Dismissed
A Venkatesh Prabhu v. Balakrishana Prabhu
Karnataka HCRSA/1036/2009
Case brief
from the order text
What is this about?
NC: 2026:KHC:17161 RSA No. 1036 of 2009 IN…
What the court decided
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NC: 2026:KHC:17161 RSA No. 1036 of 2009 IN…
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NC: 2026:KHC:17161 RSA No. 1036 of 2009
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 1036 OF 2009 (DEC/INJ)
BETWEEN:
Digitally signed by CHAYA S A Location: HIGH COURT OF KARNATAKA
NC: 2026:KHC:17161 RSA No. 1036 of 2009
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R/AT NEJARAO LANE MANGALURU - 575 003.
... APPELLANTS
(BY SRI. RAJENDRA M.S., ADVOCATE)
AND:
CARRYING ON BUSINESS UNDER THE NAME AND STYLE M/S. ATTUR VASUDEVA PRABHU VENKATESHA BUILDING P.B. NO.121, BUNDER, J.M. CROSS ROAD MANGALURU - 575 001.
... RESPONDENT
(BY SRI. P. KARUNAKAR, ADVOCATE FOR C/RESPONDENT)
THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 13.04.2009 PASSED IN R.A.NO. 25/2008 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, MANGALURU, ALLOWING/PARTLY ALLOWING/DISMISSING THE APPEAL AND CONFIRMING/SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.01.2008 PASSED IN OS.NO.183/2004 ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN), MANGALURU, DAKSHINA KANNADA.
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THIS REGULAR SECOND APPEAL HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, E.S. INDIRESH J., DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE E.S. INDIRESH
CAV JUDGMENT
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registered Moolageni Chit dated 19.08.1968. Thereafter,
father of the plaintiffs was in possession and enjoyment of the suit A schedule property. It is also stated that the said Henry Everest Vincent Fernandes was landlord of some other adjacent properties and had given to one Attur Vasudeva Prabhu - paternal uncle of the plaintiffs and father of the defendant as per registered Sale Deed dated 24.06.1969. It is further stated that, father of the plaintiffs - A. Shankar Prabhu died on 27.06.1974 leaving behind his two sons namely, A. Venkatesha Prabhu (plaintiff) and Surendra Prabhu. It is the case of the plaintiffs that the plaintiff No.1 was aged about 18 years at
the time of demise of his father and as such, after the death of their father - A. Shankar Prabhu, the plaintiffs were in joint business with their paternal uncle - Attur Vasudeva Prabhu. It is further stated in the plaint that, the documents pertaining to the land properties were in the custody of Attur Vasudeva Prabhu, as he was managing the affairs of the fami0ly. It is also stated that, the uncle
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of the plaintiffs - Attur Vasudeva Prabhu used to take the signature of the plaintiff No.1 on various occasions in connection with the management of the land in question. It is further stated that, the uncle of the plaintiffs - Attur
Vasudeva Prabhu managed to get the signature of the plaintiff No.1 and his brothers to sell the portion of the land having Moolageni holdings to third parties. It is further stated in the plaint that plaintiffs believing the version of father of defendants, have put their signatures on the documents placed by the father of the defendants without suspecting fraud being committed by the father of the defendants and therefore, the plaintiffs have preferred O.S.No.183/2004, seeking relief of declaration with consequential relief.
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made in the aforementioned partition. It is further stated
that, the Moolageni Deed dated 10.08.1968 and registered Sale Deed dated 24.06.1969 were made in the name of the father of the plaintiffs as Moolagenidar to avoid stamp duty and registration charges, at the time of acquiring the property in question. It is also stated that, another portion of the schedule property covered under the deed dated 19.08.1968 was purchased in the name of Radhakrishna Nayak - nephew of Shankar Prabhu and Vasudeva Prabhu and therefore, it is contended by the defendants that, the plaintiffs cannot take advantage of the mode of documentation and to assert that, the father of the plaintiffs was a Moolageni tenant. It is the specific case of the defendant that, at no point of time the father of the plaintiffs - Shankar Prabhu paid rent to any person as required to identify as a tenant under the Moolagenidar and therefore, sought for dismissal of the suit.
has formulated issues for its consideration. In order to
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establish their case, plaintiffs examined plaintiff No.1 as PW1 and got marked 16 documents as Exs.P1 to P16. On the other hand, the defendant examined two witnesses as D.W.1 and D.W.2 and produced 27 documents as Exs.D1 to d27.
7. Being aggrieved by the Judgment and Decree passed
by the Courts below, the appellants / plaintiffs have
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preferred this Regular Second Appeal under Section 100 of
CPC.
(2) Whether the Courts below were justified in negating the mulageni deed as being a nominal document which was executed not to be acted upon, in the light of the same having been referred to any other document such as sale deed Ex.D5, under which the respondent's father had purchased the neighbouring property?
(3) Whether the Courts below were right in proceeding on the basis that the suit was not barred by limitation?"
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the appellants and Sri. P. Karunakar, learned counsel for the respondents.
the moolageni rights in respect of the schedule A property and the said moolageni deed is a registered document and the same is reflected in the RTC records as marked before the Trial Court and therefore, it is argued that, both the courts below have failed to notice the presumption under Secion 133 of the Karnataka Land Revenue Act.
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Everest Vincent Fernandes and that Sri. Vasudeva Prabhu
became the owner of the property after nearly an year after creation of moolageni in favour of Sri. Vasudeva Prabhu. It is submitted that, both the Courts below failed to notice that non possession of original lease deed does not mean that no title passes under the said document. The finding recorded by the lower appellate Court that the plaintiffs ought to have examined Sri. Henry Everest Vincent Fernandes is incorrect as the moolageni lease is a permanent tenant obtained by the father of the plaintiffs as per the registered Moolageni Deed 1968 (Ex.P3) and therefore, it is contended that, the finding recorded by the Courts below requires to be interfered with. In this regard, learned counsel for the appellants places reliance on the Judgment of the Hon'ble Supreme Court in the case
of Raghuram Rao and Others Vs. Eric P. Mathias and
others reported in 2002 (2) SCC 624 and in the case of Charles Rego Vs. Father Muller's Charitable Institute
and Others reported in ILR 2009 KAR 487 and argued
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that, the moolagenidar is a tenant holding a perpetual lease and therefore, sought for interference of this Court. Learned counsel for the appellants places reliance on the Judgment of the Hon'ble Supreme Court in the case of Bistappa Rama Naik and Another Vs. State of Karnataka, Rep. by its Secretary, Revenue Department and Others reported in ILR 2002 KAR 191 and argued that, as the name of the father of the plaintiffs was continued in the RTC extracts for a considerable period and the same was not challenged by the defendants before the competent Revenue Court and therefore, the entry made in the RTC extracts would prove that the plaintiffs are in possession of the suit schedule property.
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having jurisdiction to interfere under Section 100 of CPC.
In this regard, he referred to the Judgment of the Hon'ble Supreme Court KN Nagarajappa and Others Vs. H Narasimha Reddy reported in 2021 (18) SCC 263 . It is also argued by the learned counsel for the appellants that the land being a non agricultural land and therefore, finding recorded by both the Courts below that the ownership on the Moolagenidar would confer occupancy right and therefore, the finding recorded by both the Courts below requires to be interfered with in view of the Judgment of this Court in the case of Clarence Pais and
Others Vs. The State of Karnataka and Others reported in 2024 (1) KLJ 425 and accordingly, sought for interference of this Court.
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Section 100 of CPC. It is the categorical submission by
the learned counsel appearing for the respondents that the plaintiffs have not produced any document of payment of rent by the father of the plaintiffs to prove the moolageni of the land in question and therefore, sought for dismissal of the appeal.
The father of the plaintiffs A. Shankar Prabhu died on 27.06.1974. It is the case of the plaintiffs that, during lifetime of A. Shankar Prabhu, he had sold portion of his
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moolageni holding to third parties. It is also to be noted
that, the plaintiffs complained that, the defendant has constructed a compound wall separating the property of the plaintiffs and defendant at the eastern side of the defendant's property. It is pertinent to mention here that, as per the registered Sale Deed dated 24.06.1969, wherein, Henry Everest Vincent Fernandes had executed another sale deed, selling the moolageni rights in respect of the Sy.No.57/3A measuring 71 cents and in Sy.No.57/4, measuring 18 cents in favour of A. Vasudeva Prabhu (father of the defendants). Perusal of the finding recorded by the Courts below would indicate that the father of the plaintiffs and father of defendants acquired an extent of 1.59 acres by resorting to moolageni and purchased the ownership rights. It is the contention of the plaintiffs that the father of the plaintiffs A. Shankar Prabhu having acquired the schedule 'A' property as per registered moolageni chit has been acted upon by entering his name
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in the revenue records and he was in actual possession
and enjoyment of the same.
I am of the view that, the finding recorded by both the Courts below, dismissing the suit of the plaintiffs is just and proper as the P.W.1 has not deposed as to the payment of rent in respect of the 'A' schedule property. It is pertinent to mention here that, the production of the payment receipts in respect of the moolageni right is mandatory to establish the execution of the registered
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moolageni chit and therefore, I am of the view that, the finding recorded by the Trial Court on issue Nos.1 and 2 is
just and proper and no interference is called for in this Appeal.
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favour of the father of the plaintiffs and therefore, the contentions raised by the appellants cannot be accepted.
SD/(E.S.INDIRESH) JUDGE
sac
List No.: 1 Sl No.: 62
3 issues framed by the court
Whether the plaintiffs' registered moolageni chit established perpetual tenancy rights over the schedule 'A' property despite absence of rent payment receipts.
Whether RTC entries in favour of the plaintiffs' father proved possession when no notice was issued to the defendant before making those entries.
Whether concurrent findings of both lower courts dismissing the suit were perverse and warranted interference under Section 100 CPC.
Colour shows how this judgement treated each authority
Raghuram Rao and Others Vs. Eric P. Mathias and othersReferred¶11
2002 (2) SCC 624 · Who else cites this
Charles Rego Vs. Father Muller's Charitable Institute and OthersReferred¶11
ILR 2009 KAR 487 · Who else cites this
KN Nagarajappa and Others Vs. H Narasimha ReddyReferred¶12
2021 (18) SCC 263 · Who else cites this
Clarence Pais and Others Vs. The State of Karnataka and OthersReferred¶12
2024 (1) KLJ 425
1 provisions across 1 enactments
A. Venkatesh Prabhu (deceased), rep. by LRs - Padma Prabhu, Attur Shankar Prabhu, Attur Sandesh Prabhu
Jayashree Pai Kateel
K. Kesari Prabhu
Shanthi Pai
Balakrishna Prabhu
E.S. Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court