Mahantappa Vs Bheemappa — Karnataka HC (2025) — LawSathi Research

Mahantappa Vs Bheemappa — Karnataka HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Dismissed

Issue for consideration

Whether the plaintiffs proved the identity and correct description of the suit schedule property — the suit schedule describing it as Khanesumari Sy.No.25/P while Ex.P1 records Sy.No.25/5D — so as to entitle them to relief of declaration and mandatory injunction. +1 more

Court's answer

The identity of the suit schedule property was not proved: the description in Ex.P1 does not tally with the suit schedule description, and consequently the relief of declaration and mandatory injunction as sought cannot be granted; neither court committed a factual or legal error.

Ratio / Principle

Although the identity of the property was disputed before the Trial Court, the appellants made no attempt to file any application for appointment of a Commissioner to get the properties identified, either before the Trial Court or in the Appellate Court.

Key takeaways

There is no ground to admit the second appeal and frame a substantial question of law; accordingly the Regular Second Appeal is dismissed.ratio¶¶80

Detailed headnote1 paragraphs

Civil — Regular Second Appeal under Section 100 CPC — Suit for declaration and mandatory injunction — Identity/description of suit property. Plaintiffs claimed absolute ownership and possession of the suit schedule property and sought declaration that the sale deed dated 24.01.2011 executed by defendant No.1 in favour of defendant No.2 was null and void, together with cancellation of the house list extract issued in favour of defendant No.1. The suit schedule described the property as Khanesumari Sy.No.25/P while the Ex.P1 sale deed recorded Sy.No.25/5D, and the schedules did not tally; the Kondajji Grama Panchayat endorsement (Ex.P2) stated it had no authority to change the khata of survey-number land; khata stood in defendant No.1's name (Ex.D4) and the plaintiffs never challenged that order; despite the disputed identity, the plaintiffs made no attempt to seek appointment of a Commissioner before the Trial Court or the Appellate Court. Trial Court (O.S.No.70/2011, decree dated 4.09.2018) and first Appellate Court (R.A.No.47/2018, decree dated 23.01.2023) concurrently held the identity of the property unproved and dismissed the suit/appeal. Held: no factual or legal error in the concurrent findings; no ground to admit the appeal or frame a substantial question of law; Regular Second Appeal dismissed. (H.P. Sandesh J., 02.07.2025)

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NC: 2025:KHC:23701 RSA No. 388 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 2^ND DAY OF JULY, 2025

BEFORE

THE HON'BLE MR. JUSTICE H.P.SANDESH

REGULAR SECOND APPEAL NO. 388 OF 2024 (DEC)

BETWEEN:

MAHANTAPPA

S/O RUDRAPPA

AGED ABOUT 59 YEARS, AGRICULTURIST

MUPINAPPA S/O A BASAPPA AGED ABOUT 66 YEARS

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

THE APPELLANTS ARE RESIDING AT KONDAJJI VILLAGE, HARIHARA TALUK, DAVANAGERE DISTRICT - 577 589

…APPELLANTS

(BY SRI. SANATH KUMAR SHETTY K., ADVOCATE)

AND:

BHEEMAPPA

S/O LATE BASAPPA

AGED ABOUT 61 YEARS

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HIRE BIDARI RATHNAMMA

W/O RAMAPPA HIREBIDARI

AGED ABOUT 53 YEARS

THE RESPONDENT NOS.1 AND 2 ARE

RESIDING AT KONDAJJI VILLAGE HARIHARA TALUK, DAVANAGERE DISTRICT - 577589

THE SECRETARY

GRAMA PANCHAYATH HARIHARA TALUK DAVANAGERE DISTRICT PIN-577589

…RESPONDENTS

(BY SRI. HALLI SHANTAPPA BASAPPA., ADV. FOR R1 AND R2; SRI. N.R. JAGADEESWARA, ADV. FOR R3)

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.01.2023 PASSED IN RA NO.47/2018 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, HARIHARA., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 4.09.2018 PASSED IN OS NO.70/2011 ON THE FILE OF PRL. CIVIL JUDGE AND JMFC, HARIHAR AND ETC.

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

ORAL JUDGMENT

Heard the learned counsel for the appellants and also the

learned counsel appearing for the respondents.

This second appeal is filed against the concurrent finding. It is the case of the plaintiffs before the Trial Court that plaintiffs are the absolute owners of the suit schedule property and they are in actual possession of the schedule property and also it is their case that defendant No.1 has illegally executed a sale deed dated 24.01.2011 in favour of defendant No.2 and the same is not binding on them and defendant No.3 also has illegally mutated the name of defendant No.1 in the house list register pertaining to the suit schedule property. Defendants appeared and filed the written statement contending that suit is bad for non-joinder of necessary parties and also suit is barred by law of limitation and also the very suit is not maintainable and hence, plaintiffs are not entitled for any relief of declaration. The Trial Court given an opportunity to both the

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parties to lead evidence and accordingly, the plaintiffs examined two witnesses as PWs.1 and 2 and relied upon documents Exs.P1 to P14. On the other hand, defendants examined four witnesses as DWs.1 to 4 and got marked documents Exs.D1 to D4. The Trial Court having considered both oral and documentary evidence available on record, discussed issue Nos.1 and 2 together, wherein taken note of sale deed pertains to sale deed of Sy.No.25/5D and in the suit schedule, it is described as 25/P Khanesumari but in the sale deed, it is mentioned as survey number property, but in the pleading throughout it is contended that property is Khanesumari property and while discuss in detail comes to the conclusion that schedule mentioned in Ex.P1 is not tallied with the schedule of the plant. Since plaintiffs are claiming their title and possession over the suit schedule property under Ex.P1 and also taken note of in paragraph No.15 in detail the measurement which is mentioned in the schedule and also in paragraph No.16 relying upon Ex.P2 - endorsement issued by the Kondajji Grama Panchayath and Panchayat Raj had issued an endorsement stating that, they have no authority to change the katha in respect of land comes under the survey number

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and also in paragraph No.20 detail discussion was made regarding the admission on the part of PW.1 during the course of cross-examination in respect of the description of the property and comes to the conclusion that when the property is not identified, granting of relief of declaration and mandatory injunction does not arise and dismissed the suit. Being aggrieved by the said judgment, an appeal is filed in R.A.No.47/2018 and the Appellate Court having considered the grounds which have been urged in the appeal memo raise the point for consideration whether the Trial Court committed an error in dismissing the suit on the ground that property of the

plaintiffs has not been identified and sale deed - Ex.P1 not tallies with the boundary description shown in the paint and whether it requires interference. On re-appreciation of both oral and documentary evidence and also the detail discussion made in the appeal, comes to the conclusion that Trial Court has not committed any error in coming to the conclusion that a very suit claim is not proved and also taken note of schedule mentioned in Ex.P1, wherein Sy.No.25/5D is mentioned and no records stands in the name of Panchayath records subsequent to the sale deed and also

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taken note of an endorsement given rejecting the claim for transfer of khata and confirmed the judgment. Being aggrieved by this concurrent finding, the present second appeal is filed before this Court.

The main contention of the learned counsel for the appellants is that Trial Court has not framed proper issues regarding discrepancy of the survey number and identity of the property and without framing issues to that effect ought not to have comes to a conclusion that the proper description of the property is not mentioned in the suit and hence, the learned counsel would vehemently contend that both the Courts have committed an error in considering the material on record. The description of the property set out in the plaint does not tally with the title deed of the plaintiffs and the said finding is erroneous and hence, prayed this Court to admit and frame substantial question of law.

Per contra, the learned counsel appearing for the

respondents brought to notice of this Court that when the suit is filed for relief of declaration, the appellants have to prove the

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description of the property, which has been mentioned in the document of title i.e., Ex.P1 and the same is not proved and the Trial Court as well as the Appellate Court comes to the conclusion that the description mentioned in Ex.P1 not tallies with the description given in the suit schedule and in the absence of any identification of the property, question of granting relief of declaration and also the consequential relief also doesn't arise and hence, the learned counsel contend that there are no grounds to admit and frame substantial question of law.

Having heard the learned counsel appearing for the appellants and also the learned counsel appearing for the respondents and also on perusal of the material particularly the relief sought by the appellants for the relief of declaration and mandatory injunction, it is contended that plaintiffs are the absolute owners and in possession of the suit schedule property and to declare that, the sale deed dated 24.01.2011 executed by defendant No.1 in favour of the defendant No.2 as null and void and to direct defendant No.3 to cancel the house list extract issued in favour of defendant No.1 in respect of the suit

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schedule property and while seeking the relief sought for, the declaration as well as mandatory injunction. Having considered both the judgment of the Trial Court and Trial Court, taken note of the very issue based on the pleadings framed regarding ownership as well as actual possession of the suit schedule property in detail discussed in paragraph No.14 while considering issue Nos.1 and 2 taken note of identity of the property and Ex.P1 - sale deed does not tally with the boundaries which have been mentioned in the schedule and also in paragraph No.15 taken note of the details mentioned that the plaintiffs have not mentioned the exact measurement and also the schedule mentioned in Ex.P1 is survey number and also the measurement shown in the schedule was also taken and Ex.P2 - endorsement issued by the Grama Panchayat that they cannot register katha since the same is a survey number property. In order to prove the fact that the property is a Khanesumari property, which is formed and carved out of Sy.No.25 nothing is placed on record and detailed discussion was made in paragraph No.20 also, the admission on the part of PW.1 as well as in paragraph No.22 while answering issue Nos.3 and 4 considered the document of Ex.P3 and also Ex.D4,

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that the katha in respect of the suit schedule property is in the name of defendant No.1 and he was put in possession of the suit schedule property and the plaintiffs have not challenged the order passed by the Grama panchayath, Kondajji in terms of Ex.D4 also taken note of. The Appellate Court also having reassessed the material available on record comes to the conclusion that unless property is properly described in the sale deed as well as in the description given in the suit and also taken note of in Ex.P1 - sale deed the survey number is mentioned as 25/5D but while filing the suit, it is described as Khanesumari No.25/P and the same also not tallies with each other and the Appellate Court also taken note of measurement shown in detail discussed in paragraph No.18.

Having considered the reasoning given by the Trial Court as well as Appellate Court when the suit is filed for the relief of declaration and mandatory injunction and that too seeking the relief of the sale deed is not binding, appellant ought to have properly described the suit and when the same is not tallied with Ex.P1, wherein Sy.No.25/5D is mentioned and in the suit schedule, it is described as Khanesumari Sy.No.25/P,

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while filing the suit and the same was taken note of in detail by the Trial Court while considering issue Nos.1 and 2, as well as other issue Nos.3 and 4 detailed discussion was made in paragraph No.20 and also taken note of the admission with regard to the every identity of the property and when the identity of the property is disputed before the Trial Court even appellant has not made any attempt to file any application for appointment of Commissioner and get the properties identified before the Trial Court and even not made any effort in the Appellate Court also to file such an application when there is a clear dispute with regard to the very identity of the property and no such attempt was made. When such being the case and when both the Courts have taken note of details of description given in the plaint as well as the document - Ex.P1, I do not find any error committed by the Trial Court in coming to the conclusion that very identity of the property of the plaintiffs have not been proved and also the description mentioned in Ex.P1 as well as in the suit schedule description not tallies with each other, question of granting the relief of declaration and mandatory injunction as sought doesn't arise and no factual error and also with regard to the question of law also. Both the

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Courts taken note of the same and hence, no ground to admit and frame substantial question of law. In view of the

discussions made above, I pass the following:

ORDER

The Regular Second Appeal is dismissed.

Sd/- (H.P.SANDESH) JUDGE

KG

List No.: 1 Sl No.: 57