- 1 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MRS. JUSTICE M G UMA REGULAR SECOND APPEAL NO. 1244 OF 2009 (DEC/INJ) BETWEEN: PUTTANANJAMMA SINCE DECEASED BY HER PROPOSED L.R. SMT. GURUMALLAMMA D/O SMT. PUTTANANJAMMA AGED ABOUT 68 YEARS MAHANTHALAPURA VILLAGE AND POST KASABA HOBLI, CHAMARAJANAGAR TALUK CHAMARAJANAGAR DISTRICT. …APPELLANT (BY SRI: G.R. ANANTHARAM, ADVOCATE) AND: 1. MAHADEVAPPA MAJOR S/O RACHAPPA MAHANTHALAPURA VILLAGE YEDIYUR DHAKALE TALUK CHAMARAJANAGAR DISTRICT. 2. LINGARAJU MAJOR S/O LATE VEERABHADRADEVARU MAHANTHALAPURA VILLAGE YEDIYUR DHAKALE TALUK CHAMARAJANAGAR DISTRICT. …RESPONDENTS (BY SMT: KAVYA ANIL KUMAR, ADVOCATE) Digitally signed by PRASHANTH N V Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 09.06.2008 PASSED IN R.A.40/2007 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, CHAMARAJANAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 19.04.2001, PASSED IN O.S.141/1993, ON THE FILE OF THE PRL. CIVIL JUDGE, (JR.DN) & JMFC., CHAMARAJANAGAR. 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 No.1 in OS No.141 of 1993 on the file of the learned Principal Civil Judge (Jr.Dn.) and JMFC, Chamarajanagara (hereinafter referred to as 'the Trial Court' for short), is impugning the judgment and decree dated 09.06.2008 passed in RA No.40 of 2007 (old RA No.191 of 2002) on the file of the learned Additional District and Sessions Judge and Presiding Officer, Fast Track, Chamarajanagara (hereinafter referred to as 'the First Appellate Court' for short), whereunder, the appeal preferred by the plaintiff was allowed and the judgment and decree dated 19.04.2001 passed by the Trial Court dismissing the suit of the plaintiff was set aside and consequently, the suit of the plaintiff in OS No.141 of 1993 was decreed as prayed for. - 3 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 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.141 of 1993 against defendant Nos.1 and 2 seeking declaration of his title and for permanent injunction in respect of the property described in the schedule i.e., the land bearing Sy.No.275/1 measuring 35 guntas situated at Yediyur Village, Kasaba Hobli, Chamarajanagara Taluk with the boundaries mentioned therein and to restrain defendant No.1 from interfering with the plaintiff's peaceful possession and enjoyment of the property. 4. It is the contention of the plaintiff before the Trial Court that he is the owner in possession of the schedule property, which was purchased by him under the registered sale deed dated 09.10.1991 from defendant No.2. The schedule property was originally belonging to one Mahantadevaru-the uncle of defendant No.2. In the partition, the schedule property was allotted to the share of Mahantadevaru and he was in possession of the land. He sold the same in favour of one Basamma under the registered sale - 4 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 deed dated 08.01.1944. Basamma being the purchaser was in possession of the property and she gifted the same in favour of her daughter Chikkalingamma under the unregistered gift deed dated 29.07.1964. The said Chikkalingamma who acquired title and possession of the property sold the same in favour of defendant No.2 under the registered sale deed dated 12.12.1997. Since then, defendant No.2 was in possession and enjoyment of the property. Defendant No.2 sold the same in favour of the plaintiff under the registered sale deed dated 09.10.1991 for a valuable consideration and since then the plaintiff is in possession and enjoyment of the same and spent huge amount for its improvement. 5. It is contended by the plaintiff that since his predecessor in title was in peaceful possession and enjoyment of the property, nobody else was having any right over the same. Defendant No.1 filed the suit OS No.811 of 1961 on the file of the learned Munsiff, Nanjangud claiming maintenance against her husband Veerabhadradevaru. The suit came to be decreed. However, without getting the decree transferred to the Trial Court, defendant No.1 brought the schedule property for sale and she herself purchased the same in Execution Case - 5 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 No.33 of 1988. It is contended that said Veerabhadradevaru was not having any right, title or interest over the schedule property. Therefore, it is contended that the proceedings in OS No.811 of 1961 and in Execution Case No.33 of 1988 before the Trial Court are not binding on the plaintiff or his predecessor in title. The cause of action for the suit stated to have arisen during April 1993 when the plaintiff got the RTC for the year 1992-93 and found the entry referring to the name of defendant No.1. Hence, filed the suit for declaration of his title and permanent injunction. 6. Defendant No.1 has appeared before the Trial Court and filed the written statement denying the contention taken by the plaintiff. It is contended that she has filed suit OS No.811 of 1961 claiming maintenance against her husband Veerabhadradevaru and the same came to be decreed as the defendant has not contested the suit and the charge was created on three items of properties, including the schedule property. Since the maintenance was not paid, defendant No.1 filed Execution Case No.33 of 1988, but by that time, her husband Veerabhadradevaru had died. Therefore, defendant No.2 was the judgment debtor being the legal representative of - 6 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 the original defendant. He never contested the matter. Therefore, the schedule property was brought for sale. Defendant No.1 purchased the property with the leave of the Court. The sale was confirmed on 25.08.1990 and the possession was handed over to defendant No.1 on 12.03.1992. Thus, defendant No.1 was in possession and continued to be in possession of the property. Therefore, it is contended that, defendant No.2 has no manner of right, title or interest over the schedule property. 7. The contention of the plaintiff that the property was in possession of Basamma or that she gifted it in favour of her daughter and he sold in favour of defendant No.2 are all denied. The contention of the plaintiff that Veerabhadradevaru had no manner of right over the property is also denied. Therefore, prayed for dismissal of the suit as devoid of merits. 8. On the basis of these pleadings, the Trial Court framed the following issues for consideration: "1. Whether plaintiff proves that he is the absolute owner and in lawful possession and enjoyment of the suit schedule property? - 7 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 2. Whether plaintiff proves the alleged interference made by the defendants into his lawful possession and enjoyment of the suit schedule property? 3. Whether plaintiff proves that he is entitled for the relief of permanent injunction as prayed for? 4. To what decree or order the parties are entitled?" 9. The plaintiff examined PWs.1 to 9 and got marked Exs.P1 to P21 in support of his contention. Defendants examined DWs.1 and 2 and got marked Exs.D1 to D18 in support of their defence. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1 to 3 in the Negative and dismissed the suit of the plaintiff. Being aggrieved by the same, the plaintiff has preferred RA No.191 of 2002 which was later re-numbered as RA No.40 of 2007. The First Appellate Court on re-appreciation of the materials on record, came to the conclusion that the Trial Court committed an error in dismissing the suit of the plaintiff and held the issues in affirmative and decreed the suit of the - 8 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 plaintiff as prayed for, by allowing the appeal. Being aggrieved by the same, defendant No.1 is before this Court. 10. This Court vide order dated 26.11.2010, has framed the following substantial questions of law: "(1) Whether the appellant who had obtained decree for maintenance against her husband Veerabhadradevaru and brought the property, the land bearing Survey No.275/1 to sale and the sale proclaimed and confirmed by the Court in favour of the appellant could be the subject matter of the suit for declaration and possession, out of which this appeal arises, in the face of Order XXI Rule 92 of The Code of Civil Procedure, 1908 and other provisions which make such a sale absolute in favour of the purchaser? (2) Whether the lower appellate Court could reconcile the circumstances with the suit reliefs that were claimed in the present suit out of which this appeal arises?" 11. Heard Sri G R Anantharam, learned counsel for the appellants and Smt Kavya Anil Kumar, learned counsel for the respondents. Perused the materials including the Trial Court records. - 9 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 12. The plaintiff who filed the suit for declaration sought to declare him as the owner and for permanent injunction restraining the defendants from interfering with his right, title or interest over the schedule property. The plaintiff is claiming right over the schedule property under the registered sale deed dated 09.10.1991 produced as per Ex.P4. The suit came to be filed on 03.06.1993 contending that by going through the RTC, the name of defendant No.1 was found to be entered as the owner in possession of the property which gave cause of action for filing the suit. 13. There is reference to the suit OS No.811 of 1961, the decree passed by the Civil Court and the auction proceedings held by the Trial Court in Execution Case No.33 of 1988. But strangely, the plaintiff has not sought any relief in respect of the judgment and decree passed in OS No.811 of 1961, whereunder, a charge was created over the schedule property in favour of defendant No.1 for payment of maintenance by the original defendant in the said suit. The auction proceedings held in Execution Case No.33 of 1988 was also not challenged. Admittedly, the confirmation of sale in favour of defendant No.1 was ordered on 25.08.1990 and - 10 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 subsequently, the sale certificate was issued. As per Ex.D11 the possession of the property was delivered to defendant No.1 on 12.03.1992. It is stated that accordingly the name of defendant No.1 was mutated in the revenue records. It is thereafter on 03.06.1993, the present suit came to be filed by the plaintiff. 14. Even though the plaintiff is very well aware of all these proceedings, he has not chosen to challenge the same for the reasons best known to him. Even after knowing about the civil proceedings, the decree passed by the Trial Court in favour of defendant No.1, issuance of sale proclamation as per Ex.D4, holding of public auction, confirming the sale in favour of defendant No.1 as per order dated 25.08.1990, the plaintiff could not have filed the suit without seeking any relief in respect of those proceedings, which was held before a competent court having jurisdiction. 15. Order XXI Rule 92 of CPC refers to sale when to become absolute or to be set aside. Sub Rule (3) prohibits filing of any suit to set aside an order made under this Rule by any person against whom such an order is passed. In view of such - 11 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 absolute bar under Sub Rule (3) of Rule 92 of Order XXI, the plaintiff could not have filed separate suit seeking declaration of his title ignoring the judgment and decree passed by the Trial Court, confirmation of the sale, issuance of sale certificate, delivery of possession as per the order of the Civil Court. 16. It is the contention of learned counsel for the respondent - plaintiff that the original defendant Veerabhadradevaru in OS No.811 of 1961 was not having any manner of right, title or interest over the schedule property for the Civil Court to create charge over the same. According to her, the property was allotted to the share of one Mahantadevaru - the brother of Veerabhadradevaru, who is the uncle of defendant No.2, who in turn, sold it in favour of Basamma under the sale deed dated 08.01.1944. Basamma gifted it in favour of her daughter under the unregistered gift deed dated 29.07.1964. The said daughter by name Chikkalingamma sold the property in favour of defendant No.2 under the sale deed dated 12.12.1977, who in turn sold it to the plaintiff under the sale deed dated 09.10.1991. - 12 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 17. Even if the contention taken by the plaintiff as pleaded in the plaint is to be accepted with regard to flow of title, defendant No.2 was the owner of schedule property, when Execution Case No.33 of 1988 was filed against him. When admittedly, defendant No.2 was a party to the execution proceedings initiated by defendant No.1, all the proceedings were held under his nose but he has not chosen to raise any objections for sale of the property. Even if he had raised any objection, the Executing Court must have considered the same, brought the property for sale and permitted the plaintiff to participate in the auction. Later issued sale confirmation on 25.08.1990. Subsequently issued sale certificate and defendant No.1 was issued with delivery receipt dated 12.03.1992. 18. Admittedly, defendant No.2 had not challenged any of these proceedings, but silently proceeded to sell the schedule property in favour of the plaintiff under the sale deed Ex.P4 dated 09.10.1991, that is much after the confirmation of sale in favour of defendant No.1. When defendant No.2 has not challenged any of the proceedings for which he was a party, he could not have sold the property in favour of the plaintiff. Under such circumstances, the plaintiff will not get better title - 13 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 to the schedule property under the sale deed Ex.P4. Therefore, the plaintiff is not entitled for the relief of declaration of his title or for permanent injunction. Hence, the suit of the plaintiff is liable to be dismissed. 19. I have gone through the impugned judgment and decree passed by the Trial Court. It has properly appreciated the pleadings, the oral and documentary evidence placed before it and arrived at a right conclusion. However, the First Appellate Court misled itself in passing the impugned judgment by setting aside the judgment and decree passed by the Trial Court and decreed the suit. The reasons assigned by the First Appellate Court that the plaintiff is the owner of the property under the registered sale deed cannot be accepted, when there are already the proceedings that was held before the Civil Court to which defendant No.2 - the vendor of the plaintiff is a party. Therefore, the judgment and decree passed by the First Appellate Court is liable to be set aside. Since the suit brought by the plaintiff is against Order XXI Sub Rule (3) of CPC, the substantial questions of law referred to above are to be held in favour of the defendant No.1 and against the plaintiff. Accordingly, I proceed to pass the following: - 14 - HC-KAR NC: 2025:KHC:43702 RSA No. 1244 of 2009 ORDER (i) The appeal is allowed. (ii) The judgment and decree dated 09.06.2008 passed in RA No.40 of 2007 on the file of the learned Additional District and Sessions Judge and Presiding Officer, Fast Track, Chamarajanagar, is hereby set aside. (iii) Consequently, the judgment and decree dated 19.04.2001 passed in OS No.141 of 1993 on the file of the learned Principal Civil Judge (Jr.Dn.) and JMFC, Chamarajanagar, is restored. Registry is directed to send back the Trial Court records along with copy of this judgment. Sd/- (M G UMA) JUDGE BGN List No.: 1 Sl No.: 4