- 1 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 484 OF 2015 (DEC/INJ) BETWEEN: 1. KANTHARAJU, S/O THIMMEGOWDA, AGED ABOUT 45 YEARS, 2. RANGASWAMY S/O THIMMEGOWDA, AGED ABOUT 51 YEARS, BOTH ARE R/O DEVIHALLI VILLAGE, SALGAME HOBLI, HASSAN TALUK HASSAN DISTRICT - 573 201. …APPELLANTS (BY SRI. SHARATH S. GOWDA, ADVOCATE) AND: 1. MELLEGOWDA @ MALLESHGOWDA S/O GIRIGOWDA SINCE DEAD REPRESENTED BY HIS LRS 1(A). SHIVAMMA, W/O LATE MALLEGOWDA, AGED ABOUT 76 YEARS R/AT DEVIHALLI VILLAGE, SEEGE POST, SALAGAME HOBLI, HASSAN TAUK, HASSAN DISTRICT - 573 201. 1(B). CHANDREGOWDA, S/O MALLEGOWDA, AGED ABOUT 58 YEARS Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 1(C). BASAVARAJU S/O MALLEGOEDA, AGED ABOUT 56 YEAS, RESPONDENT 1(B) AND (C) R/AT DEVIHALLI VILLAGE, SEEGE POST, SALAGAME HOBLI, HASSAN TAUK, HASSAN DISTRICT - 573 201. 1(D). NAGARATHNA, D/O MALLEGOWDA, AGED ABOUT 54 YEARS, R/AT BORALINGEGOWDA KOPPALU, KASABA HOBLI, ARSIKERE TALUK, HASSAN DISTRICT - 573 103. 1(E). RAVI, S/O MALLEGOWDA AGED ABOUT 52 YEARS R/AT DEVIHALLI VILLAGE, SEEGE POST, SALAGAME HOBLI, HASSAN TAUK, HASSAN DISTRICT - 573 201. …RESPONDENT (BY SRI. KUMAR M.D, ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 2.2.2015 PASSED IN R.A.NO.59/2013 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DTD 14.2.2013 PASSED IN OS.No.146/2009 ON THE FILE OF 3RD ADDITIONAL CIVIL JUDGE AND JMFC, HASSAN. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH - 3 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 ORAL JUDGMENT This appeal is preferred by defendants no.1 and 3, challenging the judgment and decree dated 02.02.2015 in R.A.No.59/2013 on the file of II Additional Senior Civil Judge & JMFC, Hassan, dismissing the appeal and confirming the judgment and decree dated 14.02.2013 in O.S.No.146/2009 on the file of III Additional Civil Judge, Hassan, decreeing the suit of the plaintiff. 2. For the sake of convenience, parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that, plaintiff and father of the defendants-Thimmegowda are brothers. It is further stated that, suit property bearing Sy.No.8/p, measuring 01 acre 18 guntas, out of which 15 gunta except the road which was going through north-south about 4 & 1/2 guntas, bounded by the boundaries as per the plaint schedule; land bearing Sy.No.8/p measuring 01 acre 03 guntas except 4 & 1/2 gunta road bounded by the boundaries as per the plaint schedule and Sy.No.33/8/p measuring 13 & 1/2 guntas bounded by the - 4 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 boundaries as per the plaint schedule, are derived from the registered settlement deed said to have been executed during 1950 by the parents (Dasegowda and Manjamma) of the plaintiff and the father of the defendants-Thimmegowda. It is also stated in the plaint that, as per the panchayath palu parikath, settlement was arrived at between the parties and the same was effected in M.R.No.20/82-83. It is stated that, the plaintiff and the brother of the plaintiff-Thimmegowda are in possession and enjoyment of their shares in respect of the schedule properties, as per the terms of the palu parikath as reflected in M.R.No.20/82-83. It is stated in the plaint that, the defendants have made an application to the Jurisdictional Tahsildar seeking katha in respect of the properties and, the Tahsildar by order dated 16.09.2005 in RRT No.05/2005-06 rejected the application made by the defendants. Thereafter, again, defendants filed an application to the Tahsildar in RRT No.166/2006-07 and names of the defendants were entered in the revenue records on 28.06.2006 by the jurisdictional Tahsildar. Being aggrieved by the same, the plaintiff has preferred an appeal before the Assistant Commissioner, - 5 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 Hassan, and the said appeal came to be dismissed on 12.02.2009. 4. It is the case of the plaintiff that, there is no registered document with regard to the division of the properties between the plaintiff and the defendants, however, the revenue authorities have changed the katha in the name of the defendants and being aggrieved by the same, the plaintiff has filed a suit in O.S.No.146/2009 before the Trial Court seeking permanent injunction in respect of the suit properties. 5. After service of suit summons, defendant no.2 was placed exparte. However, defendants no.1 and 3 filed common written statement denying the averments made in the plaint. 6. It is the specific case of defendants no.1 and 3 that, defendants are in possession of the land bearing Sy.No.8/p measuring 01 acre 28 guntas however, katha has been changed to their names only in respect of the land to an extent of 01 acre 18 guntas and further, it is stated that, the plaintiff and defendants have entered into settlement with regard to the devolution of the properties and the same was reflected in the - 6 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 revenue records and therefore, the defendants sought for dismissal of the suit. 7. The Trial Court based on the pleadings of the parties, framed six issues. 8. In order to establish their case, the plaintiff examined one witness as PW.1 and got marked 13 documents as Exhibits P.1 to P.13. In rebuttal, DW.1 and DW.2 were examined on behalf of defendants side and 5 documents were marked as Exhibits D.1 to D.5. 9. The Trial Court, after considering the material on record, by judgment and decree dated 14.02.2013 decreed the suit of the plaintiff and restrained the defendants from interfering with the suit schedule properties. Feeling aggrieved by the same, defendants no.1 and 3 have preferred R.A.No.59/2013 before the First Appellate Court and the same was resisted by the plaintiff. The First Appellate Court by its judgment and decree dated 02.02.2015 dismissed the appeal with cost and confirmed the judgment and decree in O.S.No.146/2009. Feeling - 7 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 aggrieved by the same, defendants no.1 and 3 have preferred this Regular Second Appeal under Section 100 of CPC. 10. This Court vide order dated 25.11.2024 formulated the following substantial question of law : i) Whether judgment and decree passed by both Courts were without proper appreciation of pleadings? ii) Whether judgment and decree passed by both Courts erred in construing Ex.D.5 ought as deed of exchange and requires registration without appreciating fact that there was no actual conveyance of title or delivery of possession? 11. At the time of arguing the matter on merits, learned counsel appearing for the appellants-defendants no.1 and 3 raised a plea that, the plaintiff has sought for the relief of declaration without seeking possession in respect of the subject land and therefore, the suit itself is not maintainable and, in that view of the matter, additional substantial question of law is framed as under : "Whether the judgment and decree passed by the Courts below requires to be interfered with as, the plaintiff has not sought for the relief of possession in - 8 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 respect of the subject land though sought for a relief of declaration and, whether such a suit is maintainable in law ?" 12. Sri Sharath S Gowda, learned counsel for the appellants on the additional substantial question of law submitted that, mere suit for declaration is not maintainable in the absence of seeking relief of possession since the plaintiff is not in possession of the subject land concerned. It is also argued by the learned counsel for the appellants, by inviting attention of the Court to Ex.P.3-MR.20/82-83, which was made by the Jurisdictional Tahsildar based on the Settlement Deed arrived between the parties and, Ex.D.5 which is also an agreement of deed signed by the plaintiff. It is further argued by the learned counsel for the appellants that, issue no.3 framed by the Trial Court is based on certain properties which have been exchanged by the parties and it is not the case of either of the parties before the Trial Court with regard to the exchange of properties and therefore, sought for interference by this Court. 13. Per contra, learned counsel for the respondent/plaintiff, referring to the RTC extracts of the properties which are at Exs.P.4 to P.9 and, also Ex.P.3 wherein MR 20/82-83 has been - 9 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 made pursuant to the Settlement Deed arrived between the parties and submitted that, as the plaintiff has proved his possession in respect of the subject land, there is no necessity for answering additional issue in favour of the appellants/defendants no.1 and 3 herein and therefore, sought for dismissal of the appeal. It is also argued by the learned counsel for the respondent/plaintiff that, as both the courts below have concurrently held against the defendants, no interference is called for in this appeal. 14. In the light of the submission made by the learned counsel for the parties, I have carefully considered the finding recorded by the Trial Court and have given my anxious consideration to issue no.3 wherein, the Trial Court has misconstrued the factual aspects on record based on Ex.P.3- MR No.20/82-83, wherein settlement has been arrived at between the parties and Ex.D.5- agreement wherein the suit properties have been mentioned for devolution since there is no dispute with regard to the title of the parties is concerned, and has negatived issue no.3. - 10 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 15. Undoubtedly, Ex.P.3 is an unregistered document, wherein the jurisdictional Tahsildar has entered the names of the parties as per MR.20/82-83, based on the settlement arrived at between the parties. When such being the case, both the Courts below have erred in rejecting Ex.D.5, agreement entered into between the parties, which is also an unregistered document. Undisputedly, the plaintiff is also a signatory to Ex.D.5. In that view of the matter, both the Courts below have committed an error in decreeing the suit of the plaintiff based on the settlement arrived at between the parties as per Ex.P.3 to the suit and rejecting the agreement deed produced at Ex.D.5. Hence, without going into the further discussion of the case, I am of the view that, the finding recorded by both the courts below rejecting Ex.D.5 is not proper, there is no discussion with regard to the said rejection, except giving a finding that the document at Ex.D.5 is not a document to be considered for adjudicating the suit based on the relief of declaration concerned. In that view of the matter, it is a fit case to remand the matter to the Trial Court for fresh consideration. - 11 - HC-KAR NC: 2025:KHC:29924 RSA No. 484 of 2015 16. In the light of the observation made above, the substantial question of law framed later, referred to above, favours the appellants/defendants with regard to remanding the matter to the Trial Court for fresh consideration. 17. In the result, I pass the following : ORDER i) The appeal is allowed; ii) The judgment and decree passed in R.A.No.59/2013 on the file of II Additional Senior Civil Judge and JMFC, Hassan, confirming the judgment and decree dated 14.02.2013 in O.S.No.146/2009 on the file of III Additional Civil Judge, Hassan, are hereby set aside and the matter is remanded to the Trial Court for fresh consideration after affording opportunity of hearing to both the parties; iii) Since the parties are represented through counsels, they are directed to appear before the Trial Court on 08.09.2025 at 11.00 AM. The Trial Court shall permit the parties to adduce further evidence in the matter, if so advised. SD/- (E.S.INDIRESH) JUDGE rs List No.: 1 Sl No.: 47 CT: BHK