- 1 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 2339 OF 2024 (RES) BETWEEN: 1. SRI. MUNIYAPPA AGED ABOUT 86 YEARS S/O LATE CHIKKANARASAPPA 2. SMT. VENKATAMMA W/O SRI. MUNIYAPPA AGED ABOUT 86 YEARS ALL ARE R/AT DASARAHALLI AVATHI POST DEVANHALLI TALUK BENGALURU RURAL-562110. …APPELLANTS (BY SRI. RAMESHA .H.E, ADVOCATE) AND: 1. SRI. SYED JALEEL AHMED AGED ABOUT 70 YEARS S/O LATE I.S.A. HAKEEM R/AT NO.5/24, 3RD CROSS PEMMEGOWDA ROAD J.C. NAGAR BENGALURU - 560006. 2. SRI. P.K. NARAYANAN S/O CHATHU AGED ABOUT 70 YEARS KHB MAIN ROAD Digitally signed by NAGARAJA B M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 MANORAYANAPALYA CHOLANAYAKANAHALLI BBMP WARD NO.22 HEBBAL RANGE BENGALURU-560032 3. SRI. PAVITHRAN. K S/O CHATHU AGED ABOUT 70 YEARS GUINNES TAILORS NO.31, 1ST MAIN ROAD K.H.B. MAIN ROAD MANORAYANAPALYA CHOLANAYAKANAHALLI BBMP WARD NO. 22 HEBBAL RANGE BENGALURU-560032. …RESPONDENTS (BY SRI. K.S. NAGARAJA RAO, ADVOCATE) THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE ORDER DATED 01.10.2024 PASSED ON IA NO.IV IN EX. NO. 1047/2012 ON THE FILE OF X ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU, REJECTING THE IA NO. IV FILED U/O XXI RULE 97 TO 101 R/W SEC. 47 OF CPC. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM - 3 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 ORAL JUDGMENT The captioned appeal is by the obstructors assailing the order passed by the Executing Court on I.A.No.4 dated 01.10.2024 passed in Ex.Case No.1047/2012. 2. For the sake of brevity, the parties are referred as per the ranking before the Executing Court. 3. The facts leading to the case are as under: The decree holder filed a suit in O.S.No.5515/2010 seeking relief of declaration and eviction against the judgment debtors. In the said suit, the Court granted relief of possession. Based on a decree granted in O.S.No.5515/2010, the decree holder has filed a execution petition in Ex.Case No.1047/2012. Pending consideration of the execution proceedings, the objectors who are tracing right and title through one Nagaraj have filed an application under Order XXI Rule 97. According to the obstructors, they are asserting title based on the sale deed - 4 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 executed by Nagaraj and his son on 29.05.1999. The obstructors are also placing reliance on interim order passed in O.S.Nos.6570/2004 and 6571/2004. Referring to these title documents, objectors sought for adjudication of their title, asserting that they possesses independent title and therefore, the decree which pertains to the property purchased by them, cannot be enforced. The objectors asserted that the suit schedule property originally belonged to Ashwath Narayana and his two sons who sold the property in favour of one Gopal Rao on 30.10.1953 and after death of Gopal Rao, objectors claimed that their vendor Nagaraj succeeded by way of inheritance. Nagaraj in-turn has sold the property in favour of objector Nos.1 and 2 on 29.05.1999. 4. Per contra, the decree holder resisted the application filed under Order XXI Rule 97. The decree holder contended that the subject matter of the execution proceedings and the one claimed by the objectors are totally different. While sale deed obtained by objectors - 5 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 refers to existing mud house, whereas the suit property, which is the subject matter of execution petition is a non- residential property comprising commercial shops. The decree holder referring to the records pointed out that tenants are in occupation and therefore, the property purchased by the objectors and the one claimed by decree holder are totally different. Referring to the description obtained by the objectors regarding the property, the decree holder contended that it is identified as a khaneshumari number and the property is shown to be built of mud wall with AC sheet house, without civic amenities. 5. Per contra, the decree holder's property is described as property bearing No.31, part and parcel of Sy.No.38, measuring East-West 65 feet and North-South 64 feet, along with 5 squares of RCC roofing building, with red oxide flooring. The decree holder further contended that objectors cannot trace title in respect of 30 guntas of land as the same was the subject matter of the Land - 6 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 Tribunal proceedings. The decree holder contended that the Land Tribunal rejected the claim of tenancy insofar as 30 guntas is concerned. Though the order of the Land Tribunal was reversed by the learned Single Judge in W.P.No.23999/1992, on an appeal filed by the decree holder's vendor namely T.Ramaiah in W.A.No.3410/2001, the order of the learned Single Judge was reversed and further the vendor of the objectors, namely Nagaraj, conceded that 30 guntas was not at all in possession of the tenant and it was in possession of one Ramaiah, who is the vendor of the decree holder. 6. The decree holder contends that the suit property is comprised in property bearing No.31, which forms part of Survey No.38, measuring East–West 65 feet and North–South 64 feet. The property includes a building consisting of five RCC-roofed squares with red oxide flooring. It is further asserted by the decree holder that the objector cannot establish title over the 30 guntas of - 7 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 land, as the same was the subject matter of proceedings before the Land Tribunal. 7. The decree holder submitted that the Land Tribunal had rejected the claim of tenancy insofar as the said 30 guntas is concerned. Though this order was set aside by the learned Single Judge in W.P.No.23999/1992, in a subsequent appeal filed by the decree holder’s vendor, T. Ramaiah, in W.A.No.3410/2001, the Division Bench reversed the order of the learned Single Judge. Further, the objectors' vendor, one Nagaraj, unequivocally admitted that the 30 guntas in question were never in possession of the tenant, but in fact remained in possession of Ramaiah, the vendor of the decree holder. 8. The Executing Court, upon a detailed consideration of the orders passed by the learned Single Judge and the Division Bench, concluded that the proceedings culminating in the writ appeal were not collusive in nature. It further held that the decree holder - 8 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 had successfully established his title to the suit schedule property as described in O.S.No.5515/2010. Accordingly, the application filed under Order XXI Rule 97 of the Code of Civil Procedure was dismissed. The said order is now under challenge. 9. Heard learned counsel for the third party applicants and learned counsel appearing for the decree holder. The following points would arise for consideration: 1) Whether the order of the Executing Court in rejecting the application filed under Order XXI Rule 97 suffers from perversity? 2) What Order? Finding on point No.1: 10. Before adverting to the merits of the matter, this Court considers it appropriate to take judicial notice of the order passed in W.A.No.3410/2001, as the same has a direct and material bearing on the claim advanced by the third-party applicants. Notably, the vendor of the third- - 9 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 party applicants was arrayed as respondent No.5 in the said writ appeal. For ease of reference and in order to appreciate the context and findings recorded therein, this Court finds it necessary to extract paragraphs 4 to 6 of the said judgment. "4. On consideration, we find that when the L.Rs of first respondent filed application for impleading them as necessary parties, the same was allowed and the Tribunal rejected the claim of 30 guntas. The learned single Judge without appreciating the facts has allowed the petition. Therefore, the order is liable to be set aside. 5. The respondents have not disputed the facts and also filed a memo stating that 30 guntas of land in Sy.No.38 of Cholanayakanahalli was in possession of T.Ramaiah having purchased the same under a registered sale deed dated 4.8.1960 and it was not a tenanted land, and has no objection for allowing the appeal setting aside the order of the learned single Judge. 6. Under the circumstances, the order of the learned single Judge is not sustainable and accordingly it is set aside. Writ Appeal is allowed and the order of the Tribunal is restored." - 10 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 11. The records further disclose that the vendor of the third-party applicants, namely Nagaraj, had challenged the order passed by the learned Single Judge by filing W.A.No.3657/2001. As the order is concise in nature, this Court finds it appropriate to reproduce the same in its entirety for ready reference. The said order reads as under: "This writ appeal is filed against the order dated 28.3.2001 passed in Writ Petition No.23999/92 wherein the learned single Judge allowed the petition modifying the order of the Tribunal thereby granting occupancy rights in respect of 30 guntas of land. 2. Learned counsel for the appellant submits that in identical matter filed by the 10th respondent in Writ Appeal No.3410/2001, this court allowed the appeal setting aside the order of the learned single Judge. The parties have submitted that this appeal may be disposed of in terms of the judgment in the earlier writ appeal. Learned counsel for the respondents have no objection. 3. Writ Appeal is disposed of accordingly. However, it is made clear that any observation made in this appeal will not come in the way of the pending civil suit." - 11 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 12. Upon a comprehensive examination of the records, this Court is of the considered view that the suit schedule property, which is the subject matter of the present proceedings, was also the subject matter of adjudication before the Land Tribunal. It is evident that the tenants, in those proceedings, had laid claim over the entire extent of land comprised in the relevant survey number, including 30 guntas of land which was, at the material point of time, in the possession of the decree holder’s vendor, T. Ramaiah. 13. The judgment rendered by the Division Bench in W.A.No.3410/2001, as culled out earlier, clearly establishes that the claim of tenancy over the said 30 guntas was specifically abandoned by the tenants, and the possession of T.Ramaiah over the said extent was acknowledged. It is significant to note that T.Ramaiah is none other than the vendor of the present decree holder. - 12 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 14. Furthermore, the vendor of the objectors namely, Nagaraj had independently questioned the order passed by the learned Single Judge, which had reversed the Land Tribunal’s findings, by filing a separate writ appeal in W.A.No.3657/2001. However, the said appeal was dismissed, and the dismissal was premised on the judgment passed in W.A.No.3410/2001. Thus, it is abundantly clear that Nagaraj, the vendor of the objectors, has suffered adverse orders at the hands of the Division Bench in both writ appeals. 15. In light of this, the contention raised by the objectors that there was collusion between the decree holder’s vendor and the tenants stands wholly discredited. The record unambiguously establishes that Nagaraj had contested the matter up to the Division Bench and suffered finality in law. Therefore, the allegation of collusion is not only baseless but also contrary to the material on record. The title of the decree holder’s vendor, T. Ramaiah, to the extent of 30 guntas, has attained - 13 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 finality and stands judicially affirmed. Consequently, the objectors, who claim to derive title through Nagaraj, cannot claim any independent or superior title to the property in question. 16. The legal position governing applications filed under Order XXI Rule 97 of the Code of Civil Procedure is well-settled. An obstructor who seeks to resist execution of a decree must demonstrate an independent right, title, or interest in the property that is the subject matter of the decree. The claim of such a third party can only be adjudicated if the title asserted is shown to be superior or at least independent of the title of the decree holder. 17. In the case at hand, the objectors are not asserting any independent title; rather, they are admittedly tracing their right and title through their vendor, Nagaraj. As already noted, Nagaraj has suffered adverse findings both in W.A.No.3410/2001 and in W.A.No.3657/2001, and therefore, any derivative title - 14 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 claimed through him stands eclipsed by the finality of those judicial pronouncements. The objectors, therefore, steps into the shoes of a person whose claim to title has already been judicially negated. Such a derivative claim can never be regarded as “independent” within the meaning of Order XXI Rule 97 CPC. 18. Moreover, the records also indicate that civil suits initiated by the objectors are still pending adjudication. Until a decree of declaration or any other binding pronouncement is rendered in the objectors' favour, the claim being set up in the execution proceedings remains without legal foundation. In this backdrop, the Executing Court has rightly rejected the objectors application. There exists no legal or factual basis to interfere with the said order. Accordingly, the point framed for consideration is answered in the Negative. - 15 - HC-KAR NC: 2025:KHC:28860 RFA No. 2339 of 2024 Finding on Point No.2: 19. For the reasons stated supra, the appeal is liable to be dismissed. Accordingly, dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE CA List No.: 1 Sl No.: 51