Sri Devaraju Vs Sri.Lakshmana Shetty

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NC: 2025:KHC:44461 RSA No. 753 of 2009

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4^TH DAY OF NOVEMBER, 2025

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BEFORE

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THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR SECOND APPEAL NO.753 OF 2009 (DEC/INJ)

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BETWEEN:

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SRI DEVARAJU SINCE DEAD, REPRESENTED BY HIS LR'S 1(A) SMT. CHIKKAMMA, W/O LATE DEVARAJU, AGED 60 YEARS, 1(B) SRI. SRIKANTA, S/O LATE DEVARAJU, AGED 42 YEARS, 1(C) SRI. CHIKKANNA, S/O LATE DEVARAJU, AGED 38 YEARS,

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ALL ARE R/A: Digitally signed by ANNAPURNA G NO.1428/, WARD NO.6, Location: HIGH YKLS ROAD, NANJANGUDU TOWN, COURT OF MYSORE DISTRICT. KARNATAKA

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…APPELLANTS

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(BY SRI. V. RANGA RAMU, ADVOCATE)

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AND:

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SRI. LAKSHMANA SHETTY, SINCE DIED, REPRESENTED BY HIS LR'S 1(A) MR. MANJU, S/O LATE LAKSHMANASHETTY

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NC: 2025:KHC:44461 RSA No. 753 of 2009

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AGED 53 YEARS,

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1(B) SRI. MAHADEVA, S/O LATE LAKSMANASHETTY, AGED 51 YEARS,

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1(C) SRI RAJESHA, S/O LATE LAKSHMANSHETTY AGED 49 YEARS,

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1(D) SRI SHANKARA, S/O LATE LAKSHMANASHETTY, AGED 47 YEARS,

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1(E) SRI MAHADEVASWAMY,

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D/O LATE LAKSHMANASHETTY, AGED 45 YEARS,

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1(F) SMT. SHIVAMMA, D/O LATE LAKSHMANASHETTY, AGED 43 YEARS,

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1(G) SMT. KUMARI, D/O LATE LAKSHMANASHETTY, AGED 41 YEARS,

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1(H) SMT. LAKSHMI, D/O LATE LAKSHMANASHETTY, AGED 39 YEARS,

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1(I) SMT. DHRAKSHAYANI, D/O LATE LAKSHMANASHETTY, AGED 37 YEARS,

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ALL ARE R/AT GOWRIGATTA STREET, NANJANGUDU TOWN, NANJANGUDU TALUK, MYSORE DISTRICT, KARNATAKA - 571 301.

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…RESPONDENTS

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HC-KAR

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(VIDE ORDER DATED 02.12.2024 NOTICE TO R1(A) TO R1(I) ARE HELD SUFFICIENT)

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THIS RSA IS FILED U/S 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 25.02.2009 PASSED IN R.A.NO.77/2004 ON THE FILE THE CIVIL JUDGE (SR.DN) & JMFC, NANJANGUD, DISMISSING THE APPEAL CONFIRMING THE JUDGEMENT AND DECREE DATED 01.07.2004 PASSED IN OS.138/2001 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR. DN.) NANJANGUD.

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

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CORAM: HON'BLE MR. JUSTICE UMESH M ADIGA

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ORAL JUDGMENT

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This is plaintiff’s appeal directed against the judgment and decree dated 01.07.2004, passed by the Addl.Civil Judge (Jr.Dn.), Nanjangud, (for short, trial Court'), in O.S.No.138/2001 and same was confirmed by the judgment and decree dated 25.02.2009, passed by the Civil Judge (Sr.Dn.) and JMFC, Nanjangud, (for short, first Appellate Court'), in R.A.No.17/2007.

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For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

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NC: 2025:KHC:44461 RSA No. 753 of 2009

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HC-KAR

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The brief facts of the case are that : the plaintiff

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has filed a suit for the relief of declaration and permanent injunction. The plaintiff has contended that his grandmother, one Smt. Subbamma, had purchased the suit schedule property in the year 1941 under a registered Sale Deed. It was further stated that Smt.Subbamma had been running a 'Puri Bhatti' in the said property for about three years, 15 to 16 years prior to the filing of the suit.

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The plaintiff further contended that after the death of Smt.Subbamma, her only son Chikkaiah succeeded to the suit property. The said Chikkaiah had three daughters by name, Chikkamma, Parvathi and Devamma; He had two sons i.e., plaintiff and one Mahadeva. Chikkamma and Mahadeva were no more. Other two sisters of the plaintiff have given up their right over the suit property in favour of the plaintiff. Hence, plaintiff is the absolute owner and is in possession of the suit property. Defendant without any right or interest over the property, was interfering in peaceful

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NC: 2025:KHC:44461 RSA No. 753 of 2009

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possession and enjoyment of the suit property. With these

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reasons, he prayed to grant the relief as prayed.

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The defendant contended that he had purchased half portion of the suit schedule property, measuring EastWest 7 yards and North-South 6 yards from Smt.Subbamma, wife of Madaiah under a registered Sale Deed dated 20.03.1967 for a sale consideration of Rs.150/- and he was put in possession of the said portion of the land. Thereafter, he has been in lawful possession and enjoyment of the same. His name was entered in the revenue records. He has been regularly paying municipal taxes in respect of the suit schedule property. He also mortgaged the said property on 14.08.1985 for Rs.5,000/- to one Muddumadaiah S/o Maridevaru, which was subsequently, redeemed. Plaintiff was never in possession and enjoyment of the suit property purchased by the defendant. Hence, there is no question of interference by the defendant. With these reasons, prayed to dismiss the suit.

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NC: 2025:KHC:44461 RSA No. 753 of 2009

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The trial Court after hearing both side, framed the

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following issues:

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"1. Whether the plaintiff proves that he is the owner in lawful possession and enjoyment of the suit schedule property?

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2. Whether the plaintiff proves the alleged interference by the defendant?

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3. Whether the plaintiff is entitled for the relief of declaration and permanent injunction as claimed in the suit?

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4. What decree or order?"

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The trial Court recorded the evidence; plaintiff

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examined two witnesses and marked the documents as Exs.P-1 to P-19. The defendant examined two witnesses as DW-1 and DW-2 and marked documents as Ex.D-1 to D-18.

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After hearing both parties, the trial Court appreciating the material on record, answered issue No.1 partly in the affirmative and issue Nos.2 & 3 in the negative and ultimately dismissed the suit by its judgment and decree dated 01.07.2004.

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Being aggrieved by the said judgment and decree, the plaintiff preferred an appeal in R.A.No.77/2004

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NC: 2025:KHC:44461 RSA No. 753 of 2009

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before the Court of the Civil Judge (Sr.Dn.) & JMFC, Nanjangud.

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The first Appellate Court, after hearing both parties, framed the following points for consideration.

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"1. Whether the appellant/plaintiff proves that he is absolute owner and in actual possession of the suit schedule property?

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2. Whether the appellant / plaintiff proves that he is in lawful possession of the suit schedule property and the defendant is interfering in his possession and enjoyment of the same?

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3. Whether defendant/respondent proves that he is to be permitted to lead additional evidence by producing the documents?

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4. Whether appellant/plaintiff proves that the judgment and decree of the Trial Court are illegal perverse, unsustainable and interference of this court his required?

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5. What order or decree?"

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The first Appellate Court, after re -appreciating

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the materials on record, answered Point Nos.1, 2 and 4 in the negative and Point No.3 in the affirmative and

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consequently dismissed the appeal and confirmed the findings of the trial Court. The said concurrent findings of the Courts below have been challenged in the present appeal by

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the plaintiff.

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This Regular Second Appeal was admitted to

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consider the following substantial questions of law:

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“(1) Whether the judgment and decree impugned is not acceptable as the suit is dismissed?

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(2) Whether the judgment and decree impugned is not acceptable when the measurement of the schedule property is wrongly stated by the plaintiff to cover the total area of 7 yards X 12 yards after having sold half of the portion to the defendant?

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(3) Whether Rule of Law provides grant of injunction to alter portion of the property, whose boundaries also to change in the process ?”

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Heard the arguments of the learned counsel for

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appearing for the appellants.

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The contentions of the learned counsel appearing

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for the appellant are that:

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(a) The plaintiff has produced a registered Sale Deed

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executed in favour of Smt.Subbamma in the year 1941. He

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has also produced the license issued by the concerned authority to run a 'Puri Bhatti' business, she carried on the said business for about 2-3 years and thereafter, she exercised her ownership rights over the property by giving the premises on lease and selling a portion of it. The document produced by the defendant is created, forged and concocted, and hence, the defendant has no manner of right and title over the suit schedule property. The Trial Court and the First Appellate Court have failed to consider these materials and therefore, the judgments passed by the Court below are liable to be set-aside, and the appeal deserves to be allowed.

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(b) It is the arguments of the defendant that, Smt.Subbamma, was the absolute owner of the suit schedule property. Defendant purchased the northern half portion of the said property from the plaintiff's grandmother-Smt. Subbamma under a registered Sale Deed dated 20.03.1967, which is produced at Ex.D3. After such purchase, separate property numbers were assigned to the respective portions; the portion standing in the name of the

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plaintiff is mentioned as 922/B and the northern half portion standing in the name of the defendant is mentioned as 922/A. The khata was changed in the name of defendant No.1, as evidenced by the endorsement produced at Ex.D.4.

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During the evidence, DW.1 deposed that he has been in possession of the northern half portion of the property and has been paying property tax to the concerned authorities. These facts support the contention of the defendant that he had purchased and in possession of the northern half portion of the suit schedule property.

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A mere denial of the documents with an allegation that they are created, forged and concocted is not sufficient to discard a registered document that has been acted upon. No materials were produced by the plaintiff to substantiate it.

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It is also on record that the defendant had mortgaged the northern half portion of the property under a registered Mortgage Deed, which was later redeemed. The

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said registered documents were not challenged by the plaintiff. These facts were suppressed by the plaintiff and there is no pleading regarding the said documents. These facts were considered in detail by the learned trial Judge, who rightly dismissed the suit. The first Appellate Court, on re-appreciating the evidence on record, held that the plaintiff was not the absolute owner of the property. The said concurrent findings are based on the reliable documents.

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The plaintiff did not seek modification of the relief sought in the suit. It was not argued by the learned counsel for the appellant that the trial Court could have partially decreed the suit. In the grounds of appeal, it is contented that though the Court below held that plaintiff was in possession of half portion of the property, it could have passed a decree in respect of that half portion, in favour of the plaintiff/appellant. However, the said contention is not acceptable because there was no cause of action in respect of said half portion and the defendant did not claim ownership or possession over the remaining half portion i.e.,

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the southern portion of the property. With these reasons prayed to dismiss the appeal with costs.

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The learned counsel for the plaintiff during the course of the arguments, furnished the judgment passed by the Senior Civil Judge, Nanjangud in O.S.No.320/2015, said to have been filed by the defendant in the present suit seeking the relief of declaration and injunction in respect of the very same property. The said suit was dismissed on merits by judgment and decree dated 19.11.2022. However, the dismissal of that suit will not confer any right upon the plaintiff in the present appeal to claim any relief.

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The said document was not produced in accordance with law i.e., seeking permission to produce additional evidence, hence it shall not be considered. Moreover, the said suit O.S.No.320/2015 was filed for declaration and possession of land i.e., part of the suit property purchased by the defendant herein and that suit was dismissed on the ground that said fact was not proved. Hence, it will not affect the merits of the present suit.

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The subject matter of the suit is not clearly mentioned. The property referred to in the plaint schedule is very vague, as it does not indicate the place and or town wherein the said property is situated. Therefore, under Order of the VII of the CPC, the plaint deserves to be rejected. However, the Court below have not considered these facts.

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The contention of learned counsel for respondent is tenable. Without repetition of the same, on the basis of the materials available on record, it can be safely concluded that defendant became absolute owner of portion of northern half portion of the suit property by registered sale deed dated 20.03.1967 (Ex.D3) except denial of the said sale deed nothing was brought out to disbelieve it. Moreover, Subbamma was the absolute owner of the property, which is not in dispute and she had executed the sale deed in favour of the defendant. Khatha was mutated in the name of the defendant long back. Therefore, the contention of the plaintiff that he was the absolute owner and was in

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NC: 2025:KHC:44461 RSA No. 753 of 2009

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possession of the entire extent of the said property is not believable. When the plaintiff is unable to prove his lawful possession over the entire extent of the property, he is not entitled for the relief of declaration and injunction. It is also not the case made out in the plaint that his suit may be decreed to an extent of the land excluding the land sold to the defendant. There is no cause of action for the plaintiff to seek the said relief since defendant clearly admits that except the property purchased by him he has no other right over the said suit property. Both the Courts below on appreciating and re-appreciating the materials available on record, has rightly dismissed the suit and it was confirmed by the first appellate Court. It is frivolous litigation filed by the plaintiff-appellant.

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In view of the above mentioned reasons, the substantial questions of law framed by this Court on 24.06.2019 are held against the plaintiff/appellant. The appeal is devoid of merits.

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NC: 2025:KHC:44461 RSA No. 753 of 2009

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Accordingly, I proceed to pass the following:

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ORDER

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i. The appeal is dismissed with costs.

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ii. The judgment and decree dated 25.02.2009, passed by the Civil Judge (Sr.Dn.) and JMFC, Nanjangud, in R.A.No.17/2007 and the judgment and decree dated 01.07.2004, passed by the Addl.Civil Judge (Jr.Dn.), Nanjangud, in O.S.No.138/2001 are confirmed.

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Registry to transmit the records along with copy of this

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judgment to the concerned Court without delay.

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Sd/(UMESH M ADIGA) JUDGE

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TMP List No.: 1 Sl No.: 21

Sri Devaraju v. Sri.Lakshmana Shetty

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Sri Devaraju v. Sri.Lakshmana Shetty

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