Allowed

Smt. Jayamma v. T.I Ganapathi Nayak

Karnataka HC20 Feb 2026RFA/135/2011

Case brief

AI extract

What is this about?

High Court allowed appeal and dismissed plaintiffs' suit for possession. Court held plaintiffs purchased only a vacant site, not a residential house. Evidence showed house lay in retained land excluded from sale. Suit dismissed with exemplary costs.

What did the court decide?

Judgment and decree of Trial Court set aside; suit dismissed with exemplary costs of Rs. 50,000/- awarded to defendants.

Smt. Jayamma Vs T.I Ganapathi Nayak — Specific Performance | Karnataka HC (2026)

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1 - NC: 2026:KHC:10729 RFA No. 135 of 2011

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HC-KAR

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF FEBRUARY, 2026

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BEFORE

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THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 135 OF 2011 (RES)

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BETWEEN:

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SMT. JAYAMMA W/O LATE NARAYANAPPA AGED ABOUT 70 YEARS

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SMT. N. LAKSHMI D/O LATE NARAYANAPPA AGED ABOUT 29 YEARS

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BOTH ARE RESIDING AT NO.1058, MANJUNATHA NILAYA, KABIR ASHRAM ROAD, DESHBANDHUNAGAR, KODIGEHALLI, BANGALORE - 560 097.

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…APPELLANTS

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Digitally signed by SHARADAVANI B

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Location: HIGH COURT OF KARNATAKA

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(BY SRI. S. SUSHEELA, SR. COUNSEL FOR SRI. P.M. NARAYANASWAMY, ADVOCATE)

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AND:

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T.I.GANAPATHI NAYAK DEAD BY HUS LRS

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1(A). SMT. VIDYA W/O LATE GANAPATHI NAYAK AGED ABOUT 55 YEARS

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1(B). GOWTHAM

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S/O LATE GANAPATHI NAYAK AGED ABOUT 22 YEARS

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1(C). VIKRAM

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S/O LATE GANAPATHI NAYAK AHGED ABOUT 20 YEARS

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RESPONDENTS NO.1(A) TO 1(C) ARE RESIDING AT NO.10 3^RD CROSS, SADGURU LAYOUT KANSHIRAM NAGAR VIDYARANYAPURA POST BANGALORE - 560 097.

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SRI. T.I. JNANADEVA NAYAK S/O T. LAXMAN NAYAK AGED ABOUT 43 YEARS

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BOTH ARE RESIDING AT NO.62, THIMMANNA BUILDING, DODDABOMMASANDRA, BANGALORE - 560 097.

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…RESPONDENTS

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(BY SRI. M.J. ALVA, ADVOCATE FOR R1(A) AND R2)

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THIS RFA IS FILED U/S 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:09.12.2010 PASSED IN O.S.9132/2003 ON THE FILE OF THE XIV-ADDL. CITY CIVIL JUDGE, BANGALORE CITY, DECREEING THE SUIT FOR POSSESSION AND DAMAGES.

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

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CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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ORAL JUDGMENT

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The captioned appeal is by the defendants directed against the judgment and decree rendered in O.S.No.9132/2003 whereby the plaintiffs' suit for possession is decreed and the defendants are directed to vacate and hand over vacant possession of the suit schedule property in favour of the plaintiffs.

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For the sake of brevity, the parties are referred to

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as per their ranking before the Trial Court.

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Facts leading to the case are as under:

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The plaintiffs instituted the present suit seeking recovery of possession in respect of the suit schedule property bearing Site No.34, measuring 30 feet east-west and 52 feet north-south, bearing Khata No.34/34, situated at Kodigehally Village. It is their specific case that they have acquired valid title to the said property under a registered sale deed dated 08.03.2002 executed by the

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ancestors of the defendants. The plaintiffs have further pleaded that as on the date of purchase, a small dwelling house was in existence on the suit schedule property. According to them, though the co-owners of the defendants vacated the premises and shifted elsewhere, the defendants sought some time to make alternate arrangements and agreed to deliver vacant possession within a few months from the date of execution of the sale deed. Alleging that despite repeated requests the defendants failed to hand over possession and continued in unlawful occupation, the plaintiffs filed the present suit seeking delivery of possession and mesne profits at the rate of `7,500/- per month from 03.12.2003 on the ground of illegal and unauthorised occupation.

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Upon service of summons, the defendants entered appearance and filed their written statement, stoutly denying the plaint averments in toto. The defendants have specifically disputed the alleged transaction relating to sale of 36 guntas in Sy.No.110/3B and have denied that the

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plaintiffs have acquired any lawful right, title or interest over the portion claimed in the suit.

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In view of the rival pleadings, the Trial Court framed appropriate issues and called upon the parties to adduce evidence. In support of their case, the plaintiffs examined the second plaintiff as P.W.1 and another witness as P.W.2 and relied upon ten documents marked as Exs.P.1 to P.10. On the other hand, the defendants examined the second defendant as D.W.1 and two additional witnesses as D.Ws.2 and 3 and produced twenty-six documents marked as Exs.D.1 to D.26.

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The Trial Court, on appreciation of the oral and documentary evidence, particularly the sale deed relied upon by the plaintiffs marked at Ex.P.1, answered Issue Nos.1 and 2 in the affirmative, holding that the plaintiffs have established their title and that the defendants are in unauthorised possession of the suit schedule property. Consequently, the Trial Court held that the plaintiffs are

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entitled to recovery of possession. Issue No.3 relating to maintainability was also answered in favour of the plaintiffs. Accordingly, the suit came to be decreed directing the defendants to deliver vacant possession of the suit schedule property.

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Aggrieved by the said judgment and decree, the defendants preferred the present appeal. During the pendency of the appeal, this Court, by order dated 17.10.2012, having regard to the additional evidence sought to be produced by the defendants, directed the Trial Court to record further evidence in respect of the additional documents and remit the same to this Court.

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Pursuant to the said direction, a copy of the General Power of Attorney and the Agreement of Sale were produced before the Trial Court. The GPA holder of the defendants was examined as C.W.1 and additional documents were received in evidence. The supplementary

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evidence so recorded has been transmitted to this Court

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for consideration in the present appeal.

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The learned Senior Counsel appearing for the defendants, reiterating the grounds urged in the memorandum of appeal, contends that the additional evidence, particularly the testimony of C.W.1, decisively alters the complexion of the case. Drawing attention to the admissions elicited in the cross-examination of C.W.1, she submits that even if the GPA coupled with the Agreement

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of Sale is accepted, the material on record clearly demonstrates that out of the total extent of 1 acre 2 guntas in Sy.No.110/3B, only 36 guntas was agreed to be conveyed through the GPA holder. It is further submitted that C.W.1, acting under the said GPA and Agreement of Sale, secured conversion only to an extent of 33 guntas and that the remaining 3 guntas out of the agreed 36 guntas was utilised for formation of a road.

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The learned Senior Counsel would further contend that C.W.1 has categorically admitted that the sites formed within the converted extent of 33 guntas were sold, and that the three guntas were set apart for road formation. More significantly, C.W.1 has admitted that the ancestors of the defendants had retained 6 guntas of land, which included an RCC house and a borewell, and that the said residential structure had been in existence nearly ten years prior to the conversion. It is also elicited that no house was constructed by C.W.1 after conversion nor was any constructed house sold by him.

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Placing reliance on these admissions and the recitals contained in the GPA and the Agreement of Sale, the learned Senior Counsel submits that the said documents clearly exclude the 6 guntas comprising the existing residential house. Therefore, it is contended that the suit filed by the plaintiffs seeking possession of Site No.34 is misconceived. According to the defendants, under the guise of seeking possession of Site No.34, the plaintiffs

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are in effect attempting to assert rights over the retained portion of 6 guntas containing the residential house and borewell, which was never intended to be conveyed. On these grounds, it is urged that the decree passed by the Trial Court is unsustainable and liable to be set aside.

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Per contra, the learned counsel appearing for the plaintiffs would vehemently contend that the very foundation of the defendants’ challenge is misconceived. He would submit that the property agreed to be sold under the registered sale deed dated 08.03.2002 is a residential property and that the defendants, in paragraph No.4 of the written statement, have unequivocally admitted that they are in possession of the suit schedule property. According to him, this categorical admission strikes at the root of the defence and substantially clinches the controversy. It is his submission that once the execution of the registered sale deed and the possession of the defendants are not seriously disputed, no further burden

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lies on the plaintiffs to independently establish their entitlement to recovery of possession.

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The learned counsel would further place strong reliance on the findings recorded by the Trial Court at paragraphs 12 to 14 of the impugned judgment and contend that the oral and documentary evidence adduced by the plaintiffs has been properly appreciated. He would argue that the defendants have not chosen to challenge the validity of the sale deed executed in favour of the plaintiffs through the GPA holder/C.W.1 and, in the absence of any substantive challenge to the title document, the defendants have no locus standi to resist a suit for possession founded on a registered conveyance. On these grounds, he would pray for dismissal of the appeal.

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This Court, having heard the learned counsel appearing on both sides at considerable length, has carefully re-appreciated the pleadings and the entire oral

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and documentary evidence available on record. This Court

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has also taken into consideration the additional evidence recorded pursuant to the remand order, particularly the testimony of C.W.1, as well as the recitals contained in the registered sale deed marked as Ex.P.1. Upon such reevaluation, the following points arise for consideration in this appeal:

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(i) Whether the plaintiffs were justified in maintaining a suit for possession simpliciter without seeking the relief of declaration of title?

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(ii) Whether, in the facts and circumstances of the case, the plaintiffs are entitled to seek delivery of possession of a residential house allegedly retained by the defendants, when Ex.P.1 indicates purchase of Site No.34?

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(iii) What order?

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Finding on points No.(i) and (ii):

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The plaintiffs trace their title to the suit schedule property bearing Site No.34 on the strength of a

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registered sale deed dated 08.03.2002, marked as Ex.P.1, said to have been executed by the defendants’ ancestor through his duly constituted GPA holder. It is the specific case of the plaintiffs that by virtue of the said registered conveyance, absolute right, title and interest in respect of Site No.34, together with all appurtenant rights, stood transferred in their favour. Since the entire claim of the plaintiffs hinges upon the nature, identity and extent of the property conveyed under Ex.P.1, and as the controversy in the present appeal revolves around the true scope of the property described therein, this Court deems it necessary and appropriate to extract the schedule of property as described in the sale deed, so as to ascertain whether the claim for possession made in the suit strictly conforms to the property conveyed under Ex.P.1. The schedule reads as under:

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"All that piece and parcel of the Property bearing Site No.34, Khatha No.34/34, Out of Survey No.110/3B, Converted for Non-agricultural residential purpose vide official Memorandum No.B.DIS.ALN.SR[NA]52/96-97, dtd: 2-07-1996, Bangalore, Situated at Kodigehalli

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village, Yelahanka Hobli, Bangalore North Taluk, measuring East to West: 30'-0" (Thirty) feet, North to South: 52'-0" (Fifty Two) feet, totally 1560 Square feet and bounded as follows:

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East by : Kamath's Property, West by : Remaining Portion, North by : Private Property, South by : Road"

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On a careful and close reading of the recitals contained in Ex.P.1, this Court finds that the description of the property conveyed thereunder is explicit, definite and free from any ambiguity. The document unmistakably records that what was conveyed in favour of the plaintiffs is a site bearing No.34, having Khatha No.34/34, with specific measurements and defined boundaries. The nature of the property is described as a vacant site, and the identity of the property is clearly demarcated by its municipal number, extent and boundaries. There is no recital in the operative portion of the conveyance indicating transfer of a larger extent of land or of any residential house standing on an excluded portion. The

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language employed in the document leaves little room for interpretative doubt as to what was intended to be transferred.

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In this context, one of the crucial covenants that assumes significance is found at page 6 of the sale deed marked as Ex.P.1. The said recital throws light on the scope of the transfer and the intention of the parties at the time of execution of the document. Since the determination of the present controversy largely hinges upon the true import of this covenant, this Court deems it appropriate to extract the first paragraph of the said recital, which reads as under:

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"The Vendors have this day relinquished all their rights, title, interest, claims whatsoever in respect of the schedule property and delivered the vacant absolute possession of the schedule property to the Purchasers. From the date of Sale Deed, the Purchasers shall possess and enjoy the schedule property as the absolute owners thereby paying all the future taxes, cesses, etc., to the concerned authority with the powers of disposal."

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Emphasis supplied

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On a plain and meaningful reading of the above extracted covenant contained in Ex.P.1, it becomes manifestly clear that the vendors, acting through their duly constituted GPA holder, have unequivocally conveyed Site No.34 in favour of the plaintiffs and have expressly recited that possession of the said site was delivered to the purchasers at the time of execution of the sale deed. The recital is categorical in its tenor and admits of no ambiguity. It records not merely the transfer of title but also the handing over of possession contemporaneously with the execution and registration of the instrument. Such a recital, embodied in a registered conveyance, carries significant evidentiary value and prima facie reflects the intention of the parties and the nature of the transaction.

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However, when this recital is juxtaposed with the averments made in paragraph No.4 of the plaint, an apparent inconsistency surfaces. In the plaint, the plaintiffs have pleaded that although they purchased the

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property under the sale deed dated 08.03.2002, the defendants continued to remain in possession and had sought time to vacate the residential house standing on the suit schedule property. This pleading appears to run counter to the explicit recital in Ex.P.1 which records delivery of possession. In view of this noticeable divergence between the documentary recital and the pleadings set up in the plaint, this Court deems it necessary to extract paragraph No.4 of the plaint in extenso for proper appreciation, which reads as under:

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"4. The schedule property consisted of a small dwelling house wherein the defendants and all the co-owners were residing together. At the time of execution of the absolute sale deed the other co-owners had shifted their residence to different addresses after vacating the schedule property and the defendants continued to reside in the schedule property. The defendants had agreed and undertook to deliver the vacant possession of the schedule property to the plaintiffs immediately within few months from the date of the execution of the sale deed after making alternative To that effect the defendants had also given an undertaking in the sale deed itself. But contrary to the undertaking the defendants have failed to vacate the schedule property and to deliver the same to the plaintiffs hitherto."

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On a careful perusal of paragraph No.4 of the plaint, this Court finds that the stand taken by the plaintiffs therein creates a serious cloud over the consistency and credibility of their case. While the registered sale deed dated 08.03.2002, marked as Ex.P.1, contains a clear and unequivocal recital that possession of Site No.34 was delivered to the plaintiffs on the date of execution itself, the plaint proceeds on an entirely different footing. In the pleading, the plaintiffs assert that though the sale deed was executed, the defendants continued to remain in occupation of the residential house standing on the property and had sought time to vacate the same within a few months after making alternate arrangements.

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This version, in the considered view of this Court, is in direct conflict with the express recital contained in the registered instrument. A registered sale deed carries with it a presumption of correctness as to the statements contained therein, particularly when it relates to the

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nature of the property conveyed and delivery of possession. When the document explicitly records that possession has been handed over, the parties to the document are ordinarily bound by such recital. It is well settled that no amount of oral evidence can be adduced to contradict, vary or subtract from the terms of a written contract, except in circumstances recognized in law. Unless the plaintiffs lay a proper foundation and furnish a cogent explanation reconciling the inconsistency between the recital in Ex.P.1 and the averments in the plaint, the contradictory stand taken in the pleadings cannot be lightly accepted. In the absence of such explanation, any oral assertion contrary to the recitals in the registered sale deed would be legally impermissible and inadmissible in evidence.

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The next significant piece of evidence that warrants close scrutiny is the testimony of C.W.1, which came to be recorded pursuant to the remand order passed by this Court. C.W.1 is none other than the GPA holder

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through whom the transaction was effected and who, as admitted, was instrumental in obtaining conversion of the land and in forming the layout comprising various sites. His evidence assumes considerable importance, not only because he was the executing agent under the GPA, but also because he had direct knowledge of the extent of land agreed to be conveyed, the portion converted for nonagricultural use, and the manner in which the layout was formed and sites were dealt with thereafter.

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In that view of the matter, this Court deems it appropriate to advert in detail to the relevant portions of the cross-examination of C.W.1, as the admissions elicited therein have a direct bearing on the rival claims set up by the parties. The relevant extract of his cross-examination reads as under:

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"We left 3 guntas of vacant land towards the western side of the larger portion of Sy.No.110/3B. In the remaining land of six guntas there was a sheet roofed house, a RCC house and a bore-well. the landlord Smt.Jayamma was residing in the said RCC house. It is true that there is RCC house then a sheet roofed and house and then a bore-well. 10 Years prior to obtaining

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conversion order of land the RCC and sheet roofed houses were in existence. I do not know that the writing on the last page of Ex.C.3 pertains to whom. As on the date of execution of EX.C.3 I had knowledge of the said writing at page No.5.

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We have not constructed and sold any house in Sy.No.110/3B. We have sold sites formed in 33 guntas only."

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Emphasis supplied

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On a careful reading of the extracted portion of the cross-examination of C.W.1, this Court finds that the entire controversy sought to be projected by the plaintiffs, namely that they are entitled to claim possession of an existing residential house under the sale deed dated 08.03.2002, stands substantially resolved against them. C.W.1, who is none other than the GPA holder through whom the transaction was effected and who admittedly formed the layout in Sy.No.110/3B, has made categorical and unequivocal admissions. He has clearly stated that though there was an agreement to sell 36 guntas of land, 6 guntas were expressly retained by the original owners. He has further admitted that in the said retained extent of

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6 guntas, there existed a sheet-roofed house and an RCC house along with a borewell, and that the owners were residing therein. More significantly, he has specifically admitted that defendant No.1 – Jayamma is residing in the said RCC house.

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C.W.1 has also candidly admitted that he did not construct any house in Sy.No.110/3B and thereafter sell it. He has further deposed that all the sites formed in the converted extent of 33 guntas have been alienated and that the remaining 3 guntas were utilized for the formation of a road. These admissions, elicited during crossexamination by the defendants, go to the root of the matter. It is also noteworthy that when the plaintiffs cross-examined C.W.1 on 29.10.2014, they did not choose to confront him or challenge him on these crucial aspects. There is a conspicuous absence of cross-examination on the vital admissions relating to retention of 6 guntas and existence of the residential house therein. The silence on this material aspect assumes significance and lends further

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credence to the version emerging from the crossexamination conducted by the defendants.

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The documentary recital in the Sale Deed, being contemporaneous and foundational in nature, assumes greater evidentiary value and effectively clinches the controversy regarding the identity and extent of the property agreed to be conveyed. In that view of the matter, this Court deems it appropriate to extract the relevant portion of the Sale Deed which clearly records that 6 guntas of land, comprising a residential house and borewell, were retained by the original owners.

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±ÁgÀzÀªÀÄäjUÉ MAzÀÄ (1) ®PÀë gÀÆ¥Á¬ÄUÀ¼À£ÀÄß £ÀUÀzÁV jf¸ÉÖçÃµÀ� ¸ÀªÀÄAiÀÄzÀ°è PÉÆqÀÄªÀÅzÁVAiÀÄÄ ªÀÄvÀÄÛ ²æÃªÀÄw gÀvÀßªÀÄä¤UÉ 30x40 SÁ° ¤ªÉÃ±À£À ಅzÀ°ègÀvÀPÀÌAxÀ ªÀÄ£ÉAiÀÄ£ÀÄß ¸ÀºÀ ©lÄÖ ªÀÄvÀÄÛ 50,000 UÀ¼À£ÀÄß £ÀUÀzÁV PÉÆqÀÄªÀÅzÁVAiÀÄÄ ºÁUÀÆ PÀÄªÀiÁj ®Qëöä jf¸ÀÖgï ¸ÀªÀÄAiÀÄzÀ°è MAzÀÄ ®PÀë PÉÆqÀÄªÀÅzÁV 1,00,000 £ÀUÀzÁV PÉÆqÀÄªÀÅzÁV ºÉÃ½gÀÄvÁÛgÉ."

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The sworn deposition of C.W.1, recorded pursuant to the remand order, is fully consistent with and corroborative of the recitals contained in the Agreement of Sale executed by the defendants’ ancestors in his favour. A conjoint reading of the GPA and the Agreement of Sale unmistakably discloses that while authority was conferred upon C.W.1 to deal with and develop 36 guntas of land, there was a specific and express exclusion of 6 guntas retained by the original owners. The said retained extent was clearly described as comprising a residential house and a borewell. Thus, the exclusion of 6 guntas was neither incidental nor implied, but a conscious and deliberate reservation incorporated in the very foundation document under which C.W.1 derived authority.

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In his oral evidence on oath, C.W.1 has candidly admitted that only 36 guntas were agreed to be conveyed for the purpose of development, that he secured conversion in respect of 33 guntas and utilized 3 guntas for road formation, and that the remaining 6 guntas,

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containing the residential house and borewell, continued to remain with the defendants’ family. This admission in evidence is in complete alignment with the documentary recitals in the Agreement of Sale. Therefore, the plaintiffs, who trace their title through C.W.1 under a subsequent sale deed, cannot assert a claim beyond the authority and interest that C.W.1 himself possessed. When the very source of their title acknowledges the exclusion of 6 guntas containing the residential house, the plaintiffs are estopped from contending otherwise.

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On a holistic appreciation of the entire oral and documentary evidence on record, this Court is of the considered view that the plaintiffs have no locus to lay claim over the residential house situated in the retained 6 guntas of land. The agreement of sale obtained by C.W.1 as GPA holder, which is a contemporaneous document and forms the very foundation of the subsequent sale transaction, clearly indicates that 6 guntas of land comprising a residential house and borewell were excluded

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and retained by the original owners. The GPA, read conjointly with the agreement of sale, unmistakably reflects that the authority conferred upon the GPA holder was coupled with interest, and the extent agreed to be conveyed was confined to 36 guntas, excluding the retained portion.

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When the GPA holder himself acknowledges that 6 guntas of land comprising a residential house and borewell were retained by the defendants’ family, the plaintiffs, who claim under a sale deed executed by the said GPA holder, cannot assert a contrary position. Any attempt by the plaintiffs to expand the scope of their purchase so as to include the retained residential house is clearly impermissible. Though the learned Senior Counsel for the defendants sought to draw support from certain admissions said to have been elicited from the defendants during cross-examination, this Court is of the opinion that such admissions do not materially advance the plaintiffs’ case, particularly in the face of the clear and categorical

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admissions of C.W.1 and the recitals contained in the documents.

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This Court further finds that the plaintiffs could not have maintained the present suit for possession in the form in which it is laid. While it may be arguable that the plaintiffs have acquired title to Site No.34 carved out of the converted extent of 33 guntas, their attempt to seek possession of a residential house, which is neither reflected in the sale deed nor situated within the converted extent, creates a serious cloud over their title and gives rise to a substantial dispute. The defendants have specifically pleaded that the suit in its present form is not maintainable. Though the learned counsel for the plaintiffs sought to contend that the principles laid down by the Hon’ble Apex Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs. and Others¹ are inapplicable to the facts of the present case, the learned Senior Counsel

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1 (2008) 4 SCC 594

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for the defendants has rightly drawn attention to paragraph 17(a) of the said judgment.

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The Hon’ble Apex Court has clearly held that where a plaintiff seeks possession based on title and the title is seriously disputed or a cloud is raised over it, the plaintiff is bound to seek a declaration of title. The contention that such principles apply only to suits for injunction and not to suits for possession is misconceived. Even in a suit for possession founded on title, when the defendant raises a substantial and bona fide dispute as to title, a mere suit for possession without seeking declaration would not be maintainable. In the present case, the agreement of sale and the GPA, which are contemporaneous documents, clearly align with the defence narrative that 6 guntas were retained by the defendants’ family and that the residential house is situated therein. The GPA holder has himself acknowledged in the agreement that the retained portion comprises a residential house. In these circumstances, the

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plaintiffs ought to have sought an appropriate declaratory relief.

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In light of the foregoing discussion, this Court is constrained to hold that the learned Trial Judge has misapplied the settled principles of law, misread the evidence on record and misdirected himself on the question of burden of proof. In a suit for possession based on title, the initial and primary burden lies upon the plaintiffs to establish that they have acquired valid and subsisting title to the property in respect of which possession is sought. Having purchased Site No.34 carved out of the converted extent of 33 guntas, the plaintiffs cannot enlarge the scope of their claim and seek possession of a residential house situated in the retained 6 guntas, which, as per the admissions of C.W.1, never formed part of the converted layout.

¶167

The mere fact that the defendants have denied the transaction in its entirety does not relieve the plaintiffs

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of their obligation to prove their title to the specific property claimed. On a closer scrutiny of the written statement, it is evident that the defendants have consistently asserted their right over the retained 6 guntas and the residential house standing thereon. Therefore, any perceived admissions in the pleadings cannot override the clear documentary evidence and the categorical admissions of C.W.1. The plaintiffs, having approached the Civil Court seeking possession on the strength of title, were required to demonstrate that the residential house formed part of the property conveyed under Ex.P.1. The recitals in Ex.P.1, however, clearly indicate purchase of a site, and C.W.1 has admitted that no residential house exists within the converted extent of 33 guntas.

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The findings recorded by the Trial Court, in overlooking these material aspects, suffer from perversity and are palpably erroneous for want of proper appreciation of evidence. The Trial Court has failed to advert to the true import of the title document and the admissions of the

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GPA holder. While the plaintiffs may legitimately claim ownership over Site No.34, they cannot, under the guise of such title, seek recovery of a residential house which is demonstrably situated in the retained portion of 6 guntas. The testimony of C.W.1, read in conjunction with the recitals in Ex.P.1 and the agreement of sale, decisively clinches the issue.

¶175

Accordingly, for the reasons stated above, Point

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Nos.(i) and (ii) are answered in the " Negative ".

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Conclusions and Reasons for Reversal

¶178

The learned Trial Judge has fundamentally misread the pleadings and the nature of the property involved in the suit. The plaint schedule and the recitals in the registered sale deed dated 08.03.2002 (Ex.P.1) unequivocally disclose that the plaintiffs purchased a vacant site bearing No.34 carved out of a converted extent. The sale deed expressly records delivery of possession of the said site. However, contrary to the clear

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tenor of their own title document, the plaintiffs have sought possession of an already existing residential house, which, as admitted by C.W.1 — the GPA holder of Narayanappa — was situated in the retained 6 guntas and never formed part of the converted layout. The suit claim, therefore, travels far beyond the scope of the conveyance under Ex.P.1.

¶182

In that view of the matter, the finding of the Trial Court that the plaintiffs have succeeded in proving that the defendants are in unauthorized possession of the residential house is perverse and directly contrary to the documentary evidence on record. The conclusion reached by the Trial Court overlooks the specific recitals in Ex.P.1 and proceeds on an erroneous assumption that the residential structure forms part of Site No.34, though no such recital is found in the title deed.

¶183

The Trial Court has further committed a serious error in shifting the burden of proof onto the defendants

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on the ground that they did not challenge the GPA and sale deed. In a suit for possession based on title, the primary burden lies squarely on the plaintiffs to establish that the property in respect of which possession is sought forms part of their conveyance. The defendants’ consistent

¶187

case has been that 6 guntas, comprising a residential house and borewell, were retained. This position is fortified by the categorical admissions of the GPA holder examined as C.W.1. Therefore, the real issue which required adjudication was whether the plaintiffs, on the strength of the registered sale deed dated 08.03.2002 (Ex.P.1), could lawfully claim possession of a residential house admittedly not covered under the GPA and agreement to sell relating to 36 guntas. The Trial Court failed to address this core issue.

¶188

The learned Judge has also grossly erred in ignoring the crucial admissions elicited in the crossexamination of C.W.1. The GPA holder has clearly admitted that out of 36 guntas agreed to be conveyed,

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only 33 guntas were converted for non-agricultural purposes, while 3 guntas were utilized for road formation. He has further admitted that all sites formed in the converted 33 guntas have been alienated and that none of those sites comprised a residential house. He has unequivocally stated that the residential house and borewell are situated in the retained 6 guntas and that defendant No.1 continues to reside therein. These admissions strike at the very root of the plaintiffs’ claim, yet the Trial Court has failed to assign due weight to them.

¶192

The Trial Court has also overlooked the material inconsistency between the recital in Ex.P.1 recording delivery of possession on the date of execution and the plaint averment alleging that the defendants sought time to vacate the residential house. This contradiction raises a serious doubt regarding the plaintiffs’ version and casts a cloud over the true nature of the property claimed. The Trial Court failed to reconcile or even examine this material inconsistency.

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The suit, in the form presented, was not maintainable. When a serious dispute was raised regarding the identity and extent of the property and when the plaintiffs sought to extend their claim beyond the recitals of the registered sale deed, they were bound to seek declaratory relief. The failure to do so renders the decree for possession unsustainable in law.

¶197

The Trial Court has misdirected itself in appreciating the burden of proof. Instead of insisting that the plaintiffs strictly establish that the residential house formed part of Site No.34, the Court erroneously drew adverse inference against the defendants for not challenging the sale deed, though the defendants’ case was that the house was never conveyed. Such approach is legally untenable and contrary to settled principles governing suits for possession based on title.

¶198

The impugned judgment suffers from nonconsideration of material evidence, misreading of

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documentary recitals, and erroneous application of legal principles. The findings recorded are therefore vitiated by perversity and cannot be sustained.

¶202

In view of the clear recitals contained in the Agreement of Sale, the categorical admissions made by C.W.1 in his sworn testimony, and the unambiguous description of the property conveyed under Ex.P.1, this Court conclusively holds that the residential house situated in the retained 6 guntas never formed part of the property conveyed to the plaintiffs, and therefore, the plaintiffs are not entitled to seek possession of the said residential house on the strength of the sale deed dated 08.03.2002.

¶203

The plaintiffs, having admittedly purchased Site No.34 under a registered sale deed, are presumed in law to have exercised due diligence prior to entering into the transaction. A prudent purchaser of immovable property is expected to verify the parent documents of title, examine the layout plan, ascertain the nature and extent of the

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property conveyed, inspect the physical features of the land, and satisfy himself as to possession and boundaries before completing the purchase. When the sale deed itself clearly describes a vacant site bearing No.34 carved out of a converted extent, an irresistible inference arises that the plaintiffs were fully aware of the nature of the property purchased.

¶207

In spite of such clarity in the title deed, the plaintiffs have chosen to set up a claim over a residential house situated in a retained portion of 6 guntas, which, as discussed supra, never formed part of the converted layout nor of the conveyance in their favour. The institution of the suit in the year 2003, asserting a claim beyond the recitals of their own document, has resulted in protracted litigation spanning over two decades. The defendants have been compelled to defend their lawful possession and title over the retained residential house for nearly 23 years. The matter has traversed through trial, appeal, remand for additional evidence, and further

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consideration before this Court, thereby entailing substantial expenditure, loss of time, and mental agony to the defendants.

¶211

This Court cannot lose sight of the fact that the appeal has been pending since 2011 and that, pursuant to the remand order, additional evidence had to be recorded, resulting in further delay and costs. The defendants have thus been dragged into unwarranted and avoidable litigation on account of a claim which, on the face of the documents, was unsustainable. Courts cannot encourage such speculative or overreaching claims, particularly when they are contrary to the recitals of a registered instrument executed in favour of the very party who approaches the Court.

¶212

In these circumstances, this Court is of the considered view that the present suit not only lacks merit but also warrants imposition of exemplary costs. The plaintiffs, having invoked the jurisdiction of the Civil Court

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on a misconceived claim and having subjected the defendants to prolonged and unnecessary litigation, must bear the consequences in terms of costs. Accordingly, the suit deserves to be dismissed with exemplary costs so as to compensate the defendants and to send a clear message that frivolous and overreaching claims will not be countenanced by Courts of law.

¶216

For all the aforesaid reasons, the judgment and decree of the Trial Court are liable to be set aside, and the suit filed by the plaintiffs deserves to be dismissed with costs.

¶217

For the foregoing reasons, this Court passes the following:

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ORDER

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i. The Regular First Appeal is hereby allowed .

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ii. The judgment and decree dated 09.12.2010

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passed in O.S.No.9132/2003 by the Trial Court are set aside.

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iii. Consequently, the suit filed by the plaintiffs in O.S. No.9132/2003 stands dismissed.

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iv. The plaintiffs shall pay costs quantified at Rs.50,000/- (Rupees Fifty Thousand only) to the defendants within a period of eight weeks from

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the date of receipt of certified copy of this judgement.

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v. In the event of failure to pay the said costs within the stipulated period, the defendants are at liberty to recover the same in accordance with law.

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vi. Draw decree accordingly.

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Sd/(SACHIN SHANKAR MAGADUM) JUDGE

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HDK List No.: 1 Sl No.: 4

Smt. Jayamma v. T.I Ganapathi Nayak

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Smt. Jayamma v. T.I Ganapathi Nayak

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