Karnataka High Court
Sri B Siddamadaiah vs Sri M D Ramakrishnaiah on 17 September, 2025
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NC: 2025:KHC:37302
RFA No. 1725 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MRS. JUSTICE K.S. HEMALEKHA
REGULAR FIRST APPEAL NO.1725 OF 2025 (DEC/POS)
BETWEEN:
SRI B. SIDDAMADAIAH
SINCE DEAD BY HIS LR's.
1. SMT. BASAMMA
W/O LATE B. SIDDAMADAIAH,
AGED ABOUT 81 YEARS,
2. SMT. RAJAMMA B.S.
W/O. NAGARAJU,
D/O. LATE B. SIDDAMADAIAH,
AGED ABOUT 52 YEARS,
R/AT NO.1430/54, 1ST CROSS,
JAINS COLONY, ASHOKNAGAR,
MANDYA-571 401.
3. SMT. RENUKA B.S.
Digitally signed by W/O. K.V. SHIVAKUMAR,
MAHALAKSHMI B M D/O. LATE B. SIDDAMADAIAH,
Location: HIGH AGED ABOUT 47 YEARS,
COURT OF
KARNATAKA
4. SRI B.S. MANJUNATH
S/O. LATE B. SIDDAMADAIAH,
AGED ABOUT 43 YEARS,
APPELLANT NOS.1, 3 & 4 ARE
R/AT NO.1069/B, 11TH MAIN ROAD,
HAMPINAGAR, R.P.C. LAYOUT,
VIJAYANAGARA 3RD STAGE,
BENGALURU-560040.
...APPELLANTS
(BY SRI HEGDE SHRIPAD RAMAKRISHNA, ADVOCATE)
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NC: 2025:KHC:37302
RFA No. 1725 of 2025
HC-KAR
AND:
1. SRI M.D. RAMAKRISHNAIAH
S/O LATE DEVASETTY GOWDA,
AGED ABOUT 89 YEARS,
R/AT NO.MIG-2, 80 FEET ROAD,
KENGERI SATELLITE TOWN,
BANGALORE-560060.
2. SRI S.R. RAJA REDDY
S/O G. RAMA REDDY,
AGED ABOUT 51 YEARS,
R/AT NO.4, PREETHI NILAYA,
HOSAKEREHALLI, B.S.K. 2ND STAGE,
BANGALORE-560085.
3. SRI P. VENKATARAMA REDDY
S/O P. GOVINDA REDDY,
AGED ABOUT 70 YEARS,
R/AT NO.80/4, 8TH A MAIN ROAD,
WEAVERS COLONY, R.P.C. LAYOUT,
VIJAYANAGARA, BANGALORE-560040.
4. SRI SUBRAMANI
S/O LATE GANGADEVI,
AGED ABOUT 76 YEARS,
R/AT NO.14, NEHRU ROAD,
2ND CROSS NEW GUDDADAHALLI,
BENGALURU-560026.
5. SRI SUDHAKAR
S/O SUBRAMANI,
AGED ABOUT 48 YEARS,
6. SRI PRASAD
S/O SUBRAMANI,
AGED ABOUT 44 YEARS,
BOTH RESPONDENT NOS.5 & 6 ARE
RESIDING AT NO.14, II CROSS,
NEHRU ROAD, NEW GUDDADAHALLI,
MYSORE ROAD, BENGALURU-560026.
...RESPONDENTS
(BY SRI RAKSHITHA D.J., ADVOCATE FOR C/R-3)
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NC: 2025:KHC:37302
RFA No. 1725 of 2025
HC-KAR
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 19.03.2025 PASSED IN
O.S.NO.3624/2016 ON THE FILE OF XXXVIII ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, C/C XXV ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-23)., DISMISSING THE SUIT
FOR DECLARATION AND POSSESSION.
THIS APPEAL COMING ON FOR ORDER, THIS DAY, JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
This regular first appeal is filed by the plaintiffs, being aggrieved by the judgment and decree dated 19.03.2025 passed in O.S. No.3624/2016 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru (CCH-23) ('the Trial Court' for short), whereby the suit filed by the plaintiffs for declaration and consequential relief of injunction came to be dismissed.
2. The case of the plaintiffs is that the suit schedule 'A' and 'B' properties, described as Site Nos.33 and 34 of Municipal Khata No.20, measuring 60 x 40 feet situated at Nagadevanahalli, Kengeri Hobli, Bengaluru South Taluk ('suit property' for short) were acquired under -4- NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR the registered Sale Deeds dated 02.05.1997-Exs.P.1 and P.2. executed by defendant No.1-M. D. Ramakrishnaiah, acting as a General Power of Attorney holder of the original owner Thimmaiah. It is averred that land in Survey No.20, measuring 4 acres, had been converted by order of the Deputy Commissioner dated 12.10.1978, and thereafter, a layout was formed under a GPA dated 10.02.1994. The plaintiffs claimed to be in peaceful possession and enjoyment, and on obstruction of defendant Nos.3 and 4 initially filed a suit for permanent injunction, which came to be dismissed. The present suit was thereafter instituted seeking declaration of title and consequential relief of injunction.
3. The defendants resisted the suit contending that defendant No.1 had executed a sale deed dated 02.02.1998 in favour of Smt. Ganga Devi (defendant No.2) in respect of Sites Nos.27, 28, 34 and 35. Defendant No.2 had mortgaged the said site to Swarna Bharathi Sahakara Bank Niyamitha by executing a memorandum of -5- NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR deposit of title deeds. Upon default, the bank brought the property to auction and executed a registered sale deed dated 10.03.2006 in favour of defendant Nos.3 and 4, who are in possession. The plaintiff had knowledge of this auction as early as 2006, is evident from the pleadings in the earlier injunction suit. Further, that the suit is filed in the year 2016 and therefore, barred by limitation under Article 58 of the Limitation Act, 1963, ('Limitation Act' for short) since it is beyond three years from the date of accrual of right to sue. The suit, being one for bare declaration without seeking possession, is barred under Section 34 of the Specific Relief Act, 1963. The GPA dated 10.02.1994 was not produced and therefore, the very authority of defendant No.1 to convey the property remains unproved. The Swarna Bharathi Sahakara Bank, which conducted the auction sale, was not impleaded and the suit suffers from non-joinder of necessary parties under Order I Rule 9 CPC.
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4. The trial Court, based on oral and documentary evidence, held that the plaintiffs have failed to prove title or possession. The alleged GPA of the year 1994 in favour of defendant No.1 by Thimmaiah was not produced, nor there was any proof of original grant in Survey No.20, and the sale deed Ex.P2 merely recited GPA without establishing its validity and that the plaintiffs did not establish ownership or possession. Insofar as res judicata and limitation were concerned, the trial Court observed that the earlier suit was only for injunction and the present suit for declaration of title, hence not barred. Further, the defendants failed to prove that the suit was barred by limitation. By the judgment and decree, the trial Court dismissed the suit.
5. Heard the learned counsel appearing for the appellants and the learned counsel appearing for the respondents.
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6. Learned counsel for the appellants argues that the trial Court erred in dismissing the suit despite the registered sale deeds of 1997, Ex.P1 and Ex.P2. The khata entries and the tax receipts stand in the name of the plaintiff. It is submitted that subsequent alienation in 1998 and 2006 could not divest the plaintiff of ownership.
7. Per contra, learned counsel for the respondents relied upon several judgments of the Apex Court including Gian Kaur Vs. Raghubir Singh1 (Gian Kaur), Venkataraja and others Vs. Vidyane Doureradjaperumal (D) Thr. Lrs and others2 (Venkataraja), Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust Virudhunagar Vs. Chandran and others3 (Chandran) and Vinay Krishna vs. Keshav Chandra and Another4 (Vinay Krishna) to contend that the suit for bare injunction without possession is not maintainable. Reliance is also placed on 1 (2011) 4 SCC 567 2 2013 AIR SCW 3063 3 Civil Appeal No.2342/2017 D.D. 10.02.2017 4 1993 SUPP(3) SCC129 -8- NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR P. Kishore Kumar Vs. Vittal K Patkar5 (P. Kishore Kumar), Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi(D) Thr. Lrs. and others6 (Moreshar Yadaorao Mahajan) and Union of India & Others Vs. Vasavi Cooperative Housing Society Limited and others7 (Vasavi Cooperative), to contend that in a declarative suit, the burden of proof lies squarely on the plaintiff, and mere recital or weakness of the defendants cannot suffice. On limitation, reliance was placed on Khatri Hotels P. Ltd.& Anr vs Union Of India & Anr8 (Khatri Hotels), State of Punjab and another Vs. Balkaran Singh9 (Balkaran Singh) and H.B. Shivakumar Vs. Sri L.C. Hanumanthappa (D) Thr. Lrs.10 (H.B. Shivakumar), to submit that at Article 58 of the Limitation Act, the right to sue arises when the plaintiff first has notice of the infringement, which, in the present 5 2023 Livelaw SC 999 6 2022 Livelaw SC 802 7 (2014) 2 SCC 264 8 AIR 2011 SC 3590 9 (2006) 12 SCC 709 10 2015 SCC Online Kar 3860 -9- NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR case, was in the year 2006 when the auction sale took place.
8. Having heard the learned counsel for the parties, the points that arise for consideration are:
"i. Whether the plaintiffs have established valid title and possession over the suit property?
ii. Whether the suit for bare declaration without possession is maintainable under Section 34 of the Specific Relief Act, 1963?
iii. Whether the suit is barred by limitation under Article 58 of the Limitation Act, the plaintiff having had the knowledge of auction sale in 2006?
iv. Whether the judgment and decree of the trial Court warrants interference?
9. All the points are taken up together in order to avoid repetition of facts.
10. The case of the plaintiff is that he purchased the suit properties under a registered sale deeds dated 02.05.1997 under Exs. P1 and P2. The said sale deeds
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NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR were executed by the GPA, which was alleged to have been executed on 10.02.1994. The root of title is based on the GPA. The plaintiff has failed to produce the alleged GPA.
11. The earlier suit was for injunction which is at Ex.P10 was dismissed on the finding that the plaintiff was not in possession. In cross-examination, PW.2 also admitted that the defendants are in possession. Thus, a bare declarative suit without possession is not maintainable as held by the Apex Court in the case of Gian Kaur, Venkataraja, Chandran, and Vinay Krishna stated supra. The Apex Court has clearly held that when the plaintiff is out of possession, the proper prayer could have been by seeking a declaration and possession and without seeking possession, the suit was not maintainable.
12. The plaintiff had the knowledge of the auction sale in 2006 itself, as he filed suit for injunction in O.S. No.5978/2006 against defendant Nos.3 and 4 when they
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NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR obstructed his possession in 2006. In that suit, defendant Nos.3 and 4 specifically pleaded that they have purchased the property through the auction sale dated 10.03.2006. The plaintiff, being a party to that suit, was therefore fully aware about the auction transaction as early as 2006. Ex.P10 is the judgment in O.S. No.5978/2006 dated 25.01.2016, the dismissal order records that the plaintiff failed to prove possession, and the defendants claimed through the 2006 auction sale. Under Article 58 of the Limitation Act, right to sue for declaration accrues when the plaintiff first has notice of infringement of his rights. Here, the infringement occurred in 2006 when the bank sold the property and defendant Nos.3 and 4 took possession. Since the plaintiff was aware of the auction in 2006, the limitation began there. Filing of suit in the year 2016 is beyond three years period prescribed. The Apex Court, in the case of Khatri Hotels stated supra, has held that the right to sue accrues when the plaintiff has notice of infringement and that the repeated representation or
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NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR denials do not extend the limitation. The Apex Court, in the case of Vasavi Cooperative, has reiterated that mere entries or recitals are insufficient, the plaintiff must sue within three years of knowing the defendant's adverse claim. The Apex Court in the case of P. Kishore Kumar emphasized that a declarative suit filed beyond the prescribed period is not maintainable irrespective of the equities. In this context, the trial Court framed issue No.5 as under:
"Whether the defendant Nos.3 and 4 proves that the suit of the plaintiff is barred by law of limitation?"
13. The trial Court's finding on issue No.5 is in the 'negative'. In its reasoning, the trial Court noted that the defendants did not adduce any evidence to prove his contention on limitation and therefore, answered Issue No.5 against them. The trial Court did not hold that the suit was barred by limitation. It specifically answered the limitation issue in the negative. This finding in the considered view of this Court is unsustainable. Limitation
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NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR is not merely a matter of pleading or proof, but a question of law to be determined on admitted facts of the case. It is undisputed that the sale deed in favour of defendant No.2 was executed on 02.02.1998, and the auction sale deed in favour of defendant Nos.3 and 4 was executed on 10.03.2006. The plaintiff himself instituted O.S. No.5978/2006 soon thereafter, in which defendant Nos.3 and 4 had asserted their title on the strength of the auction sale. Thus, the plaintiff was fully aware of the rival title and possession of the defendants from the year 2006. Under Article 58 of the Limitation Act, 1963, a suit for declaration must be filed within three years from the date when the right to sue first accrues, accordingly, the right to sue accrued in the year 2006 and the present suit was instituted in May 2016 is clearly barred by limitation. The trial Court failed to draw the correct legal inference from admitted facts on record, as held in Khatri Hotels and Vasavi Cooperative, that once a plaintiff has notice of infringement of his right, limitation begins to run and
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NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR cannot be postponed on the plea of continuing cause. Therefore, though the trial Court rightly dismissed the suit on other grounds, its finding on limitation is erroneous and requires to be corrected by this Court and this Court holds that the institution of suit in the year 2016 is barred by limitation. Plaintiff in a declarative suit must succeed on his own strength. The plaintiffs-appellants failed to produce any primary documentary evidence and thus, failed to discharge the burden.
14. In view of the above, the points framed for consideration are answered accordingly. This Court is of the considered opinion that the trial Court has rightly dismissed the suit. The appellants have failed to prove either their title or possession. The suit is also barred by limitation. Hence, no grounds are made out to interfere with the judgment and decree of the trial Court. Accordingly, this Court passes the following:
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NC: 2025:KHC:37302 RFA No. 1725 of 2025 HC-KAR ORDER i. The regular first appeal is dismissed.
ii. The Judgment and decree dated 19.03.2025 passed in O.S. No.3624/2016 on the file of the XXV Additional City Civil and Sessions Judge, Bengaluru (CCH-23) is hereby affirmed.
Sd/-
_____________________ JUSTICE K.S. HEMALEKHA MBM List No.: 1 Sl No.: 21