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2025 DAILYLAW 90699 (KAR)

SRI. H.M. RAMACHANDRA v. SRI. J.A.GOPALA GOWDA

RSA/927/2021 · 2025-07-24

H P Sandesh

Original Suitbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE H.P.SANDESH REGULAR SECOND APPEAL NO.927 OF 2021 (DEC/INJ) BETWEEN: 1. SRI. H.M. RAMACHANDRA AGED ABOUT 64 YEARS S/O SRI MALLEGOWDA AGRICULTURIST R/O JANNAPURA VILLAGE AND POST MUDIGERE TALUK CHIKKAMAGALURU DISTRICT-577 132. …APPELLANT (BY SRI. MAHESH KIRAN SHETTY S., ADVOCATE) AND: 1. SRI. J.A. GOPALA GOWDA AGED ABOUT 75 YEARS S/O LATE ANNEGOWDA AGRICULTURIST R/O G. AGRAHARA VILLAGE JANNAPURA VILLAGE AND POST MUDIGERE TALUK CHIKKAMAGALURU DISTRICT-577 132. …RESPONDENT (BY SRI. SHIVAPRAKASH M., ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.02.2021 PASSED IN R.A.NO.38/2019 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 CONFIRMING THE JUDGMENT AND DECREE DATED 04.04.2019 PASSED IN O.S.NO.40/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, MUDIGERE. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE H.P.SANDESH ORAL JUDGMENT Heard learned counsel for the appellant and learned counsel for the respondent. This matter was heard in part earlier and today heard in full. 2. The factual matrix of the case of the plaintiff before the Trial Court is that, at the first instance he only sought for the relief of permanent injunction and when the defendant filed the written statement contending that an agreement of sale and registered GPA was executed in favour of the defendant, suit is filed for the relief of declaration and prayer also in the plaint is to declare that the plaintiff is the owner of the suit schedule property and the GPA and sale agreement referred by the defendant in his written statement are concocted, got up, illegal and the same be cancelled and unenforceable and also sought for recovery of possession of the plaint schedule - 3 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 property from the defendant and grant the relief of permanent injunction. 3. The Trial Court having considered the pleadings of the parties framed the following issues: “1. Whether the plaintiff proves that, he is the absolute owner in possession and enjoyment of the suit schedule property? 2. Whether the plaintiff proves that, on 03.03.2014 the defendant attempted to dispossess the plaintiff from the suit schedule property? 3. Whether the defendant proves that, the plaintiff has sold the suit schedule property to the defendant by executing an agreement to sell on 10.09.2007 by receiving the entire sale consideration of Rs.1,00,000/- and handed over possession of the suit schedule property to the defendant? 4. Whether the defendant proves that, the value of the suit property is Rs.10,00,000/- therefore this Court has no jurisdiction to try the suit? - 4 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 5. Whether the plaintiff is entitled for the relief's sought for in the suit? 6. What order or decree?” 4. The plaintiff in order to prove his case, examined himself as P.W.1 and got marked the documents as Exs.P1 to 35 and closed his side. On the other hand, the defendant to substantiate his defence, examined himself as D.W.1 and also examined one witness as D.W.2 and got marked the documents as Exs.D1 to D3 and during the course of cross-examination of P.W.1, a document was confronted i.e., vakalath and the same is marked as Ex.C1. 5. The Trial Court having considered the material on record comes to the conclusion by answering issue No.1 as ‘affirmative’ that plaintiff is the owner and in possession of the suit schedule properties and answered issue No.2 as ‘negative’ that on 03.03.2014 the defendant attempted to dispossess the plaintiff from the suit schedule property and also defendant failed to prove that plaintiff has sold the suit schedule property to the defendant by executing an agreement to sell on 10.09.2007 by receiving the entire sale consideration of - 5 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 Rs.1,00,000/- and handed over possession of the suit schedule property to the defendant and answered issue No.3 as negative. However, answered issue No.4 as ‘affirmative’, in coming to the conclusion that value of the suit schedule property is Rs.1,00,000/-. Therefore, this Court has no jurisdiction to try the suit and answered issue No.5 as ‘partly affirmative’ that plaintiff is entitled for the relief sought for in the suit and granted the relief that he is the absolute owner in operative portion and also observed that plaintiff is entitled for recovery of possession of plaint schedule property from defendant and the defendant is hereby directed to handover the possession of the plaint schedule property to plaintiff within one month from the date of this judgment. The suit of the plaintiff to declare that GPA and sale agreement are concocted and illegal and suit for permanent injunction is dismissed. 6. Being aggrieved by the said judgment, an appeal is filed before the First Appellate Court in R.A.No.38/2019 and the First Appellate Court having reassessed the material available on record and also considering the grounds, formulated the point whether the appellant establishes that the Trial Court has - 6 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 committed an error in partly decreeing the suit of the plaintiff, despite holding that plaintiff has handed over the possession of the suit schedule property to appellant/defendant as per Ex.D1 sale agreement and also that Ex.D2 GPA is not created one and whether appellant establish that the judgment of Trial Court is perverse and conspicuously erroneous and is liable to be set aside. Both the points for consideration are answered as ‘negative’ and confirmed the judgment of the Trial Court, particularly coming to the conclusion that though the appellant claims part performance contending that he was put in possession of the suit schedule property under agreement dated 10.09.2007 at Ex.D1, but the fact that very agreement at Ex.D1 is not a registered instrument. As per Section 17 of Registration Act, the property worth of Rs.100/- or more required to be effected by a registered instrument. Therefore, the appellant even cannot claim protection under Section 53-A of Transfer of Property Act. The First Appellate Court also made an observation that on perusal of oral as well as documentary evidence, appellant/defendant has not made out any valid grounds to set aside the impugned judgment and decree. Therefore, the Trial Court has properly appreciated the oral and - 7 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 documentary evidence on record and it does not require any interference and confirmed the judgment. Being aggrieved by said concurrent finding, the present second appeal is filed before this Court. 7. This Court, while admitting the appeal framed the following substantial questions of law which reads as hereunder: “(i) Whether the Courts below were justified in granting the relief of declaration of title and recovery of possession of the plaint schedule property to the plaintiff having regard to the finding recorded by the Trial Court on Issue nos.2 to 4? (ii) Whether the Courts below were justified in decreeing the suit when there is a finding recorded by the Trial Court that the agreement for sale and the registered general power of attorney were proved to be executed in favour of the defendant for a valid sale consideration and the defendant was put in possession of the suit schedule property on the strength of the said - 8 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 document having regard to Section 53A of the Transfer of Property Act, 1882?” 8. The counsel for the appellant during the course of argument would contend that this Court also has to frame a substantial question of law with regard to non-consideration of issue No.4 and contend that in the written statement, a specific defence was taken that Court is not having pecuniary and territorial jurisdiction to consider the matter and inspite of issue No.4 was framed and answered as ‘negative’, no discussion at all. The counsel also brought to notice of this Court that, First Appellate Court also not discussed anything about the jurisdiction. Hence, this Court has to frame additional substantial question of law. 9. The counsel appearing for the respondent would contend that both the Courts have considered the valuation made in the suit when the suit is filed for the relief of declaration and hence, contention that no jurisdiction cannot be entertained. However, having perused the judgment of Trial Court as well as the First Appellate Court, not touched upon the issue of jurisdiction. Hence, it requires framing of an additional - 9 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 substantial question of law and therefore, this Court has framed additional substantial question of law, which reads as hereunder: “Whether both the Courts committed an error in not considering issue No.4 and not dealt with the issue of jurisdiction while considering the matter”. Substantial questions of law Nos.(i) and (ii) 10. The counsel appearing for the appellant in his argument would vehemently contend that Trial Court committed an error in coming to the conclusion that plaintiff is the owner of the suit schedule property and contend that both the Courts comes to the conclusion that possession is not with the plaintiff and plaintiff also sought for the relief of possession after filing of the written statement and the Trial Court directed the defendant to handover the possession. The Trial Court also comes to the conclusion that agreement and GPA are executed by the defendant, but not considered Section 53-A of Transfer of Property Act. The counsel also would vehemently contend that value of the suit is only Rs.1,00,000/-, since the sale consideration is Rs.1,00,000/- in terms of the sale agreement - 10 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 and the Trial Court is not having jurisdiction to consider the matter and ought to have returned the plaint to present the same before the jurisdictional Court and both the Courts have not answered the said issue. 11. Per contra, learned counsel appearing for the respondent would contend that plaintiff claim that there was an agreement dated 10.09.2007. The counsel would contend that admittedly land is a granted land and there was a prohibition to sell the property for a period of 25 years and even if such agreement is executed, the same is not valid, since there is a prohibition. The counsel appearing for the respondent would contend that though there was registered sale agreement and GPA, the First Appellate Court rightly comes to the conclusion that Section 53-A cannot be invoked, unless the sale agreement is registered and possession could be delivered by executing a registered document and in the absence of any registered document of sale agreement, question of invoking Section 53-A does not arise. Hence it does not require any interference. The counsel appearing for the respondent also would contend that while seeking the relief of declaration and - 11 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 possession, in the valuation slip, specifically mentioned the value of the property as Rs.6,00,000/-. Hence, the Court of Civil Judge (Senior Division) has jurisdiction to try the suit and the contention that sale consideration is only Rs.1,00,000/- in terms of the sale agreement and there is no jurisdiction to try the suit cannot be accepted. 12. Having heard learned counsel for the appellant and learned counsel for the respondent, having considered both oral and documentary evidence on record, the Trial Court and the First Appellate Court comes to the conclusion that sale agreement and GPA are executed. The Trial Court also comes to the conclusion in paragraph No.20 that the defendant proved that plaintiff executed Ex.D2-GPA in his favour. On the other hand, the plaintiff fails to prove that said GPA is created by defendant. But, the fact that GPA is registered document is not in dispute and sale agreement is not a registered document. In paragraph No.19, the Trial Court also made an observation that defendant has successfully proved that plaintiff executed Ex.D1 sale agreement and also registered GPA. However, the Trial Court while answering issue No.1 committed an error in - 12 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 answering the same as ‘affirmative’ that plaintiff proved that he is the absolute owner in possession and enjoyment of the suit schedule property. But, the fact is that possession is not with the plaintiff and held that plaintiff is entitled for recovery of plaint schedule property from the defendant and also directed defendant to handover possession of plaint schedule property to the plaintiff within one month from the date of the said judgment. 13. No doubt, the First Appellate Court also having re- assessed the material available on record comes to the conclusion that there is an agreement of sale and GPA, but the very contention of learned counsel for the appellant that Section 53-A of Transfer of Property Act was not considered by the First Appellate Court was not considered on the ground that as per Section 17 of the Registration Act, the property worth Rs.100/- or more required to be effected by a registered instrument. Therefore, the appellant even cannot claim protection under Section 53-A of Transfer of Property Act and confirmed the judgment at the Trial Court. - 13 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 14. Now having considered the material available on record, the Trial Court committed an error in answering issue No.1 as ‘affirmative’ and the substantial questions of law framed by this Court i.e., first substantial question of law whether the Courts below were justified in granting the relief of declaration of title and recovery of possession of the plaint schedule property to the plaintiff having regard to the finding recorded by the Trial Court on issue Nos.2 to 4. The Trial Court also framed issue No.2 that whether the plaintiff proves that on 03.03.2014 the defendant attempted to dispossess the plaintiff from the suit schedule property and when the Trial Court comes to the conclusion that possession is with the defendant, but answered issue No.2 as ‘negative’ that defendant attempted to dispossess the plaintiff and answered issue No.3 as ‘negative’ when the defendant took the defence that plaintiff has sold suit schedule property to the defendant by executing an agreement of sale on 10.09.2007 by receiving entire sale consideration of Rs.1,00,000 and handed over possession of the suit schedule property to the defendant. But, the finding of the Trial Court that sale agreement and GPA was also executed and possession is also delivered. However, in the operative portion, ordered to - 14 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 deliver possession to the plaintiff and directed the defendant to handover possession and answered the said issue i.e., issue No.3 as ‘negative’ and the same against the operative portion of the Trial Court. Further, while answering issue No.4, nothing is discussed regarding jurisdiction of the Court is concerned and specific defence was taken by the defendant that sale consideration was only Rs.1,00,000 and hence, the Court has no jurisdiction. 15. Having perused findings of the Trial Court, though answered issue No.3 as ‘negative’, while answering issue No.4, since all the issue Nos.2 to 4 are taken together, answered issue No.4 in ‘affirmative’, but granted the relief and once the issue No.4 is answered as ‘affirmative’, ought not to have granted the relief, since the Trial Court comes to the conclusion that no jurisdiction to try the suit and no discussion was also made in this regard. Learned counsel for the respondent also not disputes that no discussion with regard to issue No.4 and while considering issue Nos.2 to 4, though jointly considered the said issues, discussion was made only in respect of issue Nos.2 and 3, but not touched upon issue No.4. The second - 15 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 substantial question of law framed by this Court is whether the Courts below were justified in decreeing the suit when there is a finding recorded by the Trial Court that the agreement for sale and the registered general power of attorney were proved to be executed in favour of the defendant for a valid sale consideration and the defendant was put in possession of the suit schedule property on the strength of the said document having regard to Section 53A of Transfer of Property Act, 1882. In respect of this substantial question of law, it is very clear that if the value of property is more than Rs.100/-, subsequent to Amendment, 1991, if there is any delivery of possession, even if it is a sale agreement also, it requires registration. But, the material discloses that sale agreement is not a registered document and Section 53-A could only be invoked, if it is a registered document and possession is delivered in terms of the sale agreement. 16. At this juncture, learned counsel for the appellant relied upon the judgment of Apex Court in GHANSHYAM VS. YOGENDRA RATHI reported in 2023 Live LAW (SC) 479 and brought to notice of this Court that an observation is made - 16 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 that the factors such as entering into an agreement to sell, payment of entire sale consideration and being put in possession by the transferor, shows that de-facto possessory rights based on the part performance of the agreement to sell. The possessory right is not liable to be disturbed by the transferer and the transferer’s entry into the suit property subsequently was as a licensee and not as the owner of the property and also brought to notice of this Court paragraph No.14. The said judgment will not come to the aid of learned counsel for the appellant, since amendment was brought regarding delivery of possession that possession can be delivered only through registered document of sale agreement and with regard to delivery of possession is concerned, if sale agreement is executed and delivery of possession is made prior to Amendment, 1991, no such registration is required. But subsequent to the amendment, while delivering possession, the sale agreement must necessarily be registered. Hence, this judgment will not come to the aid of the appellant. 17. The counsel appearing for the appellant also brought to notice of this Court judgment of this Court in the - 17 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 case of SRI B.S.LAKSHMAN VS. SRI PUTTASHETTY AND OTHERS in R.S.A.NO.1358/2022 dated 27.06.2025 and no doubt, this Court while considering the very same issue that during non-alienation clause, if any sale agreement is entered by the party consciously having received the entire sale consideration and executed the document and particularly the intention of the parties also to be gathered and when he categorically admitted that after the non-alienation period is over, he is ready to execute the document and taking note of the said fact into consideration, this Court considered in R.S.A.No.1358/2022 and the same is enforceable after the non-alienation period is over and no dispute with regard to the principles laid down in this judgment is concerned. 18. No doubt, in the case on hand also, land was granted and there was non-alienation clause, but during the subsistence of non-alienation clause, the plaintiff entered into an agreement with defendant and consciously agreed to execute the sale deed after the expiry of the period of non- alienation clause. Hence, the said judgment is applicable to the facts of the case on hand for specific performance. But, the - 18 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 issue now before this Court is that, once the Trial Court and the First Appellate Court comes to the conclusion that there was an agreement of sale and also a registered GPA and possession was also recognized by the Trial Court i.e., with the defendant, question of invoking Section 53-A does not arise, since the document of sale agreement was not registered as observed by this Court. However, in view of framing of an additional issue by the Court regarding jurisdiction is concerned, admittedly, in the sale agreement, sale consideration is mentioned as Rs.1,00,000/- and issue was also framed by the Trial Court i.e., issue No.4 with regard to jurisdiction is concerned. Though there is a mistake in mentioning the consideration as Rs.10,00,000/- in issue No.4, ought to have read the same as Rs.1,00,000/- and both the counsel not disputes the fact that sale consideration is Rs.1,00,000/-. However, learned counsel for the respondent brought to notice of this Court that while amending the plaint, filed a fresh valuation slip, wherein it is mentioned as Rs.6,00,000/- for the purpose of jurisdiction is concerned and whether it is Rs.1,00,000/- or Rs.6,00,000/-, nothing is discussed by the Trial Court while answering issue No.4 is concerned and only answered as ‘affirmative’. Once the - 19 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 Trial Court has come to the conclusion that issue No.4 is ‘affirmative’ in nature that it has no jurisdiction, ought not to have granted the relief to the plaintiff and the First Appellate Court also not discussed anything about the issue of jurisdiction and First Appellate Court while considering the material on record as a First Appellate Court while exercising the power under Section 96 as well as under Order XLI has to consider the material on record as original Court and the same has not been done and both question of fact and question of law should be considered by the First Appellate Court and the same has not been done. 19. When such being the case, the First Appellate Court ought to have considered the issue of jurisdiction, though framed issue No.4 but not answered the same properly. Hence, matter requires to be reconsidered by the Trial Court with regard to jurisdiction. With regard to granting any relief, if the Court comes to the conclusion that no jurisdiction, question of granting other relief also does not arise and matter requires to be sent to the jurisdictional Court, if it is answered as ‘affirmative’ as answered by the Trial Court. But, nothing is - 20 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 discussed while answering issue No.4. Hence, matter requires to be considered afresh. Therefore, the matter is remitted back to the Trial Court to consider the issue No.4 as well as other contentions raised by respective parties and matter has to be considered afresh in view of the observations made by this Court. Hence, I answer substantial questions of law framed by this Court accordingly 20. In view of the discussion made above, I pass the following: ORDER (i) The regular second appeal is allowed. (ii) The impugned judgment of the Trial Court and the First Appellate Court are set aside and matter is remitted back to the Trial Court to decide the issue of jurisdiction in view of the observations made by this Court. (iii) Both the parties are directed to appear before the Trial Court on 28.08.2025 without expecting any notice from the Trial Court. - 21 - HC-KAR NC: 2025:KHC:28331 RSA No. 927 of 2021 (iv) If any one of the parties fail to appear on 28.08.2025, the Trial Court is directed to proceed, in the absence of the parties since they are having knowledge about the direction given to the parties. (v) The Trial Court is directed to dispose of the matter within a period of three months and both the parties and their respective counsels are directed to assist the Trial Court in disposal of the suit within a period of three months without seeking any adjournment. Sd/- (H.P.SANDESH) JUDGE ST List No.: 1 Sl No.: 55