Original Hakkupatra beats a photocopy: Supreme Court gives Bengaluru site to objector, sets aside 1999 decree
Justice Sanjay Kumar and Justice Sanjeev Sachdeva held that an Order XXI Rule 97 objector who produced the original 1972 allotment, against a decree holder with only a photocopy, owns Site No. 261 at Munnekolala.
Two men each said the Tahsildar of Bangalore South Taluk had allotted him the same plot on the same day, 5 January 1972. One got a decree for it in 1999 in a suit against a third person, on the strength of a photocopy. The other, who was never a party to that suit, turned up in the execution proceedings with the original document, a two-storey RCC house he had built on the plot, and three shops let out to tenants. The executing court and the Karnataka High Court sided with the decree holder. On 26 October 2026 the Supreme Court reversed both, declared the objector’s legal representatives the lawful owners and possessors of Site No. 261, Munnekolala New Extension, Varthur Hobli, and set aside the 1999 decree itself. Justice Sanjay Kumar, writing for himself and Justice Sanjeev Sachdeva, found that the High Court had misread the scheme of Order XXI, Rules 97 to 101 of the Code of Civil Procedure and ignored the evidence on record.
A suit against a hut-builder, and a decree on a photocopy
G.N. Kanniah Naidu filed O.S. No. 2198 of 1987 before the XIV Additional City Civil Judge, Bangalore, against one Srikanta Rao. He asked for a declaration of title to Site No. 261, delivery of possession and a permanent injunction. His case was that the Tahsildar had granted him the site under a Hakkupatra dated 5 January 1972 and put him in possession, and that Srikanta Rao had taken advantage of his absence, trespassed and put up a temporary hut in January 1987. He sued on 25 May 1987. Srikanta Rao filed a written statement denying the plaintiff’s title. Six issues were framed. The plaintiff examined himself as PW1 and marked Exhibits P1 to P15. The defendant examined himself as DW1 and produced no documents at all.
The plaintiff did not produce the original Hakkupatra. He marked only a photocopy as Exhibit P1, saying the Tahsildar had taken the original back because multiple allotments had been made for the same sites, and had never returned it. His attempts to summon the Tahsildar came to nothing. Because the defendant did not seriously dispute the grant, the trial court chose to act on the photocopy. Srikanta Rao claimed to have been put in possession but could not say by whom or under what title, and had not a scrap of paper to show for it. The trial court held that the plaintiff had the better claim and that the defendant had trespassed and built a hut. On 8 October 1999 it decreed the suit in part, granting the declaration of title and possession but refusing the injunction, since the plaintiff was not in possession when he sued. Srikanta Rao was directed to hand over possession within 60 days, failing which the plaintiff could obtain it through the process of law.
The objector arrives with the original
The plaintiff filed Execution Case No. 100 of 2000 for delivery of possession. In December 2002, Balakrishna, then about 70 years old, filed IA No. ‘A’ in that execution under Order XXI, Rules 97 to 101. He said he was the owner and in possession of the site, that the decree was fraudulent and collusive, and that it could not be executed against him. His claim was that the Tahsildar had granted him the site under a Hakkupatra of 5 January 1972, that he and his son Ananda had built a roofed house on it and lived there, and that he had built three shops in front and let them out. He said the decree holder had come with others to dispossess him on 8 December 2002, and asked for an inquiry into his right, title and interest.
In October 2003 Balakrishna, citing his age, gave Ananda a power of attorney to prosecute the application. He died while it was pending and his legal representatives were brought on record. On 27 September 2008 the XIV Additional City Civil Judge dismissed IA No. ‘A’. The legal representatives appealed in Regular First Appeal No. 1139 of 2011, which a Single Judge of the Karnataka High Court dismissed on 17 August 2011. They then came to the Supreme Court, which ordered status quo on 14 November 2011. Both original parties to the suit died during the appeal: Srikanta Rao on 11 January 2012 and Kanniah Naidu on 7 June 2018. Their legal representatives were substituted.
What the executing court held against the son
In the execution inquiry, Ananda deposed as PW1 and marked Exhibits P1 to P7. The executing court faulted him for giving evidence at all, reasoning that he was 30 years old in 2004 and so could have no personal knowledge of a grant made to his father in 1972. The Supreme Court found that reasoning untenable. The record did not even show when Balakrishna died or whether he was alive when Ananda testified. If he had died or was incapacitated by the time he signed the power of attorney, he would have passed on what he knew to his son, for what it was worth. Balakrishna had himself stated in the application that he and Ananda built the house together. And Ananda had marked the original Hakkupatra dated 5 January 1972 as Exhibit P2. The Court said the production of the original ought to have weighed with the judge, but did not.
The executing court also drew the wrong inferences from the paperwork. Because Ananda produced a tax receipt for the year 2000, the judge concluded that the Hakkupatra had not been acted upon until then. An assessment register for 1994-95, Exhibit P4, issued by the Chief Administrative Officer of the Notified Area Committee, Mahadevapura Hoodi, showed Balakrishna in the owner’s column for the site; the judge disregarded it because it post-dated the 1987 suit. Instead he relied on tax receipts for 1984-85 and 1985-86 produced by the decree holder and treated them as negating Balakrishna’s claim.
Why the High Court got Order XXI wrong
The High Court affirmed those findings and added some of its own, each of which the Supreme Court took apart. It faulted Balakrishna for not moving the trial court to set aside the decree. But a person who claims possession of a site and was not impleaded in a suit about it can hardly be presumed to know of that suit, so no fault lies at his door for not acting while it was pending or immediately after. It faulted him for appearing before the executing court to resist execution. Yet it is only when execution is attempted that a person behind whose back a decree was obtained learns of it; Balakrishna would have known of the decree only when it was sought to be executed against him.
The High Court went on to hold that the applicant could not raise such contentions before the executing court because it had limited jurisdiction. That, the Supreme Court said, reflected “total non-application of mind” to the scheme of Order XXI, Rules 97 to 101. An application under those rules is on par with a regular suit, which is why an order on it is appealable as a regular first appeal. The Court cited Shreenath v. Rajesh, (1998) 4 SCC 543, and N.S.S. Narayana Sarma v. Goldstone Exports (P) Ltd., (2002) 1 SCC 662, for that proposition. The High Court’s suggestion that the applicant should have gone to the civil court for a declaration setting aside the decree was, the bench said, “in utter derogation of the mandate of Order XXI, Rule 101 CPC”, which expressly bars a separate suit. That finding was wholly unsustainable in law.
The evidence both courts overlooked
Legal errors aside, the Supreme Court held that the High Court had also failed to notice the evidence. The decree holder admittedly never produced his original Hakkupatra; even in the suit he had relied on a photocopy. Balakrishna’s original, issued by the Tahsildar on 5 January 1972, was on the record through Ananda. The decree holder’s own explanation was that the Tahsildar had taken back his original because of multiple allotments of the same sites. If that was so, the Court reasoned, the fact that the Tahsildar let Balakrishna keep his original “speaks for itself”. The only inference was that Balakrishna’s allotment was genuine and was not cancelled, unlike the decree holder’s, whose document was admittedly taken back and never returned.
The decree holder’s own testimony, as RW1 in the execution inquiry, went further against him. In cross-examination he admitted that Balakrishna had built an RCC house of ground and first floors on the site, that the ground floor had three shops, and that Balakrishna had leased them to tenants. The Court called this admission fatal to his pleaded case that it was Srikanta Rao who trespassed and built a hut. He never explained when or how Balakrishna came into possession or how he was allowed to raise a pucca structure with shops, and he admittedly took no steps at any stage to stop him.
Worse, in IA No. ‘A’ the decree holder had no title document at all. He tried to mark a certified copy of the photocopy he had used in the suit, was not allowed to, and took no further steps. Both sides had paid taxes on the site intermittently. Tax payments, the Court said, can at best support an inference about possession, not title, and relying on sporadic receipts to infer ownership was wholly uncalled for when one of the rival claimants had produced the original title document. Balakrishna’s title stood settled by the original Hakkupatra of 5 January 1972.
The Supreme Court had also tried to get an answer from the revenue authorities. By order dated 13 October 2022 it asked the Tahsildar, Bengaluru South Taluk, to file an affidavit stating whether the site had been allotted in 1972 to one party or the other. The affidavit, dated 9 February 2023, came instead from the Tahsildar of Bengaluru East Taluk, within whose jurisdiction Varthur Hobli now falls. He said his office held no records of grants made in 1972 and that inquiries with higher authorities had drawn a blank. He expressed no suspicion or doubt about Balakrishna’s original Hakkupatra.
Order
The appeal was allowed. The Karnataka High Court’s judgment of 17 August 2011 in Regular First Appeal No. 1139 of 2011 and the executing court’s order of 27 September 2008 in IA No. ‘A’ in Execution Case No. 100 of 2000 were set aside. The legal representatives of Balakrishna were declared the lawful owners and possessors of Site No. 261, Munnekolala New Extension, Varthur Hobli, now in Bengaluru East Taluk. The judgment and decree of 8 October 1999 in O.S. No. 2198 of 1987, which held to the contrary, was also set aside. Pending applications were disposed of. The parties bear their own costs. The judgment is marked non-reportable.