- 1 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2018 OF 2013 (DEC/INJ) BETWEEN: 1. NARASAPPA S/O KUNTAJJARA GOVINDAPPA DEAD BY HIS LEGAL REPRESENTATIVES 1(A) SMT. CHOWDAMMA W/O LATE NARASAPPA DEAD BY HER LEGAL REPRESENTATIVE A1(B) IS LEGAL REPRESENTATIVE OF A1(A) 1(B) GOVINDAPPA S/O NARASAPPA AGED ABOUT 54 YEARS R/O DOGIHALLI VILLAGE BIRUR POST, BIRUR – HOBLI KADUR TQ CHIKKAMAGALURU DISTRICT …APPELLANTS (BY SRI. S.B. HALLI, ADVOCATE FOR A1(B) V/O DATED 14.02.2025 A1(B) IS LEGAL REPRESENTATIVE OF DECEASED A1(A)) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 AND: 1. KUMARAPPA S/O LATE MYLARAPPA AGED ABOUT 47 YEARS AGRICULTURIST R/O 3RD CROSS SARASWATHIPURAM BIRUR TOWN, KADUR TALUK CHICKMAGALUR DISTRICT 2. MALLAPPA S/O LATE MYLARAPPA AGED ABOUT 38 YEARS AGRICULTURIST R/O 3RD CROSS, SARASWATHIPURAM BIRUR TOWN, KADUR TALUK CHICKMAGALUR DISTRICT 3. MALLESHAPPA S/O LATE B M MYLARAPPA AGED ABOUT 32 YEARS AGRICULTURIST R/O 3RD CROSS, SARASWATHIPURAM BIRUR TOWN KADUR TALUK CHICKMAGALUR DISTRICT …RESPONDENTS (R1 TO R3 ARE SERVED) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 31.8.2013 PASSED IN R.A.NO.92/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, KADUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 1.4.2011 PASSED IN - 3 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 OS.NO.225/2009 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, KADUR. 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 1. This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 31.08.2013 passed in R.A.No.92 of 2011 by the learned Senior Civil Judge at JMFC, Kadur, confirming the judgment and decree dated 01.04.2011 passed in O.S.No.225 of 2009 by the learned Principal Civil Judge and JMFC, Kadur. 2. For convenience, parties are referred to based on their rankings before the trial court. The appellant was the plaintiff and the respondents were defendants. - 4 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 3. Brief facts, leading rise to the filing of this appeal are as follows: 4. The plaintiff filed a suit for declaration against the defendants to declare that he is the owner of land bearing Survey No.4/18 measuring 2 acres and 20 guntas situated at Birur Kavalu village. It is contended that the plaintiff had purchased the suit schedule property under registered sale deed dated 22.05.1972 from one Sri. Hanumaiah-vendor of the plaintiff has purchased the said property from the defendants’ father Mylarappa. After the purchase of property, the plaintiff had applied for change of khata in his name on the basis of the registered sale deed dated 22.05.1972. Mylarappa filed objections for change of mutation. Further, Mylarappa approached the Assistant Commissioner for resumption and restoration of the suit schedule property under the provision of PTCL Act. The Assistant Commissioner dismissed the petition filed by Mylarappa and the - 5 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 Assistant Commissioner has also ordered to enter the name of the plaintiff by accepting the mutation. The name of the plaintiff is appearing in the RTC. The plaintiff has contended that the defendants have no right or interest over the suit schedule property. It is contended that the plaintiff is in possession of the suit schedule property and the defendants are trying to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property. The plaintiff requested the defendants not to interfere with the peaceful possession and enjoyment of the plaintiff over the suit schedule property, but the defendants did not gave any heed to the request made by the plaintiff. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and permanent injunction. 5. The defendant No.2 filed a written statement denying the averments made in the plaint and it is contended that the plaintiff is not in possession of the suit - 6 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 schedule property. It is contended that the defendants filed a suit against the plaintiff in O.S.No.208 of 2006 and the said suit came to be decreed vide judgment dated 27.05.2009 wherein the plaintiff herein was restrained from interfering with the possession of the defendants therein over the suit property. The judgment and decree passed in O.S.No.208 of 2006 has attained a finality. Though the plaintiff filed a suit for declaration of title and permanent injunction, the suit filed by the plaintiff is not maintainable. A suit for mere declaration without seeking a consequential relief of possession is not maintainable. Hence, there is no cause of action to file a suit for declaration of title and permanent injunction against the defendants. Accordingly, prays to dismiss the suit. 6. The trial Court, based on the rival pleadings of the parties, framed the following issues: - 7 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 1) Whether the plaintiff proves that in pursuant to the sale deed on 22.05.1972 the plaintiff became the owner of the schedule property? 2) Whether the plaintiff proves that he is in lawful possession of the schedule property? 3) Whether the defendants prove that plaintiff has furnished the boundaries of land bearing Sy.No.4/25 belonging to the defendants? 4) Whether the plaintiff proves that alleged interference? 5) Whether the plaintiff is entitled for the reliefs claimed in the suit? 6) What decree or order? 7. The plaintiff to substantiate his case examined himself as PW1, examined one witnesses as PW.2 and marked 17 documents as Exhibit P1 to Exhibit P17. In rebuttal, defendant No.2 was examined as DW1 and no documents are marked on behalf of the defendants. 8. The trial Court, after recording the evidence, hearing both sides and after assessing the verbal and - 8 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 documentary evidence, answered issues No. 1 to 5 in the negative and issue No. 6 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 01.04.2011. 9. The plaintiff, aggrieved by the dismissal of suit in O.S. No. 225 of 2009, preferred an appeal in R.A.No. 92 of 2011 on the file of learned Senior Civil Judge and JMFC, Kadur. 10. The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1. Whether the judgment and decree passed by the trial court in O.S.No.225/2009 dated 01.04.2011 is illegal, erroneous and opposed to the principles of law, facts and probabilities of the case and liable to be set-aside? 2. Whether the appellant/plaintiff proves that he has been in actual and exclusive possession and enjoyment of the suit schedule property with given boundaries? 3. Whether the appellant/plaintiff further proves that the suit schedule property and the - 9 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 respondents/defendants property are different properties? 4. Whether the appellant/plaintiff is entitled for the relief of declaration and permanent injunction as prayed for? 5. What Order? 11. The first appellate court after re-appreciating the entire evidence on record answered points No.1 to 4 in the negative, and point No.5 as per the final order. The appeal was dismissed vide judgment dated 31.08.2013 and confirmed the judgment and decree passed in O.S.No. 225 of 2009. 12. The plaintiff, aggrieved by the impugned judgments, filed this regular second appeal. 13. Heard the arguments of the learned counsel for the plaintiff. 14. Notice was issued to the respondents. Despite the service of notice, they remained unrepresented. - 10 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 15. Learned counsel for the plaintiff submitted that the plaintiff is the absolute owner and in possession of the suit schedule property. The plaintiff in order to prove his possession has produced the original registered sale deed marked as Exhibit P1. He submits that there is a recital in Exhibit P1 regarding delivery of possession. He submits that the trial court as well as first appellate court committed an error in dismissing the suit. 16. To buttress his argument, he has placed a reliance on the judgment of the Hon'ble Apex Court in case of Akkamma and others versus Vemavathi and others reported in (2021) 18 SCC 371. Hence, on these grounds, he submits that the impugned judgments passed by the courts below are arbitrary, erroneous and contrary to the mandate laid down by the Hon'ble Apex Court in case of Akkamma (referred supra). Accordingly, prays to allow the appeal. - 11 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 17. This Court vide order dated 13.06.2016, admitted the appeal to consider the following substantial questions of law: 1) Were the courts below justified in dismissing the suit of the plaintiff when the plaintiff has produced Exhibit P1 to Exhibit P17 to establish his title and also possession as on the date of suit? 2) Were the courts below justified in dismissing the suit without considering the oral and documentary evidence on record? Reg. Substantial questions of law: 18. Substantial questions of law 1 and 2 are interlinked, hence, they are taken together for common discussion to avoid the repetition of facts. 19. The plaintiff filed a suit for declaration of title and permanent injunction on the ground that the plaintiff is the absolute owner and in possession of the suit schedule property and the plaintiff had purchased the - 12 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 suit schedule property under a registered sale deed. The vendor of the plaintiff had put the plaintiff in possession of the suit schedule property. It is contended that the defendants have no right, title or interest over the suit schedule property and they are trying to interfere with the peaceful possession and enjoyment over the suit schedule properties. 20. The plaintiff to prove his case produced documents Exhibit P1 is the registered sale deed executed in favour of the plaintiff on 22.07.1972. Exhibit P2 is the mutation register extract which discloses that Mylarappa filed a petition under the Provision of PTCL Act before the Assistant Commissioner and the Assistant Commissioner dismissed the petition filed by Mylarappa that is the father of the defendants. Exhibits P3 to P7 are the RTC extracts of suit land. Exhibits P8 and P9 are patta book. Exhibits P10 and P11 are the land holding certificates. Exhibits P 12 is the certified copy of order passed by Assistant - 13 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 Commissioner, Exhibit P13 is the order passed by this court in writ petition No. 45779 of 2009, wherein the defendants have challenged the order passed by the Assistant Commissioner under the Provisions of PTCL Act. Exhibit P14 is the rough sketch, Exhibit P15 is the tax paid receipts. Exhibit P16 is the certificate. Exhibit P17 is the certified copy of the plaint in OS No. 572 of 1998 and the order sheet. 21. During the cross-examination of PW1, he has admitted that the defendants have filed a suit against the plaintiff in O.S.No.208 of 2006 for the relief of permanent injunction and the said suit was decreed vide judgment dated 27.05.2009, wherein it is held that the defendants are in possession of the suit schedule property. 22. From the perusal of Exhibit P1, it clearly discloses that the plaintiff had purchased a land bearing survey No.4/18 and he became the owner of 2 acres and 20 - 14 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 guntas of land. From the perusal of the boundary shown in Exhibit P1 and the boundary shown in the schedule of the plaint are entirely different. In rebuttal, defendant No.2 was examined as DW1 and he has deposed that the plaintiff is not in possession of the suit schedule property and deposed that the defendants filed a suit in O.S.No. 208 of 2006 against the plaintiff. The said suit came to be decreed and it is held that the defendants are in possession of the suit schedule property and restrained the plaintiff from interfering with the peaceful possession and enjoyment of the suit schedule property. He has deposed that the plaintiff is not in possession of the suit schedule property. Nothing has been elicited in the course of cross-examination to disbelieve the evidence of DW1. 23. On perusal of the entire evidence on record, though the plaintiff contended that the plaintiff had purchased the suit schedule property under a registered sale - 15 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 deed as per Exhibit P1, from the perusal of the boundary shown in the registered sale deed and the boundary shown in the plaint schedule are totally different. Further, admittedly there is a decree passed against the plaintiff in O.S.No.208 of 2006, holding that the present plaintiff is not in possession of the suit schedule property. The plaintiff filed a suit for declaration of title and perpetual injunction without seeking for a consequential relief of possession. As per proviso to Section 34 of the Specific Relief Act, 1963 mere suit for declaration without seeking consequential relief of possession, the suit is not maintainable. 24. Admittedly the plaintiff is not in possession of the suit property. Thus the suit was barred by Section 34 of the Specific Relief Act, 1963. The purpose behind the section of the Specific Relief Act is the inclusion of the proviso is to prevent multiplicity of proceedings. The mere declaratory decree remains non-executable. It - 16 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 is settled law that amendment of plaint can be made at any stage of the suit subject to limitation for recovery of possession. The plaintiff has not made attempt to amend the plaint. The Hon'ble Apex Court in the case of Vasantha (Dead) Thr. L.R. vs. Rajalakshmi @ Rajam (Dead) Thr. Lrs. reported in (2024) 5 SCC 282, wherein the Hon'ble Apex Court held that suit for declaration without consequential relief of possession is not maintainable when the plaintiff is not in possession. Admittedly, the plaintiff did not have possession of the suit schedule property as on the date of suit and the plaintiff has suffered decree in O.S.No. 208 of 2006. Both the Courts below were justified in passing the impugned judgments and recorded its finding that mere suit for declaration of title without seeking a consequential relief of possession is not maintainable. 25. Learned counsel for the plaintiff placed a reliance on the judgment of the Hon'ble Apex Court in case of - 17 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 Akkamma and others versus Vemavathi and others reported in (2021) 18 SCC 371. The Hon'ble Apex Court in case of Vasantha (referred supra), has already considered the judgment passed in Akkamma's case. In view of the mandate laid down by the Hon'ble Apex Court in case of Vasantha (referred Supra), a suit for mere declaration without seeking a consequential relief of possession is not maintainable. 26. The plaintiff has failed to prove the possession as on the date of the suit and suit was barred by the provisions of Section 34 of the Specific Relief Act. Hence, I do not find any error in the impugned judgments. Both the courts below have considered the entire material placed on record and passed impugned judgments. The impugned judgments cannot be faulted with. In view of the above discussion, I answer substantial questions of law in the affirmative. - 18 - HC-KAR NC: 2026:KHC:25850 RSA No. 2018 of 2013 27. Accordingly, I proceed to pass the following order: ORDER i. The Regular Second Appeal is dismissed. ii. The judgments and decree passed by the courts below are hereby confirmed. iii. No order as to the costs. iv. In view of the dismissal of appeal, pending IAs, if any, do not survive for consideration, and they are disposed of accordingly. Sd/- (ASHOK S.KINAGI) JUDGE SKS List No.: 2 Sl No.: 8