- 1 - NC: 2025:KHC-D:5065 RSA No. 100481 of 2024 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100481 OF 2024 (DEC/INJ-) BETWEEN: SHRI SIDDESHWAR S/O. LAXMANRAO BENAKATTI, AGE: 71 YEARS, OCC: BSF SERVICE VOLUNTARY RETIRED, R/O. H.NO.33, SIDDAROD NILAY, FIRST FLOOR, LAXMI NAGAR, GOKUL ROAD, HUBBALLI-580031. …APPELLANT (BY SMT. SEEMA S. NAIK, ADVOCATE) AND: SHRI SUNIL S/O. LAXMANRAO BENAKATTI, SINCE DEAD BY HIS LR’S. 1. SMT. UMA W/O. SUNIL BENAKATTI, AGE: 64 YEARS, OCC: HOUSEHOLD WORK, R/O. YAMMIKERI, STATION ROAD, DIST: DHARWAD-580001. 2. KUMAR SACHIN S/O. SUNIL BENAKATTI, AGE: 22 YEARS, OCC: STUDENT, R/O. YAMMIKERI STATION ROAD, DIST: DHARWAD-580001. 3. KUMAR SAMRUDH S/O. SUNIL BENAKATTI, AGE: 17 YEARS, OCC: STUDENT, R/O. YAMMIKERI STATION ROAD, DIST: DHARWAD-580001. 4. SMT. SUJATA W/O. LATE ASHOK ALAGUNDI, BEFORE MARRIAGE SMT. SUNITA D/O. LAXMANRAO BENAKATTI, AGE: 48 YEARS, OCC: HOUSEHOLD WORK (WIDOW), R/O. H.NO.33, GROUND FLOOR, SIDDAROD NILAY, LAXMI NARAYAN NAGAR, GOKUL ROAD, HUBBALLI. …RESPONDENTS (BY SRI. PRAKASH K. JAWALKAR, ADVOCATE FOR C/R1 APPEARED THROUGH VC) Digitally signed by ASHPAK KASHIMSA MALAGALADINNI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH Date: 2025.03.22 15:55:18 +0530 - 2 - NC: 2025:KHC-D:5065 RSA No. 100481 of 2024 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 28.03.2024 PASSED IN THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HUBBALI IN R.A. NO.76/2018 AS WELL AS THE JUDGMENT AND DECREE DATED 28.06.2018 PASSED IN O.S.NO.902/2014 IN THE COURT OF II ADDITIONAL CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS-III, HUBBALI, AT HUBBALLI, IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT This Regular Second Appeal is filed by the defendant No.1, challenging the judgment and decree dated 28.03.2024 passed in RA No.76/2018 on the file of III Additional Senior Civil Judge and JMFC, Hubballi (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 28.06.2018 passed in OS No.902/2014 on the file of II Additional Civil Judge and JMFC-III, Hubballi (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiff. - 3 - NC: 2025:KHC-D:5065 RSA No. 100481 of 2024 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. The plaint averments are that, the plaintiff has purchased the suit schedule property as per registered sale deed dated 04.06.1993 from Malakasa S/o. Somanathsa Chatni for valuable consideration. It is also the case of the plaintiff that, the plaintiff has constructed residential building consisting of two floors in the suit schedule property after obtaining necessary license from HDMC by investing his own funds. It is the case of the plaintiff that, the plaintiff has permitted his brother - defendant No.1 to stay in the house to maintain the suit schedule property and based on the said permissive possession, defendant No.1 has forged the signature of the plaintiff and accordingly, revenue entries have been created in favour of the defendant No.1. Hence, the plaintiff has filed OS No.902/2014, seeking relief of declaration with consequential reliefs. - 4 - NC: 2025:KHC-D:5065 RSA No. 100481 of 2024 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendants that, the plaintiff is the brother of the defendants and as the defendant No.1 was working at Border Security Force and as such, the sale consideration was given by defendant No.1 to the plaintiff to purchase the suit schedule property as per the registered sale deed dated 04.06.1993 and therefore, sought for dismissal of the suit. 4.1. It is also the case of the defendant No.1 that, the defendant No.1 has paid consideration for purchase of suit schedule property as the plaintiff has no source of income and accordingly, sought for dismissal of the suit. 4.2. It is also stated that, the defendant No.1 has executed gift deed in favour of defendant No.2 on 23.09.2014 and therefore, sought for dismissal of the suit. 5. On the basis of the rival pleadings, the Trial Court has formulated issues for its consideration. - 5 - NC: 2025:KHC-D:5065 RSA No. 100481 of 2024 6. In order to establish their case, plaintiff has examined as PW1 and got marked 07 document as Exs.P1 to P7. On the other hand, defendant was examined as DW1 and produced 11 documents as Exs.D1 to D11. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 28.06.2018 decreed the suit and feeling aggrieved by the same, the defendant No.1 has preferred Regular Appeal in RA No.76/2018 on the file of First Appellate Court and the said appeal was resisted by the plaintiff. The First Appellate Court after re-appreciating the facts on record, by its judgment and decree dated 28.03.2024 dismissed the appeal and confirmed the judgment and decree passed by the Trial Court in OS No.902/2014. Being aggrieved by the same, the defendant No.1 has preferred this Regular Second Appeal. 8. I have heard Smt. Seema S. Naik, learned counsel appearing for the appellant and Sri. Prakash K. Javalkar, learned counsel appearing for the respondent- plaintiff. - 6 - NC: 2025:KHC-D:5065 RSA No. 100481 of 2024 9. The learned counsel appearing for the appellant submits that, both the Courts below have committed an error in not considering the relinquishment deed said to have been executed by the plaintiff in favour of the defendant No.1 and in furtherance of the same, mutation entries have been changed as per Ex.D.1 to D.8 and accordingly, sought for interference of this Court. It is the submission of the learned counsel appearing for the appellant that, the plaintiff has no source of income to purchase the suit schedule property and the defendant No.1 has invested earnings from his service as he was working at BSF and therefore, sought for interference of this Court. 10. Per Contra, the learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by both the Courts below. 11. In the light of the submission made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. Perusal of the finding recorded by the Courts below would - 7 - NC: 2025:KHC-D:5065 RSA No. 100481 of 2024 indicate that, the plaintiff has purchased the suit schedule property as per registered sale deed dated 04.06.1993 (Ex.P.2). It is also forthcoming from the impugned judgment and decree that, there was no encumbrance of the suit schedule property subsequent to the purchase of the suit schedule property by the plaintiff. Ex.P3 and P4- the mutation entries have been made pursuant to the execution of the registered sale deed. Though it is contended by the learned counsel appearing for the appellant that, the sale consideration was given by the defendant No.1 and if such being the case, under such circumstances there was no impediment for the defendant No.1 to purchase the suit schedule property in his name and therefore, the argument advanced by the learned counsel appearing for the appellant cannot be accepted. It is also to be noted that, the plaintiff has made available a copy of relinquishment deed as per document No.6 in the application in IA No.1/2024, seeking to file additional documents. However, the said document cannot be accepted at this stage as the said document was available - 8 - NC: 2025:KHC-D:5065 RSA No. 100481 of 2024 with the defendant No.1 at the time of evidence before the Trial Court itself and that apart, the said relinquishment deed is unregistered document and therefore in view of the judgment of the Hon'ble Supreme Court in the case of Yellapu Uma Maheswari and Another v. Buddha Jagadheeswararao and Others1, I am of the view that, there is no perversity in the judgment and decree passed by both the Courts below and accordingly, appeal fails. Since, the appellant has not made out grounds for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is dismissed at the stage of admission. 12. IA No.1/2024 is also dismissed, as the appellant has not made out a case for accepting the application. Sd/- (E.S.INDIRESH) JUDGE SMM/CT-MCK List No.: 1 Sl No.: 28 1 (2015) 16 SCC 787