ASHOK S/O HONNAYYA POKALWAR AND ORS vs PANDIT S/O BANDEPPA AND ORS

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IN THE HIGH COURT OF KARNATAKA



KALABURAGI BENCH

ST
DATED THIS THE 1 DAY OF OCTOBER, 2026

BEFORE

THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

REGULAR SECOND APPEAL NO. 200054 OF 2015 (DEC


BETWEEN:

1. ASHOK S/O HONNAYYA POKALWAR,
SINCE DECEASED BY LRS.

A) ANANDA BAI W/O ASHOK POKALWAR,
AGED ABOUT 58 YEARS, OCC : HOUSEHOLD,
R/O: H.NO.3/73, AURAD (B) ,
TQ: AURAD (B), DIST: BIDAR.

B) SANTOSH S/O ASHOK POKALWAR,
AGE ABOUT 34 YEARS, OCC: AGRICULTURE,
R/O: H.NO.3/73, AURAD (B) ,
TQ: AURAD (B), DIST: BIDAR.

C) SUJATA W/O KRISHNAMURTHY,
AGED ABOUT 32 YEARS, OCC: HOUSEHOLD,
R/O. VASAR MANDAL, VASAR VILLAGE,
TQ: NARAYANKHED,
(TELEGANA STATE).

D) SAINATH S/O ASHOK
AGED ABOUT 28 YEARS, OCC : BUSINESS,
R/O: H.NO.3/73, AURAD (B)
TQ: AURAD (B), DIST : BIDAR.

E) SWATI W/O MADHAR,
AGED ABOUT 30 YEARS,
OCC : HOUSEHOLD,










Digitally signed
by VARSHA N
RASALKAR
Location: HIGH
COURT OF
KARNATAKA

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R/O: H.NO.3/73, AURAD (B),
TQ. AURAD, DIST. BIDAR.

…APPELLANTS
(BY SRI. R. S. SIDHAPURKAR, ADVOCATE)

AND:

1. PANDIT S/O BANDEPPA,
AGED ABOUT 33 YEARS, OCC : AGRICULTURE,
R/O AURAD(B), DIST. BIDAR-585410.

2. MADHUKANTH S/O BANDEPPA,
AGED ABOUT 29 YEARS, OCC : STUDENT &
AGRICULTURE,
R/O AURAD(B), DIST. BIDAR-585410.

3. GODAVARI W/O BANDEPPA,
AGED ABOUT 53 YEARS, OCC : HOUSEHOLD,
R/O AURAD(B), DIST. BIDAR-585410.

4. SMT. TEJAMMA W/O HAWAGIRAO PATIL,
SINCE DECEASED R.NO.1 TO 3 ARE LRS,
R/O AURAD(B), DIST. BIDAR-585410.


…RESPONDENTS

(BY SRI. RAVI B. PATIL, ADVOCATE FOR R1 TO R3;
R4 DEAD)

THIS RSA IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO CALL FOR THE RECORDS, ALLOW THE APPEAL
AND SET-ASIDE THE JUDGMENT AND DECREE DATED 29-11-
2014 PASSED IN R.A.NO. 84 OF 2007 BY THE LEARNED
PRINCIPAL DIST. & SESSIONS JUDGE, AT BIDAR AND

CONFIRM THE JUDGMENT AND DECREE DATED: 17-02-2007
PASSED IN O.S.NO.312 OF 1997 BY THE LEARNED PRINCIPAL
CIVIL JUDGE (S.D) AT BIDAR, WITH COSTS THROUGHOUT.

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

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

ORAL JUDGMENT
This regular second appeal is filed by the appellants
challenging the judgment and decree dated 29.11.2014
passed in RA No.84/2007 by the Court of learned Principal
District and Sessions Judge, Bidar (‘ First Appellate
Court ’ for short).
2. For the sake of convenience, the parties are
1
referred to based on their rankings before the Trial Court .
Appellants are the legal representatives ( LRs ) of the
defendant and respondents were the plaintiffs.
3. Brief facts leading rise to the filing of this
appeal are as follows:

1
OS No.312/1997 on the file of the Court of learned Principal Civil
Judge (S.D.), Bidar

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3.1. The plaintiffs filed a suit for declaration to
declare that the plaintiffs are the joint owners, in joint
possession and enjoyment of the suit schedule property
and for permanent injunction restraining the defendant
from obstructing into the lawful joint possession and
enjoyment of the plaintiffs over the suit schedule property.
It is the case of the plaintiffs that, plaintiff No.3 is the
natural mother of minor plaintiff Nos.1 and 2, and they
were under the care and custody of their mother. The suit
schedule land is an ancestral and joint family property of
the father of plaintiff Nos.1 and 2 namely Bandappa.
Previously, the grandfather of plaintiff Nos.1 and 2 namely
Hawappa was the owner in possession of the suit land.
After his demise, his son Bandappa and plaintiff No.4
became the joint owners and in joint possession of the suit
schedule land along with plaintiff Nos.1 and 2. It was
contended that, Bandappa was addicted to bad habits and
was lavishly spending money to meet his bad habits. At
the instance of the well wishers of the plaintiffs and

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Bandappa, there was a nominal partition deed entered into
between Bandappa and plaintiff No.4 under the registered
partition deed dated 05.06.1985. Under the said partition
deed, Sy.No.91/2 measuring 3 acres 12 guntas has been
nominally allotted to the share of plaintiff No.4 and in
pursuance of the partition, mutation was effected in the
name of plaintiff No.4. The defendant has no right, title or
whatsoever over the suit schedule property. It was
contended that, the defendant is influential and taking
undue benefit of the plaintiffs being helpless, created a
bogus, forged and fabricated sale deeds of the suit land in
Sy.No.91/2 and based on the alleged registered sale deed,
they are claiming to be the owners of the suit schedule
land by denying the title of the plaintiff over the suit
schedule land. Hence, a cause of action arose for the
plaintiffs to file the suit for declaration of title and
permanent injunction.
3.2. The defendant filed a written statement denying
the averments made in the plaint except admitting the

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relationship between the parties to the suit. It was denied
that the plaintiffs are the joint owners and in possession of
the suit schedule property and it was also denied
regarding the alleged partition effected between Bandappa
and plaintiff No.4. It was contended that, the suit land had
been purchased by deceased Bandappa from one Kashibai
W/o Hanmathappa under the registered sale deed dated
05.02.1982 for valid consideration, and thereafter, a
partition had taken place in between Bandappa and
plaintiff No.4. Plaintiff No.4 executed the sale deed dated
16.03.1990 in the presence of attesting witnesses and the
defendant is the bona fide purchaser for value without
notice. Hence, prays to dismiss the suit.
3.3. The Trial Court, based on the rival pleadings of
the parties, framed the following issues:
“1) Whether the plaintiffs prove that they are joint
owners in possession of suit land?
2) Whether the plaintiffs further prove that the sale
deed vide document No. 2950 , dtd. 16-3-1990 is

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null and void and ineffective against their rights and
interest?
3) Whether plaintiffs are entitled for the relief of
injunction sought for?
4) What order or decree?
ADDL. ISSUE
1. Whether Court fee paid by the plaintiff is
insufficient?
2. Whether suit is barred by time?”

3.4. To substantiate their case, plaintiff No.1
examined himself examined as PW1, examined three
witnesses as PW2 to PW4 and marked sixteen documents
as Exs.P1 to P16. In rebuttal, the defendant examined
himself as DW1, examined one witness as DW2 and
marked fifteen documents as Exs.D1 to D15.
3.5. The Trial Court, after recording the evidence,
hearing both sides and assessing the verbal and
documentary evidence, answered issue Nos.1 and 3 in the
negative, issue No.2 partly in the affirmative, additional

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issue Nos.1 and 2 in the affirmative, and issue No.4 as per
the final order. The suit of the plaintiff was dismissed vide
judgment dated 17.02.2007.
3.6. The plaintiff, aggrieved by the dismissal of suit
in OS No.312/1997 by the Trial Court, preferred an appeal
in RA No.84/2007 before the First Appellate Court.
3.7. The First Appellate Court, after hearing the
learned counsel for the parties, framed the following points
for consideration:
“1. Whether the plaintiffs prove that the sale deed
dated 16-3-1990 executed in favour of the
defendant as per Ex.D.1 is not at all executed by
the plaintiff no.4 and thus the said sale deed is null
and avoid?
2. Whether the defendant proves that he is bonafide
purchaser of the land Sy.No. 91/2 to the extent of
01 acre 04 guntas, situated at Aurad-B, as per
Ex.D.1 sale deed and proves the execution of said
sale deed executed by plaintiff no.4?
3. Whether the judgment and decree dated 17-2-
2007 and 3-3-2007 passed in O.S. No. 312/1997,

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passed by the Court of Principal Senior Civil Judge &
CJM, Bidar, requires any interference by this court?
4. What order?”

3.8. The First Appellate Court, after re-appreciating
the entire evidence on record, answered point No.1 party
in the affirmative, point No.2 in the negative, point No.3 in
the affirmative, and point No.4 as per the final order. The
regular appeal was allowed-in-part vide judgment dated
29.11.2014; the judgment and decree passed by the Trial
Court in OS No.312/1997 was set aside, and consequently,
the suit was decreed and declared that the sale deed
dated 16.03.1990 as null and void and ineffective against
the rights of plaintiff No.4; the defendant was perpetually
restrained from interfering and obstructing into the
possession and enjoyment of plaintiff No.4.
4. The LRs of the defendant, aggrieved by the
impugned judgment and decree dated 29.11.2014 passed

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in RA No.84/2007 dated 29.11.2014 by the First Appellate
Court, filed this regular second appeal.
5. Heard the arguments of learned counsel for the
LRs of the defendant and learned counsel for the plaintiffs.
6. Learned counsel for the LRs of the defendant
submits that, the First Appellate Court has committed an
error in reversing the judgment and decree passed by the
Trial Court. He submits that, the judgment passed by the
First Appellate Court is based on the weakness of the
defendant. He submits that, admittedly, the suit is one for
declaration of joint ownership and possession. The burden
is always on the plaintiffs to establish their case
independently and cannot depend on the weakness of the
defendant. To buttress his argument, has placed reliance
on the judgment of the Hon'ble Apex Court in the case of
Union of India and Others Vs. Vasavi Cooperative
2
Housing Society Limited and Others . Hence, he

2

(2014) 2 SCC 269

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submits that, the First Appellate Court being a final fact
finding Court, is required to re-appreciate the entire
evidence on record. He submits that, the judgment passed
by the First Appellate Court is not in compliance with
Order XLI Rule 31 of the Code of Civil Procedure, 1908
(‘ CPC ’ for short). He further submits that, it is the case of
the plaintiffs that partition deed dated 05.06.1985 is a
nominal deed, but the First Appellate Court has recorded
that, the parties have acted upon. The said finding
recorded by the First Appellate Court in paragraph No.28
of the impugned judgment. Hence, he submits that, the
matter requires re-consideration by the First Appellate
Court. Hence, on these grounds, he prays to allow the
appeal.
7. Per contra , learned counsel for the plaintiffs
supported the impugned judgment and submits that, the
Trial Court has recorded a finding that the sale deed
executed in favour of the defendant is void and the
defendant has not challenged the findings recorded by the

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Trial Court in the suit in OS No.312/1997. The judgment
passed by the First Appellate Court is just and proper, and
does not call for any interference at the hands of this
Court. Hence, on these grounds, he prays to dismiss the
appeal.
8. Perused the records and considered the
submissions of the learned counsel for the parties.
9. This Court, vide dated 26.02.2015, admitted
the appeal to consider the following substantial questions
of law:
“i. Whether the first appellate Court has committed
any serious error in relying upon stray admissions
for the purpose of turning down the registered sale
th
deed alleged to have been executed by the 4
respondent herein and consequently, decreeing the
suit?
ii. Whether the first appellate Court has committed
any legal error in holding the suit of the plaintiff
was in time?”

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Reg. Substantial Questions of Law:
10. The substantial questions of law (i) and (ii) are
inter-linked, hence, they are taken together for common
discussion to avoid repetition of facts.
11. The undisputed facts are that, the plaintiffs filed
a suit for declaration to declare that they are the joint
owners and in possession of the suit schedule property,
and for permanent injunction. It is the case of the
plaintiffs that, the suit schedule land is the ancestral and
joint family property of the plaintiffs and it was contended
that, there was a partition between Bandappa and plaintiff
No.4 under the registered partition deed dated 05.06.1985
and the said partition deed is a nominal partition deed. As
per the said partition deed, the suit land in Sy.No.91/2 fell
to the share of plaintiff No.4 and in pursuance of the said
partition deed, the name of plaintiff No.4 was mutated in
the revenue records. The defendant has no right, title or
interest over the suit schedule property. Plaintiff No.4 has

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neither executed any registered sale deed in favour of the
defendant nor she had authorised to sell away the joint
family properties.
12. To substantiate their case, plaintiff No.1, after
attaining the majority, examined himself as PW1 and he
had reiterated the plaint averments in the examination-in-
chief and produced the documents marked as Ex.P1 to P16
to show that the suit schedule property is the joint family
property of the plaintiffs. Plaintiff No.4 examined herself as
PW2, and the plaintiffs examined two witnesses as PW3
and PW4. The said witnesses had deposed on par with
PW1. In rebuttal, the defendant examined himself as DW1
and he had reiterated the written statement averments in
the examination-in-chief and produced the documents
marked as Exs.D1 to D15.
13. The Trial Court, after recording the evidence,
held that, the plaintiffs have failed to prove that they are
the joint owners and in possession of the suit land, failed

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to prove that the sale deed dated 16.03.1990 is null, void
and ineffective as against their rights and interest. The
Trial Court answered issue No.1 in the negative and held
that, the plaintiffs are not entitled for the relief of
declaration of joint ownership. Consequently, the Trial
Court dismissed the suit.
14. The First Appellate Court without considering
the evidence of PW1 to PW4, has recorded its finding
based on the weakness of the defendant, wherein it has
recorded its finding that DW2, in the course of cross-
examination, has admitted that Bandappa was consuming
alcohol and DW2 is one of the attesting witnesses to the
registered sale deed at Ex.D1; the said fact was not
disputed by the defendant. It has further recorded that, in
the cross-examination, DW2 admitted that, Bandappa is
the only son to his parents and further, DW2 admitted that
he had not witnessed the signature or thumb impression
by plaintiff No.4 in the registered sale deed. The First
Appellate Court, except considering the alleged stray

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admission of DW2, has reversed the judgment and decree
passed by the Trial Court. The Court is required to
consider the entire pleadings and evidence. The said view
is being supported by the judgment of the Division Bench
of this Court in the case of Puttanna Shetty (Deceased)
by LRs Vs. Smt. Padma Shetty (Deceased) by LRs
3
and Others . The Division Bench of this Court has held
that, stray statement cannot be taken as a party's
admission and to dismiss a suit only on the basis of such
an admission. In the instant case, the First Appellate
Court, considering the alleged admission of DW2, has
reversed the judgment passed by the Trial Court.
15. The impugned judgment passed by the First
Appellate Court is in contrary to the judgment rendered by
the Hon'ble Apex Court in the case of Vasavi
Cooperative Housing Society Limited (supra). The First
Appellate Court needs to re-consider the regular appeal.

3

2007 SCC OnLine Kar 53

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The First Appellate Court committed an error in passing
the impugned judgment.
16. In view of the above discussion, I answer
substantial questions of law (i) and (ii) in the affirmative.
Accordingly, I proceed to pass the following:
ORDER

i. The regular second appeal is allowed ;
ii. The impugned judgment and decree dated
29.11.2014 passed in RA No.84/2007 by the
First Appellate Court is hereby set aside ;
iii. RA No.84/2007 is restored to its original file;
iv. It is made clear that this Court has not made
any adjudication on merits in issue;
v. All the contentions of the parties are kept open;
vi. The parties are directed to appear before the
First Appellate Court on 16.11.2026 without
awaiting any further notice;
vii. The Registry is directed to transmit the records
to the First Appellate Court forthwith;

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viii. The First Appellate Court is directed to
re-consider the entire evidence on record and
thereafter, pass an appropriate judgment in
accordance with law;
ix. Pending IA(s), if any, shall stand disposed of.

Sd/-
(ASHOK S. KINAGI)
JUDGE



PA
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