The High Court
Case Details
- 1 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO. 1640 OF 2013 (DEC/INJ) …APPELLANT BETWEEN: SMT. GEETHA BAI, W/O LATE NARASINGH, AGED ABOUT 41 YEARS, R/AT NO.51 AND 52, 6TH MAIN, C/O SRI CHOUDESHWARI TRADERS, NARASIPURA LAYOUT, VIDHYARANYAPURA POST, BANGALORE-560 097 (BY SRI SANJAY KRISHNA V., ADVOCATE) AND: 1. 2. 3. 4. 5. SMT. HUCCHAMMA, D/O LATE ANKAPPA AND W/O KEMPANNA, AGED ABOUT 55 YEARS, SRI KEMPANNA S/O LATE KENGAIAH, AGED ABOUT 60 YEARS, SRI GURUVAIAH, S/O LATE ANKAPPA, AGED ABOUT 50 YEARS, SRI HUCHAPPA, S/O LATE ANKAPPA, AGED ABOUT 38 YEARS, SRI MANJUNATHA, S/O KEMPANNA, AGED ABOUT 20 YEARS, Digitally signed by GEETHAKUMARI PARLATTAYA S Location: High Court of Karnataka RESPONDENTS NO.1 TO 5 ARE R/AT NO.9/4,4TH BLOCK, NEAR RAJA KALUVE, DODDA BOMMASANDRA, VIDHYARANYAPURA POST, BANGALORE-560 097. - 2 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 6. MR. SUDIHINDRA SINGH, S/O LATE NARASINGH, AGED ABOUT 57 YEARS, SINCE DEAD BY LRs 6(a) SUDHA V., S/O SUDHINDRA SINGH, AGED ABOUT 56 YEARS, 6(b) SUMAN SINGH S., S/O SUDHINDRA SINGH, AGED ABOUT 30 YEARS, 6(c) SHRUTHI SINGH S., D/O SUDHINDRA SINGH, AGED ABOUT 29 YEARS, 6(d) PRASHANTH SINGH S., S/O SUDHINDRA SINGH, AGED ABOUT 22 YEARS, 6(e) PREM SINGH S., S/O SUDHINDRA SINGH, AGED ABOUT 22 YEARS, RESPONDENTS NO.6(a - e) ARE R/A NO.119, SINGH COMPLEX, CHOWDESHWARINAGAR, DEVI CIRCLE, VIDYARANYAPURA POST, BANGALORE NORTH TALUK, BANGALORE - 560 097. (IMPLEADED V/O DATED 02.07.2024) …RESPONDENTS
Legal Reasoning
[BY SRI ABHINAY Y.T., ADVOCATE FOR R1 TO R5 (PH); SRI KARTHIK V., ADVOCATE FOR LRs OF DECEASED R6] THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 11.7.2013 PASSED IN R.A.NO.67/2013 ON THE FILE OF THE II ADDL. SESSIONS & SPL. JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 11.2.2013 PASSED IN O.S.NO.290/2012 ON THE FILE OF THE II ADDL. SR. CIVIL JUDGE, BANGALORE (R) DISTRICT, BANGALORE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI - 3 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 ORAL JUDGMENT Challenging judgment and decree dated 11.02.2023 passed by II Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, in O.S. no.290/2012, confirmed in judgment and decree dated 11.07.2013 passed by II Additional District & Sessions Judge, Bengaluru Rural District, Bengaluru, in R.A. no.67/2013, this appeal has been filed. 2. Brief facts stated are, appellant was plaintiff in O.S. No.290/2012. Suit was filed for relief of declaration that plaintiff was absolute owner property bearing no.52 V.P. Khatha no.40 and Bruhat Bengaluru Mahanagara Palike Khatha no.164/40/52 measuring 30 ft. x 40 ft. totally measuring 1200 square feet situated at Narasipura village, Yalahanka Hobli, Bengaluru North Taluk (for short ‘suit property’); that Gift Deed dated 06.1.2012 executed by defendant no.1 in favour defendants no.2 to 5 as null and void and not binding on plaintiff and for permanent injunction restraining defendants from interfering with peaceful possession of plaintiff’s property etc. 3. In plaint, it was stated that plaintiff became owner of suit property having purchased it from its earlier owner Smt.Huchamma w/o Sri C.S.Jagadish under Sale Deed dated - 4 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 20.06.2003 executed by her Power of Attorney Holder Sri Narasingh. It was further stated name of plaintiff was entered in revenue records and plaintiff was paying property tax continuously from date of purchase. It was further stated, plaintiff’s husband – power of attorney of her vendor was put in possession of suit property on execution of General Power of Attorney (‘GPA’ for short) and affidavit on 06.01.1990. Subsequently, four shop units were constructed and plaintiff was running cement business. Due to slack in business, three shops were rented out to tenants for running Motorcycle Garage, Hot Chips Shop and Home Appliances Repair Shop. It was stated electricity connections were standing in name of plaintiff. 4. In year 2011, plaintiff intended to construct a two storied building in property by demolishing construction. Having secured sanction of building plan from BBMP on 21.10.2011, plaintiff got tenants vacated and commenced demolition. When plaintiff was to commence of construction of new building, she received notice from Karnataka State Legal Services Authority (for short ‘KSLSA’) dated 15.10.2011, calling upon her to appear on 27.01.2012 for resolution of dispute stated to have been raised by defendant no.1 in respect - 5 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 of suit property even though defendant no.1 was a total stranger to suit property and did not have any lawful claim over it. Therefore, plaintiff addressed suitable reply and appeared before KSLSA on 27.01.2012. But, defendant No.1 did not turn up, but continuously obstructing plaintiff from proceeding with construction. It was stated plaintiff obtained certified copy of Gift Deed executed by defendant no.1 in favour of defendant nos.2 to 5 and found that same was executed only to harass Plaintiff. After obtaining information under Right to Information Act, plaintiff found documents under which defendants claiming interest were created documents. On said cause of action, plaintiff filed suit. 5. Despite service of summons, defendants did not enter appearance, they were placed ex-parte. Thereafter, Trial Court framed following points for its consideration: 1. Whether plaintiff is entitled to the relief of declaration and permanent injunction? 2. What Order or Decree? 6. Plaintiff examined herself as PW.1 and got marked Exs.P1 to P32. However, Trial Court answered point no.1 in negative and point no.2 by dismissing suit. Aggrieved, plaintiff filed Appeal in R.A.no.67/2013 on various grounds based on which following points were framed: - 6 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 1. Whether the appellant/plaintiff established her schedule property? title over has suit the 2. Whether the appellant/plaintiff has proved the defendants have interfered her schedule suit the that possession over property? 3. Whether the decree calls impugned judgment and for interference by this Court? 4. To what order? 7. Answering points no.1 to 3 in negative first appellate Court dismissed appeal by answering point no.4 accordingly. Hence, plaintiff is in second appeal. 8. Sri Sanjay Krishna, learned counsel for appellant – plaintiff submitted dismissal of plaintiff’s suit and appeal by trial Court and first appellate Court respectively were without proper appreciation of facts, circumstances and material on record. It was submitted, in absence of opposition or denial by defendants and when plaintiff relied on cogent material, dismissal of suit was in ignorance of material on record and therefore, perverse. It was further submitted, plaintiff had filed I.A. no.4/2014 seeking to produce certified copy of cancellation deed dated 17.10.2013 executed by defendant no.1 for cancellation of Gift Deed in favour of defendant nos.2 to 5 and Absolute Sale Deed dated 17.10.2013 executed by defendant - 7 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 no.1 in favour of defendant no.6 herein, copies of police complaint, applications filed under Right to Information Act, endorsement issued by Sub Registrar and covering letter issued by Public Information Officer etc. Likewise, I.A.no.5/2014 was filed to produce Certified copy of plaint in O.S.no.5658/1987 filed by plaintiff’s vendor along with certified copy of judgment and decree passed therein as additional evidence. In support of said applications, it was submitted O.S. no.5658/1987 was filed by plaintiff’s vendor against Ramachandrapura Village Panchayath and Block Development Officer for permanent injunction restraining them from demolishing building on suit property. It was submitted suit was decreed on 12.12.1988. It was further submitted additional evidence would be necessary for proper disposal of present suit, as they corroborate title of plaintiff’s vendor and would dispel doubt entertained by trial Court. Based on above submissions, learned counsel sought for answering substantial questions of law in favour of plaintiff and allow appeal. 9. Sri Abhinay Y.T., learned counsel for respondents no.1 to 5 sought to oppose appeal. Sri Karthik V., learned counsel appearing for respondent no.6, while adopting submissions of learned counsel appearing for respondents no.1 - 8 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 to 5, further was submitted that respondent no.6 was a bonafide purchaser of suit property. And that judgment and decree passed by trial Court as well as first appellate Court were concurrent and therefore, would not call for interference. Insofar as applications for additional evidence, it was submitted that documents produced were not relevant and therefore, applications were misconceived. On above grounds, sought dismissal of appeal. 10. Heard learned counsel for parties. Perused judgments and decrees passed by both Courts and records. 11. This appeal was admitted on 13.10.2020 to consider the following substantial questions of law: a) Whether the findings by Court of facts vitiated by non-consideration of relevant evidence? b) Whether the First Appellate Court is justified in dismissing the appeal on the ground that Ex.P8 – the General Power of Attorney is not a genuine one? c) Whether the Courts below in dismissing the suit in the absence of denial of allegation of facts made in the plaint? justified is 12. Since applications for additional evidence are filed, further substantial question of law as - ‘whether additional evidence sought to be relied upon by plaintiff in I.As.4/2014 and 5/2014 are required to be permitted?’ - 9 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 13. Counsels were also heard on additional substantial question of law. 14. At outset, it is seen appeal is by plaintiff against concurrent findings in suit for declaration and permanent injunction. Plaintiff’s claim insofar as suit property is based on registered Sale Deed - Ex.P1 dated 20.06.2003. Plaintiff stated that prior to said Sale Deed, her vendor had executed Ex.P8 – GPA on 06.01.1990 accompanied with an affidavit in favour of plaintiff’s husband Narasingh, indicating delivery of possession. Plaintiff further claims that after purchase property falling into jurisdiction of BBMP from Ramachandrapura Village Panchayath, she was issued with Khata – Ex.P2 and Ex.P3 was Khata extract. Plaintiff also relies on property tax paid receipts as Exs.P4 to P7 for corroboration. In addition, plaintiff relied on approved building plan - Ex.P10 & Electricity bills consumption – Ex.P11 and gift deed dated 06.01.2012 executed by defendant no.1 in favour of defendants no.2 to 5 as per Ex.P.24 as well as copies of photographs - Exs.P25 and 26 taken prior to filing of suit. Apart from above, plaintiff also relied on order sheet in Case no.311/2011 and notice issued by KSLSA as per Exs.P.30 and 31 and encumbrance certificate as per Ex.P.32. - 10 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 15. Since, defendants did not appear and file written statement, trial Court framed two points for consideration; (1) whether plaintiff is entitled for relief of declaration and permanent injunction and (2) what order or decree, whereupon, plaintiff deposed as PW.1 in terms of plaint and got marked above mentioned documents. 16. While passing impugned judgment and decree, trial Court rightly held burden would be on plaintiff to establish title. It cast doubt on plaintiff's title on ground that she did not produce any material to establish title of her vendor. It discounted Ex.P.10 - building plan approved by BBMP on ground that it was based on sale deed and application submitted by plaintiff. It discounted Exs.P.25 and Ex.P.26 - photographs as well as Ex.P.11- electricity Bills on ground of lack of corroborative material and proceeded to dismiss suit solely on ground that plaintiff did not produce any material to substantiate title of her vendor. 17. In appeal, first appellate Court observed that sale deed - Ex.P.1 on which plaintiff placed reliance was executed by her husband as power of attorney holder without establishing that principal was alive, even when there was no material to indicate otherwise. It concurred with observations of trial Court - 11 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 insofar as plaintiff's failure to establish title of her vendor and proceeded to dismiss appeal. 18. From above, it is seen plaintiff's suit is dismissed virtually without appreciation of entire material on record and in a cursory manner. Insofar as applications for additional evidence, it is seen that document sought to be produced along with I.A.no.4/2014 are certified copy of cancellation deed - Ex.P.24 and certified copy of sale deed in favour of respondent no.6 herein, both dated 17.10.2013; copies of police complaint and applications under Right to Information Act etc. In view of impleadment of respondent no.6 herein, who is purchaser of suit property during pendency of this appeal, principle of lis- pendens would come to plaintiff's aid. Therefore above material would not be necessary for disposal of suit. Hence, I.A.no.4/2014 is rejected. However, document sought to be produced along with I.A.no.5/2014 are certified copy of plaint in O.S.no.5658/1997 filed by Smt.Huchamma wife of Jagadish and certified copy of judgment and decree passed therein. 19. Bare perusal of said documents would indicate that plaintiff's vendor had filed suit against Ramachandrapura Village Panchayat and Block Development Officer for relief of permanent injunction restraining them from demolishing - 12 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 construction in her property. Said suit was decreed. Description of suit schedule in O.S.no.5658/1987 is same as suit property herein. As they would corroborate right of plaintiff's vendor insofar as present suit property, they would be relevant for disposal of suit. Therefore I.A.no.4/2014 deserves to be allowed. 20. It is observed that reasoning of trial Court that plaintiff had failed to produce material to substantiate title of her vendor would not be appropriate and especially insofar as in light of additional evidence sought to be produced. Likewise, reasoning by first appellate Court about casting doubt about sale deed executed by principal executant of GPA in favour of Smt.Huchamma wife of Jagadish, being alive or otherwise would not be justified when there was no basis to conclude otherwise. Normally, electricity consumption bills and property tax paid receipts would be corroborative evidence and cannot out-rightly be discounted. 21. Under above circumstances, judgment and decree passed by both Courts would be without proper appreciation of material on record and as such, vitiated by perversity. Therefore substantial question of law no.(a) is answered in affirmative; (b) in negative and (c) is kept open for fresh - 13 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 determination, in view of allowing of I.A.no.5/2014. Addl. substantial question of law insofar as I.A.no.5/2014, is answered in affirmative. Consequently, following:
Decision
ORDER a) Appeal is allowed. b) Judgment and decree dated 11.07.2013 passed by II Additional District &b Sessions Judge, Bengaluru Rural District, Bengaluru, and judgment and decree dated 11.02.2013 passed by II Addl. Senior Civil Judge, Bangalore Rural District, Bangalore in O.S.no.290/2012 are set aside, matter is remanded back to trial Court for fresh disposal. c) Parties are directed to appear before trial Court on 01.07.2025 without awaiting fresh notice. d) It is clarified that plaintiff would be entitled to lead further evidence in addition to evidence already led, in view of allowing I.A.no.5/2014. e) Trial Court shall pass fresh considered judgment and decree after due consideration without being influenced by observations made in earlier judgment and decree as well as in this order. - 14 - NC: 2025:KHC:16583 RSA No. 1640 of 2013 f) Since, matter is of some vintage, trial Court is directed to expedite disposal of suit within 31.03.2026 by fixing time schedules for each stage. All parties are directed to cooperate for same. Registry to transmit trial Court records well before 1st July, 2025. Sd/- (RAVI V HOSMANI) JUDGE BS/Psg* List No.: 1 Sl No.: 59