- 1 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2026 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 139 OF 2018 (DEC/INJ) BETWEEN: 1. SRI NIJALINGAPPA S/O KENCHAPPA, AGED ABOUT 49 YEARS, 2. SMT.LAKSHMAKKA W/O NIJALINGAPPA, AGED ABOUT 42 YEARS, BOTH ARE RESIDENTS OF NEJANTHI VILLAGE, HULIKUNTE HOBLI, SIRA TALUK, TUMAKURU DISTRICT. …APPELLANTS (BY SRI LAKSHMIPATHI, D G, ADVOCATE FOR SRI BALAGANGADHAR G S, ADVOCATE) AND: SMT PARVATHAMMA W/O KENCHAPPA, DEAD BY LRS 1(a) SMT BHAGYAMMA, W/O PATHALINGAPPA, D/O LATE KENCHAPPA, AGED ABOUT 60 YEARS, R/O JAVAREHALLI, BAGERAHALLI POST, GOWDAGERE HOBLI, SIRA TALUK, TUMAKURU DISTRICT. 1(b) SMT RATHNAMMA, W/O JAYANNA, D/O LATE KENCHAPPA, Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 AGED ABOUT 48 YEARS, R/O MALLAPPANAHATTI POST, CHITRADURGA TALUK, CHITRADURGA DISTRICT. 1(c) SRI LINGARAJ, S/O LATE KENCHAPPA, AGED ABOUT 45 YEARS, R/O BETTAPPANAHALLI VILLAGE, GOWDAGERE HOBLI, SIRA TALUK, TUMAKURU DISTRICT. 1(d) SMT RENUKAMMA, W/O THIPPESWAMY, D/O LATE KENCHAPPA, AGED ABOUT 35 YEARS, R/O ERAGANAHALLI, PATHAGANAHALLI POST, GOWDAGERE HOBLI, SIRA TALUK, TUMAKURU DISTRICT. 1(e) SMT KAVITHAMMA, W/O THIPPESWAMY, D/O LATE KENCHAPPA, AGED ABOUT 30 YEARS, R/O MALLAPPANAHATTI, MALLAPPANAHATTI POST, CHITRADURGA TALUK, CHITRADURGA DISTRICT. (CAUSE TITLE AMENDED AS PER COURT ORDER DATED 21.06.2022) …RESPONDENTS (BY SRI K HANUMANTHARAYAPPA, ADVOCATE FOR R1(C), R1(A) SERVED BUT UNREPRESENTED, SERVICE OF NOTICE TO R1(D) IS HELD SUFFICIENT AND SERVICE OF NOTICE TO R1(B AND E) ARE HELD SUFFICIENT) THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.09.2017 PASSED IN O.S.NO.65/2015 ON THE FILE OF THE SENIOR - 3 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 CIVIL JUDGE AND JMFC SIRA, DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION. 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 This appeal is filed against the judgment and decree dated 16.09.2017 in O.S. No.65/2015 on the file of the Senior Civil Judge, Sira. 2. In terms of the said judgment and decree, the suit of the plaintiff for declaration of title and consequential relief of injunction is decreed. The plaintiff is declared as the owner of the property and defendants are restrained from interfering with the plaintiff's peaceful possession and enjoyment of the suit schedule property. 3. The plaintiff is the mother and defendant No.1 is the son. Defendant No.2 is the daughter-in-law. The plaintiff claims that she acquired the property from her father. The defendant No.1 claimed that, after the demise of plaintiff's - 4 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 father, the property records were transmitted in his name during his minority represented by minor guardian, father. And after defendant No.1 attaining majority, his name continued in the property records. And before filing of the suit, defendant No.1 has transferred the property in favour of his wife - defendant No.2. Thus, it is asserted that the defendant No.2 is in possession of the suit schedule property and the plaintiff is not in possession of the property and prayed for dismissal of the suit. 4. The Trial Court rejected the contention and held that the plaintiff has title over the property and possession of the defendants No.1 and 2 is not established. The Trial Court held that the plaintiff is in possession and granted the decree as prayed for. 5. Aggrieved by the said judgment and decree, the defendants are before this Court. 6. Learned counsel appearing for the defendants/ appellants would urge that Section 34 of the Specific Relief - 5 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 Act, 1963 (for short 'Act, 1963') would disentitle the plaintiff to seek the relief of declaration without appropriate relief of possession and the Trial Court ignored the long standing entries in the property records which carried the presumption in favour of the defendants to hold that the defendants are in possession and when the possession of the defendants, more particularly, defendant No.2 is established, the Trial Court could not have granted the relief of declaration and injunction. 7. It is further urged that, when the defendants are in possession of the property and when the plaintiff is not in possession of the property, the relief of declaration cannot also be granted because of the bar contained under Section 34 of Act, 1963. 8. Learned counsel for the appellants would also bring to the notice of the Court that during the pendency of this appeal, the original plaintiff i.e., the mother of defendant No.1/respondent No.1 expired on 05.06.2019 and the application is filed to substitute the legal representatives of - 6 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 the deceased mother of the appellant No.1 and now the legal representatives are brought on record. It is the submission that appellant No.1 is also one of the legal representatives of the deceased mother/original plaintiff and the matter now requires reconsideration because of the subsequent development namely death of the mother and the decree for declaration of title in favour of the mother cannot be affirmed as the mother is no more. Assuming that the mother was the owner of the property, the property has now devolved upon all the legal representatives, as such, it is urged that the judgment and decree have to be set aside. 9. It is also his further submission that, had the plaintiff filed the suit for possession, the defendants No.1 and 2 would have raised an appropriate defence contending that the suit is time barred and the defendants are the owners of the property or that the defendants have become the owners of the property by a previous possession and no such contention was raised as there was no such occasion as the relief of possession is not - 7 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 sought for. Thus, it is urged that all contentions available to the defendants should be kept open to be decided in appropriate proceeding. 10. Learned counsel appearing for respondent No.1(c) submits that, respondent No.1- Parvathamma/original plaintiff had executed a registered Will dated 20.04.2016 in favour of respondent No.1(c) and respondent No.1(c) would become the sole testamentary heir to the original plaintiff. 11. It is also urged that, there is no document to establish the title of the defendant No.1 and mother's title is very much established and the Trial Court is justified in holding that the plaintiff/mother is the owner of the property and the alleged gift deed dated 05.01.2015 in favour of 2nd defendant executed by 1st defendant is not binding on the original plaintiff and does not extinguish the title of the original plaintiff. 12. The Court has considered the contentions raised - 8 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 at the Bar and perused the records. 13. The following points arise for consideration: (a) Whether appellants establish that they are the owners and in possession of the suit schedule property? (b) Whether respondent No.1(c) establishes the execution of Will dated 20.04.2016? 14. The property in question originally belonged to one Kariyappa who had three sons and there was partition among three sons of Kariyappa and in the said partition, the schedule property was allotted to the share of Sannappa. The plaintiff is the only daughter of said Sannappa. Thus, she inherited the property. 15. Admittedly, there is no registered transfer deed in the name of 1st defendant conveying the property by the plaintiff in favour of 1st defendant. This being the position, merely based on entries in the property records, the defendant No.1 cannot claim title over the property and defendant No.2 who is claiming from defendant No.1 - 9 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 does not acquire title over the property. 16. Merely because the name of defendant No.1 was entered in the property records after the demise of Kariyappa i.e., plaintiff's grandfather, defendant No.1 does not acquire title over the property. The reason is, the plaintiff would inherit the property as absolute owner under the provisions of the Hindu Succession Act, 1956 after the demise of her father Sannappa. Thereafter, there has to be a conveyance or transfer in accordance with law by the plaintiff in favour of defendant No.1. That has not happened. 17. The Trial Court has not relied on the entries in the revenue records to hold that defendant No.1 is in possession of the property. The Trial Court has observed that the mutation entry in the name of defendant No.1 is illegal and not enforceable under law. One cannot find anything wrong with the said finding. It is well settled position of law that the entry in the record of right by itself - 10 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 will not confer the title over the property. 18. Though the learned counsel for the appellants would urge the long standing entries in the property records have presumptive value, the Court is of the view that said presumption is rebutted. It is to be noticed that the plaintiff is none other than the mother of defendant No.1/appellant No.1 and for any reason if plaintiff has allowed the name of defendant No.1 to continue in the property records, that cannot be construed as having relinquished title and possession over the property. 19. The contention raised by the learned counsel for the appellants based on the judgment of the Co-ordinate Bench of this Court in Sri Aralappa vs Sri Jagannath and Others1 that the relief of declaration is to be denied in case the plaintiff is not found to be in possession of the property cannot be accepted. The Apex Court in Akkamma and Others vs. Vemavathi and others2 has 1 ILR 2007 KAR 339 2 (2021) SCC OnLine SC 1146 - 11 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 overruled the ratio in Aralappa (supra). The Apex Court has held that even if the plaintiff is not found to be in possession of the property, if the title is established, appropriate declaration can be granted. 20. In addition to that, the plaintiff has also produced evidence to show that she is in possession of the property. It is also relevant to notice that name of defendant No.1 was entered in the property records when he was minor without there being any acquisition of right by defendant No.1. It is not the case of the defendant No.1 that after attaining majority he has dispossessed his mother the plaintiff. Thus, the Court is of the view that the plaintiff has established both title and possession. 21. At this juncture, it is relevant to notice that the plaintiff is no more. Now the succession has again opened. Question is whether plaintiff died intestate or not? The respondent No.1 (c) claims to be the testamentary heir to the property of deceased plaintiff. - 12 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 22. Learned counsel for the appellants would submit that mother has not executed any such Will. The alleged Will dated 20.04.2016 registered on the same day has to be proved in the manner provided under law. 23. Admittedly, the alleged Will is not the subject matter of this appeal. The Court need not give a finding on the alleged Will in this proceeding. Hence, the following: ORDER (i) Appeal is dismissed. (ii) Liberty is reserved to the parties to agitate their respective claim relating to the alleged Will dated 20.04.2016 before the jurisdictional Civil Court. (iii) It is made clear that the decree of title granted in favour of the plaintiff/deceased respondent is affirmed. However, the said decree cannot be construed as having recorded any finding on the alleged Will claimed by respondent No.1(c). - 13 - HC-KAR NC: 2026:KHC:10381 RFA No. 139 of 2018 (iv) If any suit is filed relating to the alleged Will dated 20.04.2016, or any suit is filed claiming right under the alleged Will dated 20.04.2016, the competent Civil Court shall decide the validity of the said Will based on the evidence to be led before the Court. In the said suit there cannot be any adjudication as to whether the mother/original plaintiff in O.S. No.65/2015 was the owner of the property or not. It is declared that the mother/original plaintiff in O.S. No.65/2015 was the owner of the property. No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE CHS List No.: 1 Sl No.: 58