- 1 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 776 OF 2022 (PAR) BETWEEN: SHANKARABOVI S/O LATE RANGABOVI AGED ABOUT 54 YEARS R/AT VADDARAHATTI BUVANAHALLI DAKHALA VILLAGE NUGGEHALLI HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573131 …APPELLANT (BY SRI. HARSHA G, ADVOCATE FOR SMT. RADHA R., ADVOCATE) AND: 1. PUTTARAJA S/O LATE HANUMABOVI AGED ABOUT 30 YEARS, 2. SUSHEELAMMA W/O LATE MALLESHABOVI AGED ABOUT 34 YEARS, 3. JYOTHI D/O LATE MALLESHABOVI AGED ABOUT 16 YEARS, 4. SHIVASWAMY S/O LATE MALLESHABOVI AGED ABOUT 14 YEARS, Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 APPELLANTS 3 AND 4 ARE MINORS REP BY THEIR MOTHER 2ND RESPONDENT SUSHEELA W/O LATE MALLEHSABOVI ALL ARE R/O VADDARAHATTI BUVANAHALLI DAKHALE VILLAGE NUGGEHALLI HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 131 5. PUTTAMMA W/O LATE HANUMABOVI AGED ABOUT 57 YEARS R/AT VADDARAHATTI BUVANAHALLI DAKHALE VILLAGE NUGGEHALLI HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 131 …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 27.11.2021 PASSED IN RA.NO.108/2018 ON THE FILE OF THE ADDL. SENOR CIVIL JUDGE NAD JMFC, CHANNARAYAPATNA, HASSAN. AND IN TURN CONFIRM THE JUDGMENT AND DECREE DATED 30.08.2018 PASSED IN O.S.NO.141/2010 ON THE FILE OF THE IIND ADDITIONAL CIVIL JUDGE AND JMFC., DATED 30.08.2018. - 3 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.Harsha G., learned counsel appearing on behalf of Smt.Radha R., learned counsel for the appellant. 2. Defendant No.2 is the appellant challenging the judgment and decree passed by the First Appellate Court in RA No.108/2018 whereby the First Appellate Court reversed the judgment passed in O.S.No.141/2010 and decreed the suit of the plaintiffs as prayed for. 3. Facts which are utmost necessary for disposal of the present appeal are as under: 3.1. Plaintiffs’ claim that they are the children of one Hanumabovi who was the sixth son of Gajjimata Dasabovi (common prepositus). - 4 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 3.2. It is contended that Gajjimata Dasabovi died intestate and by virtue of the intestate succession, all the six children of Gajjimata Dasabovi, succeeded to the property in 1/6th share each. At the time of death of Gajjimata Dasabovi, Hanumabovi was married and plaintiffs were born. 3.3. When the matter stood thus, appellant being the stranger to the family, said to have entered into an agreement to sell with Hanumabovi in respect of share that has been succeeded by Hanumabovi in the properties left behind by Gajjimata Dasabovi. 3.4. Since the plaintiffs were also the sharers when the agreement to sell said to have been executed in favour of the appellant by Hanumabovi, without their consent, appellant having purchased the share of Hanumabovi in the property left behind by Gajjimata Dasabovi, plaintiffs laid a claim for partition and separate possession of their share and also sought a relief that the sale in favour of the - 5 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 appellant by Hanumabovi would not bind the shares of the plaintiffs. 3.5. Said suit after due contest, came to be dismissed by the Trial Court. 4. Plaintiffs filed an appeal before the First Appellate Court in RA No.108/2018. 5. Learned Judge in the First Appellate Court after noting that plaintiffs being the co-sharers, had the right in respect of the suit property and decreed the suit of the plaintiffs as prayed for by reversing the judgment and recorded a categorical finding that Hanumabovi did not possess absolute right in respect of the suit property to alienate the property in favour of the appellant who was defendant No.2 in the suit. - 6 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 6. Being aggrieved by the same, defendant No.2 is before this Court, in this second appeal on following grounds and raising following substantial questions of law: GROUNDS The first Appellate Court by relying the Judgement rendered in P.Gurunath case which is of the year 2011 though the single Judge order is of the year 2002. Presently the position of law as per the law laid down by the Apex Court in cases of Ningappa and Nekkarnti Rama Lakshmi case wherein it is held that the application for restoration has been filed beyond reasonable time, dismissed the petition filed by the grantees/ This aspect was not at all considered by the Trial Judge. The first appellate court failed to appreciate the material on record i.e the sale deed executed in favour of the defendant No.2, was in accordance with the compromise entered between the plaintiff's father and defendant No.2 in O.S. 457/2001. As the plaintiff father failed to comply with the terms of compromise the defendant No.2 obtained the sale deed through the court only. Furthermore the plaintiffs even though had complete knowledge about the compromise decree till date they had not - 7 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 challenged the compromise decree before any court of law. The agreement of sale dated 29.02.2001 in favour of this appellant was executed after the restriction period that is after 15 years. Further these plaintiffs had complete knowledge about the agreement of sale on that date itself in view of filing of the earlier suit for partition in O.S. No. 134/2002 which was later withdrawn with a liberty to file a comprehensive suit and the present suit is filed only in the year 2010 where in one of the prayer is for cancellation of the sale, thereafter at the fag end of the trial in the year 2014 they approached the Assistant Commissioner for cancelling the sale on the ground no prior permission was taken before sale as per the provisions of the section 4 and 5 of the PTCL Act. Thus from this it is clear there is unreasonable long delay in approaching the Assistant commissioner which was not properly considered by the Assistant commissioner, as well as the first appellate court. The plaintiffs for the first time choose to file an appeal before the Assistant commissioner in the year 2014 seeking the cancellation of the sale deed executed in respect of the suit schedule property. It is further submitted that the sale deed was executed in favour of the defendant No.2, by the court cannot - 8 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 be set aside by Assistant Commissioner. The Assistant Commissioner in a Biased manner without giving sufficient opportunity to this appellate without application of mind simply allowed the appeal there by set-aside the sale deed in favour of Defendant No.2/ the Appellate herein not even considering the decree passed by the Civil Court. The Assistant Commissioner completely failed to follow the judgment given by our the Hon'ble High court in various case that the sale has to be challenged within a reasonable period of time, but herein the plaintiff had challenged after a lapse of 11 years. The first appellate court did not consider the facts that the sale of property in favour of defendant No.2/ appellant herein was in accordance with compromise decree entered between the plaintiff and defendant No.2. The plaintiff in their cross examination had clearly admitted the knowledge in the year 2002itself about the sale, which was clearly quoted in Trial court Judgment. It is further submitted by the appellant that this appellant had also challenged the order passed in CRP/01/14-15 by the Assistant Commissioner Hassan Sub-Division, before the Deputy Commissioner Hassan which is still pending for the consideration. - 9 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 SUBSTANTIAL QUESTION OF LAW Whether the first appellate Court is right in setting aside the Judgment and decree of the Trial Court based on the decision rendered in 2002. 2011 which were later changed by the Apex Court and our Hon'ble High Court regarding the challenging the sale of granted land beyond the reasonable Period? 7. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the First Appellate Court committed a gross error in reversing the judgment of dismissal of the suit ignoring the fact that Hanumabovi had entered into an agreement to sell and pursuant to the said agreement to sell, through Court proceedings, sale deed had been executed in favour of the appellant. 8. Therefore, decreeing of the suit by the First Appellate Court has resulted in miscarriage of justice and sought for admitting the appeal on the aforesaid substantial question of law for further consideration. - 10 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 9. Having taken note of the grounds urged in the appeal memorandum and attendant facts and circumstances of the case, this Court perused the material on record meticulously. 10. On such perusal of the material on record, it is crystal clear that Hanumabovi succeeded to the property of Gajiimata Dasabovi as a head of the family. In other words, the share held by Hanumabovi was at the major partition when Gajiimata Dasabovi died intestate. 11. By then the plaintiffs were already born and therefore, the property held by Hanumabovi being the father of the plaintiffs, was for and on behalf of his branch. Therefore, Hanumabovi did not have absolute right to alienate the suit property in favour of the appellant herein. 12. At the most, Hanumabovi’s 1/4th share could only be the valid sale insofar as sale in favour of the appellant by Hanumabovi. 1/4th share each held by the - 11 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 plaintiffs could not have been subject matter of the agreement to sell. Therefore, even if the decree has been passed pursuant to the agreement to sell entered into by Hanumabovi, the said agreement and decree would not bind the rights of the plaintiffs in respect of the suit property. 13. However, the First Appellate Court committed an error in allotting the share to the wife of Hanumabovi who was defendant No.1 before the Trial Court. 14. Since it is the plaintiffs who were the sons of Hanumabovi and at the time of notional partition, Hanumabovi’s share is in turn to be shared by the plaintiffs and defendant No.1, defendant No.1 would only be entitled to 1/16th share in the suit property and each of the plaintiffs would be entitled to 1/4th + 1/16th share in the suit property. - 12 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 15. During the life time of Hanumabovi, he having sold his entire share in the suit property, the sale in favour of the appellant could only be to the extent to his 1/4th share to the suit property. 16. Therefore, the order of the First Appellate Court needs to be modified only to the extent of granting the share in favour of defendant No.1 – Puttamma who is the wife of Hanumabovi. 17. Accordingly, following: ORDER i. Appeal is allowed in part. ii. The order of the First Appellate Court is modified by directing that each of the plaintiffs are entitled for 1/4th share each in the suit property and the sale made by - 13 - HC-KAR NC: 2025:KHC:31628 RSA No. 776 of 2022 Hanumabovi in favour of the appellant is valid only to the extent of 1/4th share of the Hanumabovi in the suit property. iii. It is always open for the appellant to seek for equitable partition in the final decree proceedings. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 52