Sri R Parvatappa Vs Mr N C Channabasappa

1B. RAJESHWARI D/O. LATE SHIVANNA W/O. SHASHIKUMAR, AGE: 27 YEARS, OCC: HOUSEWIFE, R/O: MALLINAHALLI VILLAGE, HADIKERE POST, TARIKERE TQ, CHIKKAMAGALORE DISTRICT.

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Digitally signed by CHANDRASHEKAR LAXMAN KATTIMANI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH

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1C. PRATHIBHA N.S. D/O LATE SHIVANNA AGE: 20 YEARS, R/O: NERALEKERE VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TQ, CHIKKAMAGALORE DISTRICT.

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KUMAR S/O ARIYAPPAAGED, ABOUT 50 YEARS, OCC:AGRICULTURE, R/O: NERALEKERE VILLAGE, AMRUTHAPURA HOBLI, THARIKERE TALUK, CHIKKAMAGALORE DISTRICT – 577 101.

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…APPELLANTS

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(BY SRI, SYED AKBAR PASHA, ADVOCATE FOR SRI. MAHANTESH S. HOSMATH, ADVOCATE; V/O/DATED 11.02.2016 A1(B AND C) ARE TREATED AS LRS A1(A))

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AND:

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N. C. CHANNABASAPPA S/O. LATE CHIKKANNAAGED, ABOUT 49 YEARS, OCC:AGRICULTURE, R/O: NERALEKERE VILLAGE, AMRUTHAPURA HOBLI, THARIKERE TALUK, CHIKKAMAGALORE DISTRICT – 577 101.

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HITHALAMANE BASAPPA S/O. GIRIYAPPA, AGED ABOUT 73 YEARS, OCC:AGRICULTURE, SINCE DEAD BY HIS LRS

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2A. GANGAMMA W/O. LATE HITHALAMANE BASAPPA, AGED ABOUT 66 YEARS, R/O NERALAKEREVILLAGE, AMRUTHAPURA HOBLITARIKERE TALUK

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DELETED V/O/DATED 07.01.2010

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2B. NAGAMMA W/O. SHANKARAPPA D/O HITHALAMANE BASAPPA, AGED ABOUT 46 YEARS, R/O: JALADIHALLI VILLAGE SHIVANI HOBLI, TARIKERE TALUK.

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2C. GIRIYAMMA W/O. SHANKARAPPA D/O HITHALAMANE BASAPPA, AGED ABOUT 44 YEARS, R/O: JALADIHALLI VILLAGE SHIVANI HOBLI, TARIKERE TALUK.

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2D. PADMAVATHAMMA W/O MANJAPPA D/O HITHALAMANE BASAPPA, AGED ABOUT 41 YEARS, R/O: JALADIHALLI VILLAGE SHIVANI HOBLI, TARIKERE TALUK.

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HITHALAMANE ARIYAPPA S/O. GIRIYAPPA, AGED ABOUT 78 YEARS, OCC:AGRICULTURE, R/O: NERALAKERE VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TALUK.

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DELETED V/O/DATED 07.01.2010

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HITHALAMANE ESHWARAPPA S/O. GIRIYAPPA, SINCE DECEASED BY HIS LRS.

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4A. SMT. KALAMMA W/O. LATE HITLAMANE ESHWARAPPA, AGED ABOUT 83 YEARS NERALKERE POST, NERALAKERE TARIKERE TALUK, CHIKMAGALURU DIST – 577 228.

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HC-KAR

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4B. RATHNAMMA W/O MALLIKARJUNAPPA D/O LATE HITHLAMANE ESHWARAPPA, AGED ABOUT 54 YEARS, CHANNAPURA SARASWATIPURA POST, KADUR TALUK, CHIKMAGALURU DIST.

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4C. PARATHAMMA W/O. CHANDRAPPA D/O. LATE HITHLAMANE ESHWARAPPA, AGED ABOUT 51 YEARS NERALKERE POST, NERALAKERE TARIKERE TALUK, CHIKMAGALURU DIST – 577 228.

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4D. PARATHAMMA W/O. MAHESHWARAPPA D/O. HITHLAMANE ESHWARAPPA, AGED ABOUT 51 YEARS CHIKKAMAGALURU POST, CHIKKAMAGALURU, KADUR TALUK, CHIKMAGALURU DIST.

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4E. SHANTHA W/O KUMARAPPA D/O. HITHLAMANE ESHWARAPPA, AGED ABOUT 47 YEARS, ITTIGE VILLAGE, TARIKERE TQ, CHIKMAGALURU DIST.

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4F. N.E.THIPPESHA S/O. LATE HITHLAMANE ESHWARAPPA, AGED ABOUT 45 YEARS NERALKERE POST, NERALAKERE TARIKERE TALUK, CHIKMAGALURU DIST – 577 228.

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4G. N.E.PRAKASHA S/O. LATE HITHLAMANE ESHWARAPPA, AGED ABOUT 51 YEARS NERALKERE POST, NERALAKERE TARIKERE TALUK, CHIKMAGALURU DIST – 577 228.

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R. PARVATAPPA S/O. YANAPPA RUDRAPPA. AGED ABOUT 53 YEARS, R/O: NERALAKERE VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TALUK.

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N C MALLAIAH S/O. CHICKKANNA, SINCE DEAD BY HIS LRS.

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6A. SMT. MANGALAMMA W/O. N. C. MALLAIAH, AGED ABOUT 64 YEARS.

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HC-KAR

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6B. N. M. KUMARASWAMY S/O. N. C. MALLAIAH, AGED ABOUT 44 YEARS,

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6A AND 6B ARE R/O: UPSTAIRS SBM VINOBHA NAGARA BRANCH SHIMOGA.

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SAKAMMA W/O. ARIYAPPA N. C., AGED ABOUT 64 YEARS, OCC:HOUSEHOLD WORK, R/O: BAVIKERE VILLAGE, LAKKAVALLI HOBLI, TARIKERE TALUK, CHIKKAMAGALORE DISTRICT.

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…RESPONDENTS

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(BY SRI. N. SHANT KUMAR, ADVOCATE FOR SRI. B. RAVINDRAPRASAD , ADVOCATE FOR R1; SRI. AJAY KUMAR, ADVCATE FOR SRI. M. RUDRAIAH, ADVOCATE FOR R5; V/O/DATED 07.01.2010 R2(A) DELETED; R2(B-D) TREATED AS LRS OF R2(A); V/O/DATED 18.12.2014 R3 IS DELETED; V/O/DATED 04.03.2022 R4(B TO G) ARE TREAETD AS LRS OF R4(A); R2(B TO D), R4 (A TO G), R6 (A TO B), R7 ARE SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 30.11.2006 PASSED IN R.A.NO. 36/2000 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, TARIKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 15.4.2000 PASSED IN OS.NO. 54/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & ADDL. JMFC, TARIKERE AND ETC.,

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IN RSA NO. 699/2007

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BETWEEN:

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SRI. R. PARVATAPPA S/O.YANAPPA RUDRAPPA, AGED ABOUT 58 YEARS, AGRICULTURIST, R/AT.NERALAKERE VILLAGE, TARIKERE TQ, CHICKMAGALUR DIST.

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...APPELLANT

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(BY SRI. AJAY KUMAR M., ADVOCATE FOR SRI. M. RUDRAIAH, ADVOCATE)

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HC-KAR

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AND:

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MR. N. C. CHANNABASAPPA, S/O .LATE CHICKKANNA, AGED ABOUT 55 YEARS, AGRICULTURIST, R/AT.NERALAKERE VILLAGE, TARIKERE TALUK, CHICKMAGALUR DIST.

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S SHIVANNA S/O.SIDDAPPA, SINCE DECEASED BY HIS LRS.

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2A. SMT. LALITAMMA W/O. LATE SHIVANNA, AGED ABOUT 50 YERS, R/O: NERALAKERE VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TALUK. CHIKKAMAGALORE DISTRICT.

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2B. RAJESHWARI D/O. LATE SHIVANNA W/O. SHASHIKUMAR, AGE: 27 YEARS, R/O: MALLINAHALLI VILLAGE, HADIKERE POST, TARIKERE TQ, CHIKKAMAGALORE DISTRICT.

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2C. PRATHIBHA N.S. D/O LATE SHIVANNA AGE: 20 YEARS, R/O: NERALEKERE VILLAGE, AMRUTHAPURA HOBLI, TARIKERE TQ, CHIKKAMAGALORE DISTRICT.

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SRI. KUMARA S/O.ARIYAPPA, AGED ABOUT 49 YEARS, AGRICULTURIST, R/AT.NERALAKERE VILLAGE, TARIKERE TALUK, CHICKMAGALUR DIST.

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A RAJAPPA S/O.ARIYAPPA, AGED ABOUT 53 YEARS, AGRICULTURIST, R/AT.NERALAKERE VILLAGE, TARIKERE TALUK, CHICKMAGALUR DIST.

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HITHALAMANE BASAPPA DEAD BY HIS LRS.

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5A. SMT. GANGAMMA W/O. LATE H. BASAPPA, SINCE DECEASED BY HIS LRS R5 (B) TO (D)

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HC-KAR

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5B. SMT. NAGAMMA W/O. SHANKARAPPA, D/O. LATE HITHALAMANE BASAPPA, AGED ABOUT 52 YEARS, R/AT.JALADHIHALLI VILLAGE, TARIKERE TALUK.

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5C. SMT. GIRIJAMMA W/O SHANKARAPPA, D/O. LATE HITHALAMANE BASAPPA, AGED ABOUT 51 YEARS, R/AT.JALADHIHALLI VILLAGE, TARIKERE TALUK.

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5D. PADMAVATHAMMA W/O MANJAPPA D/O.LATE HITHALAMANE BASAPPA, AGED ABOUT 48 YEARS, R/AT.KORATIGERE VILLAGE, TARIKERE TALUK.

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SRI. HITHALAMANE ARIYAPPA S/O.GIRIYAPPA, SINCE ECEASED BY LRS R3 AND R4.

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SRI. HITHALAMANE ESHWARAPPA SINCE DECEASED BY HIS LRS

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7A. SMT. KALAMMA W/O. LATE HITLAMANE ESHWARAPPA, DEAD LRS 7(B) TO (G)

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7B. RATHNAMMA W/O MALLIKARJUNAPPA D/O LATE HITHLAMANE ESHWARAPPA, AGED ABOUT 54 YEARS, CHANNAPURA, SARASWATIPURA POST, KADUR TALUK, CHIKMAGALURU DIST.

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7C. PARATHAMMA W/O. CHANDRAPPA D/O. LATE HITHLAMANE ESHWARAPPA, AGED ABOUT 51 YEARS NERALKERE POST, NERALAKERE TARIKERE TALUK, CHIKMAGALURU DIST – 577 228.

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7D. PARATHAMMA W/O. MAHESHWARAPPA D/O. HITHLAMANE ESHWARAPPA, AGED ABOUT 51 YEARS, CHIKKAMAGALURU POST, CHIKKAMAGALURU, KADUR TALUK, CHIKMAGALURU DIST.

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7E. SHANTHA W/O KUMARAPPA

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D/O. HITHLAMANE ESHWARAPPA, AGED ABOUT 47 YEARS, ITTIGE VILLAGE, TARIKERE TQ, CHIKMAGALURU DIST.

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7F. N.E.THIPPESHA S/O. LATE HITHLAMANE ESHWARAPPA, AGED ABOUT 45 YEARS NERALKERE POST, NERALAKERE TARIKERE TALUK, CHIKMAGALURU DIST – 577 228.

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7G. N.E.PRAKASHA S/O. LATE HITHLAMANE ESHWARAPPA, AGED ABOUT 40 YEARS NERALKERE POST, NERALAKERE TARIKERE TALUK, CHIKMAGALURU DIST – 577 228.

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SRI. N. C. MALLAIAH S/O. CHICKKANNA DEAD BY HIS LRS

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8A. MANGALAMMA W/O. LATE SRI. N. C. MALLAIAH, AGED ABOUT 71 YEARSRESIDING IN UPSTAIRS, S B M VINOBHANAGARA BRANCH, SHIMOGA.

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8B. SRI. N. M. KUMARASWAMY S/O.LATE N C MALLAIAH, AGED ABOUT 51 YEARSRESIDING IN UPSTAIRS, S B M BANK VINOBHANAGAR BRANCH SHIMOGA.

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SAKAMMA W/O.ARIYAPPA N C., AGED ABOUT 71 YEARS, RESIDING AT BAVIKERE VILLAGE, LAKKAVALLI HOBLI, TARIKERE TALUK, CHICKMAGALUR DIST.

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…RESPONDENTS (BY SRI. N. SHANT KUMAR, ADVOCATE FOR SRI. M.S. RAJENDRA, ADVOCATE FOR R1; SRI. SYED AKBAR PASHA, ADVCATE FOR SRI. MAHANTESH S. HOSAMATH, ADVOCATE FOR R2 AND R3; V/O/DATED 28.11.2009 R5(B-D) ARE TREATED AS LRS OF R5A; R2(B-D) TREATED AS LRS OF R2(A); V/O/DATED 11.02.2016 R3 AND R4 ARE TREATED AS LRS DECEASED R6;

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V/O/DATED 03.01.2023 R7(B TO G) ARE TREAETD AS LRS OF R7(A);

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HC-KAR

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R2B, R4A, R5 (B TO D), R7( B TO G), R8 (A – B) & R9 ARE SERVED)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 30.11.2006 PASSED IN R.A.NO.36/2000 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, TARIKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 15.4.2000 PASSED IN OS.NO. 54/1994 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & ADDL. JMFC, TARIKERE AND ETC.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24^TH JULY, 2025 AND COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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CAV JUDGMENT

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These appeals arise from divergent findings in a suit

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for declaration, rectification of records, injunction and for possession.

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The plaintiff sought a declaration that the plaintiff, along with defendant No.8, is the joint owner and is in possession of the suit property, and defendants No.1 to 7 have no manner of right, title or possession in the suit property.

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The plaintiff also sought rectification of M.R. No.26/1990-91 and M.R.No.27/1990-91 dated

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30.08.1991, and sought a direction to restore the names of the plaintiff and defendant No.8 in the property records.

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The plaintiff further sought possession of a farmhouse built by defendant No.7. In addition, the plaintiff sought a permanent injunction and damages at the rate of ₹50/- per month for use and occupation of the farmhouse till the delivery of possession.

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The description of the suit property provided by the plaintiff reads as under:-

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Land situated at Neralkere Village, Amruthapura Hobli, Tarikere Taluk, bearing Survey No.190/4 measuring 3 acres 11 guntas, including a Farm House in the North Eastern corner of the land measuring 60x30 feet. The boundaries of the Survey No.190/4, measuring 3 acres 11 guntas, are provided as under:-

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"East by	-	Plaintiff's Survey No.189 and the
		Government land in Survey No.2,
West by	-	Land of Thimmanna S/o Naganna,
North by	-	Road

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South by - Land of Puttana and plaintiff's

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land."

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Defendants, 2 and 7, contested the suit. The

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rest of the defendants, though, appeared, did not contest the suit.

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Defendant No.1 is said to have sold the

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property to Defendant No.2. Defendant No.7 claims to have purchased the property from Defendant No.9.

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Defendant No.2 claimed right over 2 acres 5

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guntas in Survey No.190/4P under the registered sale dated 24.07.1991. Defendant No.7 claimed right over the property bearing Survey No.190/4, measuring 10.5 guntas under a registered sale deed dated 06.03.1980.

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The contesting defendants disputed the plaintiff's title. Contesting defendants also took a contention that the suit is time barred, as the relief of declaration is not sought within 3 years from the date of

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cause of action, which according to them arose in the year 1933 as the plaintiff’s father-Chikkanna is a signatory to

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HC-KAR

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the sale deed dated 27.01.1933, wherein, 4 acres 10 guntas in Survey No.190 is sold to one Puttanna. In addition it is also urged that the sale deed in the name of defendant No.7 was brought to the plaintiff’s knowledge in the earlier suit in O.S. No.89/1984 and defendant No. 7 as a witness produced the sale deed in his name and present suit is filed three years after the evidence was recorded in the earlier suit.

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The Trial Court held that the contesting defendants are the owners of the portion of the property claimed by them, and also held that the suit is not in time; consequently dismissed the suit.

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In addition to that, the Trial Court also held that the remaining holders of some portion of Survey No.190/4, which initially measured 4 acres 10 guntas, are not made parties.

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On appeal filed by the plaintiff, First Appellate Court allowed the appeal and set aside Trial Court’s judgment and decree and held that the suit is in time and

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also held that the plaintiff is the owner of the suit schedule property and granted the decree as prayed for.

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Defendants No.1 and 2 filed RSA No.

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1243/2007 and defendant No.7 filed RSA No.699/2007.

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These appeals were admitted on 10.04.2013 to

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answer the following substantial questions of law:

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"1) Whether, in the facts and circumstances of the case, the appellate Court was justified in reversing the judgment and decree passed by the Trial Court in O.S. No.54/94 without properly considering Exhibits D7, D8, D13 and D23 and decreeing the Suit?

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2) Whether the appellate Court was justified in holding that the suit is not barred by limitation?"

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After considering the preliminary submissions

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and the records, this Court was of the view that two more substantial questions of law are to be framed. The reason is defendants No. 2 and 7 also claimed title and possession over some portion of the suit property and accordingly,

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following two substantial questions were framed during the course of hearing and both counsel addressed the arguments on the substantial questions of law framed on 10.04.2013 and also the following substantial questions of law.

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"Whether appellant No.1/defendant No.1(sic) (In RSA No. 1243/2007) establishes that he is the owner of 2 acres 5 guntas in Survey No.190/4P(sic) under the registered sale deed dated 24.07.1991? and

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Whether appellant in RSA No.699/2007, who is defendant No.7 in O.S. No.54/1994, establishes that he is the owner and in possession of 10.5 guntas in Survey No. 190/4?"

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Learned counsel appearing for the Defendant No.2/appellant in R.S.A. No.1243/2007 and Defendant No. 7/appellant in R.S.A. No.699/2007 raised the following contentions:-

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(a) The title of the property is to be traced from the registered sale deed dated 27.01.1933 executed by Thimmana in favour of Puttanna. The said document is

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marked at Exhibit D-7. As per the said sale deed,

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Thimmanna sold 4 acres 10 guntas in Survey No.190 to Puttanna. The sale deed reveals the boundary as under:-

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East - The property of Mallaiah, Chikkanna and Mallappa. West - the property of Naganna. North - Road and South - Chikkanna (Plaintiff's father).

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(b) It is further submitted that plaintiff’s father, Chikkanna, is a consenting witness to the said sale deed. Thus, the plaintiff cannot claim title over 4 acres 10 guntas of land conveyed under the registered sale deed dated 27.01.1933, which is an undisputed document and is not questioned so far. The purchaser Puttanna, who acquired 4 acres 10 guntas under the registered sale deed dated 27.01.1933, effected the partition of the properties among his daughters and brother, and in the said partition, Survey No.190/4 is divided into 2 parts. The first part, measuring 2 acres 5 guntas, is allotted to Puttanna's daughters Bommakka, Chandamma and Parsamma and the property measuring 1 acre 2 guntas is allotted to

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Puttanna-brother of Basanna. It is submitted that the boundaries mentioned in the partition deed would indicate that the northern portion is allotted to the daughters of Puttanna, the Southern portion is allotted to Basanna the brother of Puttanna. The leftover portion of 1 acre 2 guntas is not traceable under the partition deed of 1947.

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Learned counsel would further submit that all three daughters sold 2 acres 5 guntas allotted to them to one Siddappa under a registered sale deed dated 09.01.1961, and the sale deed is marked at Ex.D13.

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Inviting the attention of the Court to the partition deed among the family of Chikkanna-the plaintiff’s father, which is registered on 27.08.1975, learned counsel for the appellants would submit that Survey No.190/4 was partitioned and in that partition, 1

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acre 2 guntas is allotted to the share of the plaintiff and the plaintiff's father.

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Referring to the partition deed, dated 28.07.1975, it is urged that the plaintiffs themselves

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acknowledged that the family owned only 1 acre 2 guntas

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when the partition took place in the year 1975.

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Learned counsel at this juncture would also

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invite the attention of this Court to the averment made in para No.2 of the plaint to contend that the entire plaint is based on the title deed dated 27.08.1975, that is, the partition deed referred to above.

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It is also submitted that Basanna who was

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allotted 1 acre 2 guntas of land under the partition deed dated 15.07.1947 has sold the entire said land through 4 different registered sale deeds dated 26.12.1975, and each purchaser has acquired 10.5 acres (guntas). The said document is marked at Ex.D24.

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Attention of the Court is also invited to the sale deed dated 06.03.1980 executed by Sakamma, the wife of plaintiff's brother N.C. Aryyappa wherein she has sold 10.5 guntas with farm farmhouse to defendant No.7.

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It is urged that Chikkanna died in the year 1981 and N.C. Channabasappa-Chikanna's son, filed O.S. No.89/1984 for a bare injunction against Hithalamane Basappa/defendant No.4 and Hithalaamane Ariyappa, defendant No.5 and Hithalamane Eswarappa/defendant No.6, in respect of land bearing Survey No.190/4 measuring 3 acres 11 guntas. In the said plaint also it is also stated that the plaintiff acquired the property under the registered partition deed dated 27.08.1975.

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The defendants in the said suit in O.S. No.89/1984 filed a written statement disputing the plaintiff's claim. However, the suit is decreed, and the First Appellate Court in R.A. No.19/1987 dismissed the appeal, confirming the judgment and decree in O.S. No.89/1994.

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It is further urged that Siddappa’s son, Shivanna, sold 2 acres 5 guntas of land in favour of defendant No.2 under the registered sale deed dated 24.07.1991 in Survey No.190/4P.

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Learned counsel for the appellants would

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submit that seller Shivanna had inherited Siddappa's title over the property, and Siddappa, in turn, had purchased

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the property from 3 daughters of Puttanna under a registered sale deed dated 09.01.1961. Based on sale deed the M.R. No.26/1991 and M.R. No.27/1991 were certified as such the plaintiff cannot seek declaration of title.

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Learned counsel for the appellants would further submit that the extent of the farmhouse for which the decree for possession is sought is not specified in the plaint , and there is no acceptable pleading and evidence as to how the defendant No.7 has occupied the said property.

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It is urged that since the title deeds referred to by the appellants are not disputed and questioned by the plaintiff, the appellant's title has to be declared, and the First Appellate Court erred in holding that the appellants are not the owners and in possession of the property covered by the sale deeds in their favour.

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In addition to that, it is urged on behalf of

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appellants that before the Trial Court in O.S. No.89/1984, defendant No.7 in the present suit, has led evidence as a witness for the defendant in O.S. No.89/1984 and in the said suit, witness has produced the sale deed under which he is claiming his title over the property. Thus, the plaintiff was put to notice of the registered sale deed in the name of defendant No.7 and the cause of action to file a suit for declaration arose way back in the year 1986 as such, the First Appellate Court ought to have held that suit for declaration is time barred, as the suit is not filed within 3

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years from the date of denial of plaintiff’s title by the defendant No. 7 who was one of the witnesses in the earlier suit.

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Learned counsel appearing for the

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plaintiff/respondents would contend as follows:-

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(i) The evidence led before the Trial Court in the

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earlier suit does not constitute a cause of action to file a suit for declaration of title, as the plaintiff’s possession was

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not disturbed by the defendants. The cause of action to file a suit arose only when the property was allegedly sold in the year 1991 under the registered sale deed dated 24.07.1991 by Shivappa, son of Siddappa, and when the purchasers started asserting their title over the property, based on the revenue entries, the cause of action arose to file the suit.

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(ii) It is urged on behalf of respondents that the earlier suit filed by the plaintiff in O.S. No.89/1984 is decreed, holding that the plaintiff is in possession, and the appeal against the said decree in R.A. No. 19/1987 is dismissed, holding that the plaintiff is in possession. Thus, the plaintiff’s possession is already established in the previous proceeding, and those judgments have attained finality, the present appellants cannot contend that the plaintiff is not in possession of the property.

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It is his further submission that the contesting defendants' vendors or predecessors in title have not acquired title over the entire 4 acres 10 guntas as alleged

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by them. It is submitted that the property alleged to have been sold under the registered sale deed dated 27.01.1933 is not Survey No.190/4, but it is Survey No. 190/2, and the appellants cannot claim any right over Survey No.190/4, which was never conveyed or transferred in any manner to Puttanna or any persons claiming under Puttanna.

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It is submitted on behalf of respondents that the suit is filed in respect of Survey No.190/4 which is referred to in partition deed of 1975 and the extent of land mentioned in partition deed of 1975 as 1 acre 2 guntas is an erroneous entry and the Appellate Court has rightly held that the entry is erroneous and the title not having been transferred in respect of property bearing Sy.No.190/4 under the registered sale deed of 1933, is justified in granting a declaration of title as well as injunction in respect of the properties and also for decree for possession and respect of the farmhouse.

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Learned counsel for the plaintiff would further

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submit that Thimanna, who claims to have sold 4 acres 10 guntas, did not possess and own 4 acres 10 guntas, and he owned only 1 acre 22 guntas, and the same is evidenced in Ex.P.4 - the mutation, which is not disputed by the appellants.

¶209

This Court has considered the contentions raised at the Bar and perused the records .

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The Trial Court has dismissed the suit on the premise that the description of the suit property shown in the plaint is not proved. Trial Court held that the suit is time-barred as the relief of declaration is not sought within 3 years, despite the plaintiff coming to know about the registered sale deed in the name of defendants No.7 and 9.

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Trial Court also held that the plaintiff had not established title over the property by producing the title deeds, though reference is made to the plaintiff’s father's title based on the registered partition deed; the

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antecedent title before the partition is not pleaded, and no title deed before the registered partition deed is produced.

¶215

While recording a finding that the plaintiff has

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not proved the description of the suit properly, the Trial Court has referred to the evidence in the crossexamination of PW1 and PW2. And the Trial Court has disbelieved Exhibit P-34, the certified copy of the podi register on the premise that the order preceding such podi register is not placed.

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The Trial Court has also referred to the registered sale deed at Exhibit D-7 executed by Thimmanna in favour of Puttanna and the subsequent partition deed in the family of Puttanna and subsequent sale deeds by Puttanna’s daughters in favour of subsequent purchasers.

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The Trial Court has concluded that these documents are not challenged and has held that the plaintiff’s right is not established.

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In addition, the Trial Court has also noticed that

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the registered partition deed on which the plaintiff is claiming a right does not disclose that 3 acres 11 guntas of land, i.e., the extent of the suit land, is allotted to the share of the plaintiff’s father.

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The First Appellate Court has reversed the finding of the Trial Court on the premise that Exhibit P-34, the podi register, reveals the extent of Sy. No.190/4 as 3 acres 11 guntas, and the extent of Sy. No.190/2 as 4 acres 14 guntas. First Appellate Court held that Thimmanna, in case he has sold any property to Puttanna, in the year 1933, the said sale is in respect of property measuring 4 acres 14 guntas in Sy. No.190. After subdivision, Sy. No.190 is subdivided into 4 divisions, namely 190/1, 190/2, 190/3 and 190/4. Sy. No.190/2 is measuring 4 acres 10 guntas, and applying the said analogy, the Appellate Court concluded that Sy. No.190/2 is the property purchased by Puttanna in the year 1933,

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and Survey No.190/4 measuring 3 acres 10 guntas is the property belonging to the plaintiff’s ancestor.

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As can be noticed from the reasoning of First Appellate Court, it has proceeded on the assumption that Exhibit P-34 is a valid document reflecting the correct division of the property. The reason assigned by the Trial Court to reject Exhibit P-34 is not discussed at all.

¶230

As noticed earlier the Trial Court held that the plaintiff has not proved the description of the suit property, on the analysis of oral evidence of PW1 and PW2. First Appellate Court has not analysed the reasoning of the Trial Court based on the said evidence. Since the Trial Court has held that the description of property is not established by referring to the evidence and by interpreting the evidence, First Appellate Court was required to consider whether such reasoning assigned by the Trial Court to disbelieve the description is correct or not. That exercise is not carried out. Since the First Appellate Court is exercising jurisdiction under Section 96

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of the Code of Civil Procedure, such an exercise was very much warranted.

¶234

The Trial Court has referred to the partition

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deed in the family of Puttanna and his brothers and daughters, and also to subsequent sale deeds. The First Appellate Court does not refer to said documents in depth. Since the defendants claimed title over the property based on the 1933 sale deed, the 1947 partition deed and subsequent sale deeds, First Appellate Court, being the fact-finding Court, ought to have recorded its findings on those documents. In the judgment, there is no discussion on the said documents. First Appellate Court proceeded as if the Phodi register is conclusive proof of title of respective parties. Trial Court has disbelieved it by assigning some reasons. First Appellate Court should have analysed the said reasons. But it is not done.

¶236

First Appellate Court has referred to the registered partition deed at Exhibit D12 executed between Puttanna and his family members and has concluded that

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the partition deed could not have been executed in respect of Sy.No.190/4. The First Appellate Court so concluded on the premise that Sy.No.190/4 from 1933 onwards stood in the name of the plaintiff’s father and he had been in the possession; there could not have been a partition in respect of Sy.No.190/4 by Puttanna and his family members. Thus, the First Appellate Court holds that all further transactions in respect of Sy.No.190/4 among the family members of Puttanna, with subsequent purchasers, is invalid.

¶241

Countering the contention, the defendants

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urged that in the partition deed dated 27.08.1975, marked at Exhibit D8, the plaintiff's branch was allotted only 1 acre 2 guntas and the plaintiff cannot claim right over property in excess of 1 acre 2 guntas in Sy.No.190/4.

¶243

First Appellate Court has held that in partition

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deed of 1975 marked at Ex.D8, only one share is divided and the said that property is allotted to the share of Ariyappa, and the same is shown in ‘B’ schedule and in the

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‘A’ schedule, the property is allotted to the share of the appellant and his brother, N.C. Malaya is shown at Sl. No.12. The Appellate Court concludes that the extent of 1 acre 2 guntas shown at Sl.No.12 in the partition deed of 1975 is a mistake. It also refers to property measuring 2 acres 17 guntas in Sy.No.190/1 at Sl. No.11. Since the 2 acres 17 guntas in Sy.No.190/1 tallied with Ex.P34 – podi register, the Appellate Court concludes that the extent of 1 acre 2 guntas in respect of Sy. No.190/4 is a mistake. The Appellate Court also justifies its finding on the premise that since 1933, the property bearing Sy.No.190/4 measuring 3 acres 11 guntas and not 4 acres 10 guntas as alleged by the contesting respondents.

¶248

The First Appellate Court has also concluded that the sale deed by said defendant/respondent No.7 is not established as the vendor is not examined. The First Appellate Court has also referred to the fine imposed on the appellant for having constructed the farmhouse without getting permission from the competent authority.

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Thus, the Appellate Court concludes that Sakamma, the vendor of defendant/respondent No.7, has not constructed the farmhouse.

¶252

As far as the document produced by

¶253

defendant/respondent No.7 marked Ex.D26, namely the document for the supply of electricity in 1982, the Court holds that the said document is not sufficient, and the author of the document should have been examined to prove the document. The Appellate Court has also held that it is not possible to claim that Ex.D26 pertains to a farmhouse in Sy.No.190/4.

¶254

In addition to the Appellate Court also holds that in the earlier suit, O.S.No.89/1984, Sakamma Mohan was one of the defendants in the said suit did not raise the contention that the farmhouse was constructed after the

¶255

purchase. As far as the contentions relating to limitation, the Appellate Court holds that the production of the sale deed in O.S.No.89/1984 by the present respondent No.7

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was a witness in the said suit is not a cause of action in the eye of law to compel the plaintiff to file a suit.

¶259

The Appellate Court concluded that the khata was not changed in the name of the contesting respondents; as such, there was no compelling reason to institute a suit, which can be construed as a cause of action, and only when the defendants started interfering in the plaintiff’s possession, the plaintiff had a cause of action to conclude that the suit is intact.

¶260

As already noticed, the finding of the Trial Court relating to the description of the suit property not being established is not dealt with by the Appellate Court in the manner required.

¶261

The Trial Court has referred to the evidence of PW1 and PW2 in the cross-examination to conclude that the description of the suit property is not established. First Appellate Court, if it intends to take a contrary view, has to assign reasons for such a contrary view, and it has to analyse the reasons assigned by the Trial Court to take

¶262

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a view which the Appellate Court does not agree with. This

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is the law settled by the Apex Court in terms of the judgments in S.V.R. Mudaliyar Vs Rajabu F Buhari¹ and Santosh Hazari Vs Purushottam Tiwari² .

¶266

This Court is not holding that the finding of the Trial Court relating to the description is a correct view or an incorrect view. Since that aspect falls in the realm of appreciation of facts/evidence, this Court, in exercise of jurisdiction under Section 100, need not enter into such exercise. However, the First Appellate Court has not referred to the said reasoning and evidence referred to by the Trial Court. Thus, the First Appellate Court has to apply its mind to the evidence led by the parties relating to the descriptions of the property. Then it should refer to

¶267

the reasons of the Trial Court, which has held that the description is incorrect, and then has to conclude as to whether the finding of the Trial Court relating to the description is correct or not. If the reasoning of the Trial

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1 1995 (4) SCC 15

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2 2001 (3) SCC 179

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Court based on analysis of evidence is found to be correct,

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then there cannot be a decree for declaration of title over the property as description is incorrect. If the reasoning of the Trial Court based on evidence is be erroneous, then the First Appellate Court has to consider whether the title is established with reference to the boundaries provided by the plaintiff and if established then can pass a decree in favour of the plaintiff.

¶274

Another aspect that requires consideration is the finding of the Trial Court on the correctness of Exhibit P34. The Trial Court has assigned some reasons to say Exhibit P34 is not established in accordance with the law. The Appellate Court proceeds on the assumption that Exhibit P34 is an undisputed document. In fact, that is not the case. For some reasons recorded based on evidence which may be either correct or not correct, the Trial court held that Exhibit P34 is not correct. If Exhibit P34 is not correct, then the whole premises on which First Appellate Court has rendered the judgment becomes vulnerable. The

¶275

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First Appellate Court is required to assign reasons as to why Exhibit P34 is conclusive proof of the division of the property or whether the Trial Court is justified in holding that Exhibit P34 is not conclusive proof of the division of the property. This exercise is again not carried out by the First Appellate Court.

¶278

In the written statement, Second Defendant contended that he purchased 2 acres and 5 guntas of land in Sy.No.190/4 from one Shivanna, son of Siddappa, under a registered sale deed dated 24-07-1991. The boundaries of the property covered under the aforementioned sale deed, in respect of 2 acres and 5 guntas of land in Sy.No.190/4, are as follows:

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East: Government land

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West: Land of Thimmanahalli Thimmappa

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North: Land of Hithalmane Rajappa, Mallamma, Thimmayappa, and Parvatappa

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South: Land of Shivanna

¶283

Based on the aforementioned sale deed, the Second Defendant prayed for the dismissal of the suit.

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The Second Defendant further contends that his vendor, Shivanna, inherited the said land from his father Siddappa, who had purchased the property from Chandamma and Bhumakka, daughters of Puttanna, under a registered sale deed dated 09-01-1961.

¶288

It is also stated that Bhumakka and Chandamma acquired the property in a family partition that took place on 15.07.1947.

¶289

The Trial Court, however, did not frame any issue relating to the said purchase by Defendant No. 2, nor were any issues framed regarding the sale of the property in the year 1961 or the partition of the year 1947. It is also asserted by the defendants that property measuring 4 acres and 10 guntas was sold to Puttanna on 27.01.1933 and the plaintiff’s father consented to the said sale.

¶290

As the Plaintiff and the contesting Defendants

¶291

are asserting rights over the property based on different documents i.e., the Plaintiff under a registered partition

¶292

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deed dated 1975, and the contesting Defendants under the registered sale deed dated 27.01.1933, the partition deed dated 15.07.1947, the sale deed dated 09.01.1961,

¶295

and the sale deed dated 24.07.1991 it was incumbent upon the Trial Court to frame issues on touching these documents.

¶296

So also defendant No. 7 claims right over the property under registered sale deed dated 06.03.1980 and his vendor defendant No. 9 under the sale deed dated 27.08.1975.

¶297

Without framing such issues or inviting evidence on these documents, both the Trial Court and the First Appellate Court proceeded to decide the case.

¶298

Under these circumstances, this Court is of the considered view that the issues must be framed, and the parties should be permitted to adduce evidence accordingly. Thereafter, the Court should adjudicate the dispute by answering all such issues.

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Hence, the following issues are framed for

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consideration:

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a. Whether the second and seventh defendants prove that Puttanna had acquired valid title over 4 acres and 10 guntas in Sy.No.190?

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b. Whether second and seventh defendants prove that Bommakka and Chandamma acquired valid title under the registered partition deed dated 15.07.1947?

¶306

c. Whether the Second Defendant proves that his vendor Siddappa had acquired valid title over Sy.No.190/4 measuring 2 Acres 5 guntas under the registered sale deed dated 09.01.1961 from Bommakka and Chandamma and in turn Bommakka and Chandamma conveyed valid title and possession over 2 acres and 5 guntas of land in Sy.No.190/4P under registered sale deed dated 24.07.1991?

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d. Whether 7^th Defendant proves that his vendor, Sakamma (defendant No.9) conveyed valid title over the property under registered sale deed dated 06.03.1980 and Sakamma acquired valid title over 10 and ½ guntas of land in Sy. No. 190/4 from Basanna under registered sale deed dated 26.12.1975 and Basanna had acquired valid title over the property bearing Sy. No. 190/4 to

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the extent of 1 acre and 2 guntas under the registered partition deed dated 15.07.1947?

¶312

For the aforementioned reasons, this Court is of

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the view that the matter has to be remitted to First

¶314

Appellate Court for fresh consideration in accordance with law, keeping in mind the observations made above.

¶315

This Court would clarify that this Court has not

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expressed any views on the appreciation of evidence by the Trial Court. The said aspect has to be looked into by the First Appellate Court. Hence, the following:

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ORDER

¶318

i. Appeals are allowed in part .

¶319

ii. Judgment and decree dated 30.11.2006 in R.A.No.36/2000 on the file of Fast Track Court at Tarikere are set aside.

¶320

iii. The matter is remitted to First Appellate Court to consider the appeal on its merits.

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iv. It is made clear that this Court has not expressed any opinion on the claim of either of the parties.

¶324

v. All contentions of both parties are kept open to be adjudicated by the First Appellate Court. Any of the observations made in this judgment should not be viewed as either endorsing or rejecting the findings of the Trial Court. All the findings of the Trail Court shall be judged by the First Appellate Court keeping in mind the jurisdiction under Section 96 of the Code of Civil Procedure.

¶325

vi. It is also made clear that if the parties intend to lead any additional evidence, the Appellate Court shall permit them to lead additional evidence.

¶326

vii. It is also open to the Appellate Court to secure the records in the Revenue Department, which may throw light on the description of the property.

¶327