- 1 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 448 OF 2007 BETWEEN: 1. HALASWAMY, S/O SHADAKSHARAIAH, AGED ABOUT 37 YEARS, 2. HALAMANI, D/O SHADAKSHARAIAH, AGED ABOUT 45 YEARS, 3. NAGAMANI, D/O SHADAKSHARAIAH, AGED ABOUT 40 YEARS, APPELLANTS 1 TO 3 ARE RESIDING AT KUNDUR VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT. 4. SUGUNA MURTHY, S/O LATE SHAMBULINGAIAH, AGED ABOUT 60 YEARS, SINCE DECEASED REP. BY HIS LRS 4(a) SMT LEELAVATHI MURTHY HOSMATH, W/O LATE C.S.MURTHY HOSMATH, AGED ABOUT 68 YEARS, 4(b) SRI SWAMY SHIVA PRAKASH H, S/O LATE C.S.MURTHY HOSMATH, AGED ABOUT 55 YEARS, 4(c) SRI SWAMY SATISH, S/O LATE C.S.MURTHY HOSMATH, Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 AGED ABOUT 51 YEARS, 4(d) SRI SWAMY SURESH, S/O LATE C.S.MURTHY HOSMATH, AGED ABOUT 47 YEARS, RESIDING AT NADUVALAPETE, HARIHAR - 577 601, DAVANAGERE DISTRICT. 5. SUBHIKSHA MURTHY, AGED ABOUT 55 YEARS APPELLANTS 4 AND 5 ARE SONS OF LATE SHAMBULINGAIAH, RESIDING AT NADUVALAPETE, HARIHAR - 577601, DAVANGERE DISTRICT. SINCE DECEASED REP. BY HIS LRS 5(a) SRI SWAMY SIDDESH, S/O LATE SUBHIKSHA MURTHY HOSMATH, AGED ABOUT 52 YEARS, 5(b) SRI PURNA SWAMY, S/O LATE SUBHIKSHA MURTHY HOSMATH, AGED ABOUT 40 YEARS, BOTH ARE RESIDING AT NADUVALAPETER, HARIHAR - 577 601, DAVANAGERE DISTRICT. …APPELLANTS (BY SRI B K MANJUNATH, ADVOCATE FOR SRI M R KRISHNA MURTHY, ADVOCATE FOR APPELLANT NO.1 TO 3 AND LR'S OF A4 AND A5) AND: 1. SMT SHARANAMMA, W/O LATE CHARALINGAMURTHY, AGED ABOUT 62 YEARS - 3 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 2. RENUKA, S/O LATE CHARALINGAMURTHY, AGED ABOUT 44 YEARS, 3. SMT LALITHA, D/O LATE CHARALINGAMURTHY, AGED ABOUT 40 YEARS, 4. GIRISH, S/O LATE CHARALINGAMURTHY, AGED ABOUT 37 YEARS, 5. HOSMATH CHANNAMALLIKARJUNAIAH, S/O LATE SHANKARAIAH, AGED ABOUT 55 YEARS, 6. RENUKA PRASAD, S/O LATE SHANKARAIAH, AGED ABOUT 50 YEARS, 7. SMT BASAMMA, S/O LATE SHANKARAIAH, AGED ABOUT 70 YEARS, RESPONDENTS NO.1 TO 7 ARE ALL ARE RESIDING AT SANTHEBENNUR, CHANNAGIRI TALUK, DAVANGERE DISTRICT - 577 522. …RESPONDENTS (BY R1, R2, R3, R4, R5, R6 AND R5 ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 23.12.2006 PASSED IN R.A.NO. 1/2000 (OLD NO. 8/1984) ON THE FILE OF THE ADDL.SESSIONS JUDGE, FAST TRACK COURT-II, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DATED 21.9.1984 PASSED IN OS.NO.79/1977 ON THE FILE OF THE CIVIL JUDGE, DAVANAGERE. - 4 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT 0 This Second Appeal is arising from the concurrent findings recorded by the Trial Court as well as the First Appellate Court. The suit is one for declaration and possession. Suit is decreed granting a decree for declaration of title and possession. The First Appeal is dismissed and hence the present Second Appeal. 2. This appeal was admitted on 19.02.2007 to consider the following substantial question of law: "Whether the Courts below were justified in declaring the title of the plaintiff in the light of the auction sale held in pursuance of a Court decree under which the defendant's vendor became the owner of the suit schedule property?" 3. Learned counsel for the defendants/appellants taking through the facts of the case submitted as under: - 5 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 - There were two brothers by name Shankaraiah and Shambulingaiah. The suit was filed by wife and children of Shankaraiah. Both Shankaraiah and Shambulingaiah are no more. Children of Shankaraiah claimed that on 06.07.1932, Shambulingaiah executed a release deed relinquishing certain properties, including the suit property in favour of Shankaraiah. 4. Plaintiffs claimed that on 13.08.1932 that Shankaraiah sold the suit property to Jayadevaiah and on 22.08.1955, Jayadevaiah reconveyed the suit property to Shankaraiah. 5. The suit for declaration of title and possession is filed, alleging that legal representatives of Shambulingaiah are in permissive possession without title. 6. The defendants contested the suit and took a stand that Shambulingaiah is not a party to the alleged release deed. Thus the property in question was not conveyed or released in favour of Shankaraiah. Defendants also contend that a suit in O.S.No.161/1937-38 was by the - 6 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 Municipality to recover arrears of tax payable in respect of the suit property. The suit was decreed against Shambulingaiah. However, the tax was not paid as directed in the decree. Thus, the decree was put in execution to recover the tax and in the said execution proceeding in 634/41-42, the suit property was auctioned and same was purchased by Murukal Murugappa as evidenced in the sale certificate dated 23.01.1943. Thus, the defendants contend that the plaintiffs who were claiming under Shankaraiah did not have any title and possession over the property. 7. Defendants also contend that Murukal Murugappa sold the suit property to the wife of Shambulingaiah under registered sale deed dated 07.07.1943. Since then, till her death, she continued in possession of the property and she owned the property, and after her demise, the defendants inherited the title and possession of the property from wife of Shambulingaiah. 8. The Trial Court did not accept the defense and held that the plaintiffs succeeded to the property from - 7 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 Shankaraiah under registered lease deed dated 06.07.1932. The First Appellate Court has also accepted the contention of the plaintiffs and dismissed the defendants' appeal. 9. After noticing the contentions raised, this Court vide order dated 03.07.2025 framed one more substantial question of law as under: "Whether the title of Shambulingaiah is established in view of the release deed of 1932. 10. After considering the submission made today before the Court and also considering the evidence placed on record, this Court is of the view that one more substantial question of law is required to be framed. Accordingly, it is framed as under: "Whether the plaintiffs establish that their father Shankaraiah acquired right over the property under the registered release deed dated 06.07.1932 and the sale deed dated 22.08.1955." - 8 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 11. Since the counsel for the respondents is not before the Court, the Counsel for the appellants is heard on the substantial questions of law. 12. The admitted relationship would reveal that there were two brothers namely Shankaraiah and Shambulingaiah. The present suit is filed by the legal representatives of Shankaraiah. The suit is filed against the legal representatives of Shambulingaiah. The plaintiffs claim that they have inherited the title over the property from their father Shankaraiah and it is alleged that the defendants are in permissive possession. 13. The defendants denied the plaintiffs' contention. The defendants took a stand that the suit property belonged to Shambulingaiah and the property was the auctioned to recover the municipal dues and in public auction, property was sold to Murukal Murugappa under the auction sale deed dated 10.07.1943. The said document is marked at Ex.D2. 14. It is further claimed that Murukal Murugappa sold the same property to defendant No.1 under the registered - 9 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 sale deed dated 07.07.1943. The Trial Court did not accept the plea that defendant No.1 acquired title over the property under the registered sale deed dated 07.07.1943 and decreed the suit holding that the plaintiffs have inherited the property from Shankaraiah. First Appellate Court also agreed with the finding recorded by the Trial Court. 15. Learned counsel appearing for the defendants/ appellants would submit that the property in question even according to the plaintiffs' ancestor Shankaraiah was the joint family property and this statement is made in the alleged release deed dated 06.07.1932 marked at Ex.P2 on behalf of the plaintiffs. If the said registered release deed is accepted for the sake of argument, it would indicate that the property would belong to Shankaraiah and Shambulingaiah. The plaintiffs though have not averred anything in relation to release deed dated 06.07.1932, have led evidence to contend that their father Shankaraiah acquired title over the property under the release deed marked at Ex.P2. - 10 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 16. Learned counsel appearing for the appellants would submit that even if the contents of the release deed are accepted as it is, the release deed at Ex.P2 does not convey the title in favour of Shankaraiah. He would submit that the said deed is a void document in the eye of law as it does not confer any right in favour of Shankaraiah for want one of consideration. He would also submit that Shambulingaiah who according to Shankaraiah was the joint owner of the property has not signed the release deed. It is further submitted that no consideration is paid to Shambulingaiah or no property is given to Shambulingaiah in view of the surrender of share of Shambulingaiah. Thus, it is his contention that both Trial Court as well as the First Appellate Court have completely misread Ex.P2. 17. It is also his further contention that the fact that the suit is filed for possession would establish that defendants are in possession of property and defendants' possession is traceable to the registered sale deed dated 07.07.1943 executed by Murukal Murugappa. - 11 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 18. It is his further contention that the title of vendor Murukal Murugappa is traceable to the sale certificate dated 23.01.1943 pursuant to auction sale conducted by the then Harihar Municipality, pursuant to Court decree. Thus, he would submit that in the absence of any challenge to the auction sale and the sale certificate and also sale deed in the name of defendant No.1, the suit filed by the plaintiff for relief of declaration of title and possession is not maintainable. 19. This Court has perused the release deed dated 06.07.1932 which is marked at Ex.P2. From the recital in the aforementioned release deed, it is noticed that this document does not bear the signature of Shambulingaiah whose property is said to have been released in favour of Shankaraiah. It is also noticed that no consideration is said to have been paid to Shambulingaiah who admittedly according to Shankaraiah was the joint owner of the property. - 12 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 20. Further recital in the sale deed would reveal that in view of the dispute between Shankaraiah and Shambulingaiah, document is executed. This being the position, it cannot be construed as a gift or release in favour of Shankaraiah. 21. After going through the recital in Ex.P2- the alleged release deed, this Court is of the view that the said document is not a release deed in the eye of law. It does not release the property of Shambulingaiah. It does not convey any benefit or title in favour of Shankaraiah, both the Courts have completely misread Ex.P2 the alleged registered release deed in favour of Shankaraiah. Thus, Shankaraiah could not have sold that property to Jayadevaiah and said Jayadevaiah could not have sold the suit property to Shankaraiah on 22.08.1955 as claimed. 22. Now the Court has to consider whether the defendants have established their title. Since the suit is one for possession, the defendants need to establish their possession as it is admitted. This being the position, this - 13 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 Court has to consider the title of the defendants. Admittedly, the defendants are in possession of the suit properties. Defendant No.1 claims to have purchased the property under the registered sale deed dated 07.07.1943 which is marked at Ex.D4 and it is a sale deed executed by Murukal Murugappa. From Ex.D2, the sale certificate dated 23.01.1943, it is noticed that Murukal Murugappa has purchased the property in Court auction. Assuming that Shankaraiah had 1/2 share in the property when it was auctioned, the share in the property was also auctioned and same was purchased by Murukal Murugappa and he in-turn has sold that the property of defendant No.1. It is not the case of the plaintiffs that defendant No.1 purchased the property on behalf of the family, such a plea is not found. 23. Under these circumstances, this Court has to hold that the finding recorded by the Trial Court and the First Appellate Court that the plaintiffs are the owners of the property having inherited the same from Shankaraiah have to be set-aside and accordingly is set-aside. - 14 - HC-KAR NC: 2025:KHC:25631 RSA No. 448 of 2007 24. It is also noticed that the respondents though served are not represented by any counsel. The substantial question of law framed are answered in favour of the appellants. 25. Hence, the following: ORDER (i) Appeal is allowed. (ii) The impugned judgment and decree dated 23.12.2006 in R.A.No.1/2000 on the file of Fast Track Court-II, Davanagere are set aside. (iii) The suit of the plaintiff in O.S.No.79/1977 on the file of Civil Judge, Davanagere is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE BRN/GVP List No.: 1 Sl No.: 68