SRI V SRIDHARA RAO vs SRI KUTTI NAIK

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

TH
DATED THIS THE 6 DAY OF OCTOBER, 2026


BEFORE

THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

REGULAR SECOND APPEAL NO. 1049 OF 2013 (DEC/INJ)

BETWEEN:

1. SRI V SRIDHARA RAO
AGED ABOUT 73 YEARS
S/O LATE KESHAVA UPADHYAYA
R/O KARIKE VILLAE MADIKERI 571 201
MADIKERI 571 201

REPRESENTED BY HIS PA HOLDER

SRI V K YOGEESHA
AGED ABOUT 52 YEARS
S/O LATE KESHAVA UPADHAYA
R/AT PRASHANTH NILAYA
KARIKE VILLAE MADIKERI TALUK
KODAGU DISTRICT 571 201.

SINCE DECEASED BY HIS LRS.

1(A) SMT. SRIVANI S. RAO
AGED ABOUT 65 YEARS
WIFE OF LATE V. SRIDHAR RAO

1(B) SRI. PRITHVEESH S. KARIKE
AGED ABOUT 45 YEARS.
S/O LATE V. SRIDHAR RAO

1(C) SRI. PUNITH V.S KARIKE
AGED ABOUT 43 YEARS
S/O LATE V. SRIDHAR RAO.

1(D) SMT. PRAJNA
AGED ABOUT 40 YEARS
S/O LATE V. SRIDHAR RAO













Digitally
signed by
VANDANA S
Location:
High Court
of
Karnataka

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ALL ARE R/AT
ATHIKARIBITU VILLAGE
MULKI – 574 154.
MANGALURU TALUK AND DISTRICT.
…APPELLANTS
(BY SRI. JAGADISH BALIGA N, ADVOCATE)

AND:

1. SRI. KUTTI NAIK
SON OF APPANNA NAIK
PACHE PILLAVU HOUSE
SINCE DECEASED BY LRS.

1(A) K.K. BALAKRISHNA
AGED 38 YEARS.

2. SRI.K. CHOMANNA NAIK
SON OF KUKKA NAIK
SINCE DECEASED BY HIS LR.

2(A) SMT. JANAKI
AGED 40 YEARS
WIFE OF BHARATHA NAIK

3. SRI. K. KRISHNA NAIK
S/O OF APPANNA NAIK
SINCE DECEASED BY LRS.,

3(A) SRI .K. K. RAJU
AGED 38 YEARS
SON OF LATE KRISHNA NAIK
KARIKE VILLAGE & POST – 571 201.

4. SRI. K.R. KRISHNA NAIK
AGED 55 YEARS
SON OF RAMANNA NAIK
SINCE DECEASED BY LRS

4 (A) SRI. K. VITTALA
AGED 30 YEARS
SON OF LATE
K.K. KRINA NAIK (KEDU KRISHNA NAIK)

BOTH ARE RESIDENT OF CHETHUKOYA
KARIKE – 571 201.
MADIKERI TALUK, KODAGU DISTRICT.

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5. SRI. K. GOPALA NAIK
AGED 53 YEARS
SON OF ANNAPPA NAIK
SINCE DECEASED BY LRS.

5(A) SRI K.G. HONNAPPA
AGED 26 YEARS
SON OF LATE K. GOPAL NAIK (KUKKE)
RESIDENT OF CHETHUKOYA KARIKE – 571 201.
MADIKERI TALUK
KODAGU DISTRICT.

6. SRI.DAMODARA NAIK
AGED 51 YEARS
SON OF K. AITHAPPA NAIK

7. SRI. CHOMANNA NAIK

SINCE DEAD REPRESENTED BY
RESPONDENTS 1(A), 2(A), 3(A)
4(A), 4(B), AND 5(A).

8. SRI. MTP AHMED KHUNI
AGED 65 YEARS
SON OF AHMED

RESPONDENTS 4 TO 8 ARE
R/O KARIKE VILLAGE
MADIKERI TALUK
KODAGU DISTRICT – 571 201.

9. M/S. BHORUKA POWER CORPORATION LIMITED
NO. 48, LAVELLE ROAD
BANGALORE – 560 001.
BY ITS HEAD
SRI. A.M. NAGANNA.
…RESPONDENTS
( R1(A), R2(A), R3(A), R4(A), R4(B), R6, R9 – SERVED
VIDE ORDER DATED: 27.05.2019
SERVICE OF NOTICE H/S IS R/O R-8
VIDE ORDER DATED: 27.05.2019,
R1(A), R2(A), R3(A), R4(A&B) & R-5 (A)
ARE THE LR’S OF DECEASED R-7
VIDE ORDER DATED: 31.07.2025
SERVICE OF NOTICE TO R5(A) IS H/S)

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THIS RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT &
DECREE DTD 11.1.2013 PASSED IN R.A.NO.83/2011 ON THE FILE OF
DISTRICT JUDGE, MADIKERI, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DTD 18.7.2011 PASSED IN
OS.NO.41/2005 ON THE FILE OF SENIOR CIVIL JUDGE, MADIKEREI.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT
The appellant was the plaintiff in O.S. No. 41/2005 instituted
by him for declaration of his title over the suit schedule immovable
property, for declaration that the sale deed dated 20.11.1987
executed by defendants No.1 to 7 in favour of defendant No.8 was
non est in the eye of law and for permanent injunction and other
reliefs. The said suit having been contested by the defendants, the
trial Court passed judgment and decree dated 18.07.2011
decreeing the suit of the appellant-plaintiff against the respondents-
defendants. During the pendency of the suit, the respondent No.9
purchased the suit schedule property from the defendant No.8 and
accordingly, the respondent No.9 was impleaded as defendant
No.9 and he challenged the judgment and decree of the trial Court
by filing an appeal in R.A. No. 83/2011 which was allowed by the

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first appellate Court vide impugned judgment and decree dated
11.01.2013 whereby the first appellate Court set aside the
judgment and decree of the trial Court and consequently dismissed
the suit of the appellant-plaintiff who is before this Court by way of
the present appeal.

2. Heard learned counsel for the appellant and perused the
material on record. The respondents having been served with
notice of the appeal, have chosen to remain unrepresented and
have not contested the appeal.

3. A perusal of the material on record will indicate that the
appellant-plaintiff instituted the aforesaid suit interalia contending
that the defendants No.1 to 7 who were the owners of the suit
schedule property executed a sale agreement dated 23.04.1968
agreeing to sell the property in favour of the plaintiff and since they
did not execute a registered sale deed in favour of the plaintiff, he
instituted a suit in O.S. No. 214/1968 against the defendants No.1
to 7 for specific performance which was dismissed by the trial Court
vide judgment and decree dated 23.11.1981 which was challenged
by the plaintiff in R.A. No. 1/1982 which was allowed by the first

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appellate Court vide judgment and decree dated 20.11.1984 in
terms of which the first appellate Court directed the appellant to
deposit the balance sale consideration of Rs.2,150/- on or before
19.12.1984 and directed the defendants No.1 to 7 to execute a sale
deed in favour of the plaintiff within three months from the date of
decree. It was contended that the plaintiff did not deposit the
balance sale consideration on or before 19.12.1984 but instead
deposited the same on 15.03.1985 and instituted execution
proceedings in Ex. No. 38/1985 to execute the said judgment and
decree passed in R.A. No. 1/1982 in his favour. However, the said
execution petition in Ex. No. 38/1985 filed by the appellant-plaintiff
was dismissed on 12.10.1987 subsequent to which the appellant-
plaintiff instituted proceedings u/S 148 CPC in CMC No. 3/1989
seeking extension of time to deposit the balance sale consideration
along with an application for condonation of delay. Meanwhile the
defendants No.1 to 7 executed a registered sale deed dated
20.11.1987 in favour of defendant No.8 by practicing fraud and
misrepresentation subsequent to which the defendant No.8
instituted a suit in O.S. No. 36/1989 against the appellant-plaintiff
for permanent injunction in respect of the very same suit schedule

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property. It is further contended that both CMC No. 3/1989 filed by
the appellant-plaintiff and O.S. No. 36/1989 filed by defendant No.8
were tried together by the trial Court which decreed the said suit in
O.S. No. 36/1989 and dismissed CMC No. 3/1989 filed by the
appellant-plaintiff who approached the first appellate Court in R.A.
No. 20/1981 and R.A. No. 30/1981 which were also dismissed by
the first appellate Court vide common judgment and decree dated
05.09.1991, aggrieved by which the appellant-plaintiff approached
this Court in R.S.A. No. 224/1992 and R.S.A. No. 225/1992 which
were allowed by this Court vide common judgment and decree
dated 26.06.1998 by holding that the sale deed dated 20.11.1987
executed by defendants No.1 to 7 in favour of defendant No.8 was
non est in the eye of law thereby rejecting the claim of defendant
No. 8 over the suit schedule property. Aggrieved by the said
th
judgment and decree passed by this Court, the 8 defendant
approached the Apex Court by preferring Civil Appeal No. 3616-
3617/1999 which were allowed by the Apex Court vide order dated
25.03.2004 whereby the Apex Court set aside the judgment of this
Court and remitted R.S.A. No. 224/1992 and R.S.A. No. 225/1992
back to this Court for reconsideration afresh and in accordance

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with law. Subsequently, vide judgment and decree dated
29.11.2004, this Court dismissed the aforesaid R.S.A. No.
224/1992 and R.S.A. No. 225/1992 filed by the appellant but
however kept open the question of title to be decided in an
appropriate proceeding and granted permanent injunction in favour
th
of the 8 defendant by holding that he was in lawful possession
and enjoyment of the suit schedule property. Subsequently, the
plaintiff instituted the present suit for declaration, permanent
injunction, possession and other reliefs against the respondents-
defendants in relation to the suit schedule property.

4. The said suit was contested by defendants who disputed and
denied the various allegations and claim made by the plaintiff and
sought for dismissal of the suit inter alia contending that a decree
for specific performance simpliciter without the same culminating
into a registered sale deed will not confer any title in favour of the
plaintiff especially when the defendant No.8 had purchased the suit
schedule property vide registered sale deed dated 20.11.1987
executed in his favour by defendants No.1 to 7 who were
undisputedly the original owners of the suit schedule property. It

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was contended that the defendant No.8 was the owner in
possession and enjoyment of the suit schedule property and during
the pendency of the suit he sold the property in favour of defendant
No.9 who also filed a separate written statement reiterating the
various contentions urged by the other defendants and they sought
for dismissal of the suit.

5. Based on the aforesaid pleadings, the trial Court framed the
following issues:
ISSUES
1. Whether the plaintiff proves that, he is the absolute
owner in possession and enjoyment of the suit schedule
properties?
2. Whether the plaintiff proves that, the sale deed alleged
to have been executed by defendants No-1 to 7 in favour of
defendant No.8 on 20-11-87 is non-est in the eye of law and it
does not pass any title to the defendant No-8?
3. Whether the plaintiff proves the alleged interference by
the defendants to his peaceful possession to the suit schedule
properties?
4. Whether the plaintiff is entitled to reliefs as prayed in
the suit?
5. What order or decree?

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6. Plaintiff examined himself as PW1 and documentary
evidence at Exs.P.1 to P.7 were marked on his behalf while the
defendants No.8 and 9 examined the Project Manager of defendant
No.9-Company as DW1 and documentary evidence at Exs.D.1 to
D.15 were marked on their behalf.

7. After hearing the parties, the trial Court proceeded to decree
the suit in favour of the plaintiff against the defendants including
defendant no.9 who approached the first appellate Court in R.A.
No. 83/2011 which was allowed by the first appellate Court which
set aside the judgment and decree of the trial Court and
consequently dismissed the suit of the plaintiff by holding as under:
“28. Having heard both the counsel and having perused the
records, I find it totally unnecessary to refer to the oral evidence on
record. This is a case in which most of the exhibits are certified
copies of proceedings of various courts. There is no dispute that
those proceedings did take steps preceding this suit. Though
defendants-4, 5 and 7 pleaded that through defendants-1 to 7
defendant-8 got a sale deed executed, they did not establish it by
entering the witness box. Therefore practically the fight is between
the plaintiff and the ninth defendant only. The case of the plaintiff is
that as on 20.11.1987 when the sale deed was executed by
defendants-1 to 7 in favour of the eighth defendant, the decree for
specific performance was still in force and that he was entitled to get
extension of time for depositing the balance sale consideration and in
the face of the decree and when it was in force a sale deed could not

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have been executed by defendants-1 to 7 in favour of the eighth
defendant and therefore, it is non-est in law. The case of the ninth
defendant is that since the plaintiff did not seek extension of time
and the execution petition filed by him was dismissed and it was only
after the dismissal of the execution petition defendants-1 to 7
executed the sale deed dated 20.11.1987 in favour of the eighth
defendant, certainly title deed pass to the eighth defendant and he
was competent to gift the suit properties to his daughter who in turn
was competent to execute a sale deed in favour of the ninth
defendant.

29. Having regard to the contentions urged following points arise
for my determination in this appeal:-
1. Whether the sale deed dated 20.11.1987
executed by defendants-1 to 7 in favour of the eighth
defendant is a valid sale deed?
2. Whether the plaintiff on the strength of the sale
deed dated 03.01.1989 executed in his favour by
defendants-1 to 7 can claim title?
3. Whether the judgment and decree of the trial
court calls for interference?

30. My answers are as follows:-
Point No.1 : Affirmative.
Point No.2 : Negative.
Point No.3 : Affirmative.
REASONS
31. Point Nos:1 & 2 :- The learned counsel for the appellant
Sri.C.T.Joseph contended that the plaintiff did not deposit the balance
sale consideration within the time fixed by the court and that the
execution petition filed by him was dismissed and he did not
challenge that order and it was only after the execution petition was
dismissed the sale deed was executed by defendants-1 to 7 in favour

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of the eighth defendant and therefore, it cannot be contended that
the said sale deed non-est in law.

32. The learned counsel for the first respondent Sri.B.S.Rudra
Prasanna submitted that the decree for specific performance was not
a conditional decree and that there was no mention in the decree as
to what should happen to it in case the plaintiff did not deposit the
balance sale consideration within the time fixed by the court and
since the plaintiff had in law a right to get extension of time the
decree remain intact and was in force as on 20.11.1987 and
therefore, defendants-1 to 7 could not have executed a sale deed in
favour of the eighth defendant.

33. Let me now examine the tenability of these contentions. It is
true that the plaintiff had a right to seek extension of time for
depositing the balance sale consideration. He did not do so. He filed
an execution petition. Objections filed by defendants-1 to 7 to the
execution petition were upheld by the executing court and the
execution petition was dismissed by an order dated 12.10.1987. That
order was not challenged by the plaintiff in a manner known to law
and therefore it became final. When the execution petition filed
against them was dismissed by a competent executing court,
defendants-1 to 7 were certainly justified in executing a sale deed in
favour of defendant-8. It is very pertinent to note that the sale deed
was not executed by defendants-1 to 7 at any time earlier but only
after the dismissal of the execution petition. It again bears repetition
to say that the plaintiff did not challenge the order dated 12.10.1987
dismissing the execution petition.

34. It is true that a decree for specific performance was granted in
favour of the plaintiff. But till the decree was executed and a sale
deed pursuant to it was executed and registered title vested with the
defendants-1 to 7 only. Needless to say that a mere decree for
specific performance would not convey title and what conveys title is

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the execution of the sale deed and registration thereof. Of course it is
from the date of execution and not from the date of registration title
passes.

35. It is also true that the plaintiff subsequently filed an
application in C.M.C.3/88 seeking extension of time for depositing the
balance sale consideration. It is pertinent to note that the said
petition was filed not before filing the execution petition but after its
dismissal. Even before the petition in C.M.C.3/88 for extension of
time was disposed of a sale deed dated 03.01.1989 was executed by
defendants-1 to 7 in favour of the plaintiff. But as on 03.01.1989
defendants-1 to 7 were not the owners of the suit properties at all. It
is because they had already parted with title in favour of the eighth
defendant by executing a registered sale deed dated 12.10.1987. At
the cost of repetition it must be stated that a mere decree for specific
performance would not convey title and did not convey title in favour
of the plaintiff in this case. When the decree was not executed and
sale deed was not executed in favour of the plaintiff, title continued
with defendants-1 to 7 and therefore they were right in executing a
sale deed in favour of eighth defendant on 12.10.1987. When they
had already executed a sale deed in favour of eighth defendant on
12.10.1987 they could not have executed a second sale deed on
03.01.1989, merely because the decree was in force. I am therefore
of the considered opinion that the sale deed dated 20.11.1987
executed by defendants-1 to 7 in favour of the eight defendant is a
valid sale deed and that on the strength of the sale deed dated
03.01.1989 executed in his favour the plaintiff cannot claim title.
Accordingly, I answer Point No.1 in the ‘Affirmative’ and Point No.2 in
the ‘Negative’.

36. Point No.3:- The learned trial judge has proceeded on the
basis that defendants-1 to 7 had no right to execute the sale deed in
favour of the eighth defendant and that even during the pendency of

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C.M.C.3/88 seeking extension of time to deposit the balance sale
consideration the eighth defendant got the sale deed executed. As
rightly submitted by the learned counsel for the appellant this
observation of the learned trial judge is incorrect. The sale deed was
executed in favour of the eighth defendant on 20-11-1987. Petition
for extension of time was filed in the year 1988 in C.M.C. 3/88
subsequent to the dismissal of the execution petition by order dated
12.10.1987. On the other hand, it was the plaintiff who got the sale
deed executed during the pendency of the petition in C.M.C.3/88.

37. The learned trial judge has also observed that the decree for
specific performance had not been got set aside and it was an
executable decree and was in force and therefore, the defendants-1
to 7 could not have executed a sale deed in favour of the eighth
defendant. I have taken a different view of the matter and I have
already observed that a mere decree for specific performance would
not convey title and it is a registered sale deed which conveys title
and since the plaintiff did not execute the decree the defendants-1 to
7 could t have validly executed a sale deed in favour of the eighth
defendant, particularly when the execution petition filed by the
plaintiff had been dismissed on the ground that he did not deposit the
balance sale consideration within the time fixed by the court.

38. Lastly the trial judge has observed that when there was an
allegation against the eighth defendant that by playing fraud sale
deed had been obtained from defendants-1 to 7 he should have
entered the witness box to prove it. When there is a plea of fraud it is
for the person who pleads it to set out particulars and prove the
same. Therefore, the burden was on the defendants-1 to 7 to prove
it. When there is a registered sale deed in favour of the eighth
defendant its genuineness has to be presumed. It was for the
defendants-1 to 7 to rebut that presumption. They did not do so.

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39. I am therefore of the opinion that interference is called for in
the judgment and decree of the trial court. Accordingly, I answer
Point No.3 in the ‘Affirmative’. In the result, I pass the following…..
ORDER
The appeal is allowed.
The judgment and decree of the trial court are set
aside.
The suit of the plaintiff is dismissed.
The appellant is entitled to the costs of the suit
and the appeal from the first respondent-plaintiff.”

8. A perusal of the material on record including the judgment
and decree of the first appellate Court will indicate that the
appellant-plaintiff claims title over the suit schedule property on the
basis of a decree for specific performance passed by the first
appellate Court in R.A. No. 1/1982 which directed the defendants
no.1 to 7 to execute a registered sale deed in favour of the plaintiff;
it is an undisputed fact and a matter of record that not only did the
plaintiff deposit the balance sale consideration of Rs.2,150/- on or
before 19.12.1984 as directed in R.A. No. 1/1982, but the
defendants No.1 to 7 executed a registered sale deed dated
20.11.1987 in favour of defendant no.8 and it was only thereafter
that the plaintiff instituted proceedings under Section 148 CPC in
CMC No. 3/1988 for extension of time in depositing the balance

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sale consideration; it follows therefrom that as on 20.11.1987 when
the defendants No.1 to 7 executed a sale deed in favour of
defendant no.8, except the decree dated 20.11.1984 passed in
favour of the plaintiff in R.A. No. 1/1982, the plaintiff did not have
any manner of right, title, interest or possession over the suit
schedule property.

9. It is under these undisputed circumstances that the first
appellate Court correctly and properly considered and appreciated
the entire material on record and came to the correct conclusion
that mere obtaining a decree for specific performance simpliciter
without registered sale deed in his favour, the plaintiff did not
acquire title or possession over the suit schedule property coupled
with the fact that the possession of the suit schedule property was
th
delivered to the 8 defendant and confirmed by this Court in R.S.A.
No. 224/1992 and 225/1992 filed by the plaintiff which were
dismissed by this Court on 29.11.2004 and the same had attained
finality and become conclusive and binding upon the plaintiff. The
first appellate Court also took note of the fact that the proceedings
in CMC No. 3/1988 for extension of time to deposit the balance

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sale consideration was dismissed and the said proceedings having
been initiated by the plaintiff subsequent to the registered sale
deed dated 20.11.1987 executed by defendants No.1 to 7 in favour
of defendant No. 8, no reliance could have been placed upon the
said proceedings by the plaintiff to claim title or possession over
the suit schedule property.

10. So also, the first appellate Court came to the correct
conclusion that the sale deed dated 03.01.1989 said to have been
executed by the defendants No.1 to 7 in favour of the plaintiff was
subsequent to the earlier sale deed dated 20.11.1987 executed by
defendants No.1 to 7 in favour of defendant No. 8, in the light of the
provisions contained in Sec.48 of the Transfer of Property Act, the
subsequent sale deed dated 03.01.1989 did not confer any manner
of right, title, interest or possession over the suit schedule property
in favour of the defendant No. 8. The first appellate Court has
correctly and properly considered and appreciated the entire
material on record and has recorded categorical findings of fact
that the plaintiff did not have any manner of right, title, interest or
possession over the suit schedule property which was owned and

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possessed absolutely by the defendant No. 8 who had
subsequently sold the same in favour of the defendant No. 9 whose
appeal was correctly allowed by the first appellate Court by passing
the impugned judgment and decree which cannot be said to suffer
from any illegality or infirmity nor can the same can said to be
capricious or perverse or contrary to law or facts warranting
interference by this Court in the present appeal.

11. Accordingly, I do not find any question of law, much less
substantial question of law warranting interference by this Court in
the present appeal which is devoid of merit and is hereby
dismissed at the stage of admission itself.

Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
BVV
List No.: 1 Sl No.: 34