- 1 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1166 OF 2009 (INJ) BETWEEN: P.Y. NARASIMHAMURTHY SINCE DEAD BY HIS LRS 1. S.R. LOKAMATHA W/O. LATE P.Y. NARASIMHAMURTHY AGED ABOUT 50 YEARS 2. N. RAJESHWARI D/O LATE P.Y. NARASIMHAMURTHY AGED ABOUT 32 YEARS BOTH ARE R/AT NO.LIG-45 KHB COLONY, KELAGOTE CHITRADURGA - 577 501. …APPELLANTS (BY SMT: NALINA .K., ADVOCATE) AND: 1. G.S. BASAVARAJA S/O LATE G. SHANTHAPPA AGED ABOUT 55 YEARS ALLOTTEE OF LIG-45 HOUSING BOARD COLONY CHITRADURGA R/O HOLALKERE ROAD NEAR V.G. SETRU HOUSE CHITRADURGA TOWN - 577 503 2. SECRETARY KARNATAKA HOUSING BOARD CAUVERY BHAVAN, K.G. ROAD BANGALORE - 560 009 Digitally signed by SWAPNA V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 3. COMMISSIONER KARNATAKA HOUSING BOARD CAUVERY BHAVAN, K.G. ROAD BANGALORE - 560 009 4. EXECUTIVE ENGINEER KARNATAKA HOUSING BOARD SHIMOGA - 577 201 5. ASST. EXECUTIVE ENGINEER KARNATAKA HOUSING BOARD CHURCH ROAD CHITRADURGA - 577501 6. N. SHASHIKUMAR S/O LATE P.Y. NARASIMHAMURTHY AGED ABOUT 30 YEARS 7. N. BHAGYA D/O LATE P.Y NARASIMHAMURTHY AGED ABOUT 28 YEARS 8. N. KRISHNE GOWDA S/O LATE P.Y NARASIMHAMURTHY AGED ABOUT 31 YEARS RESPONDENTS 6 TO 8 ARE R/AT NO.LIG-45, KHB COLONY KELAGOTE, CHITRADURGA - 577 501 …RESPONDENTS (BY SRI: K.N. NITISH, ADVOCATE FOR SRI. K.V. NARASIMHAN, ADVOCATE FOR R1 SRI. D. BORE GOWDA, ADVOCATE FOR R2, 3 & 5 R4, 6, 7, 8 - SD/-) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 25.04.2009 PASSED IN R.A.NO.58/2007 ON THE FILE OF THE I ADDL. CIVIL JUDGE, (SR. DN.), CHITRADURGA, ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 11.06.2007 PASSED IN OS.NO.269/1999 ON THE FILE OF THE PRL. CIVIL JUDGE (JR. DN.) AND JMFC, CHITRADURGA. - 3 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 THIS RSA, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS. JUSTICE M G UMA ORAL JUDGMENT Defendant Nos.1(a) and 2 in OS No.269 of 1999 on the file of the learned Principal Civil Judge (Jr.Dn.) and JMFC, Chitradurga (hereinafter referred to as 'the Trial Court') are impugning the judgment and decree dated 25.04.2009 passed in RA No.58 of 2007 on the file of the learned I Additional Civil Judge (Sr.Dn.), Chitradurga (hereinafter referred to as 'the First Appellate Court') allowing the appeal by setting aside the judgment dated 11.06.2007 passed by the Trial Court and decreeing the suit of the plaintiff declaring that the agreement dated 03.08.1984 executed by the plaintiff in favour of original defendant No.1 as illegal, unlawful, void and unenforceable in law and directing defendant Nos.1(a) to (e) to surrender the vacant possession of the suit house within three months. 2. For the sake of convenience, the parties shall be referred to as per their rank and status before the Trial Court. 3. Facts of the case in brief are that, the plaintiff filed the suit OS No.269 of 1999 against the defendants seeking - 4 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 declaration that the agreement dated 03.08.1984 executed by the plaintiff in favour of the original defendant in respect of house property is illegal, unlawful, null and void and it is unenforceable in law and also to direct the defendants to vacate and hand over the vacant possession in favour of the plaintiff. The schedule appended to the plaint describes the house property situated at KHB Colony as LIG No.45, Kelogote Extension, Chitradurga City, measuring 30 x 40 feet with the boundaries mentioned therein. 4. It is the contention of plaintiff that the schedule property was allotted in favour of the plaintiff by KHB as per intimation letter dated 21.06.1984 for a total consideration of Rs.32,185/- The possession of the property was also handed over to the plaintiff by KHB on 01.08.1986. It is also contended that KHB executed registered lease-cum-sale deed dated 27.11.1989 in favour of the plaintiff. In the meantime, the plaintiff executed the agreement to sell dated 03.08.1984 in favour of the defendant agreeing to sell the schedule property. It is the contention of the plaintiff that the said sale agreement dated 03.08.1984 was within the period of prohibition from alienating the schedule property as per the - 5 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 lease-cum-sale deed dated 06.11.1989. It is also the contention of the plaintiff that no registered sale deed was executed by KHB in favour of the plaintiff in respect of the schedule property till date. The original defendant was only in permissive possession of the schedule property and therefore, the plaintiff sought for declaration about the sale agreement and for possession of the property. 5. The original defendant has not contested the suit before the Trial Court, inspite of represented by an advocate. The plaintiff has examined himself as PW1 and got marked Exs.P1 to P11 in support of his contention. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the plaintiff is not entitled for the relief and accordingly, dismissed the suit. 6. Being aggrieved by the same, the plaintiff has preferred RA No.58 of 2007. The First Appellate Court on re- appreciation of the materials on record, allowed the appeal by setting aside the impugned judgment and decree passed by the Trial Court and the suit of the plaintiff was decreed. Being - 6 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 aggrieved by the same, the legal representatives of the original defendant have preferred this appeal. 7. As per order dated 11.06.2010, the following substantial questions of law were framed for consideration: "i) Whether the Lower Appellate Court was justified in reversing the judgment and decree of the Trial Court and in that regard, whether the Lower Appellate Court has committed an error in the manner of consideration of the agreement dated 03.08.1984 to come to a conclusion that the same is opposed to public policy? ii) Whether the Lower Appellate Court could have decreed the suit in a circumstance where there is no registered document so as to come to a conclusion that there would be violation of the Condition No.3 in the lease-cum-sale agreement dated 06.11.1989 - Ex.P13 produced and marked before the Lower Appellate Court?" 8. During the pendency of appeal, the appellants have filed IA No.2 of 2015 under Order XLI Rule 27 of CPC seeking permission to produce additional documents, which are four in number. - 7 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 9. In view of the above, apart from the substantial questions of law framed, the following point is framed for consideration: "(a) Whether the application i.e., IA.2 of 2015 filed under Order XLI Rule 27 of CPC is liable to be allowed?" 10. Heard Smt K Nalina, learned counsel for the appellants, Sri K N Nitish, learned counsel for respondent No.1 and Sri D Boregowda, learned counsel for respondent Nos.2, 3 and 5. Perused the materials including the Trial Court records. 11. It is the contention of the plaintiff that the schedule property was allotted by KHB in his favour by issuing the intimation letter dated 21.06.1984 and he was put in possession of the property on 01.08.1986. In the meantime, the plaintiff executed the agreement to sell in favour of the defendant agreeing to sell the schedule property in his favour. The possession of the property was also handed over to the defendant under the agreement to sell. Now it is the contention of the plaintiff that under the lease-cum-sale deed dated 06.11.1989 executed by KHB in favour of the plaintiff, - 8 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 there was non alienation clause restraining the plaintiff from alienating the property for a period of 15 years. KHB has not executed any sale deed in favour of the plaintiff till date. The original defendant was in permissible possession of the property and therefore, it is to be declared that the sale agreement dated 03.08.1984 is illegal, null and void and defendant has to hand over the vacant possession of the property in favour of the plaintiff. 12. Before the Trial Court, the original defendant even though appeared represented by an advocate, no written statement was filed. The plaintiff was examined as PW1. He was not cross examined. But even then, the Trial Court proceeded to dismiss the suit by forming an opinion that the plaintiff has failed to establish his right over the schedule property and also failed to prove the fact that the original defendant is in permissive occupation of the same. 13. The plaintiff has placed reliance on Ex.P1 - Municipality Tax Paid Receipt; Ex.P3 - notice issued by KHB; Ex.P4 - final notice issued by KHB; Ex.P5 - covering letter issued by KHB; Ex.P6 - demand notice. He has also produced - 9 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 Ex.P7 - Municipal khata extract, according to which, the plaintiff is in possession of the property as lessee; Ex.P8 - Assessment extract; Ex.P9 - show cause notice issued by KHB. From these materials on record and uncontraverted evidence of PW1, it could be held that the plaintiff has proved his contention that he has executed sale agreement dated 03.08.1984 in favour of the original defendant and put him in possession of the same. 14. It is also pertinent to note that the appellants being legal representatives of the original defendant have filed IA.2 of 2015 seeking to produce additional documents. Document No.2 is the original agreement dated 03.08.1984 referred to by the plaintiff. Therefore, the contention of the plaintiff regarding execution of agreement cannot be disputed. 15. It is pertinent to note that even in RA No.58 of 2007, even though the defendants have appeared, they have not taken any defence. The second appeal was preferred in the year 2009. Till date, the defendants have not taken any stand. It is not known as to what is their defence, which they want to take. - 10 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 16. Learned counsel for the appellants contended that as per the terms of agreement to sell dated 03.08.1984, the original defendant was called upon to pay the installments to KHB and accordingly, in all Rs.35,500/- was paid in 12 installments respectively which is produced as per document No.2. Learned counsel has also produced 12 original receipts as per document No.3 for having paid the amount by the original defendant and the copy of registered sale deed dated 19.09.2004 as per document No.4 executed by KHB in favour of wife of original defendant. Even if this contention of the appellants is to be accepted, the same cannot be a ground to reject the claim of the plaintiff seeking declaration and possession of the property. Admittedly, defendants have never sought for execution of sale deed and for specific performance of the contract as per agreement to sell dated 03.08.1984 nor they have claimed back the amount referred to above. Under such circumstances, the defendants may not have any valid defence against the plaintiff. Even if the additional documents are taken into consideration, the same are not sufficient to deny the claim of the plaintiff for declaration and possession of the property. - 11 - HC-KAR NC: 2025:KHC:40129 RSA No. 1166 of 2009 17. Learned counsel for respondent Nos.2, 3 and 5 representing KHB categorically admitted that the schedule property was allotted in favour of the plaintiff under the intimation letter and subsequently, the lease-cum-sale deed was executed as contended by the plaintiff. Under such circumstances, I do not find any merit in the appeal preferred by the appellants. The First Appellate Court was justified in reversing the judgment and decree passed by the Trial Court. Accordingly, I answer the substantial question of law in favour of respondent No.1 and against the appellants. The point for consideration is answered in the Negative. 18. Hence the following: ORDER The appeal is dismissed with costs. Consequently, IA.2 of 2015 filed for production of additional documents is also dismissed. SD/- (M G UMA) JUDGE *bgn/- CT:VS List No.: 3 Sl No.: 6