- 1 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 841 OF 2013 (INJ) BETWEEN: 1. SMT MAHADEVAMMA W/O CHANDRAPPA AGED ABOUT 45 YEARS R/AT NO.692, JANGER NO.639 HALANAHALLI MYSORE - 570 005 …APPELLANT (BY SRI. ANANDA K., ADVOCATE) AND: 1. SRI MAHADEVAPPA DEAD BY LRS SMT SHIVAMMA W/O LATE MAHADVAPPA MAJOR Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 2. SRI DODDAMANJU @ MANJUNATHA S/O LATE MAHADEVAPPA MAJOR 3. SRI CHIKKAMANJU @ MANJESH S/O LATE MAHADEVAPPA MAJOR 4. SMT MANJULA D/O LATE MAHADEVAPPA MAJOR ALL ARE RESIDING AT HANCHAYA VILLAGE MYSORE TALUK MYSORE DISTRICT - 570 005 …RESPONDENTS (BY SRI. ABHINAV RAMANAND A., ADVOCATE FOR R1 TO R4) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 16.2.2013 PASSED IN R.A.NO.675/2009 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-I, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 2.12.2004 PASSED IN OS.NO.582/1998 ON THE FILE OF V ADDITIONAL I CIVIL JUDGE (JR.DN.), MYSORE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI - 3 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 ORAL JUDGMENT 1. This appeal is filed by the appellant challenging the judgment and decree dated 16.02.2013 passed in R.A. No.675 of 2009 by the Fast Track Court-I, Mysore. 2. For convenience, the parties are referred to based on their ranking before the Trial Court: the appellant was the plaintiff and the respondents were the legal heirs of the deceased defendant. 3. Brief facts leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit against the original defendant for permanent injunction restraining the original defendant from interfering with the peaceful possession and enjoyment of the suit scheduled property. 5. It is the case of the plaintiff that the original defendant was the owner of the land bearing Survey - 4 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 No.3 i.e., the suit property which was his self- acquired property. The said land came under Urban Land (Ceiling and Regulation) Act, 1976. The defendant executed an unregistered sale deed dated 12.04.1982 in favour of the plaintiff for total consideration of ₹2,000/- and the plaintiff was put in possession of the suit schedule property. It is contented that the sale deed could not be registered because of the provisions of the Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. The plaintiff has constructed a building on the suit schedule property. The original defendant is trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff requested the defendant not to interfere with the peaceful possession and enjoyment over the suit schedule property. The defendants did not give any heed to the request made by the plaintiff. Hence, a cause of - 5 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 action arose for the plaintiff to file a suit for permanent injunction. 6. The original defendant and defendant (b)-the legal representative of the deceased original defendant filed a written statement and an additional written statement, denying the execution of the unregistered sale deed in favour of the plaintiff and it is contented that the plaintiff trespassed into the suit schedule property and constructed a building without obtaining necessary permission from the competent authority. It is contended that the suit filed by the plaintiff, without seeking a comprehensive relief, is not maintainable. Hence, pray to dismiss the suit. 7. The Trial Court, based on the pleadings of the parties, framed the following issues: 1) Whether the plaintiffs proves that he is in lawful possession of the suit schedule property as on the date of the suit? - 6 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 2) Whether the plaintiffs proves the obstruction caused by the defendant as alleged in the plaint? 3) Whether the plaintiff is entitled for the relief of perpetual injunction as prayed in the plaint? 4) What order or decree? Additional Issues: 1) Whether the LRs (a,b,c,d) of the deceased defendant proves that deceased defendant has not executed any sale deed in favour of the plaintiff and whether the properties in question is the ancestral property? 2) Whether the LRs (a,b,c,d) of the deceased defendant proves that the sale deed alleged to have been executed by the deceased defendant is not binding on these LRs of the deceased defendant? 8. The plaintiff, to substantiate his case, examined himself as PW-1, examined two witnesses as PW-2 - 7 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 and PW-3; and marked seven documents as Exhibits P1 to P7. 9. In rebuttal, the defendants examined defendant (c), the son of the deceased original defendant as DW-1 and marked four documents as Exhibits D-1 to D-4. The Court commissioner was examined as CW-1, and he got marked nine documents as Exhibits C1 to C9. 10. During the pendency of the suit, the original defendant died and his legal representatives were brought on record. 11. The Trial Court, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence answered issue Nos.1 to 3 in the affirmative; additional issue Nos.1 and 2 in the negative, and issue No.4 as per the final order, and consequently, decreed the suit of the plaintiff and restrained the defendant from interfering with the plaintiff’s peaceful possession and enjoyment of the - 8 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 suit schedule property by way of permanent injunction. 12. The legal representatives of the deceased defendant, aggrieved by the judgment and decree dated 02.12.2004 passed in O.S. No.582 of 1998, preferred an appeal in R.A. No.675 of 2009 on the file of the Fast Track Court-I, Mysore. 13. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1. Whether the suit as brought is maintainable? 2. Whether the plaintiff establishes that she was in lawful possession of the suit schedule given in the plaint? 3. Whether the trial Court erred in holding that the plaintiff is entitled for permanent injunction as prayed for? - 9 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 4. Whether the judgment and decree of trial Court calls for interfere by this Court? 5. What order? 14. The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 and 2 in the negative; point Nos.3 and 4 in the affirmative and point No.5, as per the final order, and the appeal was allowed; the judgment and decree passed in O.S. No.582 of 1998 was set aside and consequently, the suit of the plaintiff was dismissed. 15. The plaintiff, aggrieved by the judgment and decree passed in R.A. No.675 of 2009, filed this Regular Second Appeal. 16. Heard the arguments of the learned counsel for the plaintiff and the legal representatives of the deceased defendant. - 10 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 17. Learned counsel for the plaintiff submits that the defendants had admitted the possession of the plaintiff over the suit schedule property and that the plaintiff had constructed a building over the suit schedule property. The plaintiff is in settled possession. He also submits that during the pendency of the suit, a Court Commissioner was appointed by the Trial Court and the Court Commissioner has submitted a Report stating that the plaintiff is in possession to the extent of feet in north-south direction. He submits that the First Appellate Court did not consider the Commissioner's Report, admission of the defendants in the written statement as well as the admission of DW-1 regarding the possession of the plaintiff over the suit schedule property. 18. He submits that the First Appellate Court committed an error in reversing the judgment and decree - 11 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 passed by the Trial Court. He submits that the judgment and decree passed by the First Appellate Court is arbitrary, erroneous and contrary to the records. Accordingly, prays to allow the appeal. 19. Per contra, the learned counsel for the legal representatives of the deceased defendant submits that the original defendant never executed an unregistered sale deed as alleged by the plaintiff. He submits that the said document is an unregistered document and that if the right in an immovable property worth more than Rs.100/- is to be transferred, it is by way of a registered instrument only, as per Section 17 of the Registration Act, 1908. The said unregistered sale deed is inadmissible in evidence. 20. He submits that the defendants have filed the objections to the Commissioner's Report and he submits that the Commissioner was also examined. - 12 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 The First Appellate Court has rightly reversed the judgment and decree passed by the Trial Court. He submits that the judgment and decree passed by the First Appellate Court is just and proper and do not call for any interference at the hands of this Court. Hence, on these grounds he prays to dismiss the appeal. 21. This Court, vide order dated 09.09.2022 admitted the appeal to consider the following substantial questions of law: 1. Whether the First Appellate Court is justified in dismissing the suit of the plaintiff by observing that the measurement shown in the disputed sale deed is 40*83.6 feet and that even according to the Commissioner's report, the plaintiff has not amended or restricted her claim as shown in the commissioner's report? - 13 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 2. Whether the First appellate Court was justified in ignoring the admission of the defendants with regard to the possession of the schedule property by the plaintiff ? Reg. Substantial Question of Law Nos.1 and 2 : 22. Substantial questions of Law Nos.1 and 2 are interlinked and hence, are taken together for common discussion, to avoid the repetition of facts. 23. The plaintiff filed a suit for permanent injunction against the original defendant, contending that the defendant executed an unregistered sale deed dated 12.04.1982 for a consideration of ₹2,000/- and accordingly, the plaintiff paid the consideration amount of ₹2,000/-. The plaintiff could not get the sale deed registered on account of the enforcement of Karnataka Prevention of Fragmentation and Consolidation of Holdings Act, 1966. The original defendant put the plaintiff in possession of the suit schedule property. After purchasing the suit schedule - 14 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 property, the plaintiff constructed a building and the said building is used for the residential and commercial purposes. It is the contention of the plaintiff that the original defendant tried to interfere with the plaintiff’s peaceful possession of the suit schedule property. Hence, a cause of action arose for the plaintiff to file a suit. 24. The plaintiff, to substantiate his case, produced the documents: Exhibit P-1 is the unregistered sale deed, which discloses that the original defendant is alleged to have executed a sale deed in favour of the plaintiff in respect of the suit schedule property for consideration of Rs.2,000/-; Exhibit P-2 is the Revenue (Kandaaya) Receipt; Exhibit P-3 is the Demand Register Extract; Exhibits P-4, P-6 and P-7 are the photographs; Exhibit P-5 is the Patta book. 25. During the cross-examination, it was suggested to PW-1, that PW-1 is in possession of a portion of the - 15 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 suit schedule property. The plaintiff to prove his possession, examined two witnesses as PW-2 and PW-3, who have deposed that the plaintiff is in peaceful possession and enjoyment of the suit schedule property. 26. In rebuttal, the son of original defendant was examined as DW-1. He has deposed that the plaintiff is in possession of the suit property to the extent of 26.9' towards east-west, 32.3' towards south; 26.2' towards north to south; and 10' towards west. 27. DW-1 has admitted the possession of the plaintiff in the examination-in-chief itself. The First Appellate Court, without considering the admission of DW-1 regarding the possession of the plaintiff over the suit schedule property, committed an error in dismissing the suit of the plaintiff. 28. Though the plaintiff has produced the unregistered sale deed, marked Exhibit P-1, which discloses that - 16 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 the defendant has sold the suit schedule property, measuring 40' towards east to west and towards South to North, 23' towards east and 53' towards west, as per the schedule in the sale deed, whereas the Commissioner has submitted a Report vide Exhibit C-8, that the plaintiff is in possession to the suit property to the following extent: " The property has been identified and a sketch is enclosed herewith showing all the measurements. According to this, RCC building measures 26'6" on eastern side 10'0" on western side, 26'9" + 2'6" (stairs) on Northern side, 32'0" on Southern side. The subject property is bounded by private property on the Eastern side, village road on western side, village road on North and South side by Zinc Sheet roofed building. According to the schedule furnished in the commission warrant, the property measures 40' East-West and 23' North- South. The actual measurement does - 17 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 not tally with the measurement furnished in the schedule of the commission warrant. The existing structure is shown in the drawing." (emphasis supplied) 29. Further, DW-1 has admitted regarding the possession of the plaintiff over the suit schedule property. As per Section 58 of the Evidence Act, the facts admitted need not be proved. 30. Though there is a discrepancy regarding the measurement of the property in the sale deed, in the Commissioner's Report and the plaint schedule, however, in view of the admission of DW-1 in the examination-in-chief as well as in the written statement, the First Appellate Court could have dismissed the appeal. On the contrary, it has allowed the appeal and set aside the judgment and decree passed by the Trial Court. - 18 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 31. The First Appellate Court did not properly re- appreciate the entire evidence on record. As such, the judgment and decree passed by the First Appellate Court is perverse and arbitrary, and the same is liable to be set aside. 32. In view of the above discussion, I answer substantial questions Nos.1 and 2 in the negative. 33. In the result, I proceed to pass the following order: ORDER (I) The Regular Second Appeal is allowed; (II) The judgment and decree in R.A. No.675 of 2009 dated 16.02.2013 passed by the Fast Track Court-I, Mysore, is hereby set aside; (III) The judgment and decree dated 02.12.2004 passed in O.S. No.582 of 1998 by the V Addl.Civil Judge (Jr.Dn.), Mysore, is restored. - 19 - HC-KAR NC: 2025:KHC:43605 RSA No. 841 of 2013 (IV) No order as to the costs. (V) The pending interlocutory applications, if any, stand disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE RK CT:KHV List No.: 2 Sl No.: 6