- 1 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 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. 626 OF 2022 (INJ) BETWEEN: GOPALAKRISHNA S/O. LATE GANAPATHI, AGED ABOUT 53 YEARS, R/O. RIPPONPETE VILLAGE, KEREHALLI HOBLI, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT, PIN-577 426. …APPELLANT (BY SRI. HARISH KUMAR M S.,ADVOCATE) AND: SMT. JAYAMMA S/O. SHIVANANDAPPA, AGED ABOUT 76 YEARS, R/O. VEERABHADRA NILAYA, THIRTHAHALLI ROAD, RIPPONPETE VILLAGE, KEREHALLI HOBLI, HOSANAGARA TALUK, SHIVAMOGGA DISTRICT, PIN-577 426. …RESPONDENT Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 07.12.2021 PASSED IN R.A.NO.24/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOSANAGAR, CONFIRMING THE JUDGMENT AND DECREE DATED 30.07.2018 PASSED IN O.S.NO.90/2013 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, HOSANAGARA, SHIMOGA DISTRICT. 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. Harish Kumar M.S., learned counsel for the appellant. 2. Defendant in O.S.No.90/2013 is the appellant challenging the validity judgement and decree in granting injunction in respect of suit item Nos.1 and 2 confirmed in R.A. No.24/2018. 3. Suit properties which are subject matter of the present appeal are described as under: - 3 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 Item No.1: Vacant Site measuring 40 x 40 feet bearing D.R. No.347 of Ripponpete Village Panchayath in Hosanagara Taluk. East by : Anandapuram - Thirthalli Road West by : Government Land North by: Property belongs to Ahamad Byari South by: Site bearing DR No.423 belong to the plaintiff. Item No.2: Vacant Site measuring 40 x 40 feet bearing D.R. No.358 of Ripponpete Village Panchayath in Hosanagara Taluk. East by : Anandapuram - Thirthalli Road West by : Government Land North by: Site bearing DR No.423 belong to the plaintiff. South by: Residential House of Narayana. Item No.3: Vacant Site measuring 40 x 40 feet bearing D.R. No.423 of Ripponpete Village Panchayath in Hosanagara Taluk. - 4 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 East by : Anandapuram - Thirthalli Road West by : Government Land North by: Site bearing DR No.347 belong to the plaintiff. South by: Site bearing No.358 of Plaintiff 4. It is pertinent to note that suit in respect of item No.3 was dismissed and plaintiff did not choose to pursue the matter further. 5. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: In respect of the suit properties, plaintiff filed a suit for bare junction contending that plaintiff said to have purchased the suit properties from one Sri. Jayavant Naik on 26.04.1988 through a registered sale deed. Sri. Jayavant Naik had acquired the same having purchased the same from one Sri. Surendra Pandit and Sri. Ganapathi on 01.06.1974 and 26.03.1974 respectively through two different registered sale deeds. Thereafter necessary revenue entries were mutated. - 5 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 6. In respect of suit item No.3, it is contended that Sri. Jayavanth Naik has executed a Deed of Relinquishment with regard to the possessory rights on 26.04.1988 through a registered Relinquishment Deed in favour of the plaintiff. 7. It is further contended that the defendant without there being any right, title and interest started interfering with a suit properties and therefore, suit for injunction was filed. 8. In response to suit summons, defendant entered appearance and filed detailed written statement denying the plaint averments in toto. 9. It is specifically contended that alienation in favour of Sri. Jayavanth Naik by the erstwhile grantees was illegal and in respect of suit item No.3, there was no possessory right held by Sri. Jayavanth Naik. Therefore, the Relinquishment Deed said to have executed by Sri. Jayavant Naik with regard to the possessory rights in - 6 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 favour of the plaintiff is without any authority by Sri. Jayavant Naik and thus suit has to be dismissed. 10. Learned Trial Judge after raising necessary issues, recorded the evidence of the parties and noted that Sri. Jayavant Naik didn't process any independent possessory rights so as to relinquish in favour of the plaintiff by way registered Relinquishment Deed and dismissed the suit of the plaintiff in respect of item No.3 of the suit properties and decreed the suit of the plaintiff in respect of item Nos.1 and 2. 11. Being aggrieved by the same, it is defendant who filed the appeal before the First Appellate Court in R.A.No.24/2018. 12. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and on re-appreciation of the factual and legal aspects of the matter, noted the fact that Sri. Jayavant Naik purchased the suit properties item Nos.1 and 2 from the - 7 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 erstwhile grantee and neither the grantees nor their legal representatives questioned the alienation made by the erstwhile grantees in favour of Sri. Jayavant Naik through registered sale deeds dated 01.06.1974 and 26.03.1974 in respect of suit item Nos.1 and 2 and further noted that Sri. Jayavant Naik in turn sold the properties in favour of the plaintiff through a registered sale deed dated 26.04.1988 held that plaintiff established his lawful possession over the suit item Nos.1 and 2 and dismissed the appeal of the defendant. 13. Being aggrieved by same, defendant has filed the present appeal on the following grounds :  The judgments of courts below are contrary to the facts and circumstances of the case. The entire judgments and decree of courts below are manifestly illegal and liable to be set aside. The courts below erred in not considering that there is violation of condition which was imposed by the government at the time of grant. It is submitted that if the condition is violated by the grantee, the granted property will be vested to the government and the title will be vested to the government on - 8 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 the moment of violation of condition by the grantee.  The judgments of courts below erred in decreeing the suit of the plaintiff holding that the plaintiff is owner in possession of the suit schedule properties. The courts below failed to appreciate the when there is a violation of condition the title will vest with the government, now the plaintiff has filed the suit to regularize the violation of condition. The inference of the courts below is against the law and liable to be set-aside.  The courts below have relied upon the oral evidence of DW1. The opinion formed by the courts below on the basis of statement of Dw1 in his cross examination is not correct. The courts below have failed to appreciate, which statement is admission and which statement is stray statement. The statement of Dw1 in his cross examination is stray statement and not admission, inspite of the same the courts below relied upon stray statement of Dw1, which is bad in law.  The courts below failed to appreciate the established principle of law, that the court cannot base its judgment on the weakness of the defendant. The plaintiff has win or lose her case on her own and not on the weakness of the defendant. - 9 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 This principle has been lost sight by the courts below.  The courts below failed to appreciate the documentary evidence placed by the plaintiff. The documents produced by the plaintiff will not prove that she is not in possession of the suit schedule properties, on the other hand the documents produced by the defendant proves that he is in possession of the suit schedule properties. Inspite of the same the courts below have not considered the documentary evidence on record in proper prospective.  The courts below landed in wrong footing, that the defendant has failed to prove the contention as stated in the his pleadings, hence the case of the plaintiff is proved. The opinion of the courts below is manifestly illegal and the courts below have not considered that the person who seeks equity has to show equity in her favour. The plaintiff has failed to show that she is in possession of suit schedule property and equity lies in her favour. If the plaintiff fails in proving her possession, the suit has to be dismissed in eternity. This aspect has been lost sight by the courts below.  The courts below have failed to appreciate the proper law to the facts and circumstance of the - 10 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 case. They failed to draw proper presumptions of law and facts.  The findings of courts below are not based on sound judicial principle. The facts, pleadings and evidence in the case have not been properly and in their true prospective appreciated. Viewed from any angle, the findings of the courts below are opposed to law, facts, evidence and probabilities of the case. The courts below failed to raise proper presumptions of law and facts and to apply proper law. On the other hand, the findings are based on mere surmises which the law does not allow.  View from the any angle the impugned judgment and decree are perverse, illegal, oppose to well establish cannons of law and contrary to the pleadings evidence on records and they are liable to be set aside 14. In the appeal, the following substantial questions of law raised for consideration: a) Whether the judgment and decree of the courts below are justified that the plaintiff is in possession of the suit schedule properties as against the documentary evidence on record. - 11 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 b) Whether courts below are justified in decreeing the suit of the plaintiff on the basis of weakness of the defendant c) Whether courts below are justified in decreeing the suit of the plaintiff, in spite of ample evidence to show that the plaintiff is not in possession of suit schedule properties d) Whether courts below are justified in decreeing the suit of the plaintiff, in spite of ample evidence to show that there is a violation of condition imposed by the government. 15. Sri. Harish Kumar M.S., learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts have failed to note that alienation made by the original guarantees in favour of Sri. Jayavant Naik itself is illegal in view of non alienation clause. Therefore no right, and title interest was conveyed to Sri. Jayavant Naik under two different sale deeds in respect of suit item Nos.1 and 2 and as such no title was passed on from Sri. Jayavant Naik - 12 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 to plaintiff by virtue of the subsequent sale deed executed by Sri. Jayavant Naik in favour of the plaintiff and thus the alleged possession of the plaintiff in respect of suit item Nos.1 and 2 is not lawful and sought for admitting the appeal for further consideration. 16. This Court perused the material on record in the light of the appeal grounds as well as they substantial questions of law raised in the appeal. 17. Admittedly, the original grantees did not challenge sale deed executed by him in favour of Sri. Jayavant Naik on two different dates in respect of suit item Nos.1 and 2. Sri. Jayavant Naik enjoyed the properties by mutating the revenue entries in his name. 18. Thereafter, Sri. Jayavant Naik sold the properties in favour of the plaintiff through a registered sale deed. It is also pertinent to note that Sri. Jayavant Naik said to be in possession of suit item No.3 and - 13 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 therefore relinquished the rights in favour of the plaintiff through a registered Relinquishment Deed. 19. Learned Trial Judge while appreciating the probative value of sale deed executed by Sri. Jayavant Naik in favour of the plaintiff as well as the Relinquishment Deed executed by Sri. Jayavant Naik in favour of the plaintiff, recorded a categorical finding that neither Sri. Jayavant Naik nor plaintiff have received any rights under the alleged Relinquishment Deed inasmuch as Sri. Jayavant Naik himself did not possess any possessory rights over the suit item No.3 and dismissed the suit of the plaintiff in respect of suit item No.3. 20. In the absence of challenge to the sale deed executed by original grantees in favour of Sri. Jayavant Naik, defendant who is the appellant before this Court challenging the alienation made by original grantee in favour of Sri. Jayavant Naik to question the lawful possession of the suit property by the plaintiff is thus - 14 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 rightly rejected by the learned Trial Judge while decreeing the suit of the plaintiff in respect of suit item Nos.1 and 2. 21. Learned Judge in the First Appellate Court re- appreciated the probative value of the sale deeds executed by Sri. Jayavant Naik in favour of the plaintiff after having purchase the same from the original grantees under Exs.P1 and P2, rightly dismissed the appeal of the appellant. 22. Admittedly defendant cannot question the title of the plaintiff as original grantees themselves did not question the title of Sri. Jayavant Naik who in turn sold the properties in favour of the plaintiff. 23. Accordingly the substantial questions of law raised in the appeal do not merit for further consideration. - 15 - HC-KAR NC: 2025:KHC:31637 RSA No. 626 of 2022 24. Hence, the following : ORDER Regular Second Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 45