- 1 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 400 OF 2008 (DEC) BETWEEN: SRI DEVAIAH, S/O. BEERA NAIKA, AGED ABOUT 65 YEARS, R/AT SINDUVALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK AND DISTRICT - 571311. …APPELLANT (BY SRI B S NAGARAJ, ADVOCATE) AND: 1. SRI T RANGAIAH, S/O. B THIMMA NAIKA, AGED ABOUT 57 YEARS, R/O. SINNDHUVALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK AND DISTRICT - 571311. 2. SRI MADA NAIKA, S/O BETTADADEVAMMANA MADA NAIKA, AGED ABOUT 63 YEARS, R/O. SINDHUVALLI VILLAGE, JAYAPURA HOBLI, MYSORE TALUK AND DISTRICT - 571311. 3. JAVARA NAIKA, S/O KUNDAMMANA JAVARANAIKA, DEAD BY HIS LRS 3(a) SMT SANNAMMA, W/O LATE JAVARANAIKA,AGED ABOUT 63 YEARS, Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 3(b) SRI DEVARAJU, S/O LATE JAVARAJANAIKA, AGED ABOUT 36 YEARS, BOTH ARE RESIDING AT BENKIPURA VILLAGE, ASWALU POST, BILIKERE HOBLI, HUNSURU TALUK, MYSURU DISTRICT - 571189. 3(c) SMT MAHADEVAMMA, W/O NAGANAIKA, D/O LATE JAVARAJANAIKA, AGED ABOUT 35 YEARS, R/AT KUGLUR VILLAGE,NANJANGUDU TALUK, MYSURU DISTRICT - 571118. 3(d) SRI MAHESHA NAYAKA, S/O LATE JAVARAJANAIKA, AGED ABOUT 44 YEARS, R/AT NO.713, NAYAKARA BEEDI, HINKAL, MYSURU - 570017. 3(e) SRI RAVI, S/O LATE JAVARAJANAIKA, AGED ABOUT 43 YEARS, R/AT NO.293 CHAWDI BEEDI, SINDHUVALLI, MYSURU - 571311. 3(f) SMT JAYAMMA, D/O LATE JAVARAJANAIKA, R/AT NO.110, BELAWADI, CHAMUNDESHWARI NAGAR, MYSURU - 570011. (CAUSE TITLE AMENDED AS PER COURT ORDER DATED 28.05.2024) …RESPONDENTS (BY SRI A MADHUSUDHANA RAO, ADVOCATE FOR R1, R2 IS SERVED, SRI SAMPATH KUMAR A.V, ADVOCATE FOR PROPOSED LRS OF R3 AS R3(A-E)) THIS RSA FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DT.3.8.2002 PASSED IN - 3 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 R.A.NO.245/95 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN), MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DE0CREE DT.11.8.1995 PASSED IN O.S.NO.262/88 ON THE FILE OF THE II MUNSIFF, MYSORE. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is arising from the divergent finding in a suit for declaration and injunction which was later converted into a suit for declaration and possession, on amendment. 2. The suit is filed by son and father viz., plaintiffs No.1 and 2. Plaintiff No.2 died during the pendency of the suit. Plaintiff No.2 made a claim that he is the son of Bettadadevi Madanaika and after the demise of Bettadadevi Madanaika, he has inherited the property. 3. Plaintiffs alleged that 1st defendant executed the sale deed claiming himself to be the son of Bettadadevi Madanaika and brother of 2nd plaintiff. - 4 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 4. Defendant No.1 who claimed to be the son of Bettadadevi Madanaika claims to have sold 3 acres to father of 2nd and 3rd defendants under registered sale deed dated 23.05.1967 and 2nd defendant later claims to have sold 1 acre 20 guntas of land in favour of 4th defendant. 5. The suit is essentially filed on the premise that original Bettadadevi Madanaika who according to 2nd plaintiff is his father has not sold the property to anyone and 1st defendant fraudulently claims to be the son of Bettadadevi Madanaika has impersonated and sold the property. However, the plaintiffs assert that possession was not handed over and filed the suit for injunction and later claimed possession by way of amendment. 6. Defendant No.1 - alleged vendor remained exparte. Defendant No.2 died during the pendency of the suit. However, his legal representatives were not brought on record. Defendant No.3 though did not file written statement however, adopted the written statement filed by 4th defendant. 7. Defendant No.4 took a contention that he has purchased the property from 2nd defendant under registered - 5 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 sale deed dated 02.11.1977. It is his further contention that father of defendants No.2 and 3 had purchased the property measuring 3 acres in Sy.No.245 from 1st defendant under registered sale deed of 1967. Thus, defendant No.4 urged to dismiss the suit. 8. The Trial Court accepted the contention of 4th defendant and has dismissed the suit. 9. On appeal filed by the legal representatives, the First Appellate Court allowed the appeal and granted the decree for declaration of title and also directed defendant No.4 to handover possession of the property. 10. Aggrieved by the aforementioned judgment and decree, defendant No.4 is before this Court. 11. This appeal was admitted on 28.01.2010 to answer the following substantial question of law: "Whether the sale deed said to have been executed by defendant No.1 before the trial court, who was placed exparte could be declared as cancelled, even without the said document being produced and marked in evidence, - 6 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 notwithstanding, that the existence of the document was not in dispute by the defendant No.4 who was the contesting defendant?" 12. This Court on 10.12.2010 has framed two more substantial questions of law which read as under: (1) Whether the respondents had discharged the burden of establishing that defendant no.1 was a imposto and that the actual Mada Naika was dead in seeking to question the sale deed of the year 1967 in the year 1988? (2) Whether the courts below were justified in proceeding with the suit in the face of the death of defendant no.2 having been brought to its attention time and again and defendant no.4 claiming under defendant no.2 was seriously prejudiced in the said legal representatives of defendant no.2 not having been brought on record? 13. It is noticed from the records that defendant No.2 was dead by the time notice was served upon him. Defendant No.4 brought to the notice of the plaintiff as well as the Trial Court stating that defendant No.2 has died and his legal representatives are not brought on record. The Trial Court has - 7 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 noticed that defendant No.2 has died before the notice in the suit was served on him and death is borne out from the certificate issued by the Secretary of the Panchayat. The decree against defendant No.2 is nullity in technical sense as the legal representatives of defendant No.2 were not brought on record. 14. That apart, it is also noticed that the suit is filed primarily on the premise that the registered sale deed dated 23.05.1967 is not valid and so also the subsequent sale deed by a purchaser under the said sale deed dated 23.05.1967. Thus, the sale deed dated 02.11.1977 does not convey the title in favour of the purchaser under the said sale deed. 15. If the plaint averments are carefully perused, it can be noticed that plaintiffs have contended that the executant to sale deed dated 23.05.1967 was dead before the date of execution of alleged sale deed. 16. The suit is filed on the premise that the brother of plaintiff No.2 Madanaika son of Bettadadevi Madanaika died issueless and on his death plaintiff No.2 who is the Class-II heir inherited the property of Madanaika son of Bettadadevi Madanaika. Thereafter, the plaintiffs contended that the sale - 8 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 deed dated 23.05.1967 does not extinguish the right of the plaintiffs over the property. The plaint would give an impression that Madanaika son of Bettadadevi Madanaika died before the execution of alleged sale deed. Thus, the plaintiffs have filed a suit essentially on the premise that the executant of the sale deed dated 23.05.1967 has impersonated himself as Madanaika son of Bettadadevi Madanaika. 17. The defendants have disputed the status of the plaintiffs as the legal representatives of deceased Madanaika son of Bettadadevi Madanaika. Both the Courts have not framed any specific issue relating to the validity of the sale deed dated 23.05.1967. 18. It is also noticed that the First Appellate Court has allowed the appeal and consequently decreed the suit. The decree in effect has nullified the sale deed dated 23.05.1967 and subsequent sale deeds executed thereafter. There is no specific prayer in the plaint relating to the validity of the sale deed. However, by looking into the nature of the declaration sought, it can be implied that the plaintiffs have challenged the sale deed dated 23.05.1967. - 9 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 19. Before the Trial Court, the sale deed was not marked. Before the First Appellate Court, the sale deed was not marked. 20. Before this Court, the appellant has produced mortgage deed along with an application filed under Order XLI Rule 27 of Code of Civil Procedure (for short 'Code'). Respondents have produced certified copy of the sale deed along with application under Order XLI Rule 27 of the Code. 21. After going through the records placed before this Court and after going through the judgments and decrees passed by the Trial Court as well as the First Appellate Court, one thing that emerges is that there is no adjudication on the validity of the sale deed dated 23.05.1967. It is also noticed that there is no issue in this regard. 22. After going through the averments in the plaint and the written statement, though it is possible to contend that the issue relating to the validity of the sale deed does not arise for consideration, under XIV rule 3 of the Code, it is noticed that an issue can be framed even based on a document. After considering the pleadings, evidence as well as the certified copy - 10 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 of the sale deed dated 23.05.1967, this Court is of the view that the real controversy involved in this case is relating to the validity of the sale deed dated 23.05.1967. 23. Hence, this Court is of the view that the said issue is required to be framed and the matter is required to be decided by giving an answer to the said issue. 24. Normal course of action would have been to remit the matter to the Trial Court for consideration or to frame an issue and to secure finding on the said issue. It is also noticed that defendant No.2 was erroneously placed exparte as he was dead by the time the notice was served on him. Hence, to cure the defect, this Court is of the view that the matter has to be remitted for fresh consideration by removing the defect is the procedure. 25. Since the suit is of the year 1988, the matter is remitted to the First Appellate Court by setting aside the judgment and decree passed by the First Appellate Court. 26. The First Appellate Court shall give a finding on all issues and also framed the following issues: - 11 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 (a) Whether the sale deed dated 23.05.1967 is impersonated as alleged by the plaintiffs? (b) Whether Madanaika son of Bettadadevi Madanaika died issueless? 27. Since defendant No.2 was placed exparte before the Trial Court though he was dead by the time suit summons was served on him, the appellant before the First Appellate Court is permitted to implead the legal representatives of deceased defendant No.2 on record who shall be permitted to file written statement and to lead evidence and cross-examine all witnesses who have led evidence earlier. 28. It is brought to the notice of this Court that the decree passed by the First Appellate Court was executed in Execution case No.12/2007. In that view of the matter, the *respondent No.1 shall continue to be in possession of the property subject to the result of the appeal. In case the defendants succeed, the *respondent No.1 has to handover the possession by way of restitution. 29. It is made clear that this Court has not expressed any opinion on the merits of the claim of either of the parties. *Corrected vide Court order dated 18.09.2025. - 12 - HC-KAR NC: 2025:KHC:25289 RSA No. 400 of 2008 30. All contentions are kept open. 31. Parties shall appear before the First Appellate Court on 11.08.2025. Respondent No.3 shall furnish the details of the legal representatives of deceased defendant No.2. 32. Registry to send the records to the First Appellate Court forthwith. Sd/- (ANANT RAMANATH HEGDE) JUDGE BRN/GVP List No.: 1 Sl No.: 38