- 1 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF NOVEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.1142 OF 2025 (DEC/INJ) BETWEEN: 1. B.N. KRISHNAMURTHY S/O NARASIMHAIAH AGED BOUT 54 YEARS R/AT BUGUDANAHALLI BELLAVI HOBLI TUMAKURU TALUK-572107. NOW RESIDING AT NO.64/17-C, 1ST MAIN, 1ST B. CROSS, GKVK POST, CHIKKABANASANDRA YALAHANKA NEW TOWN BENGLAURU-560 0065. …APPELLANT (BY SRI. SOMASHEKARA K.M., ADVOCATE) AND: 1. LAKSHMAIAH DEAD BY HIS LRS. JAYAMMA W/O LATE LAKSHMAIAH AGED ABOUT 69 YEARS 2. NARASIMHAMURTHY L., S/O LATE LAKSHMAIAH AGED ABOUT 50 YEARS 3. VENKATESH L., S/O LATE LAKSHMAIAH Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 AGED ABOUT 48 YEARS RESPONDENTS NO.1 TO 3 ARE RESIDING AT NARASAPURA OORUKERE POST, KASABA HOBLI TUMAKURU DISTRICT-572 106. 4. LAKSHMAMMA D/O LATE LAKSHMAIAH W/O GOVINDARAJU R/AT BYCHAPURA VILLAGE LAKKENAHALLI POST SOLUR HOBLI MAGADI TALUK RAMANAGARA DISTRICT PIN-562 127. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.03.2025 PASSED IN R.A.NO.26/2022 ON THE FILE OF III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.09.2021 PASSED IN O.S.NO.797/2010 ON THE FILE OF III ADDITIOANL CIVIL JUDGE AND JMFC, TUMAKURU. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT 1. This matter is listed for admission. Heard the learned counsel for the appellant. 2. This second appeal is filed against the concurrent finding. The factual matrix of case of plaintiff before the Trial Court that while seeking the relief of declaration and permanent injunction that suit schedule property is in peaceful possession and enjoyment of the plaintiffs and also sought for the relief of declaration claiming that originally suit property belongs to one Hanumanthachari son of Beemanna resident of Narasapura village, who inter alia conveyed the suit schedule property in favour of Siddalingaiah son of Siddaiah who inturn alienated the same in favour of Hanumanthe Gowda and Melappa son of Kumbaiah under the registered sale deed dated 04.09.1952. The said Melappa is none other than the father of the plaintiff and he was in physical possession and enjoyment of the suit schedule property - 4 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 during his lifetime. Pursuant to his demise, plaintiff is in continuous physical possession and enjoyment of the suit schedule property as his successor. The said Melappa was being an illiterate person, though he obtained the J slip from Sub-Registrar office, however, Katha and pahani was not mutated in favour of the plaintiff. The defendant has no manner of right over the suit schedule property causing obstruction and made an attempt to cut and remove the standing trees which are in existence in the suit schedule property. The act of the defendant was reported to the Police and Police advised them to approach the Court. Hence, they filed the suit for the relief of declaration and injunction. The defendant appeared and filed written statement contending that land bearing Sy.No.46/2 totally measuring 4 acres 34 guntas, out of which 2 acres 20 guntas was purchased by the mother of the present defendant namely Smt.Mallamma under a registered sale deed dated 26.11.1954 for valuable consideration from lawful vendors namely Siddalingaiah and his minor son - 5 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 Siddappa and the boundaries also mentioned. Subsequently, the mother of the defendant namely Smt.Mallamma also purchased another bit of land in same Sy.No.46/2 measuring 2 acres from one Guddaiah under the registered sale deed dated 10.12.1956 since then, Mallamma not only become an absolute owner to an extent of 4 acres 20 guntas including karab in total measuring 5 acres of land in Sy.No.46/2. The suit schedule property is part and parcel of his land to an extent of 5 acres and Mallamma was in possession and enjoyment of the land till her death. Pursuant to her demise, the defendant and his brothers succeeded to this land bearing Sy.No.46/2 totally measuring 5 acres and were in joint possession and enjoyment of the same. The defendant and his brothers partitioned the joint family properties including this land bearing Sy.No.46/2 on 26.08.2003 and in the said division of Sy.No.46/2 measuring 3 acres 37 guntas of land including karab has fallen to the share of the defendant. The remaining portion - 6 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 has fallen to the share of his brother. Since the date of partition, this defendant and his brother have been in possession and enjoyment of their respective share in the Sy.No.46/2 which is inclusive of the suit schedule property. But, never the plaintiff was in peaceful possession and enjoyment of the suit schedule property towards the northern side of the schedule property which has fallen to the share of defendant. There is a land belonging to one Chikkathoppaiah, however, in reality between the land of Chikkathoppaiah and the present defendant there exist 15 guntas of land and an appeal was filed before the Assistant Commissioner in RRT No.99/2010-11 and the same was in the name of the present defendant and prayed the Court to dismiss the suit. 3. The Trial Court having considered both oral and documentary evidence placed on record, particularly extracted the evidence of the P.W.1 in paragraph No.15 and so also taken note of the admission on the part of the - 7 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 D.W.1 in his cross examination since he relies upon document Ex.D.1 and Ex.D.2 to an extent that he had purchased the property to the extent of 4 acres 20 guntas and also categorically admits in the cross-examination that property was purchased only to the extent of 4 acres 20 guntas. However, he claims that there is a karab land, but he admits that karab is not mentioned in the document and also he categorically admits that karab land to the extent also not mentioned and only in Ex.D.6 to Ex.D.37 mentioned the extent of 3 guntas of karab land and also he admits that except 3 guntas of karab, no other karab land is available. He categorically admits that he has no any objection to grant the relief in favour of the plaintiff to the extent of 15 guntas. Having considered this admission on the part of D.W.1, comes to the conclusion that property was purchased by the defendant only to the extent of 4 acres 20 guntas and also the written statement claim was also taken note of and merely because the RTC stands to the extent of 5 acres of land in the name of - 8 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 defendant cannot be considered as the owner to the extent of 5 acres and the same is also taken note of particularly taking note of admission on the part of DW1 and only he claims more 3 guntas of Karab land and the same is also not reflected in any of the documents except the admission and the part of D.W.1 in Ex.D.6 to Ex.D.37 and the same is mentioned only to the extent of 3 guntas and hence he cannot claim the ownership to the extent of 5 acres taking the advantage of revenue entries and the same is taken note of by the Trial Court and the Trial Court rightly granted the relief of declaration and permanent injunction in favour of the plaintiffs. 4. The First Appellate Court re-assessed the material available on record and having considered the material on record and also the grounds which have been urged in the appeal, formulated the point whether the Trial Court is justified in granting the relief. The First Appellate Court on re-appreciation of material available on record, particularly the document of Ex.P.2-sale deed of - 9 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 04.09.1952 and the same was also purchased even prior to the defendant and defendant purchased the property in the year 1954 and 1956 which are subsequent to the sale deed of father of the plaintiff and these factors were also taken note of by the Appellate Court and also confirmed the same. 5. Now, the present second appeal is filed before this Court and counsel would vehemently contend that both the Courts committed an error in granting the relief and contend that both the Courts were not justified the suit for declaration simpliciter was not maintainable in view of Section 34 of the Specific Relief Act. The counsel would vehemently contend that both the Courts are not justified in ignoring Ex.P.5 to Ex.P.8, Ex.D.6 to Ex.D.14, Ex.D.15 to Ex.D.37, Ex.D.38 to Ex.D.42 and Ex.D.43 to Ex.D.46 and Ex.D.47 to Ex.D.50 showing the defendant is in possession and enjoyment of the property since 1968- 69 and hence, committed an error. Having taken note of the said contention in the present appeal and also - 10 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 particularly taking note of the admission on the part of D.W.1 before the Trial Court wherein categorically admitted that he has no any objection to grant the relief in favour of the plaintiff who claims the declaration and injunction in respect of 15 guntas of land. Apart from that he categorically admits that in terms of the two sale deeds of Ex.D.1 and Ex.D.2, the property was purchased to the extent of 4 acres 20 guntas, but he claims the extent of 5 acres by taking the advantage of entry found in the revenue records and the very specific pleading of the plaintiff before the Trial Court that the plaintiff's father was illiterate and he did not make the entries. When there is a sale deed in favour of the plaintiff, that too a sale deed from the same vendor of the defendant and also the document is very clear to the extent of 4 acres 20 guntas, but on the guise of the karab land, the defendant makes an attempt to claim that he is in possession to the extent of entire land and the same is taken note of by the Trial Court and First Appellate Court. Hence, I do not find any - 11 - HC-KAR NC: 2025:KHC:47816 RSA No. 1142 of 2025 ground to admit and frame substantive question of law. The very contention of the appellant that they are in possession of the property more than the property what they have purchased cannot be accepted. The very admission takes away the case of the appellant and hence, not a case to invoke Section 100 of CPC. 6. In view of the discussions made above, I pass the following: ORDER i) Second appeal is dismissed. ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of. Sd/- (H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 43