- 1 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 1979 OF 2021 (DEC/INJ) BETWEEN: SRI. DEVASAGAYAM S/O LATE SIGAMANI AGED ABOUT 68 YEARS R/AT KRISHNAPURAM VILLAGE ROBERTSONPET HOBLI, K.G.F TALUK REPRESENTED BY HIS GPA HOLDER K.G. SAAM JACOB @ G SWAMY DASS, S/O GOVINDASWAMY AGED ABOUT 41 YEARS R/O NO.125, NORTH TANK BLOCK, COROMANDAL POST, K.G.F - 563 122. …APPELLANT (BY SRI. RAGHAVENDRA V, ADVOCATE FOR SRI. S. JAGAN BABU, ADVOCATE) AND: SRI. V.G. MOHAMMED ANWAR S/O V.M. GANI AGED ABOUT 43 YEARS, R/AT 2ND CROSS ROAD, GEETHA ROAD DOWN, ROBERTSONPET, K.G.F - 563 122. …RESPONDENT (VIDE ORDER DATED 26.06.2025, NOTICE TO RESPONDENT HELD SUFFICIENT, RESPONDENT - V.G. MOHAMMED ANWAR) Digitally signed by SHARADAVANI B Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.06.2021 PASSED IN RA.No.86/2019 ON THE FILE OF THE C/C III ADDITIONAL DISTRICT JUDGE, KOLAR (SITTING AT K.G.F) DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.01.2019 PASSED IN OS No 330/2010 ON THE FILE OF THE IST ADDITIONAL CIVIL JUDGE AND JMFC, K.G.F. 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.Raghavendra V., learned counsel appearing for Sri.Jagan Babu, learned counsel for the appellant. Respondent is served with the notice and unrepresented. 2. Unsuccessful plaintiff is the appellant challenging the validity of the judgment and decree passed in O.S.No.330/2010 confirmed in RA No.86/2019. 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: 3.1. Plaintiff filed a suit for the relief of declaration and injunction by contending that he is the absolute owner in possession and enjoyment of the landed property - 3 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 bearing Sy.No.15/2 measuring 36 guntas which is assessed at Rs.1.52 paise situated at Krishnapuram village, Robertsonpet Hobli, Bangarpet Taluk bounded on East by land of Sunil, West by land belonging to Jain Group of Institutions, North by road and South by land of Sunil (hereinafter referred to as suit property). 3.2. It is the case that suit property is the ancestral property of the family of the plaintiff and grandfather of the plaintiff by name – Marickam. Plaintiff’s father by name Sigamani continued in the possession after their ancestor passed away and suit property was a part of Jodi Inam land. 3.3. After the abolition of the Inams, Sigamani applied for re-grant and for occupancy rights. Competent authorities after holding an enquiry, entertained the application filed by Sigamani and noted that he was in possession of the suit property as a member of joint family and granted occupancy right by order dated 14.06.1967 - 4 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 and an endorsement came to be issued in this regard by the Government on 13.06.1987. 3.4. Sigamani got transfered the katha in his name and there was a survey proceeding. Thus, the plaintiff is in absolute and lawful possession over the suit property. 3.5. It is contended that after the death of Sigamani, plaintiff being the only legal representative, became the exclusive owner in lawful possession of the suit property and defendant without there being any semblance of right, started interfering with the suit property which necessitated the plaintiff to file the suit for declaration and injunction. 4. Upon receipt of suit summons, defendant entered appearance and denied the plaint averments by filing detailed written statement. Defendant specifically took a contention that defendant is the owner of the property having purchased from Sigamani under registered sale deed dated 28.12.1963 in favour of - 5 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 Mariyambee. Mariyambee having died on 24.08.2003, left defendant as her successor-in-interest and therefore, suit is to be dismissed. 5. Learned Judge in the Trial Court after raising necessary issues, recorded the evidence of the parties and upheld the defence taken by the defendant by stating that Sigamani had already parted away all right, title and interest in the suit property by virtue of registered sale deed dated 28.12.1963 in favour of Mariyambee. 6. Being aggrieved by the same, plaintiff filed an appeal before the First Appellate Court in RA No.86/2019. 7. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail and raised necessary points and after taking note of the fact that the transferor of the land or their successor cannot question the transfer as the said plea is hit by Section 43 of the Transfer of Property Act and thus, upheld the dismissal of the suit and dismissed the appeal. - 6 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 8. Relevant discussion of the First Appellate Court in this regard is culled out hereunder in paragraph Nos.33 to 38 as under: “33. Section 43 of the Transfer of Property Act, 1881, reads thus: 43. Transfer by unauthorised person who subsequently acquires interest in property transferred: Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option. 34. The said provision provides that where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operates on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Thus, if at the time of transfer, the vendor/transferor might have a defective title or have no title and/or no right or interest, however subsequently the transferor acquires the right, title or interest and the contract of transfer subsists, in that case at the option of the transferee, such a transfer is valid. In such a situation, the transferor cannot be permitted to - 7 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 challenge the transfer and/or the transferor has no option to raise the dispute in making the transfer. 35. In more or less identical circumstances, the Hon’ble Apex Court in the case of Rakesh v. Board of Revenue, U.P., reported in (2019) 19 SCC 785 has held that the plaintiffs who are the sons of the Vendor cannot claim rights in the property since Section 43 clearly applies to the situation. In the said case, the Vendor had applied for bhumidari rights on 25.11.1974 and sold the said property on the very next day. The bhumidari Certificate issued to the Vendor on 05.01.1976, after his death on 04.12.1975 would relate back to the date of his application and the sale deed executed by him was valid. The provision contained under Section 43 of Transfer of Property Act has been applied. 36. Further, the Hon’ble Apex Court in the case of Tanu Ram Bora v. Promod Ch. Das reported in (2019) 4 SCC 173 has held as under: “6.5. The intention and objects behind Section 43 of the TP Act seem to be based on the principle of estoppel as well as the equity. The intention and objects seem to be that after procuring the money (sale consideration) and transferring the land, thereafter the transferor is estopped from saying that though he has sold/transferred the property/land on payment of sale consideration, still the transfer is not binding on him. That is why Section 43 of the TP Act gives an option to the transferee and not the transferor. The intention of Section 43 of the Act seems to be that nobody can be permitted to take the benefits of his own wrong. In the facts and circumstances of the - 8 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 case, Section 43 of the Act would come into play and protect the rights of the original plaintiff. 7. An identical question came to be considered by this Court in Ram Pyare [Ram Pyare v. Ram Narain, (1985) 2 SCC 162]. In the aforesaid decision, on considering Section 43 of the Act, it is observed and held by this Court that as the sale deed in favour of the vendee was result of an erroneous representation of the vendor, thereafter the sons of the vendor, cannot claim to be transferees in good faith and therefore their suit for cancellation of the sale deed would not be maintainable………” 37. This Court is of the humble opinion that the aforesaid principles laid down by the Hon’ble Apex Court would squarely apply to the facts of this case as well. The father of the plaintiff – Sigamani did not have absolute title when he had conveyed the property in favour of the purchaser – Mrs.Mariam Bi and subsequently, the said Sigamani has acquired right or title in the said property under Ex.P29. Under such circumstances, the title of purchaser gets perfected. The recitals of Ex.D2 – sale deed would indicate that the said Sigamani has represented to the purchaser that the suit schedule property is his absolute property and based on such representation, the mother of the defendant has purchased the property. There is nothing on record to indicate that the purchaser knew about the Vendor not having valid title as on that day. The principle of feeding the grant by estoppel would apply and by virtue of Ex.P29, the title of Sigamani passes on in favour of the purchaser - Mrs.Mariyam Bi based on Ex.D2 – sale deed and her title gets validated. Hence, the - 9 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 contention of learned counsel for plaintiff in this regard cannot be accepted. 38. The learned counsel for the plaintiff has relied upon certain admissions made by DW1 to contend that defendant has not proved his contentions. He has also contended that Ex.D2 – sale deed being a certified copy cannot be admissible in evidence as there is non-compliance of Section 65 of the Evidence Act and the its original itself is not produced. It is noticed that DW1 has admitted that he does not know to whom the suit schedule property originally belongs, from whom late Mrs. Mariyam Bi had purchased the said property and does not know or have any personal knowledge regarding Ex.D2 – sale deed. DW1 has also pleaded ignorance about the suit schedule property having been granted to Sigamani on 14.06.1967. He has stated that he does not know when the khatha is transferred in the name of Mrs. Mariyam Bi. DW1 admits that there is a shed constructed over the suit schedule property which is provided with electricity connection.” 9. Being further aggrieved by the same, plaintiff is before this Court, in this appeal on the following grounds and substantial questions of law: GROUNDS "It is submitted that the impugned Judgment and decree passed by the Trial Court and the first appellate Court are perverse, arbitrary, illegal and liable to be set aside. - 10 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 That, the first appellate Court rightly held that the findings of trial Court on Issue No.1 and Ex.P29- Order dated 14/06/1967 is contrary to the evidence on record and suit schedule property was granted in favour of father of the plaintiff, has erred in holding that suit schedule property was sold by father of plaintiff under Ex.D2 sale deed dated 28.12.1963 as such the plaintiff could not have succeeded to the same upon the death of his father and had not acquired any right or title on the suit schedule property. The said findings of the first appellate Court is ignoring the evidence on record. That both the trial Court and first appellate Court grossly erred by accepting the contention of defendant that his mother Mrs. Mariyam Bi purchased the suit property under Ex.D2 sale deed and after her death the defendant has succeeded to the suit property without there being formal proof of the same. Further both the Courts below ignored the well established principles of law that mere marking of a document does not dispense with the proof of the same. That both the trial Court and the first appellate Court have failed to appreciate that the defendant has not entered the witness box and subjected himself to cross examination. Further the GPA holder of defendant who was examined as DW1 has pleaded his ignorance about the facts and circumstances of the case and also about the suit schedule property. Further, the admissions of DW1 coupled with the fact that the original of Ex.D2 sale deed was not produced and without there - 11 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 being foundation laid in the written statement or explanation offered during evidence as to why the original sale deed is not produced the defendant has failed to prove his contentions. Thus the findings of the courts below is vitiated by non consideration of these material aspects and by showing an erroneous approach to the matter. That, both the Courts below failed to follow the well recognized legal position that where a party to the suit does not appear in the witness-box and state his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct. That both the Courts below failed to appreciate that the plaintiff in order to prove his possession on the suit property has produced relevant documents at Ex.P11, P12, P27 and P28 and pleaded that he has built a shed on the same and has got electricity connection in the name of his GPA holder and has also produced the tax paid receipts. The said facts were clearly admitted by the DW1 during his cross-examination. The both the courts below ignored the relevant evidence in this behalf and drew invalid inferences from the evidence. That the trial Court and first appellate Court failed to appreciate that, where the apparent title is with the plaintiffs, it is incumbent upon the defendant, that in order to displace this claim of apparent title and to establish beneficial title in himself, he must establish by way of satisfactory evidence, circumstances that favour his version. Even, a revenue record is not a document of title. It - 12 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof, both forward and backward, can also be raised under Section 110 of the Evidence Act. That the trial Court and first appellate Court failed to note the well settled law that the revenue records does not convey or extinguish the title over such land and it will not convey any title to the said person. It only enables the person in whose favour the mutation is ordered to pay the land revenue in question. Further the revenue record standing in the name of defendant's mother Mrs. Mariyam Bi were allegedly taken place during the year 1987-88 based on the alleged sale deed dated 28.12.1963 at Ex.D2 and there was no any immediate mutation proceedings after the alleged sale. That both the trial Court and first appellate Court have failed to note that except ExD12 tax paid receipt dated 03.05.2011 по other tax paid receipts were produced by the defendant. Therefore, the alleged revenue entries in the name of defendant and his mother could not have over weighed the title of the plaintiff over the suit property and the alleged mutation entries stood rebutted by virtue of Ex.P29 order by which the father of plaintiff Mr.Sigamani was directed to be registered as permanent tenant in respect of suit schedule property. That in the absence of necessary pleadings and proof the first appellate Court grossly erred by applying the principles of feeding of grant by estopel to the facts of the present case and - 13 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 holding that by virtue of Ex.P29 the title of Sigamani passes on in favour of the purchaser Mrs. Mariyam Bi based on Ex.D2 sale deed and her title gets validated. The first appellate Court in support of its said findings has wrongly relied on the decisions of the Hon'ble Supreme Court which were rendered on different facts and circumstances. The rulings cited by the counsel for the appellant and arguments advanced by them have also not been taken in its right perspective, which has resulted in grave injustice to the appellant. The trial Court and first appellate Court have not at all appreciated the facts and evidence on record while drawing the impugned Judgments and decree and the same is based on imaginary, flimsy and non existing law: hence same is liable to be set aside by this Hon'ble Court. Viewed from any angle, the Judgment and the decree passed by the Trial Court and the first appellate Court are perverse, arbitrary and illegal and liable to be set aside. SUBSTANTIAL QUESTIONS OF LAW "A) Whether the first appellate Court was justified in applying the principles of feeding of grant by estopel to the facts of the present case and holding that by virtue of Ex.P29 the title of Sigamani passes on in favour of the purchaser Mrs. Mariyam Bi based on Ex.D2 sale deed and her title gets validated? B) Whether the first appellate Court and trial Court were justified in the manner of consideration of - 14 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 Exs.D2 sale deed dated: 28/12/1963 and the other evidence available on record? C) Whether the first appellate Court and trial Court were justified in not drawing adverse inference against the defendant having not lead any evidence to substantiate his case? D) Whether the first appellate Court justified in dismissing the appeal without appreciating the pleading and the statement of the parties in disregard to Order 41 Rule 31 CPC? E) Whether the trial Court and first Appellate Court were justified in dismissing the suit of the plaintiff without properly understanding the case pleaded by the parties and being confused with regard to the real question in controversy? F) Whether the trial Court as well as the first appellate Court have ignored material evidence or acted on no evidence?" 10. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum, vehemently contended that both the Courts failed to consider that no original title deed was placed before the Trial Court and certified copy of the sale deed said to have been executed by Sigamani in favour of Mariyambee ought not to have been relied on by both the Courts as there was no proper - 15 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 foundation laid for leading secondary evidence as is contemplated under Section 65 of the Evidence Act and therefore, judgments rendered by both the Courts has resulted in miscarriage of justice. 11. It is also the contention of learned counsel for the appellant that application of Doctrine of Feeding the grant by estoppel as is contemplated under Section 43 of the Transfer of Property Act by the First Appellate Court is per se erroneous and the judgment relied on by the First Appellate Court in the case of Tanu Ram Bora v. Promod Ch. Das reported in 2019 (4) SCC 173, had no application to the facts and circumstances of the case. 12. Learned counsel for the appellant also argued that learned Judge in the First Appellate Court has chosen only such portion of the said judgment to suit to result that has been reached by the First Appellate Court whereby grave injustice has occurred and sought for - 16 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 admitting the appeal on the aforesaid substantial questions of law. 13. Respondent is served with the notice and are unrepresented. 14. In the light of the arguments put forth on behalf of the appellant, this Court bestowed its best attention to the factual and legal aspects of the matter. 15. On such perusal, admittedly, there is a sale deed executed by father of the plaintiff – Sigamani on 28.12.1963. No doubt, original sale deed is not placed on record on behalf of the defendant. However, since the certified copy came to be admitted without any objection and marked as Ex.D.2 before the Trial Court, it is too late for the appellant to contend that there was no substantial compliance for admitting the secondary evidence before the Trial Court. 16. Irrespective of the probative value of Ex.D.2, since the suit is one for declaration; it was for the plaintiff - 17 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 to establish that he is the lawful owner of the property and title being the reconveyance made by the competent authorities in the proceedings initiated by the father of the plaintiff before the competent authority after the Inam Abolition Act came into force. 17. To that extent, plaintiff was successful in establishing that there was an endorsement issued by the Government as per Ex.P.4 stating that suit land was re- granted to Sigamani and occupancy rights were also entered in his name after the suit property being the part of Jodi Inam land was the subject matter of the proceedings before the Deputy Commissioner. 18. Endorsement is admittedly dated 13.06.1987, whereas Sigamani got the orders from the competent authority on 14.06.1967. 19. It is pertinent to note that before the Sigamani got occupancy rights allotted in his favour by virtue of the order passed by the competent authority on 14.06.1967, - 18 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 Sigamani had already parted away all his right, title and interest in respect of the suit property by virtue of the sale deed dated 28.12.1963. 20. Under such circumstances, First Appellate Court has resorted to Section 43 of the Transfer of Property Act. For ready reference, Section 43 of the Transfer of Property Act is culled out hereunder: “43. Transfer by unauthorised person who subsequently acquires interest in property transferred.— Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.” 21. On careful reading of the language employed in Section 43 of the Transfer of Property Act, right that has been granted to a party under Section 43 of the Transfer - 19 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 of Property Act is for the transferee and not for the transferor. 22. Therefore, son of Sigamani approaching the Court and wanted to take advantage of the fact that Sigamani as on the date of the sale deed vide Ex.D.4 was not the owner and therefore, there was no valid conveyance of the title in favour of Mariyambi under Ex.D.4 cannot be countenanced in law in view of the fact that it is the transferee who can seek such a relief from the transferor by resorting to Section 43 of the Transfer of Property Act. 23. Therefore, in view of the foregoing discussions, when the plaintiff has failed to establish the title over the suit property, dismissal of the suit by the Trial Court confirmed by the First Appellate Court needs no interference. - 20 - HC-KAR NC: 2025:KHC:32140 RSA No. 1979 of 2021 24. In view of the foregoing discussions, substantial questions of law raised in the appeal do not merit for further consideration: 25. Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 39 CT: BHK