- 1 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.240 OF 2024 (DEC/POS) BETWEEN: 1. SMT CHIKKAMMA W/O LAT BEERANAYAKA AGED ABOUT 64 YEARS 2. PUSHPALATHA D/O LATE BEERANAYAKA AGED ABOUT 40 YEARS 3. CHANDRAKUMARI D/O LATE BEERANAYAKA AGED ABOUT 40 YEARS ALL ARE RESIDING AT NO.954, KALIDASA ROAD, NAYAKARA BEEDHI, H.D.KOTE TOWN AND TALUK MYSURU DISTRICT-571 114. …APPELLANTS (BY SRI. SAGAR B.B., ADVOCATE) AND: 1. SRI. THIMMANAYAKA S/O CHIKKABEERANAYAKA AGED ABOUT 69 YEARS R/AT HANUMANTHANAGARA HOSABADAVANE METIKUPPE ROAD H.D.KOTE TOWN AND TALUK MYSURU DISTRICT-571 114. Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 2. SMT. DEVALAMMA W/O ALTE HUCHHANAYAKA AGED ABOUT 59 YEARS 3. SMT. DEVAMANI W/O LATE PARASUMANAYAKA AGED ABOUT 38 YEARS 4. GOWRAMMA D/O LATE HUCHHANAYAKA AGED ABOUT 36 YEARS, SL.NOS.2 TO 4 ARE RESIDING AT KALIDASA ROAD NAYAKARA BEEDHI, H.D. KOTE TOWN AND TALUK MYSURU DISTRICT-571 114. …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.09.2023 PASSED IN R.A.NO.11/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, H.D.KOTE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.09.2019 PASSED IN O.S.NO.192/2009 ON THE FILE OF THE CIVIL JUDGE AND JMFC, HEGGADADEVANAKOTE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT This matter is listed for admission and I have heard learned counsel for the appellants. 2. The factual matrix of the case of the plaintiffs while seeking the relief of declaration and possession before the Trial Court is that suit schedule property originally belonged to one late Huchanaika, working as School Jawan, which was granted to him by the Government during 1926-27 i.e., dated 12.06.1925. During his lifetime, he was in possession and enjoyment of the suit property. However after his death, the property got mutated in the name of mother of the first defendant vide mutation order No.39/08-09 dated 21.10.2008, which is not correct and made in collusion with the revenue officials. The plaintiffs are the absolute owners of the suit schedule property bearing Sy.No.127/2 to the extent of 1.36 acres, out of total extent of 6.27 acres. It is contended that the defendants are totally strangers and further contend that defendants are in possession of the suit property which is illegal and plaintiffs approached them on 05.08.2009 and demanded - 4 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 to handover the property to them. The defendants denied the ownership of the plaintiffs and refused to handover the possession. Hence, filed the suit for declaration and possession. 3. The defendants appeared and filed the written statement denying the ownership and also the possession of the plaintiffs over the suit schedule property and further contend that it is the ancestral property of the defendants. The suit schedule property was granted to grand-father of first defendant-Huchanaika. It is further claimed that Puttanaika @ Huchanaika was not in possession and enjoyment of the suit schedule property. The plaintiffs have instituted two suits one in O.S.No.156/2009 against one Thimmamma in respect of Sy.No.127/1 and another in O.S.No.187/2009 with respect to the instant suit schedule property against Beeranaika and five others for the relief of permanent injunction. Both the suits are filed before this Court. The defendants further claim that suit schedule property stands in the name of paternal aunt of first defendant. Amongst other grounds, the defendants prays for dismissal of the suit. - 5 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 4. The Trial Court having framed the issues, allowed the parties to lead evidence and even additional issue is also framed whether the plaintiff is entitled for the relief of declaration with respect to suit schedule property and he is entitled for consequential relief. The Trial Court having considered the material available on record answered all the issues as ‘negative’ including the additional issue taking note of the fact that it was pleaded that land was granted to Huchchanayaka long back in the year 1927. Trial Court having considered the material available on record comes to the conclusion that it was pleaded that land measuring 6 acres 27 guntas was granted and even fact remain is inconsistent when PW1 reveals in her cross-examination that her father-in-law had acquired the suit property in a public auction. The plaintiffs have produced the copies of plaint, written statement of earlier suit in O.S.No.156/2009 and also taken note that even boundaries mentioned in the earlier suit also different from the present suit boundaries in paragraph 10 and also taken note of the RTCs from the year 1980-81, 1990-91, 1995-96, 2008-09 which are marked as Ex.P3 to P6. The said documents uncover the fact that out of the total extent of 3.32 acres, an extent of - 6 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 1.36 acres each are shown against the names of one Thulasamma wife of Puttanaika and Devamma wife of Chikkanaika. Their names were mutated on the basis of M.R.No.46/1982-83. However under Ex.P6, the mutation number is shown as M.R.No.39/2008-09 dated 21.10.2008 to which plaintiffs claimed to be illegal. The mutation is also not under challenge before any forum till today. According to the plaintiffs, Thulasamma is the second wife of late Huchchanayaka and an observation is made that if that is so, Ex.P3 to P6 should have been revealed the name of Thulasamma wife of Huchchanayaka and not as Thulasamma wife of Puttanaika. The further observation is made that interestingly, DW1 in the cross examination was suggested by the learned counsel for the plaintiffs that the first wife of Huchchanayaka is Manchamma. But the stand of plaintiffs in O.S.No.156/2009 is that the name of first wife of late Huchchanayaka is Chennamma. The Trial Court has taken note of all these discrepancies found in the documents as well as evidence and comes to the conclusion that plaintiffs have not proved their title and ownership over the suit schedule property either by way of oral or documentary evidence. - 7 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 5. The Trial Court also made an observation with regard to seeking of possession is concerned. When the plaintiffs seek the relief of recovery of possession, first prove that the defendants are in illegal possession. In the chief examination, PW1 has deposed that suit property originally granted to her father-in-law and after his death, her husband was in possession and enjoyment of the property. However, after the death of Huchchanauaka, the property got mutated in the name of mother of defendant No.1. According to PW1, the possession of defendants is illegal and colluded with revenue officials. But the fact that with regard to the possession is concerned, nothing is placed on record to show that on what date possession was taken by the defendant. The Trial Court also taken note of the material available on record and comes to the conclusion that pleading is contrary to the evidence which has been placed before the Court and also comes to the conclusion that other documents placed before the Court also not substantiated the case of plaintiffs. Hence, dismissed the suit. - 8 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 6. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred before the First Appellate Court. the First Appellate Court also having perused both oral and documentary evidence available on record, formulated the points that whether the Trial Court has committed an error in coming to the conclusion that plaintiffs have not proved that they are the absolute owners of the suit schedule property and also with regard to the illegal possession of the suit schedule property by the defendants and answered all the points as negative discussing with regard to the evidence of PW1 in paragraph 24 and comes to the conclusion that on careful perusal of the cross-examination of PW1, the counsel for defendants suggested that father-in-law of PW1 is Huchchanayaka, but PW1 denied the said suggestion put by the counsel for the defendants. Even during the cross-examination deposed that scheduled property was acquired by Huchchanayaka in public auction and she got the document to establish the same. The Trial Court also taken note of the contra material placed before it with regard to the pleadings as well as the evidence. Hence, comes to the conclusion that the - 9 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 Trial Court has not committed an error in dismissing the suit of the plaintiffs and dismissed the appeal. 7. The main contention of the counsel appearing for the appellants in this present second appeal is that both the Courts are not justified in dismissing the suit as well as confirming the judgment without verifying the title of the plaintiffs who are the legal heirs of Late Huchchanayaka. Hence, this Court has to frame substantive questions of law. The counsel also would submit that may be the pleading is contrary to the documents which have been placed before the Trial Court, but the title is proved by placing the document. If the material placed on record is very clear that title is with the plaintiffs, both the Courts ought not to have dismissed the case of the plaintiff. 8. Heard the learned counsel appearing for the appellants and also perused the material on record as well as the reasons assigned by both the Courts. It is not in dispute that the very specific pleading is made by the plaintiffs that property was granted in favour of Huchchanayaka but in order to prove the factum that property was granted in favour of - 10 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 Huchchanayaka, no document is placed before the Court. The document which is placed is Ex.P1 that is only a kethuvar. Even to show that property has been purchased, except placing on record of Ex.P1, nothing is placed on record. It is settled law that pleading must be proved by placing the oral and documentary evidence before the Court and Order VII Rule 3 of CPC is also very clear that there must be a pleading and proof in consonance with the established principles of evidence and the same is not done. 9. The counsel would vehemently contend that mere relying upon the documents contrary to the pleading cannot be a ground to dismiss the suit and the said contention cannot be accepted for the reason that when the plaintiffs approach the Court, particularly in a case of declaration to declare the ownership based on the documents, the documents which they rely upon must be corollary to the pleadings what they have made. In the absence of specific pleading that how they derived the title and the same is not supported by any document, the question of granting the relief of declaration does not arise. Hence, I do not find any error committed by the Trial Court and also the First Appellate Court in appreciating both oral and - 11 - HC-KAR NC: 2025:KHC:43255 RSA No. 240 of 2024 documentary evidence when the relief is sought for declaration as well as for possession. It is the specific pleading that after the death of Huchchanayaka, the family members are in possession of the property and their possession is continued. But none of the documents reveal that it stands in the name of the plaintiffs. On the other hand, documents which have been found are standing in the name of other persons and the same is also not tallies with the same and the said fact also taken note of by the Trial Court. Under the circumstances. I do not find any ground to admit the appeal and to frame any substantive questions of law. 10. In view of the discussions made above, I pass the following: ORDER The second appeal is dismissed. Sd/- (H.P.SANDESH) JUDGE ST/SN List No.: 1 Sl No.: 32