Second appeal against reversal of trial court's dismissal of suit for declaration of title and injunction. Dismissed; first appellate court's decree for plaintiff upheld. Doctrine of feeding the grant by estoppel applied; alienation of inam land before regrant validated by subsequent grant. Boundaries established identity of property.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:23359 RSA No. 397 of 2014
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR REGULAR SECOND APPEAL NO. 397 OF 2014 (DEC/INJ)
BETWEEN:
Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA
(BY SRI. K. N. SHIVA REDDY, ADVOCATE)
…APPELLANTS
AND:
1(a). SAROJAMMA
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D/O LATE K M VENKATAMUNIYAPPA AGED ABOUT 80 YEARS R/O # 14/1, 2ND CROSS VASANTH BLOCK, GANGANAGARA BENGALURU – 560 032.
1(b) V NAGABUSHA S/O LATE K M VENKATAMUNIYAPPA AGED ABOUT 56 YEARS.
1(c) V SUBRAMANI S/O LATE K M VENKATAMUNIYAPPA AGED ABOUT 54 YEARS.
1(d) V RUKMINI
D/O LATE K M VENKATAMUNIYAPPA AGED ABOUT 48 YEARS.
1(e) V UMA
D/O LATE K M VENKATAMUNIYAPPA
1(f) V NAGAVANI D/O LATE K M VENKATAMUNIYAPPA
1(g) V SAKKUBAI D/O LATE K M VENKATAMUNIYAPPA
ALL ARE R/A No.14/1, 2ND ‘C’ CROSS VASANTH BLOCK, GANGANAGARA BENGALURU – 560 032. AMENDED AS PER THE ORDER DTD. 24.02.2023.
2(a) SMT. KEMPAMMA W/O LATE. VENKATAPPA AGED BOUT 75 YEARS R/AT BHUDIGERE VILLAGE CHANNARAYANAPATNA HOBLI
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DEVANAHALLI TALUK - 562 110. BANGALORE RURAL DISTRICT.
2(b) SRI. GOVINDA S/O LATE. VENKATAPPA AGED ABOUT 35 YEARS R/AT BHUDIGERE VILLAGE CHANNARAYANAPATNA HOBLI DEVANAHALLI TALUK - 562 110. BANGALORE RURAL DISTRICT.
2(c) SRI. MUNIRAJU S/O LATE VENKATAPPA AGED ABOUT 32 YEARS R/AT BHUDIGERE VILLAGE CHANNARAYANAPATNA HOBLI DEVANAHALLI TALUK - 562 110. BANGALORE RURAL DISTRICT.
2(d) SRI. NARAYANA S/O LATE. VENKATAPPA AGED ABOUT 30 YEARS R/AT BHUDIGERE VILLAGE CHANNARAYANAPATNA HOBLI DEVANAHALLI TALUK - 562 110. BANGALORE RURAL DISTRICT.
3(a) SMT. JAYAMMA W/O GOVINDAPPA AGED ABOUT 50 YEARS R/AT BHUDIGERE VILLAGE CHANNARAYANAPATNA HOBLI DEVANAHALLI TALUK - 562 110. BANGALORE RURAL DISTRICT.
NC: 2023:KHC:23359 RSA No. 397 of 2014
3(b) SRI. KRISHNAPPA S/O LATE. GOVINDAPPA AGED ABOUT 35 YEARS R/AT BHUDIGERE VILLAGE CHANNARAYANAPATNA HOBLI DEVANAHALLI TALUK - 562 110. BANGALORE RURAL DISTRICT.
3(c) SMT. PUSHPA W/O UMAPATHI D/O LATE. VENKATAPPA AGED ABOUT 30 YEARS R/AT BHUDIGERE VILLAGE CHANNARAYANAPATNA HOBLI DEVANAHALLI TALUK - 562 110. BANGALORE RURAL DISTRICT.
…RESPONDENTS
(BY SRI. SHANTKUMAR, ADVOCATE FOR SRI. SRINIVAS G. S, ADVOCATE FOR R1(a-g) R2(a), R2(b), R2(c), R2(d) - SERVED; VIDE ORDER DATED: 30/04/2014 SERVICE HELD SUFFICIENT IN R/O R3(a), R3(b) AND R3(c); SMT. K. SHOBHA, HCGP FOR R4)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 22.2.2014 PASSED IN R.A.No.41/2011 ON THE FILE OF V ADDITIONAL DISTRICT AND SESSIONS JUDGE, DEVANAHALLI, BANGALORE RURAL DISTRICT, ALLOWING THE APPEAL AND REVERSING THE JUDGEMENT AND DECREE DATED 15.10.2011 PASSED IN OS.NO.334/2007 ON THE FILE OF ADDITIONAL CIVIL JUDGE AND JMFC, DEVANAHALLI.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2023:KHC:23359 RSA No. 397 of 2014
JUDGMENT
declaration that partition deed dated 17.10.2005 entered into between the father of defendants 1 and 2 and
defendants 1 and 2 is not binding on plaintiff, declaring that the plaintiff is the absolute owner in possession of suit schedule property and relief of permanent injunction restraining the defendants from alienating, encumbering or creating any charges or any way meddling with the suit schedule property.
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24.03.1972. The plaintiff purchased the suit property from 4th defendant under the registered sale deed dated 31.05.1973. The plaintiff applied for mutation, but the 5th defendant has not made the proper entry in the concerned records. It is stated that original owner Thimmadasappa has partitioned the property by distributing the same to his sons i.e. defendants 1 and 2 through registered partition deed dated 17.10.2005. It is stated that the said partition deed is null and void, as on the date of the said document itself Thimmadasappa had no legal right in respect of the said property. The revenue authorities have
not effected the entry in the name of the plaintiff in revenue records. Taking undue advantage of the same, Thimmadasappa and defendants 1 and 2 have partitioned the said property. Claiming the above reliefs, the suit came to be filed.
statement denied the allegations made in the plaint and contended that the suit is false, frivolous and not tenable in law. The defendants specifically contended that suit property is a Inam land belonging to a Temple of Lord Desha Narayanaswamy. The father of defendants 1 and 2 was the Barvardar of the said land i.e. suit. In view of Inam abolition, the said property was re-granted to the father of defendants 1 and 2 i.e. Thimmadasappa by order dated 5.8.1982 in L.R.F.INA 74/79-80 and the grant certificate was also came to be issued and accordingly the name of Thimmadasappa was entered in the revenue records as per MR No.38/83-84 and he continued in possession of the said property. Thereafter, Thimmadasappa and his two sons i.e. defendants 1 and 2 got partitioned the said property through a registered partition deed dated 17.10.2005 and they are continued in possession and enjoyment of the suit property.
acre 18 1/4 guntas of Boodigere village purported to have been executed by said Thimmadasappa in favour of 3rd defendant was not acted upon. The suit property has not been delivered to 3rd defendant at any point of time. The sale deed dated 24.03.1972 in respect of Sy.No.1/4, the sale deed dated 31.05.1973 in respect of Sy.No.1/4 purported to have been executed by defendant No.4 in favour of the plaintiff is not acted upon. After the death of Thimmadasappa, defendants 1 and 2 have been continued in possession and enjoyment of Sy.No.162. They further contended that as on 17.05.1971 Thimmadasappa was not the owner of the suit schedule property, as it was belonging to Desha Narayanaswamy Temple. The said property has been granted in favour of Thimmadasappa and khata was changed in his name on 01.12.1983 and therefore the said property becomes a joint family property and accordingly partition came to be effected between the family members. Defendants further submitted that 4th defendant was not owner of the property and therefore he cannot executed a rectification
deed in favour of the plaintiff. The said rectification deed is
a collusive document by the plaintiff and defendants 3 and
4 with an intention to knock off the valuable suit property. The suit property is entirely different from the property mentioned in the original sale deed executed in favour of the plaintiff. They contended that the suit is barred by limitation and prayed for dismissal of the suit.
Court framed the following issues:
2. Whether plaintiff proves that, he is in lawful possession of the suit property as on the date of suit?
3. Whether plaintiff further proves that, the partition deed dated 17.10.2005 is void and not binding on him?
4. Whether the suit is properly valued?
5. Whether sufficient court fee is paid?
6. Whether the plaintiff is entitled for he relief as sought for?
7. What order or decree?”
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1. Whether appellant/plaintiff proved that he was the absolute owner of the suit property and there was a mistake in the sale deed about survey number, it was corrected by rectification deed?
NC: 2023:KHC:23359 RSA No. 397 of 2014
2. Whether appellant/plaintiff proved before the trial Court that he was in actual possession and enjoyment of the property and there was interference in his possession?
3. Whether appellant/plaintiff proved before the trial Court that partition deed entered into between Thimmadasappa and defendant Nos.1 and 2 dated 17.10.2005 is null and void and not binding on rights of the plaintiff?
4. Whether findings of learned trial judge is perverse, illegal, arbitrary, and erroneous and interference by this court is required?
5. What Order?
10. The First Appellate Court re-appreciating the
evidence on record has answered point Nos.1 to 4 in the affirmative and allowed the appeal, setting aside the judgment of the Trial Court and decreed the suit of the plaintiff declaring that the plaintiff is the absolute owner of suit property and partition deed dated 17.10.2005 entered into between father of defendants 1 and 2 and defendants
1 and 2 is not binding on rights of the plaintiff over the
suit property and restrained the defendants 1 and 2 from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. Liberty has been reserved to the plaintiff to approach the concerned authority for mutation of his name in the revenue records. Aggrieved by the judgment and decree passed by the First Appellate Court, the defendants 1 and 2 have filed the second appeal. The second appeal came to be admitted to consider the following substantial question of law:
"When the Trial Court on the basis of the evidence placed on record dismissed the suit instituted by the respondent by appreciating the evidence on record, whether the First Appellate Court was justified in reversing the Judgment and decree of Trial Court and in doing so, did not assign appropriate and valid reasons to overcome the findings of the Trial Court and thereby committing illegality in the impugned Judgment and Decree"?
11. Heard the arguments of the learned counsel for the appellants and learned counsel for respondent No.1.
been granted in favour of Thimmadasappa by order dated
5.8.1982 and he became owner of the suit schedule property and his name came to be mutated in the revenue records. As the suit schedule property belongs to the family of defendants 1 and 2 and Thimmadasappa, partitioned the same under partition deed dated 17.10.2005 (Ex.P7 = Ex.D9). The Trial Court rightly appreciating the boundaries, survey number mentioned in the sale deeds and considering the evidence of PW1 has rightly dismissed the suit of the plaintiff. The First Appellate Court without properly re-appreciating the evidence on record has erroneously held that the suit schedule property and property purchased by the plaintiff and defendants 3 and 4 are same. The findings of the First Appellate Court are erroneous. The First Appellate Court has not taken into consideration the admissions given by PW1 in his cross-examination. The learned counsel for the appellants placed reliance on the decision of the Hon'ble Apex Court in the case of KALIAPERUMAL Vs.
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RAJAGOPAL AND ANOTHER reported in AIR 2009 SC
2122, wherein it is held at paragraph 8 as under:
" 8. Sale is defined as being a transfer of ownership for a price. In a sale there is an absolute transfer of all rights in the properties sold. No rights are left in the transferor. The price is fixed by the contract antecedent to the conveyance. Price is the essence of a contract of sale. There is the essence of a contract of sale. There is only one mode of transfer by sale in regard to immovable property of the value of Rs.100/- or more and that is by a registered instrument. It is now well settled that payment of entire price is not a condition precedent for completion of the sale by passing of title as Section 54 of Transfer of Property Act, 1882 (Act for short) defines 'sale' as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. If the intention of parties was that title should pass on execution and registration, title would pass to the purchaser even if the sale price or part thereof is not paid. In the event of non-payment of price (or balance price as the case may be) thereafter, the remedy of the vendor is only to sue for the balance price. He cannot avoid the sale. He is, however, entitled to a charge upon the property for the unpaid part of the sale price where the
NC: 2023:KHC:23359 RSA No. 397 of 2014
ownership of the property has passed to the buyer before payment of the entire price, under section 55(4) (b) of the Act. Normally, ownership and title to the property will pass to the purchaser on registration of the sale deed with effect from the date of execution of the sale deed. But this is not an invariable rule, as the true test of passing of property is the intention of parties. Though registration is Prima facie proof of an intention to transfer the property. It is not proof of operative transfer if payment of consideration (price) is a condition precedent for passing of the property. The answer to the question whether the parties intended that transfer of the ownership should be merely by execution and registration of the deed or whether they intended the transfer of the property to take place, only after receipt of the entire consideration, would depend on the intention of the parties. Such intention is primarily to be gathered and determined from the recitals of the sale deed. When the recitals are insufficient or ambiguous the surrounding circumstances and conduct of parties can be looked into for ascertaining the intention, subject to the limitations placed by Section 92 of Evidence Act.
contend that the First Appellate Court considering the
boundaries mentioned in Exs.P1, P3, P4- sale deeds, partition deed (Ex.D.19) and the suit schedule property, has rightly held that the property sold by Thimmadasappa is the suit schedule property and there is correction of the survey number mentioned in the sale deed Ex.P1 by rectification deed - Ex.P2. The First Appellate Court has rightly held that father of defendant Nos.1 and 2 Thimmadasappa was not owning or possessing any other land than the suit schedule property and therefore had rightly held that it is a suit schedule property which the Thimmadasappa was possessing as on the date of the sale deed Ex.P3. He contends that even though Thimmadasappa was not having title to the suit schedule property as on the date of sale deed Ex.P3 dated 17.5.1971, but he acquired title by virtue of grant order dated 5.8.1982 passed by Land Tribunal in his favour and by virtue of the provision under Section 43 of the Transfer of Property Act, the alienee i.e. the plaintiff, defendants 3 and 4 acquires title to the suit property. He submitted that in the plaint, the boundaries mentioned on North and
South are not correct and boundaries shown to North are the boundaries to the South and boundaries shown to the South are boundaries of North. He further argued that the admission given by PW1 in his cross-examination are in a flow and are stray admissions against the documents, documents prevail over the oral evidence. He submitted that the Trial Court has erred in holding that the property sold is different than the suit schedule property and erred in dismissing the suit. The First Appellate Court rightly appreciated the evidence on record and rightly decreed the suit of the plaintiff by setting aside the Judgment and Decree of the Trial Court.
defendant No.3 – Sri.Venkatappa under a registered sale deed dated 17.05.1971 (Ex.P3). Defendant No.3 executed a sale deed dated 24.03.1972 (Ex.P4) in favour of defendant No.4. Defendant No.4 executed a sale deed dated 31.05.1973 in favour of the plaintiff (Ex.P1). The survey number mentioned in all these sale deeds ie., Exs.P1, P3 and P4 is Sy.No.1/4. The extent of the property sold under Exs.P1, P3 and P4 and the extent of the suit schedule property is the same ie., 1 acre 18¼ guntas. Defendant Nos.1 and 2 denied execution of Ex.P3 – sale deed and contended that it does not pertain to the suit property and it pertains to Sy.No.1/4.
Ex.P2 – rectification deed has been executed by defendant
No.4 in favour of the plaintiff on 13.03.1997.
“East by the land of Sri.Anjinappa
West by the land of Sri.Venkatashamappa
North by the land of Smt.Venkatamma
South by the land of Sri.Annaiahppa”
18 . Even in the boundaries mentioned in the other
two sale deeds ie., Exs.P1 and P4 are the same. The boundaries of the suit schedule property shown in the plaint are as under:
NC: 2023:KHC:23359 RSA No. 397 of 2014
“ East by : Anjanappa’s Land and now belonging
to Venkatapathi
West by :Land earlier belonging to Venkatashamappa & now belonging to Ganeshappa
North by :Anneyappa’s Land now belonging to
Sri.Srinivas South by : Venkatamma’s land now belonging to
Lakshminarayana”
– Ex.D19 of Sy.No.162 are as under:
“East by :Land of Sri.A.Venkatapathi West by :Land of Sri.Ganeshappa North by :Land of Sri.Lakshminarayana South by :Land of Sri.A.Srinivas”
submitted that there is interchange of boundaries in respect of North and South in the description of the suit schedule property in the plaint. The said aspect can also
ascertained from the boundaries mentioned in Ex.P3, D19
and the suit schedule property in the plaint.
Sri.Thimmadasappa, it would be helpful to the plaintiff that said Sri.A.Venkatapathi, whose property is stated to be situated on the Eastern side of the suit property, who is the son of Sri.Anjanappa. The said property of Sri.Anjanappa is stated to have been situated on the Eastern side as per the description of the property sold under Ex.P3. In the plaint also, it is stated that the property of one Sri.Anjanappa’s land was situated on the Eastern side and now, it is belonging to Sri.A.Venkatapathi. In Ex.D19 also the boundaries of Sy.No.162 reveal that the property of Sri.Venkatapathi is situated on the Eastern side. Even in the cross examination, PW1 has stated that the property of Sri.Anjanappa is situated on the Eastern side, but, now his son Sri.Thimmadasappa’s property is situated on the Eastern side.
supra , the property sold under the sale deed Ex.P3 is the suit schedule property. It is not the claim of defendant
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Nos.1 and 2 that their father is also owning Sy.No.1/4 measuring 1 acre 18¼ guntas. Therefore, the property possessed by Sri.Thimmadasappa, father of defendant Nos.1 and 2 is the property measuring 1 acre 18¼ guntas which is sold under the sale deed Ex.P3. The survey number mentioned in Ex.P1 – sale deed has been rectified from ‘Sy.No.1/4’ to ‘Sy.No.162’ under the rectification deed – Ex.P2 executed by defendant No.4.
the claim of the plaintiff without considering the boundaries of the property sold and that Sri.Thimmadasappa was not possessing any other property as on the date of the sale deed – Ex.P3. Therefore, the First Appellate Court was justified in reversing the findings of the Trial Court.
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Section 43 of the Transfer of Property Act, 1882 which reads thus;
“43. Transfer by unauthorized person who subsequently acquires interest in property transferred – Where a person [fraudulently or] erroneously represents that he is authorized to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.”
acquires that interest, the section applies and the transferee is entitled to interest acquired by the transferor.
Where a person having no title represents that he is a present and transferable title and the transferee (acting on it) takes a transfer and the transferor subsequently acquires the property, this section 43 applies.
“5. In Lakshmana Gowda v. State of Karnataka, the Division Bench of the High Court had an occasion to consider questions including one concerning rights of an alienee of a service inam land from its holder or the authorised holder. It dealt with various issues but the one concerning the present matter was Question (iii) which was to the following effect: (SCC OnLine Kar para 50)
NC: 2023:KHC:23359 RSA No. 397 of 2014
"50. (iii) Did an alience of a service inam land from its holder or the authorised holder, acquire title to such land, if the alienation had taken place between the date of the coming into force of the principal Act and the date of the regrant, after its regrant to its holder or the authorised holder under Section 5 or 6, as the case may be, of the principal Act?"
6. The answer to the aforesaid question was given in para 66 of the judgment in the following words: (Lakshmana Gowda case,(1981) 1 Kant LJ 1, SCC OnLine Kar)
"66. Hence, our answer to the question is that if the holder or the authorised holder of a service inam land had alienated it after the principal Act came into force and before it was regranted to him under Section 5 or 6 of the principal Act, the alienee acquired a title to that land after such regrant to his alienor."
7. During the course of its discussion concerning the aforesaid question, it was also observed: (Lakshmana Gowda case, (1981) 1 Kant LJ 1, SCC OnLine Kar para 65)
was actually regranted to him under Section 5 or 6 of the principal Act, such title related back to the date of coming into force of that Act. From this, it would follow that if he purported to alienate such land before it was regranted to him, but after the principal Act came into force, the doctrine of feeding the grant by estoppel embodied in Section 43 of the Transfer of Property Act, would apply and the title he subsequently acquired on such regrant of that land, would ensure to the benefit of his alienee, who would get a good title to such land after such regrant to his alienor."
grant must enure to the benefit of alienees ie., defendant Nos.3, 4 and the plaintiff. Upon such grant, the title holder of the granted land ie., inam land would relate back to the date of coming into force of the provisions of the Karnataka (Religious and Charitable) Inams Abolition Act, 1955. Therefore, the alienation effected by the father of defendant Nos.1 and 2 namely Sri.Thimmadasappa on 17.05.1971 (sale deed at Ex.P3), by principle of feeding the grant by estoppel would enure to the benefit of alinees who would get good title to such land after such grant. Therefore, the contention of the counsel for the appellants that Sri.Thimmadasappa, the plaintiff and his vendors would not get title to the suit schedule property as on the date of sale deed - Ex.P3 does not hold any substance.
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accordingly, the substantial question of law is answered and appeal is dismissed .
Sd/JUDGE
AP / GH List No.: 1 Sl No.: 20
2 issues framed by the court
Whether the First Appellate Court was justified in reversing the Trial Court's dismissal of the suit for declaration of title and injunction regarding suit property.
Whether the doctrine of feeding the grant by estoppel (Section 43, TPA) applies to validate a pre-grant alienation of inam land when the grantor later acquires title.
Colour shows how this judgement treated each authority
KALIAPERUMAL Vs. RAJAGOPAL AND ANOTHERReferred¶12
AIR 2009 SC 2122 · Who else cites this
N. Venkateshappa vs. Munemma and OthersReferred¶30
(2016) 4 SCC 147 · Who else cites this
Lakshmana Gowda v. State of KarnatakaReferred¶30
(1981) 1 Kant LJ 1
Syed Basheer Ahmed Vs. State of KarnatakaReferred¶31
(1994) 1 K.L.J 385
3 provisions across 3 enactments
SRI. VENKATESHA
SRI. T. JAYARAM
SRI. K.M. VENKATAMUNIYAPPA
VENKATAPPA
SRI. GOVINDAPPA
THE TAHSILDAR DEVANAHALLI TALUK
Shivashankar Amarannavar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
