WADEYARAJ S/O GANGAYYA GUTTEDAR vs DAWALSA S/O CHANDASA KATAGAR

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IN THE HIGH COURT OF KARNATAKA


KALABURAGI BENCH

TH
DATED THIS THE 25 DAY OF SEPTEMBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO. 200412 OF 2014 (DEC)

BETWEEN:

WADEYARAJ S/O GANGAYYA GUTTEDAR,
AGE: 33 YEARS, OCC : AGRICULTURE,
R/O. YEDRAMI VILLAGE, TQ. JEWARGI,
DIST. GULBARGA-585 325.
…APPELLANT
(BY SRI. BASAWARAJ KAREDDY, ADVOCATE)

AND:

DAWALSA S/O CHANDASA KATAGAR
AGE: 53 YEARS, OCC : AGRICULTURE,
R/O. YEDRAMI VILLAGE, TQ. JEWARGI,
DIST. GULBARGA-585 325.
…RESPONDENT
(RESPONDENT SERVED)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO










Digitally signed
by B NAGAVENI
Location: HIGH
COURT OF
KARNATAKA

ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT AND DECREE
DATED 15.02.2014 PASSED BY THE SENIOR CIVIL JUDGE JEWARGI,
DISMISSING R.A.NO.116/2009 AND CONFIRMING THE JUDGMENT
AND DECREE DATED 30.07.2009 PASSED BY THE CIVIL JUDGE (JR.
DN.) AND J.M.F.C. JEWARGI, IN O.S.NO.87/2006, WITH COST
THROUGHOUT AND FURTHER DECREE THE SUIT.

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

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CORAM: HON'BLE MR. JUSTICE ASHOK S. KINAGI

ORAL JUDGMENT

1. This regular second appeal is filed by the appellant,
challenging the judgment and decree dated
15.02.2014 passed in R.A.No.116 of 2009 by the
Senior Civil Judge Jewargi, (hereinafter referred to as
‘First Appellate Court’) confirming the judgment and
decree dated 30.07.2009 passed in O.S.No.87 of
2006 by the learned Civil Judge (Junior Division) and
JMFC, Jewargi (hereinafter referred to as ‘Trial
Court’).

2. For convenience, the parties are referred to based on
their ranking before the Trial Court. The Appellant
was the plaintiff and the respondent was the
defendant.

3. Brief facts leading rise to the filing of this appeal are
as follows:

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The plaintiff filed a suit for declaration of title and
perpetual injunction. It is the case of the plaintiff that
the plaintiff is the purchaser of the suit schedule
property from his previous owner by name
Yamanayya S/o Hanamayya under a registered Sale
Deed dated 02.09.2004. After purchase of the suit
property, the plaintiff obtained construction
permission from the competent authority and due to
inconvenience and circumstances, the plaintiff could
not construct the house in the suit schedule property.
It is contended that the plaintiff is a Contractor by
profession and is residing at Andola village. The
defendant has no right, title or interest over the suit
schedule property. The defendant taking undue
advantage of the absence of the plaintiff tried to
encroach upon the suit schedule property. The
plaintiff requested the defendant not to encroach
upon the suit schedule property. The defendant did
not heed to the request made by the plaintiff. Hence,

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cause of action arose for the plaintiff to file a suit for
declaration of title and perpetual injunction.
Accordingly, prays to decree the suit.

4. The defendant filed written statement denying the
averments made in the plaint and also denied the
description of the suit schedule property. It is also
denied that the plaintiff has purchased the suit
schedule property under a registered Sale Deed
dated 02.09.2004 and it is contended that the
vendor of the plaintiff had no right to execute the
registered Sale Deed in favour of the plaintiff. It is
contended that the defendant is in possession of the
suit schedule property as a owner bearing
Panchayath No.9-10 measuring east-west 46 ft.,
north-south 46 ft. He has constructed two rooms
along with the open space in the said house which
was purchased by him from one Siddayya under a
registered Sale Deed. The name of the defendant
was mutated in the panchayat records and he is

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regularly paying tax to the panchayat. It is denied
that the plaintiff is in possession of the suit schedule
property. Hence, the suit filed by the plaintiff is not
maintainable. Hence, on these grounds, he prayed to
dismiss the suit.

5. The Trial Court, based on the rival pleadings of the
parties, framed the following issues:
“1. Whether the plaintiff proves his ownership
over the suit property?
2. Whether the plaintiff proves that the
defendant has encroached 10 feet
Government road towards southern side of
suit property and also the southern portion of
his property to the extent of 8 feet as pleaded
in plaint?
3. Whether the plaintiff proves the existence
of 10 feet Government road towards southern
side of suit property?
4. Whether the defendant proves that this
court has no jurisdiction to try the suit?
5. Whether the plaintiff is entitled for the
relief claimed in the suit?
6. What order or decree?”

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6. The plaintiff, to substantiate his case, examined
himself as PW.1, examined one witness as PW.2 and
marked 10 documents as Exs.P1 to P10. In rebuttal,
the defendant examined himself as DW.1, examined
one witness as DW.2 and marked 16 documents as
Exs.D1 to D16.

7. The Trial Court, after recording the evidence of the
parties, after hearing both sides and after assessing
the verbal and documentary evidence, answered
Issue No.1 to 5 in the negative and Issue No.6 as per
the final order and the suit of the plaintiff was
dismissed vide judgment dated 30.07.2009.

8. The plaintiff aggrieved by the dismissal of the suit in
O.S.No.87 of 2006 dated 30.07.2009 preferred an
appeal in R.A.No.116 of 2009 on the file of the
learned Senior Civil Judge, Jewargi.

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9. The First Appellate Court, after hearing the learned
counsel for the parties, framed the following points
for consideration:
“1. Whether the Appellant proves that the
Judgement and Decree passed by the trial
Court is illegal, improper and not based on
proper appreciation of oral and documentary
evidence available on record ?
2. Whether the Appellant proves that the
Judgement and Decree passed by the trial
Court is against the admissions given by the
parties and also against the settled principles
of law and hence caused miscarriage of
justice and interference of this Court is
required for setting aside the same ?
3. What Order or Decree ?”

10. The First Appellate Court, after re-appreciating the
entire evidence on record, answered point Nos.1 and
2 in the negative, and point No.3 as per the final
order and the appeal was dismissed vide judgment
dated 15.02.2014.

11. The plaintiff, aggrieved by the impugned judgments,
filed this Regular Second Appeal.

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12. A notice was issued to the respondent. Despite the
service of notice, the respondent remained
unrepresented.

13. Heard the learned counsel for the plaintiff.

14. Learned counsel for the plaintiff submits that the
plaintiff has filed suit for declaration of title and
injunction. He submitted that to demonstrate his title
over the suit schedule property, he has produced the
register Sale Deed marked as Ex.P1 and based on
Ex.P1, name of the plaintiff was entered in the
Panchayath records. He submits that the plaintiff had
applied for the construction permission and the
concerned authorities, after due enquiry, granted
construction permission to construct a residential
house. Due to some unavoidable circumstances and
inconvenience, the plaintiff could not construct the
house. He submits that the Trial Court dismissed the
suit on the ground that the plaintiff has not produced

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title deed, by overlooking Ex.P1 i.e., the registered
Sale Deed executed in favour of the plaintiff. He
submits that the plaintiff is required to prove his title
and not the title of his vendor. Hence, on these
grounds, he prays to allow the appeal.

15. This Court vide Order dated 23.10.2020 admitted the
appeal to consider the following substantial questions
of law:
“1) Whether the trial court & first appellate
court erred in not granting relief of
declaration inspite of production of the title
deed viz., registered sale deed Ex.P.1 dated:
02-09-2004 and other documentary evidence
by the plaintiff?
2) Whether the trial court & first appellate
court erred in holding that, the plaintiff has
failed to prove that there is any Government
road on the southern side of suit property
inspite of producing documentary evidence at
Ex.D.2, Ex.D.15 and Ex.D.16 produced by the
defendant overlooking those documents?”

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Substantial question of law No.(1):

16. The plaintiff filed a suit for declaration of title and
permanent injunction alleging that the plaintiff had
purchased the suit schedule property under the
registered Sale Deed dated 02.09.2004 from
Yamanayya S/o Hanamayya and the vendor of the
plaintiff had put the plaintiff in possession of the suit
schedule property. The plaintiff applied for
construction permission to construct a residential
house, to the Panchayath Authority and the
Panchayath Authority granted permission to
construct a residential building in the suit schedule
property. When the plaintiff was out of village, the
defendant taking undue advantage of the absence of
the plaintiff tried to encroach upon the suit schedule
property. The plaintiff requested the defendant not
to encroach upon the property of the plaintiff.
Despite the request made by the plaintiff, the
defendant did not heed to the request made by the

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plaintiff. Hence, cause of action arose for the
plaintiff to file a suit.

17. The plaintiff to substantiate his case, examined
himself as PW.1 and reiterated the plaint averments
in the examination-in-chief and to prove that he is
the owner of the suit schedule property produced the
registered Sale Deed executed by his vendor and the
said original registered Sale Deed is marked as
Ex.P1. Ex.P2 is the mutation extract which discloses
that based on Ex.P1, name of the plaintiff was
entered in the panchayat records as the owner and in
possession of the suit schedule property. Exs.P3 and
P4 are the khata extracts which disclose that the
plaintiff is the owner of the suit schedule property.
Ex.P5 is the construction permission wherein it
appears that the plaintiff applied for construction of a
residential house in the suit schedule property and
the Panchayath, after due enquiry, granted
permission to the plaintiff to construct a residential

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house. Ex.P6 is the approved sketch map which
clearly discloses that the competent authority has
approved the proposed construction of building in the
suit schedule property. Exs.P7 to P10 are the tax
paid receipts.

18. During the course of cross-examination of PW.1, the
defendant suggested that the plaintiff has not
purchased the suit schedule property under a
registered Sale Deed dated 02.09.2004 and he is not
the owner of the suit schedule property and also in
possession of the suit schedule property. The said
suggestion was denied by PW.1. The plaintiff also
examined his uncle as PW.2. He has deposed that
Yamanayya had executed a registered Sale Deed
dated 02.09.2004 in favour of plaintiff and based on
the registered Sale Deed dated 02.09.2004, the
plaintiff is the owner in possession of the suit
schedule property.

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19. In rebuttal, the defendant examined himself as DW.1
and he reiterated the written statement averments in
the examination-in-chief and deposed that the
plaintiff is not the owner of the suit schedule
property and he has not purchased the property
under the registered Sale Deed dated 02.09.2004
and also the vendor of the plaintiff had no right to
execute registered Sale Deed in favour of the
plaintiff. He has deposed that the defendant is in
possession of the suit schedule property and the
defendant has purchased the said suit schedule
property from Siddayya under a registered Sale Deed
and to show that the property stands in the name of
defendant, produced the documents. Ex.D1 is the
receipt. Ex.D2 is the original registered Sale Deed
which discloses that the defendant has purchased the
said property under the registered Sale Deed. Ex.D3
is the mutation extract which shows that the
property was mutated in the name of the defendant

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based on Ex.D2. Exs.D4 and D5 are the Khata
extracts which disclose that the defendant is the
owner and in possession of the site which he
purchased under the registered Sale Deed as per
Ex.D2. Exs.D6 to D14 are the tax paid receipts.
Ex.D15 is the construction permission wherein the
defendant had applied for permission for construction
of a building and the concerned authority has
granted permission to construct a building. Ex.D16 is
the renewal of construction permission.

20. The defendant, after obtaining construction
permission from the competent authority has
constructed two rooms in the suit schedule property.
Further DW.2 has deposed that the plaintiff has no
plot in Yadrami and the suit property is not in
existence and he has not purchased it through
Yamanayya or any other person and he has deposed
that the defendant is the owner in possession of the
residential house bearing Panchayat No.9-10

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measuring East-West 46 feet; North-South 46 feet;
and the defendant has purchased the said property
from one Siddayya and he has constructed two
rooms in the suit schedule property. From the
perusal of the cross-examination of DW.1 and DW.2,
nothing has been elicited from the mouth of these
witnesses to disbelieve their evidence in
examination-in-chief.

21. From the perusal of the records, it clearly discloses
that the plaintiff has filed a suit for declaration of title
based on a registered Sale Deed dated 02.09.2004,
alleging that he had purchased the property from
Yamanayya. The defendant filed written statement
denying the fact that Yamanayya had no right, title
or interest to alienate the suit schedule property in
favour of plaintiff. The plaintiff, to prove the title of
Yamanayya, except producing the registered sale
deed marked as Ex.P1, has not produced any other
documents to establish the title of his vendor. In a

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suit for declaration of title, the burden is always on
the plaintiff to establish not only his title but also his
vendor's title. Admittedly, the plaintiff has not
produced any records to establish his title or his
vendor’s title.

22. This Court in the case of G.T.Bheemaiah Sharma v.
1
Rajeevi and others held that in a suit for
declaration of ownership and permanent injunction,
when the plaintiff has to prove his title to the
property and also possession over the property as on
the date of suit, has held that the plaintiff is required
to prove not only his title, but also the vendor's title.
Admittedly, in the instant case, the plaintiff has not
produced any records to demonstrate that his vendor
had title to sell the suit property. In the absence of
title deed of vendor of the plaintiff, the plaintiff will
not get any right by virtue of the registered Sale
Deed executed by his vendor in favour of the

1
RSA No.402/2013 disposed of on 01.06.2026

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plaintiff. The plaintiff is out of possession from the
suit schedule property as the defendant has already
constructed two rooms in the suit schedule property
after obtaining the necessary permission from the
competent authority. Mere suit for declaration
without seeking a consequential relief of possession
is not maintainable as per proviso to Section 34 of
the Specific Relief Act, 1963 and the said view is
supported by the judgment of the Hon'ble Apex
Court in the case of Vasantha (Dead) through Legal
Representative v. Rajalakshmi alias Rajam (Dead)
2
through Legal Representatives . Further, both the
Courts below have rightly held that the plaintiff has
failed to establish his vendor's title. The plaintiff has
not produced any title deed to show that his vendor
had title to alienate the suit schedule property. Both
the Courts below were justified in declining to grant
the relief as sought by the plaintiff. Hence, in view of

2

(2024) 5 SCC 282

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the above discussion, I answer question No.1 in the
negative.
Substantial question of law No.(2):

23. The plaintiff has contended that there is a
Government road on the southern side of the suit
property. Inspite of producing the documentary
evidence at Ex.D2, D15 and D16, the trial Court has
overlooked the documents. As the plaintiff has failed
to establish the ownership over the suit schedule
property, the question of considering Ex.D2, D15 and
D16 would not arise. The Hon'ble Apex Court in the
case of Union of India and others v. Vasavi Co-
3
operative Housing Society Ltd., and others held
that in a suit for declaration of title, the plaintiff must
succeed on his own strength and cannot depend on
the weakness of the defendant. Admittedly, the
plaintiff is trying to take advantage of the weakness

3
(2014) 2 SCC 269

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of the defendant based on Exs.D2, D15 and D16. The
said act of plaintiff’s taking advantage of the
weakness of defendant is contrary to the proposition
of law laid down by the Hon'ble Apex Court in the
case of Vasavi Co-operative Housing Society
Limited (supra). This Court in the case of
Doddagangaiah dead by LRs. v. Maqbooliyamma
4
dead by LRs. in paragraph No.37 extracted
paragraph No.29 of the judgment of the Hon'ble
Apex Court in the case of P. Kishore Kumar v.
Vittal K. Patkar [(2024) 13 SCC 553] which reads
as follows:
P.
“37. The Hon'ble Apex Court, in the case of
Kishore Kumar Vs. Vittal K. Patkar 1
, has held in
paragraph No.29 as follows:
“29. It is settled law that a vendor
cannot transfer a title to the vendee
better than he himself possesses, the
principle arising from the maxim nemo
dat quod non habet i.e. “no one can confer
a better title than what he himself has”.

4
RSA No.876 of 2014 disposed of on 10.06.2026

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In the present case, the plaintiff's
vendor having been denied the right of
title in the land by the Commissioner's
order, could not have conveyed the
same to her vendee.”


24. In the present case as observed above, though the
defendant has denied the title of the plaintiff’s
vendor, the plaintiff has not produced any record to
establish that his vendor had acquired a title. In the
absence of title chain of the suit schedule property,
the trial Court has rightly dismissed the suit for
declaration of title and permanent injunction and the
First Appellate Court has rightly confirmed the
judgment of the Trial Court. Considering the
mandate laid down by the Hon'ble Apex Court in the
case of Vasavi Co-operative Housing Society
Limited (supra), and the discussion made above, I
answer substantial question of law No.2 in the
negative.

25. Accordingly, I proceed to file the following:

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ORDER

i. Regular Second Appeal is dismissed .

ii. The judgments and decree passed by the
Courts below are hereby confirmed.

iii. No order as to the costs.

Sd/-
(ASHOK S. KINAGI)
JUDGE
NB,VNR
List No.: 2 Sl No.: 1
CT:PK