- 1 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 687 OF 2013 (DEC/INJ) BETWEEN: SRI B C GAPPANNA S/O SRI BADDANJETTIRA CHENGAPPA AGED ABOUT 61 YEARS R/AT NAPOKLU TOWN MADIKERI TALUK KODAGU DISTRICT-571214 …APPELLANT (BY SRI. C R GOPALASWAMY, SR. ADVOCATE FOR SRI. BHARGAV G, ADVOCATE FOR R1) AND: 1. SMT N U KASTURI W/O LATE NATOLANDA UTHAPPA AGED ABOUT 50 YERS 2. SRI N U SACHIN S/O LATE NATOLANDA UTHAPPA AGED ABOUT 29 YEARS 3. SRI N U KAVIN S/O LATE NATOLANDA UTHAPPA Digitally signed by KIRAN KUMAR R Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 AGED ABOUT 27 YEARS 4. SRI B C KAVERIAPPA S/O LATE BOPPERA CHENGAPPA AGED ABOUT 81 YEARS 5. SRI B K UTHAPPA S/O SRI B C KAVERIAPPA AGED ABOUT 37 YEARS 6. SMT B K LALITHA D/O SRI B C KAVERIAPPA AGED ABOUT 36 YEARS 7. SMT B K RATHI D/O SRI B C KAVERIAPPA AGED ABOUT 33 YEARS RESPONDENT Nos. 1 TO 7 ARE RESIDENTS OF NAPOKLU VILAGE MADIKERI TALUK & DISTRICT-571214 8. SRI N C KAVERIAPPA S/O LATE NATOLANDA CHENGAPPA AGED ABOUT 50 YEARS WORKING AT K D C C BANK LTD KUSHALNAGAR R/OF SUBRAMANYANAGAR MADIKERI KODAGU DISTRICT-571201 9. SRI N C BHEEMAIAH S/O LATE NATOLANDA CHENGAPPA AGED ABOUT 52 YEARS R/AT BHAVANI NILAYA VIJAYA BANK COLONY 1ST CROSS, BANASAVADI POST BANGALORE CITY-570043 …RESPONDENTS - 3 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 (BY SRI. G B SHASTRY, ADVOCATE FOR R1 TO R3; R4, R5, R6, R7, R8 & R9 ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 12.2.2013 PASSED IN R.A.NO.29/2010 ON THE FILE OF SENIOR CIVIL JUDGE, MADIKERI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD 29.6.2010 PASSED IN OS.NO.51/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE & JMFC, MADIKERI. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: 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 12.02.2013 passed in RA No. 29 of 2010 by the Court of the learned Senior Civil Judge, Madikeri (‘First Appellate Court’ for short). 2. For the sake of convenience, the parties are referred to based on their ranking before the Trial Court1. The appellant was the plaintiff and the respondents were the defendants. 1 OS No. 51 of 2007 before the Court of the learned Principal Civil Judge, Madikeri - 4 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 3. Brief facts leading rise to the filing of this appeal are as follows: 3.1. The plaintiff had filed a suit for declaration and permanent injunction against the defendants. It is the case of the plaintiff that the plaintiff had purchased 0.90 acres (90 cents) of land out of 3 acres in Sy.No.245 of Napoklu Village, Madikeri Taluk, which is mentioned in the plaint ‘A’ schedule under the registered sale deed dated 30.06.2000 from defendant Nos.4 to 7. Defendant Nos.4 to 7 were cultivating and enjoying the property as a portion of Sy.No.245 and other properties to the east, north and west of ‘A’ schedule property openly, peacefully and continuously since couple of decades as owners. It is contended that, the revenue records were mutated only in respect of 0.07 acres (70 cents) excluding 0.20 acres in the southern portion of ‘A' schedule property. It is contended that, 10 feet wide passage to the east of ‘A’ schedule property exists since time immemorial. The said passage has been referred to as ‘B’ schedule in the plaint - 5 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 and it is contended that, the defendants are obstructing the passage. It is also contended that, the vendors of the plaintiff filed a suit in OS No. 87 of 2006, wherein the Civil Court decreed the suit in part vide judgment and decree dated 02.04.2008, granted an injunction order in favour of the vendor of the plaintiff and restrained defendant Nos.1 to 3 and 8 from interfering with the property. The counter-claim made by defendant Nos.1 to 3 and 8 was dismissed. The judgment and decree passed in the said suit has attained finality. The plaintiff requested the defendants not to interfere with the suit passage. Despite the request made by the plaintiff, the defendants did not give any heed to the request made by the plaintiff. Hence, a cause or function arose for the plaintiff to file a suit for declaration and perpetual injunction. 3.2. Defendant Nos.1 to 3 had filed a written statement denying the averments made in the plaint and it is contended that, the property bearing Sy.No.226/3 measuring 0.52 acres of land is the family ancestral - 6 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 property of Sri. N.C.Uthappa, who is the husband of defendant No.1 and father of defendant Nos.2 and 3. It is also contended that, after the demise of N.C.Uthappa, the property devolved upon defendant Nos.1 to 3 and they are in continuous possession and enjoyment of the property without any interference. It is contended that, the plaintiff never enjoyed the suit property at any point of time and the plaintiff has no legal right or interest over the property in question and there is no cause of action to file suit against defendant Nos.1 to 3. Hence, prays to dismiss the suit against defendant Nos.1 to 3. 3.3. Defendant No.8 filed a memo adopting the written statement filed by defendant Nos.1 to 3. 3.4. Defendant No.4 filed a written statement admitting the averments made in the plaint and contended that, the plaintiff had purchased the ‘A’ schedule property under the registered sale deed from defendant Nos.4 to 7 and has been enjoying the property. Hence, prays to decree the suit of the plaintiff. - 7 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 3.5. The Trial Court, based on the rival pleadings of the parties, framed the following issues: “1. Whether the plaintiff proves that the suit schedule ‘B’ and ‘D’ passage are in existence and he has been using and enjoying the same openly, continuously and peaceably as a right of easement? 2. Whether the plaintiff proves the alleged interference caused by the defendant in respect of the said passage? 3. Whether the plaintiff is entitled for the relief as prayed for? 4. What Order?” 3.6. The plaintiff, to substantiate his case, examined himself as PW1, examined three witnesses as PW2 to PW4 and marked seventeen documents as Exs.P1 to P17. In rebuttal, defendant No.4 was examined as DW1, defendant No.1 was examined as DW2, and marked five documents as Exs.D1 to D5. 3.7. The Trial Court, after recording the evidence, hearing the learned counsel for the parties and - 8 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 appreciating the entire evidence on record, answered issue Nos.1 to 3 in the affirmative and issue No.4 as per the final order. The suit of the plaintiff was decreed vide judgment dated 29.06.2010, and the Trial Court declared that the plaintiff has a right of easement of movement and usage of the plaint ‘B’ schedule passage; further, the defendants, their successors or any persons claiming under them are restrained from obstructing or interfering the peaceful possession and enjoyment of the right of easement of plaintiff over the ‘B’ schedule passage by way of permanent injunction. 3.8. Defendant Nos.1 to 3, aggrieved by the judgment and decree passed by the Trial Court, preferred an appeal in RA No. 29 of 2010 on the file of the First Appellate Court. 3.9. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: - 9 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 “1. Whether the plaintiff proved that plaint B and D schedule passage are in existence since time immemorial and it has been by his vendors as right of easement as on the date of purchase openly, continuous, peaceably and after purchase he has been using and enjoying the same to go to the plaint C schedule property? 2. Whether the plaintiff proved the alleged interference by the defendant as on the date of suit? 3. Whether the Judgment and Decree of the trial Court is required to be interfered with? 4. What order?” 3.10. The First Appellate Court, after re-appreciating the entire evidence on record, answered point Nos.1 and 2 in the negative, point No.3 in the affirmative and point No.4 as per the final order. The appeal was allowed and the judgment and decree passed by the Trial Court in OS No. 51 of 2007 was set aside, and consequently, the suit of the plaintiff was dismissed vide judgment dated 12.02.2013. - 10 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 4. The plaintiff, aggrieved by the impugned judgment and decree passed by the First Appellate Court, filed this regular second appeal. 5. Heard the arguments of the learned Senior Counsel Sri. C.R.Gopalaswamy for the plaintiff and learned counsel Sri. G.B.Shastry for defendant Nos.1 to 3. 6. Learned Senior Counsel appearing for the plaintiff submits that, the vendor of the plaintiff had filed a suit against defendant Nos.1 to 3, 8 and 9 in OS No. 87 of 2006 for the relief of permanent injunction, and defendant Nos.1 to 3 and 8 have made a counter-claim in the said suit for mandatory injunction. He submits that, the counter-claim made by the defendants came to be dismissed. He submits that, the vendor of the plaintiff had a right to pass through the suit ‘B’ schedule passage. He submits that, the right and the interest which was available to the vendor of the plaintiff passes to the plaintiff under Section 8 of the Transfer of Property Act, 1882. The said aspect was not considered by the First - 11 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 Appellate Court and committed an error in reversing the judgment and decree passed by the Trial Court on the ground that the boundaries shown in Ex.P14 i.e., the judgment and decree passed in OS No. 87 of 2006 and the boundaries shown in the Ex.P12 sale deed are different. The plaintiff has purchased a portion of the land bearing Sy.No.245. There will be a change in the boundaries and the said aspect has not been properly considered by the First Appellate Court. He further submits that, the First Appellate Court has not properly re-appreciated the entire evidence on record and committed an error in reversing the judgment and decree passed by the Trial Court. He submits that, the plaintiff has got a right of easement in the ‘B’ schedule passage adjacent to ‘A’ schedule property. He further submits that, the plaintiff has no other alternative way to approach ‘A’ schedule property except the passage shown in the plaint ‘B’ schedule. He submits that, the matter requires re-consideration by the First Appellate Court and he submits that the impugned - 12 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 judgment passed by the First Appellate Court may be set aside and remit the matter to the First Appellate Court for fresh consideration. Hence, on these grounds, he prays to allow the appeal. 7. Learned counsel for the defendants submits that, the First Appellate Court has not taken into consideration Section 8 of the Transfer of Property Act while passing the impugned judgment. He fairly submits that, the matter requires re-consideration by the First Appellate Court. Hence, on this ground, he prays to dispose of the appeal. 8. Perused the records and considered the submissions of the learned counsel for the parties. 9. This court, vide order dated 19.02.2021, admitted the appeal to consider the following substantial questions of law: 1. Whether the plaintiff is entitled ‘B’ schedule property as easement to ‘A’ schedule property? - 13 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 2. Whether defendant No.8 is stopped from objecting the plaintiff by virtue of the judgment and decree passed in O.S.No.87/2006? 3. Whether the plaintiff proves that the ‘B’ schedule property easement is available to ‘A’ schedule property right from the immemorial days of his vendors? Reg. Substantial question of law No.2: 10. The plaintiff filed a suit for declaration of title and permanent injunction on the ground that the plaintiff had purchased a portion of land bearing Sy.No.245 from defendant Nos.4 to 7 under the registered sale deed and it is contended that, the vendor of the plaintiff filed a suit in OS No. 87 of 2006 for the relief of permanent injunction against the defendant Nos.1 to 3, 8 and 9 herein, the said suit came to be decreed and the said judgment is marked as Ex.P14. In the said suit, defendant Nos.1 to 3 have also made a counter-claim and the said counter-claim came to be dismissed. The judgment passed in OS No. 87 of 2006 has attained finality. The said suit was decreed, wherein it - 14 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 was also declared that the plaintiff therein as a right of passage over the suit land for movement of his cattle, labours, machineries, agricultural equipments without interruption by the defendants. Further, by means of permanent injunction, the defendants, their workers, supporters, successors or any persons claiming through or under them are restrained from in any way interfering or obstructing the plaintiff’s vendor’s movement on the scheduled land to reach his paddy field in Sy.No.245 and to take his cattle, labours and agricultural implements, machineries and agricultural vehicles. The plaintiff herein had purchased the suit schedule property. By virtue of the judgment passed in OS No. 87 of 2006, though defendant Nos.4 to 7 have transferred the ‘A’ schedule property the vendors of the plaintiff were having an interest in ‘B’ schedule passage. The defendant Nos.4 to 7 have sold the portion of property involved in OS No. 87 of 2006 in favour of the plaintiff as per Ex.P12. - 15 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 11. In order to consider the case on hand, it is necessary to examine Section 8 of the Transfer of Property Act, which reads as follows: “8. Operation of transfer.—Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; - 16 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.” (Emphasis supplied) From the bare reading of Section 8, it is clear that transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, including easements. The said aspect was not considered by the First Appellate Court and committed an error in reversing the judgment and decree passed by the Trial Court. Further, the First Appellate Court, without considering Ex.P14 the judgment passed in OS No. 87 of 2006, had proceeded to pass the impugned judgment. 12. The impugned judgment passed by the First Appellate Court is contrary to the records and Section 8 of the Transfer of Property Act. The First Appellate Court has not examined Section 8 of the Transfer of Property Act. Without examining Section 8 of the Transfer of Property Act, had proceeded to pass the impugned judgment. The - 17 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 matter requires re-consideration by the First Appellate Court. Hence, I am of the opinion that the judgment and decree passed by the First Appellate Court is liable to be set aside. 13. In view of the above discussion, I answer substantial question of law No.2 in the affirmative. 14. As observed above, this Court is of the opinion that the matter requires re-consideration by the First Appellate Court. In view of the same, substantial questions of law Nos.1 and 3 do not arise for consideration in this appeal. 15. In view of the above discussion, I proceed to pass the following: ORDER i. The appeal is allowed; ii. The impugned judgment and decree dated 12.02.2013 passed in RA No. 29 of 2010 by the First Appellate Court is set aside; iii. RA No. 29 of 2010 is restored to its original file; - 18 - HC-KAR NC: 2026:KHC:26253 RSA No. 687 of 2013 iv. The parties are directed to appear before the First Appellate Court on 13.07.2026 without awaiting any further notice from the First Appellate Court; v. The First Appellate Court is directed to dispose of the appeal taking note of Section 8 of the Transfer of Property Act and the judgment and decree passed in OS No. 87 of 2006; vi. All the contentions of the parties are kept open; vi. The Registry is directed to transmit the Trial Court records to the First Appellate Court forthwith; vii. Pending IA(s) in this appeal, if any, do not survive for consideration and accordingly, shall stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE PA List No.: 2 Sl No.: 3