Karnataka High Court
Sri Chikkappa S/O.Lakkappa By Lrs vs Smt Narasamma on 4 June, 2025
Author: Ravi V Hosmani
Bench: Ravi V Hosmani
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NC: 2025:KHC:18998
RSA No. 48 of 2007
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V. HOSMANI
REGULAR SECOND APPEAL NO.48 OF 2007 (INJ)
BETWEEN:
1. SRI CHIKKAPPA
S/O.LAKKAPPA
SINCE DECEASED AND REP BY LRs
(a) SMT. LAKSHMIKANTHAMMA
W/O M.L. RAJU
AGED ABOUT 40 YEARS,
(b) SMT. BHAGYA
W/O SRI CHANDRASHEKAR
AGED ABOUT 37 YEARS
Digitally signed
by RAMESH
MATHAPATI (c) SMT. MANJULA
Location: HIGH D/O LATE CHIKKAPPA
COURT OF W/O SRI NANJAPPA
KARNATAKA AGED ABOUT 35 YEARS
(d) SRI PRAKASH
S/O LATE CHIKKAPPA
AGED ABOUT 31 YEARS
(e) SMT. JANAKI
S/O.LATE CHIKKAPPA
AGED ABOUT 28 YEARS
ALL ARE R/O 2ND CROSS,
KAMAKSHI STREET, SHIMOGA.
...APPELLANTS
[BY SRI B. VACHAN, ADVOCATE]
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RSA No. 48 of 2007
HC-KAR
AND:
SMT.NARASAMMA,
W/O S.G. MUNIYAPPA,
AGED ABOUT 60 YEARS,
R/O JAIL ROAD, SHIMOGA.
SINCE DEAD BY LRs
(CAUSE TITLE AMENDED V/O DATED 23.06.2016)
a. SMT. PARVATHI,
S/O SUBRAMANYA,
AGED ABOUT 62 YEARS,
b. SMT. SUSHEELA,
W/O GOPI,
AGED ABOUT 56 YEARS,
c. SMT. GOWRI,
D/O LATE NARASAMMA,
AGED ABOUT 51 YEARS,
d. SRI RAVIKUMAR,
S/O LATE NARASAMMA,
AGED ABOUT 45 YEARS,
e. KUMARI GEETHA,
D/O LATE NARASAMMA,
AGED ABOUT 40 YEARS,
f. SMT. ANURADHA,
D/O LATE NARASAMMA,
AGED ABOUT 38 YEARS,
g. SRI MADHU,
S/O LATE NARASAMMA,
AGED ABOUT 35 YEARS,
h. SRI MOHAN,
S/O LATE NARASAMMA,
AGED ABOUT 35 YEARS
ALL ARE R/O BESIDES SUBBAIAH COMPLEX,
JAIL ROAD, SHIMOGA.
...RESPONDENTS
[BY SRI S.V. PRAKASH, ADVOCATE FOR R1 (a) TO (h)]
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NC: 2025:KHC:18998
RSA No. 48 of 2007
HC-KAR
THIS RSA IS FILED U/S 100 OF CPC AGAINST THE JUDGMENT
& DECREE DATED 14.8.2006 PASSED IN R.A.NO.112/2005 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-I, SHIMOGA,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND
DECREE DATED 13.7.1999 PASSED IN OS.NO. 647/1993 ON THE
FILE OF THE PRL.CIVIL JUDGE (JR.DN.), SHIMOGA.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.03.2025, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI
CAV JUDGMENT
Challenging judgment and decree dated 14.08.2006 passed by Presiding Officer, Fast Track Court-I, Shivamogga, in RA no.112/2005, this appeal is filed.
2. Appellants are legal representatives of original plaintiff in OS no.647/1993 filed for permanent injunction restraining defendant, her agents, etc. from interfering with plaintiff's peaceful possession and enjoyment of property bearing Sy.no.58 (VS no.3) measuring 1 Acre 15 guntas of Kashipura Village, Shivamogga Taluk ('suit property' for short).
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR
3. In plaint, it was stated in pursuance of agreement of sale dated 22.01.1992 executed by Chandrappa S/o Muniswami agreeing to sell suit property for total sale consideration of Rs.1,10,000/- and receiving Rs.80,000/- as advance sale consideration, plaintiff was put in possession and was cultivation of same. And, without any manner of right, title or interest over suit property, defendant tried to take possession forcibly with help of adjacent owners for forming layout sell away sites to innocent strangers for wrongful gain. And that on 24.06.1993, defendant came to suit property with rowdy elements, attempted to dig drain and form road. With great difficulty, plaintiff resisted said illegal Acts of defendant. As he perceived imminent threat of dispossession, suit was filed.
4. On appearance, original defendant filed written statement denying plaint averments as well as plaintiff's claim of being in possession in pursuance of agreement of sale. Title of plaintiff's vendor was also disputed. Allegation of defendant disturbing plaintiff's possession was denied. It was stated, defendant was in possession and enjoyment as owner of property. It was stated Surveyor had assigned V.S.no.1 to -5- NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR properties no. 58, 59, 60 and 61; V.S.no.2 to properties no.55, 56 and 57 and V.S.no.3 to properties no.54, 53, 51 and 50. And as per sale deed dated 19.04.1975 defendant had sold Sy.no.2 and 3, but not sold any property to Chandra - plaintiff's vendor. Boundaries and extent mentioned in Sale Deed would indicate defendant's possession of very same extent claimed by plaintiff, indicating that plaintiff had wrongly mentioned boundaries of defendant's property. It was stated, plaintiff had filed false suit in collusion with Chandra for unlawful gain and that neither of them had any right over Sy.no.2 measuring 3 Acres 19 guntas and PR no.1 measuring 1 Acre 19 guntas totally measuring 4 Acres 38 guntas. It was stated, boundary description of defendant's property comprising of land in two survey numbers was on East by land of Hulugamma; West by land of defendant - Sy.no.1, North by boundary of Somenakoppa village and South by Keretheluve. It was alleged, suit was filed without cause of action and plaintiff not having any right over suit property, without paying proper Court fee etc. and sought dismissal of suit.
5. Based on pleadings, trial Court framed following issues:
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1. Whether the plaintiff is in lawful possession of the suit land?
2. Does he prove the alleged interference by the defendant?
3. What decree or order?
6. In trial, plaintiff deposed as PW.1 and got mark Exhibits P1 to P37, while GPA holder of defendant deposed as DW.1 and got marked Exhibits D1 to D7.
7. On consideration, issues no.1 and 2 were answered in affirmative and issue no.3 by decreeing suit. Aggrieved defendant filed RA no.112/2005 on various grounds based on which, first appellate Court framed following points:
1. Whether the trial Court has committed any error in holding that the plaintiff has proved his lawful possession over the suit property and also alleged interference is proved?
2. Whether there are any reasons to interference with the judgment and decree?
3. What order?
8. On consideration, points no.1 and 2 were answered in affirmative and point no.3 by allowing appeal, setting aside trial Court decree and dismissing suit. Aggrieved thereby, plaintiff is in second appeal.
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9. Sri B. Vachan, learned counsel for plaintiff submitted appeal was against divergent findings in suit for bare injunction wherein, plaintiff was claiming to be in possession of suit property under Ex.P16 - agreement of sale dated 22.01.1992 executed by Sri Chandrappa after receiving advance sale consideration of Rs.80,000/- and delivering possession. When defendant attempted to dig drain and form road. It was submitted, defendant's claim that land bearing VS no.1 included Sy.nos.58 to 61, which he had retained after selling lands bearing VS no.2 which included Sy.nos.55 to 57 and VS no.3 included Sy.nos.52 and 54 to Chandru (plaintiff's vendor), was incorrect. In fact, Sy.no.58 was included in VS no.3 after survey, in year 1991-92. On appreciation of entire material trial Court decreed suit holding plaintiff was in possession of suit property and defendant's name was mutated after filing of suit and as per Section 133 of Karnataka Land Revenue Act, 1964 ('KLR Act', for short), revenue entries attracted presumption. It also noted, as on date of filing of suit, name of plaintiff's vendor was shown and ADLR-Court Commissioner's report showed plaintiff's possession. -8-
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10. It was contended, without re-appreciation, first appellate Court erroneously concluded plaintiff failed to establish lawful possession over suit property. It was submitted, as per settled principles of law governing permanent injunctions, only key ingredient required to be established was possession and not title. In impugned judgment, first appellate Court dealt with title of plaintiff's vendor and held, he had no right to execute Ex.P16 in respect of suit property as he had not purchased it. It was submitted said conclusion was perverse and contrary to material on record. It was submitted suit properties were originally jodi inam lands and before allotting survey numbers, they were referred to as VS nos.1, 2 and 3. Sale of lands bearing VS nos.2 and 3 by defendant to plaintiff's vendor - Chandra under Ex.P2 was not in dispute. It was submitted, measurement and boundaries of property referred in Ex.P16 tallied with Ex.P11 - RTC of VS no.3 from year 1975- 76 to 1989-90 showing name of plaintiff's vendor and its measurement as 1 Acre 19 guntas and Ex.P12 - RTC of Sy.no.58 of year 1989-90 showing its measurement as 1 Acre 15 guntas. Further Ex.P10 - MR no.10/1991-92 showed sale of VS no.2 measuring 3 Acres 19 guntas and VS no.3 measuring 1 -9- NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR Acre 19 guntas i.e. Sy.no.58 by defendant in favour of plaintiff's vendor.
11. It was further submitted, defendant had not denied title of plaintiff's vendor, but claimed to be in possession of suit property and disputed identity of suit property. It was submitted on 22.10.1993, ADLR - Court Commissioner submitted report showing extent in possession of parties with boundaries. It was contended defendants had not filed objection to report. Only in cross examination, DW.1 denied Court Commissioner's report. Failure to file objections would imply acceptance of report. Commissioner's report would establish plaintiff's possession. It was submitted, trial Court decreed suit based on its finding about possession and relying on consistent revenue records.
12. As against above material, first appellate Court noted that there was challenge of mutation entries and without proper basis held suit property was VS no.1 and not VS no.3. It was submitted, Ex.D3 - co-relation statement was allegedly prepared based on statements of neighboring land owners renumbering VS no.1 as Sy.no.58 under MR no.90/1998-99.
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR Same was without notice to plaintiff and as such illegal. It was further submitted, change of revenue entries during pendency of civil suit would be contrary to Full Bench decision of this Court in Jayamma v. State of Karnataka, reported in 2020 SCC OnLine Kar 211.
13. Insofar as contention about dismissal of suit for declaration of title filed by plaintiff's vendor against defendant in OS no.773/1999, it was submitted, said suit was filed by present plaintiff's vendor against defendant, Deputy Commissioner, Shivamogga ('DC') and Assistant Commissioner, Shivamogga ('AC') for declaration of title in respect of land bearing Sy.no.58 measuring 1 Acre 15 guntas (VS no.3); And also for declaration of orders dated 23.06.1997 passed by DC, in R.Misc.no.4/1996-97 and order dated 30.04.1996 passed by AC in PDA no.20/1995-96 as illegal and void. Said suit came to be dismissed for non-prosecution without adjudication of any issues. Though Misc.no.3/2011 is also stated to have been dismissed on 01.08.2013, said suit being subsequent to present proceedings and concluded without adjudication, would not come in way of present plaintiff proceeding with his suit for permanent injunction. Even pendency of this suit was noted as
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR one of reasons assigned by DC in his impugned order. Hence, present suit would be tenable.
14. Since defendant had tried to form layout on western side of his property and interfered with plaintiff's property, cause of action for filing suit had accrued. It was submitted, as against specific contention of plaintiff that VS no.3 was renumbered as Sy.no.58, in written statement it was contended VS no.1 was Sy.no.58. It was submitted, Sy.no.54 was in name of Smt.Gurugamma, defendant had retained Sy.nos.59 to 61 and Sy.no.58 was sold to Chandrappa. In his report, Court Commissioner marked property of defendant with letters 'A to F' and that of plaintiff's vendor with letters 'G to J'. This indicated that boundaries on North and South were same, while Eastern and Western boundaries were defendant's land. It was submitted, plaintiff had deposed about boundaries of suit property and about his vendor's possession based on revenue entries. It was submitted, though Ex.D3 indicated Sy.no.58 as part of VS no.1, same was without basis. It was submitted, property of plaintiff's vendor was divided and one portion sold to Huligamma and Lakshmamma and other to plaintiff. It was submitted, VS no.1 was totally measuring 17 Acres 19 guntas,
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR VS nos.2 and 3 measuring 4 Acres 38 guntas and description of VS no.10 was only as measuring 1 Acre 24 guntas without boundaries. It was submitted, since re-numbering of survey numbers was during pendency of suit, it could not be relied upon. Further, Exs.P12 to 14 were RoRs of Sy.no.58 of years 1988 and 1989 showing name of plaintiff's vendor in column no.9 would support plaintiff's claim of possession. In view of above, conclusion of first appellate Court was without basis.
15. It was submitted even Ex.P18 - Survey Sketch of Sy.no.58 would tally with Commissioner's report. And Ex.P19 shara indicated presence of plaintiff's vendor even though he had not signed. Even plaintiff's vendor's vendor was also present. Same was not considered by first appellate Court. It was submitted, there was merely bare denial without any attempt to contradict plaintiff's case, in cross-examination. Moreover, DW.1 admitted he was unaware of boundaries and particulars of defendant's property. Under such circumstances, conclusions of first appellate Court were contrary to material on record. On above grounds, sought for answering substantial question of law and allow appeal.
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16. In support of submissions, learned counsel relied on decision of Hon'ble Supreme Court in case of KM Krishna Reddy v. Vinod Reddy & Anr., reported in (2023) 10 SCC 248 for proposition that it was not mandatory for plaintiffs to seek for declaration of title and suit for bare injunction would be maintainable. He also relied on decision of Hon'ble Supreme Court in case of Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra (dead), reported in (2004) 8 SCC 614 for proposition that doctrine of part performance would entitle plaintiff to avail remedy not only against his transferor but against third parties also claiming under him.
17. On other hand, Sri SV Prakash, learned counsel for defendant opposed appeal. At outset, suit was opposed on ground that plaintiff was claiming to be agreement holder and at best he could file suit for specific performance against his vendor and not against third parties. Relying upon decision of Hon'ble Supreme Court in case of Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, reported in (2012) 1 SCC 656, it was contended, benefit of Section 53-A of TP Act would be available only against his vendor and not against third parties.
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18. Further relying on decision of Hon'ble Supreme Court in Municipal Committee, Hoshiarpur v. Punjab State Electricity Board and Ors. reported in (2010) 13 SCC 216, it was submitted, findings under challenge did not give rise to any substantial question of law. And relying on decision of Hon'ble Supreme Court in case of P. Kishore Kumar v. Vittal K. Patkar reported in 2023 SCC OnLine SC 1483, it was submitted, High Court in second appeal would not be justified in conducting third trial on facts and scope for appeal would be limited to establishing substantial question of law. Relying on decision of Hon'ble Supreme Court in case of P. Chandrasekharan and Ors. v. S. Kanakarajan and Ors. reported in (2007) 5 SCC 669, it was submitted, interference in second appeal would be permissible only if findings are based on misreading of evidence or on ground of perversity. Therefore, appeal under Section 100 of CPC would not lie.
19. It was submitted, material on record showed defendant had sold property bearing VS no.2 and 3 to plaintiff's vendor, which did not include Sy.no.58. Even in para 2 of plaint, it was stated that property purchased was part of VS
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR no.2. As stated in para 4 and 5 of written statement, consistent stand of defendant was that she retained VS no.1. It was further submitted, there was no material to establish that property agreed to be sold under Ex.P16 was situated in VS no.1. It was further submitted, ADLR - Court Commissioner's Report showed that land bearing Sy.no.59, 60 and 61 belonged to defendant. Therefore, plaintiff's claim that suit property was in VS no.3 was illogical and without proper explanation.
20. It was submitted, Ex.D3 was Co-Relation Register indicated that VS no.1 was comprised of Sy.nos.58 to 61 measuring 7 Acres 18 guntas; VS no.2 comprised of Sy.nos.55 to 57 measuring 3 Acres 19 guntas and VS no.3 comprised of Sy.nos.50 to 54 measuring 5 Acres 36 guntas. Even PW.1 stated defendant had sold properties bearing VS no.2 and 3 to plaintiff's vendor - Chandru. Relying upon decision of this Court in Puttappa v. Ramappa reported in 1996 SCC OnLine Kar 120, it was submitted, Court Commissioner appointed for inspection of suit property would not be authorized or justified in submitting report about possession.
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21. It was submitted, material on record established, land in VS no.1 was retained and while VS nos.2 and 3 was sold. When dispute was about plaintiff's claim that suit property was part of VS no.3 and about identity of suit property, suit for bare injunction would not be maintainable. It was submitted, when plaintiff admits in cross examination that as per Ex.D3, VS no.1 was re-numbered as Sy.no.58. Such being a case, merely on Commissioner's Report, possession of plaintiff could not be established and ought to have sought declaration relief. It was submitted, even appellant had failed to challenge additional documents produced before first appellate Court which would establish acceptance of documents and entries in mutation with registers. It was submitted, Ex.P10 mentioned that VS no.2 and 3 were assigned Sy.no.58 against which appeal was filed. Ex.D4 would show that defendant's appeal against MR no.10 (Ex.P10) was allowed and Ex.D5 would indicate plaintiff's revision against said order was dismissed on 23.06.1997. Referring to proviso to Section 135 of KLR Act provided that any person aggrieved by revenue entry would be required to file civil suit for declaration of his rights. Admittedly, as on date of Ex.D5 order, suit was pending. Attempt for
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR amendment for including relief of declaration was not made. Hence, suit for bare injunction would not be maintainable. On above grounds submitted, no substantial question of law would arise for consideration and sought dismissal of appeal.
22. Heard learned counsel perused impugned judgment and decree and records.
23. This appeal is by unsuccessful plaintiff against divergent findings in suit for bare injunction, wherein trial Court decreed suit, appellate Court reversed same and dismissed suit.
24. It is seen appeal was admitted on 09.12.2010 to consider following substantial question of law.
"Whether the appreciation of evidence made by lower Appellate Court is perverse?"
25. Since main ground of challenge is perversity of findings of first appellate Court, it would be necessary to refer to conclusions arrived at and reasons assigned for same.
26. Trial Court noted that in suit for permanent injunction, burden was on plaintiff to establish lawful possession over suit property. It noted plaintiff had deposed as
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR PW.1 and got marked Exhibits P1 to P37, while Power of Attorney of defendant was examined as DW.1 and Exhibits D1 to D7 got marked. It observed Exs.P12 to P14 - RTCs bore name of plaintiff's vendor as on date of suit were consistent with Ex.P16 - Agreement of sale and name of defendant was mutated during pendency of suit. On said basis, it concluded plaintiff established his possession over suit property and holding interference by defendant as established, decreed suit.
27. In appeal by defendant, main grounds urged were agreement of sale would not confer any enforceable right over property agreed to be sold and suit would not be maintainable. That MR no.10/1991-92 was set-aside by AC and appeal against same was dismissed by DC. Further, Ex.D3 - Corelation Statement showed Sy.nos.58 to 61 were part of VS no.1, falsifying plaintiff's claim that it was part of VS no.3. It was also contended that boundaries of suit property were incorrect and reliance on report of Court Commissioner was illegal.
28. After referring to pleadings, first appellate Court observed dispute was confined to establishing whether suit property was part of VS no.1 or VS no.3. And in order to
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR establish Sy.no.58 was part of VS no.3, plaintiff produced Ex.P1
- sale deed whereunder defendant purchased lands in VS nos.1 to 3 from Gurappa; Ex.P2 - sale deed, whereunder plaintiff's vendor - Chandrappa purchased lands in VS no.2 and 3 from defendant and Ex.P16 - agreement of sale executed by Chandrappa in favour of plaintiff, agreeing to sell 1 Acre 15 guntas in Sy.no.58 (VS no.3) and delivering possession. It observed, as there was no dispute about defendant being original owner of lands bearing VS nos.1, 2 and 3 and sale of lands bearing VS nos.2 and 3 by defendant to Chandrappa - plaintiff's vendor.
29. Therefore, first appellate Court observed, plaintiff was required to establish when survey numbers were assigned to VS nos.1, 2 and 3. It noted, Exs.P12 to P15 were - RTCs of Sy.no.58 from 1989-90 to 1995-96, showed land bearing Sy.no.58 reflected name of Chandrappa. It observed that under Ex.D4 - order AC set-aside MR no.10/1991-92 entering name of plaintiff's vendor in respect of Sy.no.58 and in Ex.D5 - DC dismissed appeal upholding order of AC. It therefore held, plaintiff cannot rely on Exs.P12 to P15. Thereafter, it referred to Ex.P37 - village map of Kashipura and noticed that lands
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR bearing Sy.nos.50 to 61 were adjacent to each other and that it would not clarify that Sy.no.58 was part of VS no.3. It observed Ex.P25 to 27 - Revenue Receipts would be of no consequence.
30. Insofar as boundaries, it observed Court Commissioner's report showed boundaries of VS nos.1 to 3 were same on North and South and would differ only on Eastern and Western sides. It notes Sy.no.57 was situated on eastern side of Sy.no.58 and on western side was Sy.no.59. It observes Ex.D3 showed Sy.no.57 was part of V.S.no.2 whereas Sy.no.58 to 61 were part of V.S.no.1, plaintiff's claim that on Western side of Sy.no.58, there was land of Keriyamma would not arise. It held, there was rebuttal of presumption under Section 133 of KLR Act in view of orders passed by AC and DC. On said conclusion, it holds reliance by trial Court on Exs.P12 to P.15 was erroneous. It further observes, effect of orders passed by AC and DC were to effect that entries in revenue entries of name of Chandrappa insofar as Sy.no.58 were erroneous from date of original entry.
31. Thereafter it referred to report of ADLR - Court Commissioner showing areas under possession of
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR plaintiff/defendant. Referring to decision of this Court in Puttappa's case (supra), it holds reliance by trial Court on Court Commissioner's report to decide possession would be illegal.
32. It also observed, admission by PW.1 that Chandrappa had purchased 4 Acres 38 guntas in VS nos.2 and 3 and land bearing VS no.1 was situated on western side of VS no.2, would render it impossible for Sy.no.58 to be part of VS no.3. It held material produced indicated Sy.no.58 was part of V.S.no.1 and plaintiff had failed to produce any record to show that after re-survey of V.S.nos.1 to 3, Sy.no.58 was made part of V.S.no.3. It thus held plaintiff failed to establish Sy.no.58 as part of VS no.3 and concluded Chandrappa could not convey either title or possession to plaintiff. Based on said observations, it held plaintiff had failed to prove lawful possession without which suit for injunction would not be tenable. It therefore, it allowed appeal and reversed trial Court decree.
33. In order to decide whether decision by first appellate Court suffers from perversity due to ignorance of
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR material on record as well as coming to conclusion contrary to material on record, it would be appropriate to refer to material on record.
34. As noted above, plaintiff in this case had sought for relief of permanent injunction against defendant against interfering with plaintiff's possession over suit property. In his pleadings he stated that suit property was part of VS no.3, originally belonging to defendant (as per Ex.P1) and sold to plaintiff's vendor under registered sale deed (as per Ex.P2 along with VS no.2). He claimed Chandrappa executed Ex.P16 - agreement of sale in favour of plaintiff by receiving substantial amount of sale consideration and delivering possession and when plaintiff was in possession and cultivation of suit property, defendant sought to interfere by attempting to lay road in suit property, while forming layout in his land. To establish same, plaintiff deposed in terms of plaint averments as PW.1 and produced following documents:
Ex.P1 - Sale deed dated 21.09.1964 executed by Gurappa S/o SG Muniyappa in favour of Narasamma in respect of property bearing VS no.1 measuring 7 Acres 18 guntas, VS no.2 measuring 3 Acres 19 guntas, VS no.3 measuring 1 Acre 19 guntas and VS no.10 measuring 1 Acre 24 guntas.
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR Ex.P2 - Sale deed dated 19.04.1975 executed by Narasamma in favour of M.Chandra in respect of property bearing VS no.2 (new PR no.2) measuring 3 Acres 19 guntas and VS no.3 (new PR no.3) measuring 1 Acre 19 guntas, totally measuring 4 Acres 38 guntas.
Ex.P3 - Sale deed dated 21.05.1987 executed by M.Chandra S/o N.Muniswamy in favour of Lakshmamma in respect of property bearing Sy.no.1 and VS no.2 (new PR no.2) measuring 3 Acre 19 guntas.
Ex.P4 - RoR of 1997-98 of Sy.no.55 measuring 35 guntas showing entry of name of Lakshmamma as per MR no.1/1987-88 (Sale deed).
Ex.P5 - RoR of 1997-98 of Sy.no.56 measuring 37 guntas showing entry of name of Lakshmamma as per MR no.1/1987-88 (Sale deed).
Ex.P6 - RoR of 1997-98 of Sy.no.57 measuring 1 Acre 8 guntas showing entry of name of Lakshmamma as per MR no.1/1987-88 (Sale deed).
Ex.P7 - RoR of 1997-98 of Sy.no.59 measuring 1 Acre 18 guntas showing entry of name of Narasamma as per MR no.2/1987-88 (Pauti).
Ex.P8 - RoR of 1997-98 of Sy.no.60 measuring 1 Acre 21 guntas showing entry of name of Narasamma as per MR no.2/1987-88 (Pauti).
Ex.P9 - RoR of 1997-98 of Sy.no.61 measuring 2 Acres 10 guntas showing entry of name of Narasamma as per MR no.2/1987-88 (Pauti).
Ex.P10 - MR no.10/1991-92 for entering name of Chandru in respect of VS.no.2 measuring 3 Acres 19 guntas and VS no.3 (Blk.no.3) measuring 1 Acre 19 guntas.
Ex.P11 - RoR of 1983-84 of VS.no.3 (PR no.3) measuring 1 Acre 19 guntas showing entry of name of M.Chandru in Col.no.9 and 12 (2).
Exs.P12
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR & P13 - RoR of 1989-90 and 1991-92 of Sy.no.58 measuring 1 Acre 15 guntas showing entry of name of M.Chandru as per MR no.2/1975-76.
Exs.P14 & P15 - RoR of 1994-95 and 1995-96 of Sy.no.58 measuring 1 Acre 15 guntas showing entry of name of M.Chandru as per MR no.2/1975-76.
Ex.P16 - Agreement of sale dated 22.01.1992 executed by M.Chandru in favour of plaintiff in respect of property bearing (Old VS no.3) new Sy.no.58 measuring 1 acre 15 guntas.
Ex.P17 - Index of land, showing VS nos.2 and 3 of Kashipura village were Inam lands.
Exs.P18 & P19 - Survey Sketch and Report of Sy.no.58 prepared by ADLR, Shivamogga, prepared as per ADLR-HB/no.138 of 1991-92.
Ex.P20 - Sale deed dated 23.05.1987 by M.Chandru in favour of Smt.Lakshmamma in respect of Sy.no.1 and VS no.2 (PR no.2) measuring 3 Acres 19 guntas.
Ex.P21 - Loan Clearance Certificate dated 18.08.1998 issued by Diary Co-operative Agriculture and Rural Development Bank Ltd., Shivamogga to Smt.Narasamma and release of properties bearing VS nos.1, 3 and 10 measuring 10 Acres 21 guntas from mortgage.
Ex.P22 - Sale deed dated 31.12.1974 executed by Smt.Narasamma in favour of Huligamma for selling VS no.10 (PR no.43) measuring 1 Acre 24 guntas. Ex.P23 - MR no.1/1983-84 in pursuance of above sale. Ex.P24 MR no.2/1987-88 for entering name of Smt.Narasamma in respect of Old no.1 measuring 5 Acres 9 guntas renumbered as Sy.no.59 measuring 1 Acre 18 guntas; Sy.no.60 measuring 1 Acre 21 guntas and Sy.no.61 measuring 2 Acres 10 guntas. Exs.P25
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR to - P29 Tax Raid Receipts.
Exs.P30 to - P32 - Tippani Utaars of Sy.nos.58, 57 and 59. Ex.P33 - Appeal filed by Smt.Narasamma against MR no.10/1991-92.
Ex.P34 - Objections filed by M.Chandru. Ex.P35 - Order dated 15.02.1999 dismissing CRP no.2822/1995 filed by Smt.Narasamma challenging grant of temporary injunction in OS no.647/1993 and confirming order dated 17.04.1995 in MA no.23/1994. Ex.P36 - Order dated 17.04.1995 passed in MA no.23/1994. Ex.P37 - Village map of Kashipura wherein demarking Sy.no.58 as Ex.P37(a).
35. On other hand, defendant has denied plaintiff's claim as agreement holder as well as title of vendor over suit property. His son deposed as DW.1 under Ex.D1 - SPoA. Documentary evidence led was marking copy of Ex.P2 sale deed as Ex.D2, Ex.D3 - Co-relation Statement issued by ADLR showing Sy.no.58 as part of VS no.1. Exs.D4 and D5 are orders passed by AC/DC setting aside Ex.P10 and dismissing appeal, while Exs.D6 and D7 are RoRs issued after order of DC mutating name of defendant in revenue records in place of plaintiff's vendor.
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR
36. Since dispute is whether suit property i.e., land bearing Sy.no.58 was part of VS.no.1 or VS.no.3, Ex.P3 - Sale Deed in respect of VS.no.2, Exs.P4 to P9 - RoRs in respect of Sy.no.55 to 57 and Sy.no.59 to 61, Ex.P20 - Sale Deed in respect of VS.no.2, Ex.P22 and 23 - Sale Deed and Mutation in respect of VS.no.10, Exs.P25 to P29 - Tax paid receipts would not be relevant and plaintiff cannot claim to be aggrieved by their non consideration.
37. Even Exs.P18, P19, P30 and P32, Survey sketch, report and Tippani Uttar of Sy.nos.58, 57 and 59 would not be useful for not mentioning boundaries and plaintiff failing to produce Moola Tippani of VS nos.1 to 3 or examining any official from Revenue Department or even any adjacent land owner to establish possession of suit property. It is seen there is no dispute about Ex.P1 and P2 - Sale Deeds and in any case first appellate Court take note of same.
38. Ex.P10 is MR no.10/1991-92 for mutation of name of plaintiff's vendor - Chandru in respect of VS nos.2 and 3. As per plaintiff, defendant filed appeal against it as per Ex.P33 and plaintiff's vendor contested it as per Ex.P34. Defendant has
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR produced order passed in appeal as Ex.D4 wherein MR no.10/1991-92 was set-aside and Ex.D5 showing dismissal of appeal against said order with observation that it would be open for plaintiff's vendor to approach trial Court for declaration of his rights. In meanwhile, plaintiff had filed this suit.
39. It is seen that first appellate Court has referred to Exs.P11 to Ex.P18, Ex.P33 and P34 in light of orders at Exs.D4 and D5, observing that an order passed for setting aside entry in revenue record would relate back to date of such entry. Said observation would be in accordance with law. First appellate Court has also referred to village map at Ex.P37 to hold that same would not be helpful to determine location of Sy.no.58 whether in VS no.1 or VS no.3. Thus all material relevant for determination of dispute herein have been duly considered. Therefore, ground of perversity against order passed by first appellate Court would not stand.
40. In fact, reference would also have to be made to contention of learned counsel for defendant referring to documents produced along with his application for additional evidence that 'plaintiff along with his vendor' had filed OS
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR no.773/1999 for declaration of his title over Sy.no.58 against defendant herein and questioning orders at Exs.D4 and D5 passed by AC and DC respectively and for permanent injunction. It would appear that said suit has come to be dismissed for non-prosecution on 27.06.2006, and even Misc.no.3/2011 filed there-against is dismissed on 01.08.2013. Indeed in reply, learned counsel for plaintiff contended dismissal of suit for declaration would not come in way of plaintiff seeking to protect his possession (invoking Section 53- A of TP Act) by filing suit for injunction. However, whether holder of an agreement of sale can file suit against third parties invoking Section 53-A has been clarified by Hon'ble Supreme Court in case of RBANMS Educational Institution v. B. Gunashekar, reported in 2025 SCC OnLine SC 793, wherein it is held:
"15. ... ... ... In the present case, the respondents' claim based on an agreement to sell. The legal effect of such an agreement must be examined in light of Section 54 of the Transfer of Property Act, 1882, which explicitly states that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. This principle has been consistently upheld by this Court in the following judgments:
(i) Rambhau Namdeo Gajre (supra) "13. The agreement to sell does not create an interest of the proposed vendee in the suit property.
As per Section 54 of the Act, the title in immovable property valued at more than Rs. 100 can be
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR conveyed only by executing a registered sale deed. Section 54 specifically provides that a contract for sale of immovable property is a contract evidencing the fact that the sale of such property shall take place on the terms settled between the parties, but does not, of itself, create any interest in or charge on such property. It is not disputed before us that the suit land sought to be conveyed is of the value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of Pishorrilal (the proposed transferee) the title of the suit land continued to vest in Narayan Bapuji Dhotra (original plaintiff) and remain in his ownership. This point was examined in detail by this Court in State of U.P. v. District Judge [(1997) 1 SCC 496] and it was held thus : (SCC pp. 499-500, para 7) "7. Having given our anxious consideration to the rival contentions we find that the High Court with respect had patently erred in taking the view that because of Section 53-A of the Transfer of Property Act the proposed transferees of the land had acquired an interest in the lands which would result in exclusion of these lands from the computation of the holding of the tenure-holder transferor on the appointed day. It is obvious that an agreement to sell creates no interest in land. As per Section 54 of the Transfer of Property Act, the property in the land gets conveyed only by registered sale deed. It is not in dispute that the lands sought to be covered were having value of more than Rs. 100. Therefore, unless there was a registered document of sale in favour of the proposed transferee agreement-holders, the title of the lands would not get divested from the vendor and would remain in his ownership. There is no dispute on this aspect. However, strong reliance was placed by learned counsel for Respondent 3 on Section 53-A of the Transfer of Property Act. We fail to appreciate how that section can at all be relevant against the third party like the appellant State. That section provides for a shield of protection to the proposed
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR transferee to remain in possession against the original owner who has agreed to sell these lands to the transferee if the proposed transferee satisfies other conditions of Section 53-A. That protection is available as a shield only against the transferor, the proposed vendor, and would disentitle him from disturbing the possession of the proposed transferees who are put in possession pursuant to such an agreement. But that has nothing to do with the ownership of the proposed transferor who remains full owner of the said lands till they are legally conveyed by sale deed to the proposed transferees. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party like the appellant State when it seeks to enforce the provisions of the Act against the tenure- holder, proposed transferor of these lands."
(emphasis supplied) There was no agreement between the appellant and the respondent in connection with the suit land. The doctrine of part-performance could have been availed of by Pishorrilal against his proposed vendor subject, of course, to the fulfilment of the conditions mentioned above. It could not be availed of by the appellant against the respondent with whom he has no privity of contract. The appellant has been put in possession of the suit land on the basis of an agreement of sale not by the respondent but by Pishorrilal, therefore, the privity of contract is between Pishorrilal and the appellant and not between the appellant and the respondent. The doctrine of part-performance as contemplated in Section 53-A can be availed of by the proposed transferee against his transferor or any person claiming under him and not against a third person with whom he does not have a privity of contract."
(ii) Suraj Lamp & Industries (P) Ltd. v. State of Haryana, wherein, this Court comprehensively examined the nature of rights created by an agreement to sell and concluded that such agreements create, at best, a
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR personal right enforceable against the vendor. The relevant paragraphs read as under:
"16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam, (1977) 3 SCC 247, observed: (SCC pp.254- 55, paras 32-33 & 37) "32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prasad v. Ram Mohit Hazra, (1967) 1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein.
33. In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership...
37....that only on execution of conveyance, ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [(2004) 8 SCC 614] this Court held:
"10. Protection provided under Section 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."
18. It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of the TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53-A of the TP Act). According to the TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of the TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject-matter."
(iii) Cosmos Co. Operative Bank Ltd v. Central Bank of India "25. The observations made by this Court in Suraj Lamp (supra) in paras 16 and 19 are also relevant. .....
26. Suraj Lamp (supra) later came to be referred to and relied upon by this Court in Shakeel Ahmed v. Syed Akhlaq Hussain, 2023 SCC OnLine SC 1526 wherein the Court after referring to its earlier judgment held that the person relying upon the customary documents cannot claim to be the owner of the immovable property and consequently not maintain any claims against a third-party. The relevant paras read as under:--
"10. Having considered the submissions at the outset, it is to be emphasized that irrespective of
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR what was decided in the case of Suraj Lamps and Industries (supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar, (2018) 7 SCC 639
(ii). Balram Singh v. Kelo Devi Civil Appeal no.6733 of 2022
(iii). Paul Rubber Industries Private Limited v. Amit Chand Mitra, SLP(C) no.15774 of 2022.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.
13. The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view."
15.1. Undoubtedly, a sale deed, which amounts to conveyance, has to be a registered document, as mandated under Section 17 of the Registration Act, 1908. On the other hand, an agreement for sale, which also requires to be registered, does not amount to a conveyance as it is merely a contractual document, by which one party, namely the vendor, agrees or assures or promises to convey the property described in the schedule of such agreement to the other party, namely the purchaser, upon the latter performing his part of the obligation under the agreement fully and in time. Section 54 of the Transfer of Property Act, 1882 explicitly lays down that a contract for sale will not confer any right or interest. Section 53-A of the Transfer of Property Act, 1882 offers protection only to a proposed transferee who has part performed his part of the promise and has been put into possession, against the actions of transferor, acting against the interest of the transferee. For the proposed transferee to seek any protection against the transferor, he must have either performed his part of obligation in full or in part. The applicability of Section 53-A of the Transfer of Property Act, 1882 is subject to certain conditions viz., (a) the agreement must be in writing with the owner of the property or in other words, the transferor must be either the owner or
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR his authorized representative, (b) the transferee must have been put into possession or must have acted in furtherance of the agreement and made some developments, (c) the protection under Section 53-A is not an exemption to Section 52 of the Transfer of Property Act, 1882 or in other words, a transferee, put into possession with the knowledge of a pending lis, is not entitled to any protection, (d) the transferee must be in possession when the lis is initiated against his transferor and must be willing to perform the remaining part of his obligation, (e) the transferee must be entitled to seek specific performance or in other words, must not be barred by any of the provisions of the Specific Relief Act, 1963 from seeking such performance. The protection under Section 53-A is not available against a third party who may have an adversarial claim against the vendor. Therefore, unless and until the sale deed is executed, the purchaser is not vested with any right, title or interest in the property except to the limited extent of seeking specific performance from his vendor. An agreement for sale does not confer any right to the purchaser to file a suit against a third party who is either the owner or in possession, or who claims to be the owner and to be in possession. In such cases, the vendor will have to approach the court and not the proposed transferee.
15.2. In the present case, juxtaposing the above legal principles to the facts of the case, we find that the respondents' claim suffers from multiple fatal defects that go to the root of the case, which are as follows:
15.2.1. First, there is no privity between the respondents and the appellant. The agreement to sell, is not between the parties to the suit. According to Section 7 of the Transfer of Property Act, 1882, only the owner, or any person authorised by him, can transfer the property. We have already held that an agreement to sell does not confer any right on the proposed purchaser under the agreement. Therefore, as a natural corollary, any right, until the sale deed is executed, will vest only with the owner, or in other words, the vendor to take necessary action to protect his interest in the property. According to the respondents, the property belongs to the vendors and according to the appellant, the property vests in them. Since the respondents are not divested any right
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR by virtue of the agreement, they cannot sustain the suit as they would not have any locus. Consequently, they also cannot seek any declaration in respect of the title of the vendors. But when the title is under a cloud, it is necessary that a declaration be sought as laid down by this Court in the judgment in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs27. Therefore, the suit at the instance of the respondents/plaintiffs is not maintainable and only the vendors could have approached the court for a relief of declaration. In the present case, strangely, the vendors are not arrayed as parties to even support any semblance of right sought by the respondents/plaintiffs, which we found not to be in existence. Further, the respondents/plaintiffs claim to have paid the entire consideration of Rs. 75,00,000/- in cash, despite the introduction of Section 269ST to the Income Tax Act in 2017 and the corresponding amendment to Section 271 DA. As held by us, the agreement can only create rights against the proposed vendors and not against third parties like the appellant herein. As the agreement to sell does not create any transferable interest or title in the property in favour of the respondents/plaintiffs, as per Section 54 of the Transfer of Property Act, 1882, we hold that the attempt of the plaintiffs to disclose the cause of action through clever drafting, based solely on an agreement to sell, must fail, as such disclosure cannot be restricted to mere statement of facts but must disclose a legal right to sue.
15.2.2. Secondly, and perhaps more fundamentally, as we have seen and held above, the respondents have no legal right that can be enforced against the appellant as their claim is impliedly barred by virtue of Section 54 of the Transfer of Property Act, 1882. Their remedy, if any, lies against their proposed vendors. The plaint averments remain silent regarding the execution of a registered sale deed in favour of the respondents, which alone can confer a valid right on them to file a suit against the appellant as held by us earlier. Another, remedy available to them is to institute a suit against the vendors for specific performance. This principle was clearly established in K. Basavarajappa (supra), wherein this Court held that an agreement holder lacks locus standi to maintain actions against third parties. The
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR relevant paragraph of the said judgment is extracted below:
"8. ... By mere agreement to sell the appellant got no interest in the property put to auction to enable him to apply for setting aside such auction under Rule 60 and especially when his transaction was hit by Rule 16(1) read with Rules 51 and 48. Consequently he could not be said to be having any legal interest to entitle him to move such an application. Consequently no fault could be found with the decision of the Division Bench of the High Court rejecting the entitlement of the appellant to move such an application."
15.2.3. The contention of the learned counsel for the respondents that the judgments relied upon by the appellant are not applicable, cannot be accepted for the simple reason that the ratio laid down by this court, is applicable irrespective of the stage at which it is relied upon. What is relevant is the ratio and not the stage. Such contentions go against the spirit of Article 141 of the Constitution of India. Once a ratio is laid down, the courts have to apply the ratio, considering the facts of the case and once, found to be applicable, irrespective of the stage, the same has to be applied, to throw out frivolous suits. There is no gainsaying in contending that the other party must be put to undergo the ordeal of entire trial, when the plaintiff's claim is either barred by law or the plaint fails to disclose a cause of action, as it would amount to abuse of process of law, wasting the precious time of the courts. On the other hand, the judgments relied upon by the respondents do not come into their aid as the judgments referred to by them also lay down the proposition that the plaint can be rejected if on a meaningful reading of it, fails to disclose a cause of action or is barred by law. In the present case, from the facts, we also find this to be a case of champertous litigation, between the plaintiffs and the vendors, who are not parties to the suit. Though champertous litigations have been recognized in our country to some extent by way of amendment to CPC by certain states, considering the facts of the present case and the averments in the plaint, we only find the litigation to be inequitable, unconscionable or extortionate.
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR 15.2.4. Further, the respondents are not in possession of the property. Whereas, the appellant's possession since 1905 is admitted in the plaint itself. In such circumstances, where the plaintiffs are not in possession and the defendant is in settled possession for over a century, a suit for bare injunction by a proposed transferee is clearly not maintainable. Section 41(j) of the Specific Relief Act, 1963 prohibits grant of injunction when the plaintiff has no personal interest in the matter. In the present case, the respondents, being mere agreement holders, have no personal interest in the suit schedule property that can be enforced against third parties. The "personal interest" is to be understood in the context of a legally enforceable right, as when there is a bar in law, the mere existence of an interest in the outcome cannot give a right to sue. As held by us above, no declaratory relief has been sought as contemplated under Section 34 of the Specific Relief Act, 1963. This principle was clearly established in Jharkhand State Housing Board (supra), in which, this Court emphasized that where title is in dispute, a mere suit for injunction is not maintainable. The relevant portion of the said judgment is reproduced hereunder:--
"11. It is well settled by catena of judgments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circumstances, plaintiff cannot maintain a suit for bare injunction."
15.2.5. Yet another defect in the plaint is regarding the identity of the property. The respondents/plaintiffs, as seen above, have admitted to the possession of the appellant over the suit property. The plaint, on one hand, raises a dispute as to whether the property claimed by the respondents is the same as that possessed by the appellant, and on the other hand,
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR seeks only a relief of permanent injunction restraining the appellant/defendant from alienating the property, without seeking a declaration affirming the title of their vendors. The entitlement of the plaintiffs to the possession rests on the title of their vendors and it is not an independent right. Without possession and without seeking a declaration of title, not only is the suit barred but the cause of action is also fictitious."
(emphasis supplied)
41. Above ratio is laid down after duly referring to decisions in case of Suraj Lamp and Rambhau Namdeo Gajre (supra). Following same, it is held that a mere agreement holder in respect of a property would have no personal or enforceable right in respect of said property and cannot maintain a suit against third parties. Though it was contended that defendant herein cannot be treated as third party as plaintiff's vendor derived title from defendant under Ex.P2 sale deed, specific provisions of Section 53-A of TP Act reads:
"Section 53A. Part performance: -- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that, or, where there is an instrument of transfer, that the transfer has
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
(emphasis supplied)
42. A bare reading of said provision would indicate that it provides for protection of transferee's possession against transferor, subsequent transferee or any person claiming under transferor. And a transferee's claim against such persons cannot be enforced against third parties or against 'predecessor in title of transferor' as he would not fall within meaning of words 'and persons claiming under him'.
43. It is also seen that I.A.no.1/2020 filed by defendant under Order XLI Rule 27 for additional evidence is pending. And as per order dated 16/08/2021, required to be considered along with main matter. At outset, additional evidence sought to be led is about proceedings in another Suit about which neither trial Court nor first appellate Court were apprised by
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NC: 2025:KHC:18998 RSA No. 48 of 2007 HC-KAR either of parties. In any case, material available is sufficient for proper disposal. Besides, application was not seriously pressed.
44. For aforesaid reasons, substantial question of law is answered in negative. Consequently, following order:
ORDER Appeal is dismissed with costs. Pending application dismissed.
Sd/-
(RAVI V. HOSMANI) JUDGE AV