- 1 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1904 OF 2013 (PAR) BETWEEN: M/S. DELTA INFRALOGISTICS (WORLDWIDE) LIMITED, (FORMERLY HML AGENCIES PVT. LTD.,) A BODY CORPORATE HAVING ITS REGISTERED OFFICE AT NO.201, VEEKAY TOWERS, KULUR, MANGALORE - 575 013. REP. BY ITS MANAGING DIRECTOR SRI A.MOHIUDDIN, S/O B.AHMED AGED ABOUT 54 YEARS, RESIDING AT "CASA GRANDE" ATTAVAR, MANGALORE - 575004. …APPELLANT (BY SRI JOSEPH ANTHONY SHIRISH AND SMT.MONICA PATIL, ADVOCATE) AND: 1. FRANCIS D'SOUZA, S/O LATE PHILIP D'SOUZA, ADULT, RESIDING AT DEVA RAO COMPOUND, BOLOOR, MANGALORE - 575 003. 2. MR. APOLINE D'SOUZA, S/O WILLIAM D'SOUZA, ADULT, KUDRU HOUSE, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 KULOOR POST, MANGALORE - 575 013. 3. MRS. FLOSSY D'SOUZA, W/O CYRILL D'SOUZA, ADULT, NO.201, A WING, II FLOOR, SEA BIRD BUILDING, MARVE ROAD, MALAD WEST, MUMBAI - 560 095. 4. MR. MOHAMMED JAVED, MISBAH, S/O MOHAMMED JAFFER, IV MILE, KULOOR, MANGALORE - 575 013. 5. K. SURESH SHENOY, S/O K.DEVADAS SHENOY, ADULT, BANGRAKULOOR, MANGALORE - 575 014. …RESPONDENTS (BY SRI ISMAIL M.MUSBA AND MISS SANYA MALLI, ADVOCATE FOR R1 AND R3; SRI RAVISHANKAR SHASTRY, ADVOCATE FOR C/R2; VIDE ORDER DATED 24.04.2014, NOTICE TO R4 IS DISPENSED WITH; VIDE ORDER DATED 24.04.2014, R5 PLACED EX PARTE) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH RULE 1 ORDER XLII OF CPC, PRAYING TO SET ASIDE THE JUDGMENT & DECREE DATED 01.08.2013 PASSED IN R.A.NO.32/2009 ON THE FILE OF II ADDITIONAL DISTRICT JUDGE, DAKSHINA KANNADA, MANGALURU BY WHICH JUDGMENT AND DECREE OF THE LEARNED FIRST APPELLATE JUDGE HAS CONFIRMED THE JUDGMENT AND DECREE DATED 19.12.2008 PASSED IN O.S.NO.240/2004 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE (SR. DIVISION), MANGALURU, DAKSHINA KANNADA. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 01.08.2013 passed in R.A.No.32/2009 by II Additional District Judge, Dakshina Kannada, Mangaluru confirming the judgment and decree dated 19.12.2008 passed in O.S.No.240/2004 by II Additional Civil Judge (Sr. Dn.), Mangaluru, Dakshina Kannada. 2. For convenience, the parties are referred to, based on their rankings before the Trial Court. The appellant was not a party to the proceedings before the Trial Court. Respondent No.1 was plaintiff No.2 and other respondents were the defendants. 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants seeking for a relief of partition and separate possession. It - 4 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 is the case of the plaintiffs that the deceased Anjaline D'Souza was in possession of item No.1 of the suit schedule property, on muli right and item No.2 of the suit schedule property, on chalageni. It is asserted that the said deceased Anjaline D'Souza was cultivating the properties on behalf of the family members. The plaintiffs proceeded to assert that upon the death of Anjaline D'Souza the tenancy right in respect of item No.2 of the suit schedule property along with item No.1 came to be inherited by her children Mr.Philip D'Souza i.e., the husband of plaintiff No.1 and father of plaintiff No.2, Avid D'Souza, the husband of Defendant No.3. 3.1. After the Advent of the Karnataka Land Reforms Act, 1961 (for short, 'the Act'), the husband of defendant No.3 filed a declaration in Form No.7 before the Land Tribunal, claiming the grant of occupancy right over the suit properties. The Land Tribunal granted occupancy rights in favour of defendant No.3. The grant made in favour of defendant No.3 is to benefit the family members. - 5 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 It is contended that Defendant No.4 and 5, who have absolutely no right in the suit properties, are trying to trespass in to the said properties. Hence, the plaintiffs demanded partition and separate possession, the defendants refused to effect partition. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. 3.2. Defendant No.1 filed a written statement contending that all the averments made in the plaint to be true and correct. Defendant No.2 filed a memo adopting the written statement filed by defendant No.1. Defendant No.3 filed a written statement contending that the plaint schedule was granted too late, Avid D'Souza, who was cultivating the land personally. The plaintiffs have no right to claim any share in the suit schedule properties. It is also contended that defendant No.3 had sold the property set out in item No.2 of the plaint schedule property in favour of defendant Nos.4 and 5 under a Registered Sale Deed dated 25.02.2004. Defendant No.3 denied the entire - 6 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 averments made in the plaint and prays to dismiss the suit against defendant No.3. 3.3. Defendant No.5 filed a written statement denying the plaint averments and prays to dismiss the suit. 3.4. The Trial Court, based on the above said pleadings, framed the following issues: 1) Whether the plaintiff proves that themselves and defendants 1 to 3 are deemed to be in joint and constructive possession of plaint schedule property? 2) Whether the plaintiff prove that interference by defendants 4 and 5? 3) Whether the plaintiff proves that they are jointly entitled for 1/4th share in the plaint schedule property? 4) Whether the plaintiff is entitled for reliefs as prayed for? 5) What Order or decree? - 7 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 3.5. The plaintiffs, to substantiate their case, plaintiff No.2 was examined as PW.1 and marked four documents as Exs.P1 to P4. In rebuttal, the defendants have not chosen to step into the witness box and no documents were marked. 3.6. During the pendency of the suit, defendant No.3 passed away leaving behind plaintiff Nos.1 and 2 and defendant Nos.1 and 2 as her legal heirs. 3.7. The Trial Court, after recording the evidence, hearing on both sides, and assessing the verbal and documentary evidence, answered issue Nos.1 and 2 in the affirmative, issue No.3 is yes, to the extent of 1/3rd share as a group, issue No.4 is answered as per the order and issue No.5 as per final order. The suit of the plaintiffs was decreed, and it is declared that the plaintiffs are entitled to 1/3rd share as a group in the suit schedule properties, defendant Nos.1 and 2 are entitled to get their 1/3rd share each in the suit schedule properties in respect of items - 8 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 Nos.1 and 2, the plaintiffs and defendant Nos.1 and 2 are entitled to get their shares carved out under the amended provision of Section 54 of the Code of Civil Procedure by initiating the Final Decree Proceedings, and defendant Nos.4 and 5 are restrained by way of permanent prohibitory injunction from dumping mud, altering the nature of the land by putting up any structure or building etc. 3.8. The present appellant, who was not a party to the proceedings in O.S.No.240/2004, filed an appeal in R.A.No.32/2009 on the file of II Additional District Judge, Dakshina Kannada, Mangaluru challenging the judgment and decree dated 19.12.2008 passed in O.S.No.240/2004, by II Additional Civil Judge (Sr.Dn.), Manglauru, Dakshina Kannada. The appellant herein also filed an application seeking leave of the Court to prefer an appeal and also filed an application under Section 5 of the Limitation Act. - 9 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 3.9. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the I.A.No.IV filed by the appellant Under Order 22 Rule 10 & Sec.151 of C.P.C. is liable to be allowed? 2) Whether I.A.No.II filed U/s 5 of Limitation Act is liable to be allowed? 3) Whether the I.A.No.VI filed Under Order 41 Rule 27 and Sec.151 of C.P.C. is liable to be allowed? 4) Whether the judgment of the Trial court is not based on the pleadings and evidence placed before the court and principles of law and needs interference by this court? 5) What order? 3.10. The First Appellate Court, after re-assessing the verbal and documentary evidence, answered point Nos.1 and 2 in the affirmative, point Nos.3 and 4 in the negative, and point No.5 as per final order. The First Appellate Court, allowed I.A.No.IV and granted leave to - 10 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 the appellant to file and maintain the appeal, condoned the delay in filing the appeal, dismissed I.A.No.VI under Order 41 Rule 27 of the CPC, filed by the appellant, and the judgment and decree passed by the Trial Court in O.S.No.240/2004 dated 19.12.2008 was confirmed. The appellant, aggrieved by the judgment and decree passed in R.A.No.32/2009, has filed this Regular Second Appeal. 4. This Court, on 24.07.2015, admitted the appeal to consider the following substantial questions of law: i. Whether the First Appellate Court was justified in not considering the merits of the matter even though the appellant was permitted to prefer an application that he is a necessary party in the proceedings? ii. Whether the First Appellate Court has followed the correct principles of law while considering the application filed under Order 41 Rule 27 of CPC? 5. Heard the arguments of the learned counsel for the appellant and learned counsel for plaintiff No.2. - 11 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 6. Learned counsel for the appellant submits that during the pendency of the suit, the appellant had purchased the property from defendant No.5. He is asserting that defendant Nos.5 has not intimated about the pendency of the suit. The appellant, being a bonafide purchaser for value without notice, filed an application before the First Appellant Court to conduct an appeal against the judgment of the trial court. The First Appellate Court allowed I.A.No.IV and granted leave to challenge the judgment and preliminary decree passed in O.S.No.240/2004. He submits that the First Appellate Court should have remitted the matter to the Trial Court for fresh consideration to decide whether the appellant is a bonafide purchaser for value without notice. The First Appellate Court, without re-appreciating the entire evidence placed on record by the parties, has dismissed the appeal. He submits that the judgment passed by the First Appellate Court is not in compliance with Order 41 Rule 31 of the CPC. Hence, on these grounds, he prays to - 12 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 allow the appeal and set aside the impugned judgments and remit the matter to the Trial Court with a liberty to the appellant to file a written statement. 7. Per contra, learned counsel for plaintiff No.2 submits that the present appellant had purchased the property during the pendency of the suit and the same is hit by the doctrine of lis pendency under Section 52 of the Transfer of Property Act. He submits that the first Appellate Court was justified in passing the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal. 8. Perused the records, and considered the submissions of the learned counsel for the parties. 9. Reg. Substantial questions of law No.1 and 2: Substantial questions of law No.1 and 2 are interlinked and hence, these are taken together for common discussion, to avoid repetition of facts. - 13 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 10. The plaintiffs filed a suit for partition and separate possession and for a permanent injunction restraining defendant Nos.4 and 5 from altering the nature of the land by putting up any structure. It is contended that the plaintiffs and defendant Nos.1 to 3, are put in joint and constructive possession of the plaint schedule properties and the plaintiffs are entitled to 1/4th share in the suit schedule properties. The plaintiffs to substantiate their case, plaintiff No.2 was examined as PW.1 and four documents were marked as Exs.P1 to P4. 11. In rebuttal, the defendants had not entered the witness box. The trial court, after recording the evidence, decreed the suit of the plaintiffs vide judgment dated 19.12.2008, and it is ordered and declared that the plaintiffs are entitled to 1/3rd share in the suit schedule properties and defendant Nos.1 and 2 are entitled to get 1/3rd share each in the plaint schedule item Nos.1 and 2 properties. The plaintiffs and defendant Nos.1 and 2, are - 14 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 entitled to get their above shares carved out under the amended provisions of Section 54 of the CPC by initiating the final decree proceedings. Defendant Nos.4 and 5 are restrained by way of permanent prohibitory injunction from dumping mud, altering the nature of the land by putting up any structure or building, etc. During the pendency of the suit, defendant No.5 sold suit item No.2 of the plaint schedule property by virtue of registered sale deeds dated 22.07.2006 and 22.09.2006. The appellant is the assignee of item No. 2 of the suit land. The appellant has challenged the judgment and preliminary decree passed in O.S.No.240/2004, filed an application, I.A.I seeking leave of the Court to prefer an appeal and also filed an application I.A.No.II under Section 5 of the Limitation Act. The First Appellate Court allowed the application - I.A.I and granted leave to the appellants to prefer an appeal. The said transfer took place during the pendency of the suit, but the decree was passed against the defendants. The appellant filed an appeal challenging - 15 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 the judgment and decree passed by the trial Court insofar as item No.2 of the suit schedule property. The transferee of the property in item No.1 of the suit schedule, during the pendency of the suit sought himself to be brought on record at the stage of appeal. The First Appellate Court allowed the application and permitted the appellant to come on record at the stage of appeal. In an appeal preferred by a transferee, the Hon’ble Apex Court, in the case of RAJ KUMAR VS. SARDARI LAL reported in 2004 (2) SCC 601, has upheld the view of the High Court, holding that a transferee prior to the filing of the appeal, could not be brought on record in an appeal, by reference to Order 22 Rule 10 of the CPC. However, the Court held that an appeal is a proceeding for the purpose of Section 146 of the CPC, and further the expression "'claiming under' is wide enough to include cases of devolution and assignment mentioned in Order 22 Rule 10. Whoever is entitled to be but has not been brought on record under Order 22 Rule 10 in a pending suit or proceeding would be - 16 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 entitled to prefer an appeal against the decree or order passed therein if his assignor could have filed such an appeal, there being no prohibition against it in the Code, a person having acquired an interest in suit property during the pendency of the suit and seeking to be brought on record at the stage of the appeal can do so by reference to section 146 of the CPC which provision being a beneficent provision should be construed liberally and so as to advance justice and not in a restricted or technical sense. 12. The appellant has urged several grounds in the memorandum of appeal before the First Appellate Court that he is the bona-fide purchaser without notice. The said aspect has not been properly considered by the First Appellate Court and, further, the First Appellate Court has failed to consider the proposition laid down by the Hon'ble Apex Court in the case of THOMSON PRESS (INDIA) LTD VS. NANAK BUILDERS & INVESTRS. P. LTD & ORS. reported in AIR 2013 SC 2389, wherein it was held that the doctrine of lis pendens is a doctrine based on the ground that it is - 17 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of Section 52 of TP Act does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. The First Appellate Court, without examining the proposition laid down by the Hon'ble Apex Court in the case of RAJ KUMAR (Supra), has committed an error in dismissing the appeal. The judgment and decree passed by the First Appellate Court is contrary to the proposition laid down by the Hon'ble Apex Court in the case of RAJ KUMAR (Supra). Hence, the impugned judgment passed by the First Appellate Court is liable to be set aside. The appellant has filed an application for the production of additional evidence. The First Appellate Court, without assigning any reasons, has rejected the application. The First Appellate Court has not applied the - 18 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 correct principles of law when considering the application under Order 41 Rule 27 of the CPC. In view of the above discussion, I answer the substantial questions of law No.1 and 2 in the negative. 13. In view of the aforesaid facts, and circumstances, I proceed to pass the following: ORDER i. The Regular Second Appeal is allowed. ii. The judgment and decree dated 01.08.2013, passed in R.A.No.32/2009 by the II Additional District Judge, Dakshina Kannada, Mangalore, is set aside. iii. R.A.No.32/2009 is restored to its original file. iv. The First Appellate Court is directed to consider the proposition laid down by the Hon'ble Apex Court in the case RAJ KUMAR(Supra), and pass the - 19 - HC-KAR NC: 2025:KHC:28227 RSA No. 1904 of 2013 appropriate order, in accordance with law. v. All the contentions of the parties are kept open. vi. The parties are directed to appear before the First Appellate Court on 15.09.2025. vii. The Office is directed to transmit the trial court records to the First Appellate Court, forthwith. viii. In view of the dismissal of the appeal, pending I.As’, if any, do not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB CT: BHK