BALAKRISHNA (DEAD) THR. LRS. v. G.N. KANNIAH NAIDU (DEAD) THR. LRS. AND ANOTHER

Non-reportable

2026 INSC 1155 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. ........................ OF 2026 (@ SLP (C) No. 29808 of 2011)

BALAKRISHNA (DEAD) THR. LRS. ….. Appellants

versus

G.N. KANNIAH NAIDU (DEAD) THR. LRS. AND ANOTHER ….. Respondents

JUDGMENT

SANJAY KUMAR, J

1. Leave granted.

2. Concurrent adverse findings weighing against them, the legal

representatives of the deceased applicant in IA No. ‘A’ in Execution Case

No. 100 of 2000 on the file of the learned XIV Additional City Civil Judge,

Bangalore, are in appeal. IA No. ‘A’ was an application filed under Order

XXI, Rules 97 to 101 of the Code of Civil Procedure, 1908 (CPC).

3. By order dated 14.11.2011, this Court directed both parties to

maintain status quo prevailing as on that date. During the pendency of this Signature Not Verified

Digitally signed by

matter, G.N. Kanniah Naidu, respondent No. 1, viz., the decree holder/ Deepak Guglani Date: 2026.10.26 15:57:05 IST Reason:

plaintiff, expired on 07.06.2018 and his legal representatives were brought

on record as respondent Nos. 1.1 to 1.10. Srikanta Rao, respondent No.2,

viz., the judgment debtor/defendant, expired on 11.01.2012 and his legal

representatives were brought on record as respondent Nos. 2.1 to 2.5.

4. G.N. Kanniah Naidu, respondent No. 1, filed O.S. No. 2198 of 1987

before the learned XIV Additional City Civil Judge, Bangalore, against

Srikanta Rao, respondent No. 2, seeking declaration of his title over the

site bearing No. 261 in Munnekolala New Extension, Varthur Hobli,

Bangalore South Taluk. He also prayed for delivery of possession and a

permanent injunction. His claim was that the suit site was granted to him

by the Tahsildar, Bangalore South Taluk, under Hakkupatra dated

05.01.1972 and he was put in possession. He claimed that the defendant

took advantage of his absence and trespassed upon the suit site and put

up a temporary hut in January, 1987. This being the cause of action, he

filed the suit on 25.05.1987. Srikanta Rao, the defendant, entered

appearance therein and filed his written statement, denying the plaintiff’s

title. Six issues were framed for trial. The plaintiff examined himself as

PW1 and marked Ex:P1 to Ex:P15 in evidence, while the defendant

examined himself as DW1 but did not adduce any documentary evidence.

5. Significantly, the plaintiff did not produce the original Hakkupatra

dated 05.01.1972 by which the suit site was purportedly allotted to him.

He only marked a photocopy of the said document in evidence as Ex:P1.

He claimed that the Tahsildar took back the original Hakkupatra on the

ground that multiple allotments had been made in relation to the same 2

sites and did not return the same. His efforts to summon the Tahsildar,

Bangalore South Taluk, did not yield any result.

6. However, as the defendant did not seriously dispute the grant of the

Hakkupatra to the plaintiff, the Trial Court chose to act upon the photocopy

(Ex:P1). The defendant had claimed that he was put in possession of the

suit site but without indicating the source of his title or possession. As he

failed to produce even a scrap of paper in proof thereof, the Trial Court

held that that the plaintiff had a better claim to title and that the defendant

had trespassed upon the suit site and constructed a temporary hut. The

Trial Court, accordingly, decreed the suit in part on 08.10.1999, holding in

favour of the plaintiff as regards his prayers for declaration of title and

possession but denying him injunctive relief as he was not in possession

of the suit site as on the date of the suit. The defendant was directed to

hand over possession of the suit site within 60 days, failing which the

plaintiff was given liberty to obtain possession through the process of law.

7. Pursuant to the aforestated decree, Execution Case No. 100 of 2000

was filed by the plaintiff for delivery of possession. While so, the

application in IA No. ‘A’ was filed therein by Balakrishna, the original

applicant, under Order XXI, Rules 97 to 101 CPC, claiming that he was

the owner and possessor of the suit site and that the decree secured by

the plaintiff was fraudulent and collusive and could not be given effect to.

Balakrishna claimed that the suit site was granted to him by the Tahsildar, 3

Bangalore South Taluk, under Hakkupatra dated 05.01.1972 and that he,

along with his son, Ananda, constructed a roofed house thereon and were

residing there. He also stated that he had constructed 3 shops in the front

portion and had let out the same to tenants. He asserted that the decree

holder/plaintiff had no manner of right, title or interest in the suit site but

he had come to dispossess him on 08.12.2002 along with others. He

asserted that he was the true owner who was in possession and that an

inquiry was necessary to establish his right, title and interest.

8. Balakrishna was aged about 70 years at the time of the filing of IA

No. ‘A’ in December, 2002. Owing to his old age, Balakrishna authorized

his son, Ananda, by way of a power-of-attorney executed in October,

2003, to prosecute the application on his behalf. Balakrishna died during

the pendency of IA No. ‘A’ and his legal representatives were brought on

record therein. However, by order dated 27.09.2008, the learned XIV

Additional City Civil Judge, Bangalore, dismissed IA No. ‘A’. Thereupon,

Balakrishna’s legal representatives filed an appeal in Regular First Appeal

No. 1139 of 2011 assailing the said order. The appeal also met with the

same fate when it was dismissed by a learned Judge of the Karnataka

High Court, vide the impugned judgment dated 17.08.2011.

9. In the order dated 27.09.2008 passed in IA No. ‘A’, the learned XIV

Additional City Civil Judge, Bangalore, noted that Balakrishna had expired

and Ananda, his son, got himself examined as PW1 and marked Ex:P1 to 4

Ex:P7 in evidence. There is no clear indication as to when Balakrishna

died and whether he was even alive when Ananda was examined as PW1

in the year 2004. Surprisingly, the learned Judge found fault with Ananda

for deposing as a witness, observing that Ananda was 30 years old in

2004 when he gave evidence, and held that he would have no personal

knowledge about the grant of the suit site to his father in 1972. This finding

disregarded the fact that Balakrishna would have shared relevant

information which was not known to Ananda, his son, for what it was worth

had he died or was incapacitated by the later date, when he authorized

him, by a power-of-attorney, to prosecute the application on his behalf.

Further, Balakrishna had himself stated in the application that Ananda and

he had constructed a house together on the suit site. More importantly,

Ananda marked the original Hakkupatra dated 05.01.1972 in evidence as

Ex:P2. The very fact that the original document was produced by him

ought to have weighed with the learned Judge, but it failed to do so.

10. Basing on the fact that a tax receipt pertaining to the year 2000 was

produced by Ananda, the learned Judge opined that the Hakkupatra had

not been acted upon till then. Though the Assessment Register for the

year 1994-95 (Ex:P4) issued by the Chief Administrative Officer, Notified

Area Committee, Mahadevapura Hoodi, recorded the name of

Balakrishna in the owner’s column against the suit site, the learned Judge

did not pay heed to it on the ground that the document was later in point 5

of time to the institution of the suit by the decree holder/plaintiff in the year

1987. Reliance was placed by the learned Judge on the tax receipts of the

years 1984-85 and 1985-86 produced by the decree holder/plaintiff and

the learned Judge opined that these documents negatived Balakrishna’s

claim. Holding so, the learned Judge dismissed IA No. ‘A’

11. In appeal, the learned Judge of the High Court affirmed the findings

recorded in the aforestated order, vide his judgment dated 17.08.2011.

Strangely, the learned Judge found fault with Balakrishna for not moving

the Trial Court to seek setting aside of the decree. Knowledge of a suit in

relation to a site, filed without impleading the person who claims to be in

possession thereof, can hardly be imputed to such person, whereby fault

can be laid at his door for not taking steps during the pendency of the suit

or immediately thereafter. The learned Judge also found fault with

Balakrishna for appearing before the Executing Court to resist the

execution. It is only when steps are taken during execution that a person,

behind whose back such a decree has been obtained, would come to

know of those proceedings. Therefore, Balakrishna would have been

made aware of the decree secured by the decree holder/plaintiff only

when the said decree was sought to be executed against him.

12. The further finding of the learned Judge that ‘the applicant could not

raise such contentions before the Executing Court as it has a limited

jurisdiction’ reflects total non-application of mind to the scheme of Order 6

XXI, Rules 97 to 101 CPC. An application filed thereunder is on par with

a regular suit and that is the reason why an order passed on such

application is appealable as a regular first appeal (See Shreenath and

another vs. Rajesh and others 1 and N.S.S. Narayana Sarma and

others vs. Goldstone Exports (P) Ltd. and others2). The observation of

the learned Judge that it was for the applicant to approach the Civil Court

for a declaration to set aside the decree passed against him is in utter

derogation of the mandate of Order XXI, Rule 101 CPC which explicitly

bars a separate suit being filed. The finding of the learned Judge to the

contrary is, therefore, wholly unsustainable in law.

13. Leaving aside his legal errors, the learned Judge also failed to notice

the evidence on record. Admittedly, the decree holder/plaintiff failed to

produce the original Hakkupatra and even in the suit, he had only relied

upon a photocopy thereof. On the other hand, the original Hakkupatra

dated 05.01.1972 issued by the Tahsildar, Bangalore South Taluk, in

favour of Balakrishna was produced by Ananda. The claim of the decree

holder/plaintiff was that the Tahsildar took back his original Hakkupatra on

the ground that multiple allotments had been made in relation to the same

sites. If so, the fact that the Tahsildar allowed the original Hakkupatra

issued to Balakrishna to remain with him speaks for itself. The only

1 (1998) 4 SCC 543 2 (2002) 1 SCC 662 7

inference that could be drawn therefrom was that the said allotment was

genuine and was not cancelled, as was the case with the allotment in

favour of the decree holder/plaintiff, whose original Hakkupatra was

admittedly taken back and not returned.

14. Further, the Executing Court and the High Court also erred in

ignoring the deposition of the decree holder/plaintiff himself. Speaking as

RW1 in IA No. ‘A’, he admitted in his cross examination that Balakrishna

had built a RCC house in the suit site, consisting of ground and first floors.

He also admitted that the ground floor had 3 shops and that Balakrishna

had leased them out to tenants. This admission on his part was fatal to his

claim that it was Srikanta Rao, the defendant, who trespassed upon the

site and built a hut there. If so, he failed to explain when and how

Balakrishna came into possession and how he was allowed to construct

a pucca structure thereon, including shops. Admittedly, no steps were

taken by him to restrain Balakrishna from doing so at any stage.

15. More damaging to his case is the fact that he had no document of

title to support his claim in IA No. ‘A’, as the certified copy of the photocopy,

that was produced by him during the suit proceedings, was not allowed to

be marked in evidence therein. Significantly, he did not take any further

steps when his attempt to do so came to naught. On the other hand,

Balakrishna’s original Hakkupatra dated 05.01.1972 was placed on record

by Ananda, his son. 8

16. We find that taxes were paid intermittently by both parties in relation

to the suit site. Tax payments, at best, could lead to an inference only as

to possession but not title. In any event, the reliance placed by the

Executing Court and the High Court upon such sporadic tax payments by

the parties, so as to infer title and ownership, was wholly uncalled for as

the original title document was produced by Balakrishna, one of the rival

claimants. The claim to title and ownership by Balakrishna stood settled

in his favour by the original Hakkupatra dated 05.01.1972.

17. We may also note that, during the pendency of this matter, this Court

called upon the Tahsildar, Bengaluru South Taluk, Karnataka, vide order

dated 13.10.2022, to file an affidavit stating whether the suit site was

allotted in the year 1972 to one or the other of the two parties in question.

However, affidavit dated 09.02.2023 was filed by the Tahsildar, Bengaluru

East Taluk, stating that Varthur Hobli was now within his revenue

jurisdiction but no records were available with his office of the grants made

in 1972. He further stated that his inquiries with higher authorities had also

failed to yield any result. However, he voiced no suspicion or doubt about

the original Hakkupatra dated 05.01.1972 issued to Balakrishna.

18. On the above analysis, the appeal is allowed, setting aside the

judgment dated 17.08.2011 in Regular First Appeal 1139 of 2011 passed

by the Karnataka High Court and the order dated dated 27.09.2008

passed by the learned XIV Additional City Civil Judge, Bangalore, in IA 9

No. ‘A’ in Execution Case No. 100 of 2000. The appellants, viz., the legal

representatives of Balakrishna, the applicant in IA No. ‘A’ in Execution

Case No. 100 of 2000, are declared the lawful owners and possessors of

Site No. 261 of Munnekolala New Extension, Varthur Hobli, presently in

Bengaluru East Taluk. The judgment and decree dated 08.10.1999

passed by the learned XIV Additional City Civil Judge, Bangalore, in OS

No. 2198 of 1987, holding to the contrary, is set aside.

Pending applications, if any, shall stand disposed of.

Parties shall bear their own costs.

..............................., J SANJAY KUMAR

..............................., J. SANJEEV SACHDEVA October 26, 2026 New Delhi.