- 1 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1523 OF 2013 (DEC) BETWEEN: 1. B U KUTTAPPA S/O B.B. UTHAIAH, AGE: 48 YEARS, 2. B.U. RAMAIAH S/O B.B. UTHAIAH, AGE: 46 YEARS, BOTH ARE R/AT KOKERI VILLAGE, CHEYYANDANE POST, MADIKERI TALUK, KODAGU DISTRICT – 571212 …APPELLANTS (BY SRI. K. DHIRAJ KUMAR AND SRI SHRINIVAS RAO, ADVOCATES) AND: 1. B S APPACHA S/O LATE SOMAIAH, AGE: 72 YEARS, R/O NARIANDADA VILLAGE, CHEYYANDANE POST, MADIKERI TALUK, KODAGU DISTRICT –571 212 2. B.S.NANAIAH S/O LATE SOMAIAH, AGE :70 YEARS, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 R/O NARIANDADA VILLAGE, CHEYYANDANE POST, MADIKERI TALUK, KODAGU DISTRICT – 571212 3. B.A. RATHISH KUMAR S/O B.S. APPACHA AGE: 37 YEARS, R/O NARIANDADA VILLAGE, CHEYYANDANE POST, MADIKERI TALUK, KODAGU DISTRICT – 571212 4. B.S. KARIAPPA S/O LATE SOMAIAH, AGE: 65 YEARS, R/O KOKERI VILLAGE, CHEYYANDANE POST, MADIKERI TALUK, KODAGU DISTRICT – 571212 …RESPONDENTS (BY SRI. M S PRAKASH, ADVOCATE FOR R1 TO R3; R4 SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 18.6.2013 PASSED IN R.A.NO.54/2012 ON THE FILE OF DISTRICT JUDGE, MADIKERI, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD 20.4.2012 PASSED IN OS.NO.15/2006 ON THE FILE OF SENIOR CIVIL JUDGE, MADIKERI. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 18.06.2013 passed in R.A.No.54/2012 on the file of District Judge, Madikeri and the judgment and decree dated 20.04.2012 passed in O.S.No.15/2006 by the learned Senior Civil Judge, Madikeri. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for declaration of title, and possession of the property bearing No.65/4, measuring 3A in Kula No.38 situated at Kokeri Village, Napoklu Hobli, Madikeri Taluk. It is contended that - 4 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 one Sri. Biliyanda Belliappa was the father of the first plaintiff and grandfather of the other plaintiffs, was an Ex- serviceman and a freedom fighter, and by considering his service, the Government granted the suit schedule property, under a grant order dated 27.04.1934. He was in enjoyment and possession of the suit schedule property as an absolute owner. The said land was entered into Jamabandhi as per the mutation proceedings on 12.05.1934. Biliyanda Belliappa died in 1940, leaving behind his son B.B. Uthaiah i.e., Plaintiff No.1 and the father of the plaintiffs No.2 and 3. The suit schedule property was succeeded by the plaintiffs. 4. The defendants, claiming to belong to the different branch of Biliyanda Belliappa’s family interfered with the peaceful possession and enjoyment of the plaintiffs over the suit property by trying to trespass and dispossess the plaintiffs. The plaintiffs approached the Police, who directed them to approach the Civil Court. The plaintiffs got issued a legal notice on 20.04.2005, which - 5 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 was evasively replied by the defendants. The defendants, on 15.06.2005, taking undue advantage of the fact that the plaintiffs were out of town, trespassed and forcibly took possession of the suit schedule property. Thus, a cause of action arose for the plaintiffs to file a suit for declaration of title and possession. 5. Defendants No.1 and 2 filed a written statement and other defendants adopted the written statement. The defendants denied the averments made in the plaint and it is contended that the suit schedule property was sold by Changappa and Appachu, the children of Cheruvalanda Nanjappa to one Machaiah, under a registered sale deed dated 18.04.1949. Pursuant to the same, the said property was in possession and enjoyment of Machaiah S/o. Cheruvalanda, who subsequently sold to A.P. Andu and A.P.Hassan, under a registered sale deed dated 28.05.1955, who subsequently sold the same to the father of defendants No.1, 2, 4 and 5 and grandfather of defendant No.3 under a registered sale deed dated - 6 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 16.11.1964. Based on the aforesaid registered sale deed, the revenue records were transferred in the name of Somaiah. It is contended that plaintiffs are not in possession of the suit schedule property at any point of time. Hence, prays to dismiss the suit. 6. The Trial Court, based on the pleadings, framed the following issues: ISSUES 1. Whether the plaintiffs prove that they are the absolute owners of the suit schedule property? 2. Whether the plaintiffs prove that on 15.06.2005 the defendants have trespassed into suit schedule property took forcible possession of same? 3. Whether the defendants prove that alleged transfer of suit schedule property as averred in para 14, 15, 21 and 25 of written statement of defendant No.1 and 2? 4. Whether the suit is barred by law of limitation? 5. Whether the plaintiffs are entitled for reliefs as prayed for? 6. What order or decree? - 7 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 7. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW-1 and marked 9 documents as Ex.P.1 to Ex.P.9. In rebuttal, defendant No.3 was examined as DW-1 and marked 7 documents as Ex.D.1 to Ex.D.7. The trial Court, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered issue Nos.1, 2, 4 and 5 in the negative, issue No.3 in the affirmative and issue No.6 as per the final order. The suit of the plaintiffs was dismissed with costs vide judgment dated 20.04.2012. The plaintiffs No.2 and 3, aggrieved by the judgment and decree dated 20.04.2012 passed in O.S.No.15/2006 preferred an appeal in R.A.No.54/2012. 8. The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: POINTS 1. Have the plaintiffs established that the suit land was granted to Belliappa the - 8 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 father of the first plaintiff and grand father of the remaining plaintiffs? 2. Have they established that the suit property was in the possession of their grand father and subsequently in their possession till 15.06.2005 and they were dispossessed by the defendants on that day? 3. Are they entitled to the reliefs sought? 4. Whether interference is called for in the impugned judgment and decree of the trial Court? 9. The first appellate Court, after reassessing the verbal and documentary evidence, answered points No.1 to 4 in the negative. Consequently, dismissed the appeal with costs vide judgment dated 18.06.2013. Plaintiffs No.2 and 3, aggrieved by the impugned judgments, filed this Regular Second Appeal. 10. Heard the arguments of the learned counsel for plaintiffs No.2 and 3 and for the defendants. - 9 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 11. Learned counsel for the plaintiffs No.2 and 3 submits that the contents of Ex.P.2 would substantiate the fact that the grant of the suit schedule property was made in favour of Belliappa and a mutation was carried out in Column No.14. The Courts below have failed to properly appreciate the fact that the grant order was dated 27.04.1934 and extract of mutation register consisted the mutation carried out on 12.05.1934. The said document evidences the title of the 1st plaintiff’s father. He also submits that the Courts below have misdirected themselves in dismissing the suit of the plaintiffs. Hence, on these grounds, he prays to allow the appeal. 12. Per contra, learned counsel for the defendants supported the impugned judgments and prays to dismiss the suit. 13. This Court, admitted the appeal on 02.06.2016, to consider the following Substantial Questions of Law: - 10 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 1. Were the Courts below justified in dismissing the suit for declaration when both the Courts concurrently held that Exs.P1 and 2 evidences that as per the Land Grant Rules 95(A) and Rule 186(F) survey No.65/4 measuring 3 acres was granted by the Deputy Commissioner in favour of Beliyana Beliappa (Grant Father of plaintiffs)? 2. Were the Courts below justified in dismissing the suit of the plaintiffs ignoring the oral and documentary evidence of PW.1 and Exs.P1 to P9? Reg: Substantial Questions of Law 1 and 2: 14. Both the Substantial Questions of Law No.1 and 2 are interlinked and discussed together, to avoid the repetition of facts. 15. To substantiate their case, the plaintiffs have examined plaintiff No.2 as PW-1. He reiterated the plant averments in the examination-in-chief and produced the - 11 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 documents. Ex.P.1 is form No.2. Ex.P.2 is a copy of the mutation extract, Ex.P.3 is the Jamabandhi, Ex.P.4 to 7 are the Encumbrance Certificate, Ex.P.8 is a copy of the notice, Ex.P.9 is the reply. 16. From the perusal of the records produced by the plaintiffs, it is seen that the plaintiffs have not produced any records to establish the relationship between the parties with Belliappa. Though the plaintiffs are claiming to be the relatives of Belliappa, the burden is on the plaintiffs to establish that they are the relatives of Belliappa. In the absence of any records in that regard, the plaintiffs have failed to establish that Belliappa is the father of plaintiff No.1 and grandfather of other plaintiffs. During the cross-examination, PW-1 admitted that defendants No.1 to 5 and Somaiah are in possession of the suit schedule property, since 16.11.1964. Further, the plaintiffs have not filed the suit within 12 years from the date of the dispossession on 16.11.1964. Admittedly, the plaintiffs filed a suit in 2006. - 12 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 17. There is no dispute about the suit land was granted in favour of Belliappa as per Ex.P.1 and Ex.P.2, which is the mutation extract, wherein it discloses the name of Belliappa. Now the dispute involved in the instant case is whether the Belliappa is the father of plaintiff No.1 and grandfather of plaintiffs No.2 and 3. 18. As observed above, to prove that Belliappa is the relative the of plaintiffs, the trial Court has recorded a finding that plaintiffs have failed to prove the relationship of the plaintiffs with Belliappa and the plaintiffs, except producing Ex.P.1 and Ex.P.2, have not produced any records as to how they acquired the suit schedule property and the plaintiffs have failed to prove that the suit schedule property belongs to them and they are the absolute owners in possession of the suit schedule property. Further, the trial Court has also recorded its finding that the plaintiffs are not in possession of the suit schedule property. The first appellate Court, considering - 13 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 the material placed on record, held in paragraph No.26, which reads as follows: “26. Ex.P-7 is for the period 1-1-1964 to 31- 12-1971. In this document no encumbrance is mentioned. But at Ex.D-5 the defendants have produced an encumbrance certificate for the period 1-4-1935 to 30-3-1956. In that there is reference to the sale deeds dated 18-4-1949 and 28-10-1955 referred to in the written statement. In this background there may be some doubt about the sale deed Ex.D-7 dated 16-11-1964. But that is a registered sale deed. There is some presumption attached to it. That does make a reference to an earlier sale deed dated 28-10-1955 to which reference is available in the encumbrance certificate Ex.D- 5. In view of all these the case of the defendants appears to be more probable than the case of the plaintiffs. From the material available on record it is difficult to hold that the suit land was granted to Belliappa the father of the first plaintiff and the grandfather of the remaining plaintiffs. I therefore answer point No.1 in the ‘Negative’.” 19. As on the date of grant, the Karnataka Land Grant Rules were not in force. The Karnataka Land grant - 14 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 Rules came into force on 03.11.1969. Admittedly, the Land was granted in 1934. Hence, the question of granting the land under the Land Grants Rules do not arise. 20. Also, considering the admissions of PW-1, that he cannot say that till 15.06.2005 his grandfather and subsequently he and other plaintiffs were in possession of the property and on that day they were dispossessed by defendant No.1, both Courts below were justified in passing the impugned judgments. 21. In view of the above discussion, I answer the Substantial Questions of Law Nos.1 to 2 in the affirmative. 22. Accordingly, I proceed to pass the following: ORDER 1. The Regular Second Appeal is dismissed. 2. The Judgments and decrees passed by the Courts below are hereby confirmed. - 15 - HC-KAR NC: 2025:KHC:25475 RSA No. 1523 of 2013 3. No order as to the costs. 4. In view of the dismissal of the appeal, pending IA’s, if any, do not survive for consideration. Accordingly, they are disposed of. Sd/- (ASHOK S.KINAGI) JUDGE BVK List No.: 1 Sl No.: 8