SMT K.SHANTHI W/O.MR.A.K.SELVAKUMAR vs SRI M VENKATESHAPPA

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 30 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MS. JUSTICE JYOTI M

REGULAR FIRST APPEAL NO. 594 OF 2009 (INJ)

BETWEEN:

SMT. K.SHANTHI
W/O. MR. A.K.SELVAKUMAR
AGED ABOUT 43 YEARS,
R/AT NO.653, 6TH MAIN,
6TH CROSS, HAL, 3RD STAGE,
BENGALURU - 560075.
…APPELLANT
(BY SRI. V.RANGARAMU, ADVOCATE)

AND:

1. SRI M.VENKATESHAPPA
SINCE DECEASED
REPRESENTED BY HIS LEGAL HEIRS

1(A) MR. V.RAMESH,
S/O. SRI. VENKATESHAPPA,
AGED MAJOR,

1(B) MR. V.SRINIVASA,
S/O. SRI. VENKATESHAPPA,
AGED 41 YEARS,

1(B)(I) SMT. ASHA,
AGED ABOUT 45 YEARS,
W/O. LATE V.SRINIVAS

1(B)(II) MR. RAKESH S.,
AGED ABOUT 23 YEARS,
S/O. LATE V.SINIVAS











Digitally signed by
PREMCHANDRA M R
Location: HIGH
COURT OF
KARNATAKA

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BOTH ARE RESIDING AT NO.580
SAPPALAMMA TEMPLE ROAD,
KADIRENAHALLI, BANASHANKARI,
SECOND STAGE, BENGALURU-560070.

1(C) MR. V.CHETAN,
S/O. SRI VENKATESHAPPA,
AGED ABOUT 29 YEARS,

RESPONDENTS NO.1(A) AND 1(C) ARE
R/AT KADIRENAHALLI VILLAGE,
SRI. SUPPLAMMA TEMPLE ROAD,
2ND MAIN, BSK 2 STAGE,
BENGALURU-560070.

1(D) SMT. SUSHEELA,
D/O. VENKATESHAPPA,
AGED ABOUT 47 YEARS,
R/AT NO.2/3, 6TH CROSS,
HANUMAIAH LAYOUT,
HANUMANAGIRINAGAR,
CHIKKALASANDRA,
BENGALURU-560061.

1(E) SMT. SUNANDA,
D/O. VENKATESHAPPA,
AGED ABOUT 43 YEARS,
R/AT KADIRENAHALLI VILLAGE,
SRI. SUPPLAMMA TEMPLE ROAD,
2ND MAIN, BSK 2 STAGE,
BENGALURU-560070.

1(F) SMT. SHALINI,
D/O. VENKATESHAPPA,
AGED ABOUT 35 YEARS,
R/AT NO.320, GOUDARAPALYA,
SUBRAMANYAPURA ROAD,
BENGALURU-560070.

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2. SRI. LAKSHMINARAYANAPPA
S/O. LATE MAISTRY MUNISWAMAPPA
AGED ABOUT 64 YEARS,
R/AT NO.69, 2ND WEST CROSS,
L.M.COLONY, YESHWANTHPURA
BENGALURU - 560022.
…RESPONDENTS

(BY SRI. A.SOMARAJU, ADVOCATE FOR R1(A AND C TO E);
SRI. MANJUNATHA M., ADVOCATE
FOR R1(B)(I AND II) -ABSENT;
R1(F) SERVED AND UNREPRESENTED;
SRI. K.DHIRAJ KUMAR, ADVOCATE FOR R2 - ABSENT)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 READ WITH ORDER 41 RULE 5 OF THE CODE OF CIVIL
PROCEDURE.

THIS REGULAR FIRST APPEAL IS LISTED FOR FINAL
HEARING, THIS DAY, THE JUDGMENT IS DELIVERED AS
UNDER:
ORAL JUDGMENT
Sri. V. Rangaramu, counsel for the appellant, and Sri.
A. Somaraju, counsel for respondent Nos. 1 (A & C to E),
appeared in person.

There is no representation on behalf of counsel for
espondent No. 1 (B) (i and ii) and respondent No. 2.

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2. The present appeal challenges the Judgment
and Decree dated 12.03.2009, passed by the Court of
XXIV Additional City Civil and Sessions Judge, Bangalore
City (CCH-6), in O.S. No. 2849/2004.

3. For convenience, the parties are referred to as
per their status and ranking before the Trial Court.

4. The averments in the plaint are as follows.
The plaintiff, Sri. M. Venkateshappa, filed a suit for a
declaration that he is the absolute owner of the suit
schedule property, that the sale deed dated 22.05.1992 in
respect of the suit schedule property is not binding on
him, and for restraining the defendants or anybody
claiming under them from interfering with the plaintiff's
possession of the suit schedule property.

In the plaint, it has been stated that on 14.12.1988,
the joint family members entered into an oral partition,
and in the said partition, the suit schedule property was

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allotted to the share of the plaintiff. He was put in
exclusive possession of the schedule property. It is also
stated that during 1993, one of his brothers, namely
Chandrappa, filed a suit for the relief of partition in
O.S.No.4545/1993 against the plaintiff and the other
brothers. The suit was ultimately compromised, and in
terms of the compromise petition filed by the parties, a
decree was passed on 09.09.1996. In the said compromise
petition, the parties clearly confirmed that the suit
schedule property fell to the share of the plaintiff and that
he is in possession of the same.

It is stated that the first defendant, a party to an oral
partition dated 14.12.1988 and a compromise decree in
O.S.No.4545/1993, knowing fully well that the schedule
property had fallen to the plaintiff's exclusive share, is
alleged to have executed a sale deed in favor of the
second defendant on 22.05.1992. Contending that the first

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defendant committed fraud, the plaintiff filed the suit
seeking the relief as stated supra.

Upon service of the summons, defendant No.1 filed a
written statement denying the averments of the plaint. He
admitted that an oral partition had taken place on
14.12.1988 and that the suit schedule property was
allotted to the plaintiff, but denied the plaintiff's exclusive
possession. He also admitted the filing of the suit in
O.S.No.4545/1993 and the compromise decree thereon.

It has been specifically stated that during 1991-92,
the plaintiff had to solemnize the marriages of his
daughters. Accordingly, he approached defendant No.1
and requested that a couple of sites which would come to
his share be sold so as to raise money for the purpose of
the marriages. Accordingly, after the plaintiff received the
entire sale consideration from the prospective purchaser,
the sale deed was executed by defendant No.1 along with
the plaintiff. The entire sale consideration was received by

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the plaintiff for his legal necessity. It is also stated that, as
a matter of fact, the plaintiff was not entitled to any share
in the joint family properties. On additional grounds,
defendant No.1 sought dismissal of the suit.

The second defendant filed a detailed written
statement and contended that the suit was not
maintainable as it was barred by limitation. As on the date
of filing the suit for partition, the suit property had been
alienated, and despite such knowledge, defendant No.2
was not made a party to the proceedings. Hence, the
decree obtained is by playing fraud on the Court.

It has been specifically stated that in 1987, the joint
family members, i.e., the plaintiff and his brothers, formed
sites in Sy.No.40/2 of Babusabpalya, Challakere village,
K.R.Puram Hobli, Bangalore. Out of the sites formed,
Sri.M.Venkateshappa, Sri.Lakshminarayanappa,
Sri.Chandrappa and Sri.Seenappa offered to sell the sites
to Smt.Leelavathi for valuable consideration of

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Rs.12,000/- and entered into an agreement of sale in
respect of site Nos.116 and 80, measuring 30 X 40 each.
After receiving the entire sale consideration, they executed
a GPA in favor of Smt.Leelavathi on 08.10.1990 and also
swore to an affidavit stating that they had received the
entire sale consideration, executed a GPA, and delivered
possession to her. The plaintiff, being a party to the said
documents, cannot say that he is unaware of the same.
The said purchaser sold the property in favor of these
defendants, and on the request of the said Smt.Leelavathi,
the first defendant executed a sale deed dated
22.05.1992, and the second defendant was put in
possession of the suit property. On additional grounds,
defendant No.2 sought dismissal of the suit.

The Trial Court framed the issues, marked the
documents as exhibits, and recorded the parties’ evidence.
The plaintiff testified as PW1 and produced six documents,
marked as Exs.P1 to P6. The defendants did not enter the

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witness box or produce any documents. By Judgment and
Decree dated 12.03.2009, the Trial Court decreed the suit,
declaring the plaintiff the absolute owner of the property in
question, holding that the sale deed executed by
defendant No.1 in favor of defendant No.2 was not binding
on him, and restraining the defendants from interfering
with the plaintiff's peaceful possession and enjoyment of
the suit schedule property. Under these circumstances,
defendant No.2 has filed this appeal under Section 96 of
the CPC.

5. Counsel for the respective parties advanced
several contentions.

Counsel for the appellant submits that the Judgment
and Decree of the Trial Court are contrary to the material
evidence on record.

He further submits that the Trial Court erred in
decreeing the suit. It is also submitted that the Trial Court

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ought to have dismissed the suit as not maintainable in
law, as the suit filed by the plaintiff is for a declaration of
title without seeking possession. It is further submitted
that the Trial Court ought to have dismissed the suit,
considering clause No.9 of the compromise petition filed in
O.S.No.4545/1993, marked as Ex.P2. It is vehemently
contended that the suit was barred by limitation when the
plaintiff had knowledge of the execution of the sale deed
dated 22.05.1992 in favor of defendant No.2/appellant.

It is contended that the Trial Court ought to have
dismissed the suit, as none of the exhibits marked P1 to
P6 disclosed the identity of the suit schedule property,
such as its measurements, khata number, and boundaries,
except for mentioning site No.80. It is further submitted
that the Trial Court ought to have answered issue No. 2 in
the affirmative, as the plaintiff failed to prove the oral
partition made on 14.12.1988 as pleaded in the plaint. It
is vehemently contended that, even in the absence of

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cross-examination of PW1 and any evidence from the
defendants' side, the Trial Court ought to have dismissed
the suit.

It has been strenuously urged that the matter may
be remanded to the Trial Court to enable the defendants
to adduce evidence.

Lastly, he submits that, from any angle, the
Judgment and Decree of the Trial Court are liable to be set
aside, and the appeal may be allowed.

Per contra, counsel for respondent Nos. 1(A and C to
E) has justified the Judgment and Decree of the Trial Court
and submits that the appeal lacks merit and may be
dismissed.

6. Heard the arguments and perused the records
with care.

7. The following points arise for determination.

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1. Whether the Trial Court’s Judgment and Decree
dated 12.03.2009, declaring the plaintiff the
absolute owner of the property and holding that
the sale deed executed by defendant No. 1 in
favor of defendant No. 2 is not binding, warrants
interference on appeal.

2. Whether the plaintiff’s suit was legally
maintainable when it sought a declaration of title
without seeking possession.

3. Whether the suit was time-barred in light of the
sale deed dated 22.05.1992.

4. Whether the compromise decree in O.S. No.
4545/1993 (Ex.P2) establishes the plaintiff’s
ownership claim.

5. Did defendant No. 1 have the right, title, or
interest to execute the sale deed in favor of
defendant No. 2.

8. The facts are sufficiently stated and do not
require repetition.

The property originally belonged to Mestri
Muniswamappa, who had four sons, including the plaintiff.
Under the oral partition dated 14.12.1988, the suit

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property was allotted to the plaintiff,
Sri.M.Venkateshappa. The compromise petition in O.S. No.
4545/1993 reaffirmed that the property fell to the
plaintiff’s share. Defendant No.1 admitted in his written
statement that the property belonged to the plaintiff, but
vaguely alleged that a GPA authorised someone to act,
without substantiating that claim. The defendants neither
entered the witness box nor produced documents to
support their contentions.

Based on Exs.P1 to Ex.P6 and the plaintiff’s
testimony, the Trial Court correctly held that defendant
No.1 had no right to alienate the property. The appellant's
pleas of limitation and maintainability are untenable
because the plaintiff’s title was established by the
compromise decree and the suit was properly framed.

The appellant’s argument that the suit was not
maintainable without possession is misconceived. The
plaintiff sought a declaration of title against an alienation

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by someone with no right to convey. Having established
ownership under the oral partition and compromise
decree, the Trial Court was justified in granting declaratory
relief.

The limitation plea is equally untenable. The
plaintiff’s right arises from the compromise decree
(Ex.P2), and the defendants failed to establish that the
suit was time-barred. Their vague allegation concerning
GPA authorization was unsupported by evidence. Their
failure to testify or produce documents further weakens
their case.

A substantial amount of argument is canvassed on
behalf of the appellant that sufficient opportunity was not
accorded, hence the matter requires remand. The
contention cannot be accepted. The reasons are apparent.
A perusal of the Trial Court's order sheet shows that the
suit was posted for cross-examination of PW1 on
20.08.2008. On that date, counsel for the defendants

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sought an adjournment, which the Court granted subject
to payment of costs of Rs.100/-, and adjourned the matter
to 11.09.2008. On 11.09.2008, counsel for the defendants
again sought time. However, the Trial Court recorded the
cross-examination of PW1 as ‘nil’ and adjourned the
matter to 22.10.2008. On 22.10.2008, the Trial Court
recorded that there was no further evidence on behalf of
the plaintiff and posted the matter for the defendants’
evidence to 24.11.2008. On 24.11.2008, as the
defendants remained absent, the matter was adjourned to
10.12.2008 for their evidence.

On 10.12.2008, despite the defendants’ absence, an
application was filed on their behalf. The Trial Court,
subject to payment of costs of Rs.250/-, allowed the
defendants to cross-examine PW1 on the next date of
hearing and adjourned the matter to 12.01.2009. On
12.01.2009, at the request of the defendants' counsel, the
matter was further adjourned, subject to payment of costs

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of Rs.250/-, with a direction to cross-examine PW1 on
27.01.2009. However, on 27.01.2009, both the
defendants and their counsel were absent. Consequently,
the cross-examination of PW1 was again recorded as ‘nil’,
and the matter was posted for the defendants’ evidence to
16.02.2009. On 16.02.2009, as the defendants and their
counsel were again absent, the defendants’ evidence was
closed by recording it as ‘nil’, and the matter was posted
for arguments on merits to 25.02.2009. On 25.02.2009,
the plaintiff was present, arguments were heard, and the
matter was posted for judgment to 12.03.2009.
Accordingly, the Trial Court pronounced its judgment on
12.03.2009.

The aforesaid chronology of events clearly
demonstrates that the Trial Court afforded the defendants
several opportunities to cross-examine PW1 and adduce
their evidence. Despite being granted repeated
adjournments, including opportunities subject to payment

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of costs, the defendants failed to avail themselves of the
same. In these circumstances, the contention that the
defendants were not afforded sufficient opportunity to
cross-examine PW1 and lead their evidence, and that the
matter therefore warrants remand to the Trial Court, is
devoid of merit and is liable to be rejected.

9. The Trial Court’s findings are based on cogent
evidence. Defendant No.1 had no right, title, or interest in
the property, and the sale deed executed in favor of
Defendant No.2 is not binding on the plaintiff. The
Appellate Court finds no grounds to interfere.

ORDER
1. The appeal is devoid of merit. The
Trial Court's Judgment and Decree dated
12.03.2009 are affirmed.

2. Accordingly, the appeal stands
dismissed
.

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3. Any interim orders stand discharged.
Pending interlocutory applications, if any, are
disposed of.


SD/-
(JYOTI M)
JUDGE

CH
List No.: 1 Sl No.: 31