Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa on 18 January, 2024

Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa

on 18 January, 2024
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NC: 2024:KHC-K:716
RSA No. 7002 of 2013

IN THE HIGH COURT OF KARNATAKA,

KALABURAGI BENCH

DATED THIS THE 18TH DAY OF JANUARY, 2024

BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH

REGULAR SECOND APPEAL NO. 7002 OF 2013 (DEC/INJ-)

BETWEEN:

VIDYA SAGAR S/O SHARANAPPA SEELIN,

AGED ABOUT 49 YEARS, AGRICULTRUE,
R/O CHANDAPUR CHINCHOLLI TALUKA,
GULBARGA DISTRICT-585305.

...APPELLANT

(BY SRI. MANVENDRA REDDY, ADVOCATE)

AND:

SHARANABASAPPA S/O GURULINGAPPA,

AGE ABOUT 59 YEARS,
GOVT. DOCTOR,
Digitally signed R/O SHAHABAZAR,
by SACHIN
GULBARGA TOWN,
Location: HIGH
COURT OF GULBARGA DISTRICT-585102.
KARNATAKA

...RESPONDENT

(BY SRI. VIKRAM VIJAY KUMAR, ADVOCATE)

THIS RSA IS FILED UNDER SECTION 100 OF CPC,

PRAYING TO SET ASIDE THE JUDGEMENT AND DECREE OF THE
PRL.CIVIL JUDGE(JR.DN) AT CHINCHOLLI IN O.S.NO.5/2008
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 Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa on 18 January, 2024

NC: 2024:KHC-K:716
RSA No. 7002 of 2013

DATED 17.04.2010. AND SENIOR CIVIL JUDGE AT CHINCHOLLI

IN R.A NO.43/2010 DATED 11.10.2012.

THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS

DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

1.This appeal is filed by the plaintiff challenging the judgment and decree dated
11.10.2012 passed in RA.No.43 of 2010 on the file of the Senior Civil Judge at
Chincholi, dismissing the appeal and confirming the judgment and decree dated
17.04.2010 passed in OS.No.5/2008 on the file of the Principal Civil Judge (Jr.Dn.)
Choncholi, dismissing the suit of the plaintiff.

2. For the sake of convenience, the parties in this appeal shall be referred to in terms
of their status and ranking before the trial Court.

3. The plaint averments are that the plaintiff claims to be the owner in possession of
the plot No.7, totally measuring north to south to an extent of 100 feet and east NC:
2024:KHC-K:716 west to an extent of 90 feet. It is the case of the plaintiff that,
defendant is a Government Doctor and has created the alleged Sale Deed said to have
been executed on 11.10.1990 and 28.08.1992. It is the specific case of the plaintiff
that, the plaintiff has not sold any property in favour of the defendant and on the other
hand, the wife of the plaintiff filed OS No.75 of 2001 against the defendant and
plaintiff herein has been arraigned as defendant No.2 in the said suit. It is the case of
the plaintiff that, the defendant is interfering with the possession of the property in
question and accordingly, the plaintiff has filed OS No.5 of 2008 seeking relief of
declaration with consequential of injunction. During the pendency of the suit, the
plaint was amended and as such the plaintiff has sought for relief of possession in
respect of the subject land.

4. After service of summons, defendant appeared through counsel and filed detailed
written statement alleging that the plaintiff is the karta and manager of the NC:
2024:KHC-K:716 Joint Hindu Family consisting of plaintiff, his wife and children and
the plaintiff has executed the unregistered Sale Deed in favour of the defendant, a
after obtaining valuable consideration. It is also stated in the written statement that
pursuant to the aforementioned unregistered Sale Deed, the defendant was in put
possession by the plaintiff and accordingly, sought for dismissal of the suit. It is also
stated in the written statement that, OS No.75 of 2001 filed by the wife of the plaintiff
came to be dismissed and accordingly, the defendant has taken plea that, the suit is
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 Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa on 18 January, 2024
barred by law of limitation as well as on res-judicata.

5.On the basis of the rival pleadings, the trial Court has formulated issues for its
consideration.

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 Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa on 18 January, 2024

6. In order to establish their case, plaintiff has examined two witness as PW1 and PW2
and got marked 3 documents as Exs.P1 to P3 On the other hand, defendant NC:
2024:KHC-K:716 was examined himself as DW1 and produced 34 documents as
Exs.D1 to D34.

7. The trial Court, after considering the material on record, by its judgment and decree
dated 17.04.2010 dismissed the suit of the plaintiff and being aggrieved by the same,
the plaintiff has preferred Regular Appeal in RA.No.43 of 2010 on the file of First
Appellate Court and the said appeal was resisted by the defendant. The First
Appellate Court, after re-appreciating the facts on record, by its judgment and decree
dated 11.10.2012 dismissed the appeal and confirmed the judgment and decree
passed by the trial Court in OS.No.5 of 2008. Being aggrieved same, the
appellant/plaintiff has preferred this Regular Second Appeal under Section 100 of
CPC.

8. This court by order dated 12.07.2016 has formulated following substantial question
of law

1.Whether the judgment and decree of the First Appellate Court is sustainable in law
in view of the NC: 2024:KHC-K:716 non-compliance of provisions of order LXI Rule 31
of the Code of Civil Procedure, 1908 ?

2. Whether the courts below are justified in holding that the suit is not maintainable
and have failed to look into the Articles 65 of the Limitation Act, 1963 ?

3. Whether the Trial Court is correct in holding that the present suits is hit by the
principles of res judicata for which there is no concurrent finding by the First
Appellate Court ?

4. Whether the First Appellate Court has committed a mistake in not granting the
relief to the plaintiff in spite of holding that no title is passed to the defendant under
the unregistered Sale Deeds
?

5. Whether the judgments and decree of the courts below are bad in law for
proceedings on the wrong conception of legal position ?

9. Heard Sri Manvendra Reddy, learned counsel appearing for the appellant and Sri
Vikram Vijay Kumar, learned counsel appearing for the respondent and perused the
original records.

10.Sri Manvendra Reddy, learned counsel for the appellant submitted that, the Trial
Court has committed an NC: 2024:KHC-K:716 error in placing reliance on the
judgment and decree passed in OS No. 75 of 2001 and the said finding recorded by

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 Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa on 18 January, 2024
the Trial Court which came to be confirmed by the First Appellate Court is incorrect
and accordingly, sought for interference of this court.

11. Sri Vikram Vijay Kumar, learned counsel for the respondent sought to justify the
impugned judgment and decree passed by the courts below and further argued that,
the issue No.1 framed in OS No.75 of 2001 is identical with Issue No.1 in the present
suit (OS No.5 of 2008) and accordingly, sought for dismissal of the appeal.

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 Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa on 18 January, 2024

12. In the light of the arguments advanced by the learned counsel appearing for the
parties, it is not in dispute that the plaintiff has filed suit seeking relief of declaration
with consequential relief of injunction. Thereafter, the plaint was amended
incorporating the relief of claiming possession. On careful examination of the plaint
filed on 03.01.2008 would indicate that the plaintiff NC: 2024:KHC-K:716 has
sought for perpetual injunction against the defendant and thereafter, the plaint was
amended and plea for possession was incorporated in the prayer column. It is also to
be noted that the wife of the plaintiff has filed OS No.75 of 2001 before the compete
court against the defendant and on careful examination of the issues framed in the
above suit (OS No.75 of 2001) are identical with the issues framed in OS No.5 of 2008.
The said fact would establish that, the plaintiff is well aware about his claim in respect
of the subject matter of the suit as the defendant is in possession of the land in
question. In that view of the matter, taking into account the provisions contained
under Article 65 read with Article 58 of Limitation Act, 1963, it was open for the
plaintiff to file suit for declaration within three years from the knowledge that, he was
dispossessed and his ownership was questioned in view of the Sale Deeds referred to
by the parties. Be that as it may be, the plaintiff is one of the defendants in OS No. 75
of 2001 filed by his wife and in that view of the matter, taking into consideration
the finding recorded by the Trial Court in OS NC: 2024:KHC-K:716 No.75 of
2001, wherein, the Trial Court has gone into the issue relating to disputed ownership
in respect of the property in question and therefore, I am of the opinion that, it is
relevant to cite the declaration of law made by the Hon'ble Supreme Court in the case
of Jose vs. Johnson reported in (2020) 3 SCC 780 and paragraphs 14 and 15 reads as
under:

"14. Issues 1 and 2 framed by the trial court refer to the identity of the
property as also the ownership and possession thereof. The plaintiff did
not object to the said issues nor did the plaintiff file any application under
Order 14 Rule 4 CPC seeking amendment or to strike out the said issues.
On the other hand, the evidence was tendered based on the issues and
Issues 1 and 2 were considered by the trial court and was answered in
favour of the plaintiff wherein it is held that the plaintiff is in ownership
and possession of the plaint scheduled property. In that background,
when the defendant has questioned such conclusion reached by the trial
court and had put forth the contention and also sought for an opportunity
to produce additional evidence by filing an application under Order 41
Rule 27 CPC and in that background when the lower appellate court
was of the opinion that the said issues need reconsideration in the
background of the additional evidence and opportunity being provided to

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NC: 2024:KHC-K:716 the defendant, the appropriate evidence and

opportunity being provided to the defendant, the appropriate course was
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 Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa on 18 January, 2024
to remand the matter to the trial court and provide opportunity which
was accordingly done,

15. If the above aspect are kept in view, the observations made by the High Court
relating to the consideration required being only of possession since the suit was for
perpetual injunction is without reference to the nature of contentions put forth in a
suit, the issues that had been raised for

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 Vidya Sagar S/O Sharanappa vs Sharanappa S/O Gurulingappa on 18 January, 2024

consideration and the conclusion that had been reached by the trial court as also the
lower appellate court in that background. Hence, we are of the opinion that in the
facts and circumstances of the present case, the High Court was not justified, but the
conclusion of the lower appellate court to set aside the judgment and decree of the
trial and remand the matter for reconsideration by the trial court was the appropriate
course."

13.Applying the said principle of the Hon'ble Supreme Court to the case on hand, the
finding recorded by the both the Courts below is just and proper as the concurrent
finding of facts has been made by the courts below based on the material on record,
and therefore, I do not find material irregularity or perversity in the judgments and

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NC: 2024:KHC-K:716 decree passed by the Courts below and the substantial question
of law framed above favours the defendant and accordingly, the Regular Second
Appeal is dismissed.

Sd/-

JUDGE

SB

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