, as such the plaintiff has lost title of the property and defendant No.1 has acquired title over 15 guntas of land by adverse possession. 16. It is also urged that the suit is not in time. The plaintiff has not filed the appropriate suit within three years from the date of entry in the name of defendant No.1 in respect of the suit property. Thus, he would urge that First Appellate Court is justified in allowing the appeal and dismissing the suit. 17. The learned Government Advocate appearing for defendants No.2 and 3/respondents No.2 and 3 would urge that First Appellate Court is justified in allowing the appeal and dismissing the suit, as notice under Section 80 of Code is mandatory whenever the suit is filed against the Government or its officials. 18. It is also urged by the learned Government Advocate that the suit is defective as the State of Karnataka is not made a party and only the Tahsildar and ADLR are made parties. It is also urged that the suit is time barred as - 10 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 the plaintiff has not filed the suit for rectification of the records within three years from the date on which the records are wrongly entered in the property records. 19. This Court has considered the contentions raised at the Bar and perused the records. 20. The registered partition deed between the plaintiff and defendant No.1 on 24.02.1968 is not in dispute. That partition deed is marked at Ex.P.1. The property bearing Sy.No.64/1 measuring 4 acres 19 guntas is allotted to the share of the plaintiff. The property bearing Sy.No.64/1 measuring 2 acres 11 guntas is allotted to the share of defendant No.1. This allotment is not in dispute. 21. The question is whether the entries have been made pursuant to the registered partition in the property records. The property records stood in the name of the plaintiff and defendant No.1 reflecting the extent of property allotted in the partition deed dated 24.02.1968. However, later when the properties were surveyed, different extent is shown and name of the plaintiff is shown to the extent of 2 - 11 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 acres 23 guntas and the name of defendant No.1 is shown to the extent of 4 acres 7 guntas in the Pakka book from the year 1982 onwards. However, entries in the record of right reflected the extent as shown in the registered partition deed. 22. The plaintiff has filed an application to the Tahsildar to correct the entries. The Tahsildar has issued an endorsement in terms of Ex.P.2. The endorsement dated 16.06.1998 at Ex.P.14 would reveal that the Tahsildar has asked the plaintiff to seek appropriate relief from the competent Court. 23. It is also noticed that the endorsement is issued pursuant to the application dated 02.06.1998 filed by the plaintiff. It is also noticed that on 02.06.1998, the plaintiff had filed an application which is marked at Ex.P.12 for making necessary corrections in the property records. The suit is filed on 20.04.2002. 24. The record of rights marked at Ex.P.3 would reveal that from 1970-71 onwards, the name of the plaintiff - 12 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 was shown to the extent of 4 acres 19 guntas in Sy.No.64/1 and the name of defendant No.1 is shown to the extent of 2 acres 11 guntas. The name of the plaintiff K.T. Chowdagowda son of Thippagowda continued in the property records till 1999-2000, as could be seen from Ex.P.7. The plaintiff filed an application to correct the erroneous entry made in Ex.P.11, which is a Pakka book in Form No.5. 25. Though the learned counsel for respondent No.1 would submit that Civil Court has no jurisdiction to entertain a suit of this nature, this Court is of the view that the suit is essentially for declaration of plaintiff's title on account of erroneous entry found in Pakka book. This Court is of the view that such a suit is maintainable as the erroneous entry in the Pakka book affected the plaintiff's right over the suit property. Thus, contention that this Court has no jurisdiction cannot be accepted. 26. For the reasons recorded above, this Court is of the view that First Appellate Court erred in holding that the - 13 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 plaintiff has not sought appropriate declaration in time. It is relevant to notice that the entries in the record of right would reflect the name of the plaintiff in the property records to the extent of property allotted to his share in the family partition. The extent is reduced in the Pakka Book without notice to the plaintiff. Thus, the limitation commenced in the year 1989 when the Tahsildar declined to make necessary correction in the property records. 27. First Appellate Court also erred in holding that the suit is defective for want of notice under Section 80 of the Code. It is relevant to notice that the suit is filed to establish plaintiff's claim over the property allotted to his share and the suit is not filed in respect of the property of the State. Thus, the notice under Section 80 of the Code is not required. 28. Since the plaintiff's title is established over the suit property, the suit could not have been dismissed on the premise that the plaintiff has admitted the existence of a road which is not pleaded in the written statement filed by - 14 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 the defendant No.1. It is also relevant to notice that there is no issue relating to existence or otherwise of the alleged road. Hence, substantial questions of law are answered in favour of the plaintiff/appellants and against the respondents. 29. For the aforementioned reasons this Court has passed the following: ORDER i) The appeal is allowed. ii) The impugned judgment and decree dated 14.12.2012 in R.A. No.112/2003 passed by First Appellate Court are set-aside. iii) The suit of the plaintiff is decreed by restoring the judgment and decree dated 14.08.2003 in O.S. No.102/2002 on the file of Civil Judge, (Junior Division), Sagara. iv) The necessary entries shall be corrected in the Pakka book within two months from the - 15 - HC-KAR NC: 2025:KHC:32819 RSA No. 257 of 2013 date of receipt of the certified copy of this order. Sd/- (ANANT RAMANATH HEGDE) JUDGE MD/CHS List No.: 1 Sl No.: 15