- 1 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 25TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 7376 OF 2011 (DEC/INJ) C/W REGULAR SECOND APPEAL NO. 7386 OF 2011 IN R.S.A.NO.7376 OF 2011 BETWEEN: 1. DEVAKKAMMA W/O HEMAREDDY AGE: 47 YEARS, OCC: HOUSEHOLD AND AGRICULTURE, 2. BASAWARAJ S/O HEMAREDDY AGE: 23 YEARS, OCC: STUDENT, 3. VEERESH S/O HEMAREDDY AGE: 21 YEARS, OCC: STUDENT, 4. DEVAREDDY S/O HEMAREDDY AGE: 19 YEARS, OCC: STUDENT, R/O: MUDNOOR, TQ: SHORAPUR, NOW AT ALL R/O: VILLAGE CHENNUR, NEAR ALDAL, Digitally signed by BASALINGAPPA SHIVARAJ DHUTTARGAON Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 TQ: SHORAPUR, DIST: YADGIR – 585 224. …APPELLANTS (BY SRI BASAWARAJ KAREDDY, ADVOCATE) AND: 1. DANAMMA W/O SHIVAREDDEPPA GARGOL AGE: MAJOR, OCC: HOUSEHOLD AND AGRICULTURE, R/O: VILLAGE BOODNOOR, TQ: SHORAPUR – 585 224. DIST: YADGIR. 2. SIDDAPPA S/O MADIVALAPPA GARGOL, AGE: 77 YEARS, OCC: AGRICULTURE, R/O: VILLAGE MUDNOOR, TQ: SHORAPUR – 585 224. DIST: YADGIR. …RESPONDENTS (BY SRI LIYAQAT FAREED USTAD ADV. FOR R1; V/O DATED 21.03.2017 SERVICE OF NOTICE IN R2 IS HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO ALLOW THIS REGULAR SECOND APPEAL AND TO SET ASIDE THE JUDGMENT AND DECREE DATED 18.06.2009 IN REGARD TO RELIEF GRANTED I.E., DECLARING THAT DECREE PASSED IN O.S.NO.122/1999 IS NULL AND VOID AND NOT BINDING UPON THE PLAINTIFF AND NAMES OF DEFENDANT NO.1 TO 4 BE REMOVED FROM THE REVENUE RECORD, PASSED IN O.S.NO.220/2004 BY LEARNED CIVIL JUDGE (SR.DN.) SHORAPUR, WHICH IS - 3 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 CONFIRMED BY THE JUDGMENT AND DECREE DATED 10.08.2011 BY THE LEARNED DISTRICT JUDGE YADGIR IN R.A.NO.13/2010 AND CONSEQUENTLY DISMISS THE SUIT OF THE PLAINTIFF IN THE ENTIRETY IN THE INTEREST OF JUSTICE AND EQUITY. IN R.S.A.NO.7386 OF 2011 BETWEEN: DANAMMA W/O SHIVAREDDEPPA GARGOL AGE: MAJOR, OCC: HOUSEHOLD AND AGRICULTURE, R/O:BOODNOOR, TQ: SHORAPUR, DIST: YADGIR. …APPELLANT (BY SRI LIYAQAT FAREED USTAD, ADVOCATE) AND: 1. DEVAKAMMA W/O HEMAREDDY AGE: 43 YEARS, OCC: HOUSEHOLD, 2. BASAWARAJ S/O HEMAREDDY AGE: MAJOR, 3. VEERESH S/O HEMAREDDY AGE: 23 YEAS, ALL R/O: CHENNUR, NEAR ALDAL, TQ: SHORAPUR, DIST: YADGIR – 585 201. - 4 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 4. SIDDAPPA S/O MADIVALAPPA GARGOL, AGE: 70 YEARS, OCC: AGRICULTURE, R/O: MUDNOOR VILLAGE, TQ: SHORAPUR, DIST: YADGIR – 585 201. 5. DEVAREDDY S/O HEMAREDDY AGE: MINOR R/O: CHENNUR, NEAR ALADA, TQ: SHORAPUR, DIST: YADGIR – 585 201. …RESPONDENTS (BY SRI BASAWARAJ KAREDDY, ADV., FOR R1 TO R3 & R5; R4 IS HELD SUFFICIENT) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 10.08.2011 PASSED BY THE DISTRICT JUDGE AT YADGIR IN R.A.NO.16/2010, AND CONFIRM THE JUDGMENT AND DECREE DATED 18.06.2009 PASSED BY THE CIVIL JUDGE (SR.DN.,) AT SHORAPUR, IN O.S.NO.220/2004 IN THE INTEREST OF JUSTICE AND EQUITY. THIS REGULAR SECOND APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE - 5 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE) RSA No.7376/2011 is arising from the concurrent findings in a suit for declaration and injunction. The suit is decreed in part for granting the relief of injunction. The defendants also filed an appeal granting a decree nullifying the compromise decree between the parties. The relief of declaration is denied. Aggrieved by the same, the defendants filed an appeal. The appeal is dismissed. Hence, the defendants are before this Court in Second Appeal. 2. Before the First Appellate Court, the plaintiff filed an appeal against the decree declining the relief of declaration of title. Both the appeals are dismissed. Plaintiff has filed Second Appeal in RSA No.7386/2011. 3. The relief of declaration sought is as under: (a) The plaintiff be declared that the plaintiff is the owner and possessor of the suit land as shown in paragraph No.2 of the plaint. (b) The defendants be perpetually restrained from interfering in the peaceful possession of the - 6 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 plaintiff over the suit land as shown in paragraph No.2 of the plaint. (c) To declare that the decree in O.S.No.122/1999 dated 27.07.1999 passed by the Civil Judge, Junior Divison, Shahpur is null and void and not binding on the plaintiff in respect of the suit land. (d) The correction of record of rights in respect of the suit land be made by removing the names of defendants No.1 to 4 and the name of the plaintiff be entered as owner and possessor of the suit land. 4. The declaration of ownership sought by the plaintiff and perpetual injunction as a consequential relief is not granted. However, the declaration is granted to the effect that the decree in O.S.No.122/1999 dated 27.07.1999 passed by the Civil Judge, Junior Division, Shahpur is null and void and not binding on the plaintiff. The names of defendants No.1 to 4 are also ordered to be removed in terms of the decree passed by the Trial Court which is confirmed by the First Appellate Court. - 7 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 5. RSA No.7376/2011 filed by the defendants was admitted on 19.03.2024 to consider the following substantial questions of law: (a) Whether both the Courts ignored the provisions of Order IX Rule 9 of Code of Civil Procedure, 1908? (b) What order or decree? 6. It is noticed that the substantial question of law is not framed in RSA No.7386/2011 filed by the plaintiff. 7. Considering the materials placed on record, this Court is of the view that the following substantial questions of law are required to be framed: (a) Whether the plaintiff/appellant establishes the ownership over the suit property? (b) Whether the suit of the plaintiff/appellant is not hit by Order IX Rule 9 of Code of Civil Procedure, 1908? 8. The admitted facts are as under: The plaintiff is the wife of late Shivareddappa Gargol. Defendant No.5 is the brother of Shivareddappa Gargol. - 8 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 Defendant No.5 is issueless. Defendant No.1 is the daughter-in- law of sister of defendant No.5. Defendants No.2 to 4 are the children of defendant No.1. The plaintiff is also issueless. 9. O.S.No.122/1999 is filed in respect of the property bearing Sy.No.65 of Boodnur village, Taluk:Shahpur, measuring 13 acres. The said suit is between defendant No.5 and defendants No.1 to 4. In the said suit, a settlement was arrived at among the parties to the said suit and defendant No.5 claims to have relinquished his rights over the property in favour of defendants No.1 to 4. The plaintiff admittedly is not a party to the said suit. 10. The plaintiff filed the suit on the premise that the property bearing Sy.No.65 is allotted to her husband in the partition between defendant No.5 and her husband. Thus, it is her contention that decree in O.S.No.122/1999 is not binding on her on two grounds, namely: (a) The property did not belong to defendant No.5. (b) The plaintiff is not made a party to the said proceeding. - 9 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 11. Defendants contested the suit. Defendant No.5 took a stand that the property did not belong to the plaintiff or her husband. Defendant No.5 asserted that he purchased the property in the year 1970 under registered sale deed as per Ex.D1. It is also urged by defendant No.5 that the suit of the plaintiff is hit by Order IX Rule 9 of the Code of Civil Procedure (for short 'Code'), as the earlier suit in O.S.No.03/1991 seeking declaration of title filed by the very same plaintiff is dismissed for non-prosecution on 21.01.1995. It is also urged that the suit challenging the compromise decree in O.S.No.122/1999 is time barred and hence prayed for dismissal of the suit. 12. The Trial Court framed issues based on the pleadings. As far as issue No.1 relating to the plaintiff's ownership is concerned, the Trial Court held that the plaintiff is the owner of the property. As far as issue No.2 is concerned, the Trial Court held that the plaintiff is legally wedded wife of late Shivareddeppa and has locus standi to file the suit. 13. The Trial Court having given a finding that the plaintiff is the owner of the property has refused to grant the relief of declaration on the premise that the plaintiff's earlier - 10 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 suit seeking relief of declaration of title and injunction is dismissed for non-prosecution, and consequently took a view that second suit is not maintainable in view of Order IX Rule 9 of the Code. 14. It is also relevant to note that the Court has held that the compromise decree in O.S.No.122/1999 is not binding on the plaintiff on two grounds: (a) Plaintiff being the owner is not made a party to the suit. (b) The compromise decree which records a statement that defendant No.5 has transferred the property by way of relinquishment in favour of defendants No.1 to 4 is not registered as the decree seeks to create right for the first time in favour of defendants No.1 to 4. 15. In the aforementioned circumstances, the Trial Court has granted a declaration that decree is not binding on the plaintiff and the names of the defendants in respect of the suit property have to be deleted as the compromise decree in O.S.No.122/1999 has not conferred any title in favour of defendants No.2 to 4. Since the Trial Court has also given a - 11 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 finding that the plaintiff is the owner of the property, the Trial Court has concluded that defendant No.5 could not have transferred the property to defendants No.2 to 4. 16. Before the First Appellate Court, the plaintiff urged that the suit could not have been dismissed in respect of relief of declaration of title and injunction after having given a finding, that the plaintiff is the owner and in possession of the property. However, the appeal is dismissed rejecting the plaintiff’s contention. 17. The appeal filed by the defendants in R.A. No.13/2010 is also dismissed. 18. Learned counsel for the appellants/defendants (referred to as defendants) would submit that the plaintiff has transferred the property during the pendency of the suit to a 3rd party as such, the suit is not maintainable and defendants had filed an application to dismiss the suit. Though the application was filed during the pendency of the suit, during the course of the trial, the application was ordered to be heard along with the merits of the case and the Trial Court has dismissed the application at the time of final disposal of the suit - 12 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 and reasons for dismissal of the said application are recorded in the impugned judgment. 19. Before the First Appellate Court, the defendants/ appellants contended that the decree could not have been passed in view of the sale of the property by the plaintiff during the pendency of the suit. 20. It is also urged that 2nd suit by the plaintiff is not maintainable because of the bar contained under Order IX Rule 9 of the Code and also because of the law of Limitation. 21. Order IX Rule 9 of the Code bars 2nd suit on the same cause of action if earlier suit is dismissed for non- prosecution. 2nd suit based on the different cause of action is not barred. The question before this Court is whether 2nd suit filed is based on the same cause of action or not. 22. In addition, the Court should also consider whether 2nd suit is for the same property and same relief. 23. It is relevant to note that the earlier suit is filed in the year 1991. The second suit is filed in the year 2003 in O.S.No.93/2003, later it was renumbered as O.S.No.220/2004. - 13 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 24. The plaint averment in the said suit would reveal that the plaintiff in the said suit is aggrieved by the decree in O.S.No.122/1999 which was recorded on 27.07.1999. The plaintiff contends that the decree does not bind the plaintiff as the plaintiff was not made a party to the said proceeding. 25. It is also noticed from the pleadings in the plaint that the cause of action according to the plaintiff arose on account of illegal entry made in the record of rights based on the decree. The cause of action shown in the plaint in O.S.No.220/2004 is entirely different from the cause of action shown in the earlier suit filed in the year 1991. The plaintiff could not have raised a dispute relating to the decree in O.S.No.122/1999 as the decree in O.S.No.122/1999 was not in existence when the earlier suit was filed in the year 1991. 26. There was one more angle. The Trial Court has held that the suit is not maintainable under Order IX Rule 9 of the Code and the First Appellate Court has also confirmed the said finding. Order IX Rule 9 of the Code reads as under: "9. Decree against plaintiff by default bars fresh suit.—(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be - 14 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non- appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party". 27. On a reading of Order IX Rule 9 of the Code, it is evident that the provision also refers to Order IX Rule 8. Order IX Rule 8 of the Code reads as under: "8. Procedure where defendant only appears.—Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder." - 15 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 28. Order IX Rule 8 of the Code enables the Court to dismiss the suit where the plaintiff does not appear and the defendant appears when the case is set-down for hearing. From the language used in Order IX Rule 9 of the Code to apply the said provision, the party must satisfy two things, namely: (a) The suit is dismissed for non-prosecution in a circumstance contemplated under Order IX Rule 8 of the Code. (b) The second suit is filed under the same cause of action in which the earlier suit was filed. 29. Learned counsel appearing for the appellants has invited the attention of this Court to the order sheet in earlier O.S.No.3/1991. On 21.01.1995, the suit is dismissed. The order sheet would reveal that the advocate for the plaintiff was absent and the plaintiff was also absent. The Trial Court finds no reasons to adjourn the matter and dismissed the suit. The presence of the defendant No.1 is not noted. When the Court pointed that the presence of the defendant No.1 is not noted, learned counsel for the appellants would also submit that the absence is also not noted and would contend that one cannot conclude that the defendant was not present on the said date. - 16 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 It is indeed true that it is not forthcoming as to whether the defendant was present on 20.01.1995, when the suit was dismissed for non-prosecution for want of presence of plaintiff or his counsel. However, the defendants do not state in the written statement that the defendant in O.S.No.3/1991 was present before the Court on 20.01.1995 when the case was called. Since the defendants are raising a contention that the suit is not maintainable under Order IX Rule 9 of the Code, it is for the defendants to establish that the dismissal was in a situation contemplated under Order IX Rule 9 of the Code. 30. As already noticed above, the cause of action to file 2nd suit is entirely different than the cause of action shown in the earlier suit. It is indeed true that the plaintiff has sought relief of declaration of title in earlier suit and said suit was not prosecuted and was dismissed for non-prosecution. It is also required to be noticed that the earlier suit in O.S.No.3/1991 is not a suit in respect of the present suit property. In the said suit, the plaintiff has questioned sale deed dated 03.11.1990. Though the plaint would indicate that 19 acres 32 guntas is suit property, in the said suit in O.S.No.3/1991, on a complete reading of the plaint, it is noticed that the plaintiff has claimed - 17 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 ownership over 13 acres of the said land and 6 acres 13 guntas according to the plaintiff is allotted to the share of defendant No.1. 31. It is also noticed from the pleading in the said suit that the plaintiff claimed title over the property on the premise that the partition has taken place between her husband and defendant No.5 and the dispute relating to entry in the record of rights based on the partition is pending before the Tahasildar. Paragraph No.10 of the plaint in the said suit would reveal that defendant No.1 taking advantage of his name appearing in the record of rights to the extent of 6 acres 13 guntas, has executed the sale deed dated 03.11.1990 to defendant No.2. The plaintiff claims that the plaintiff is not a party to the said proceeding and sought declaration that the plaintiff is the owner of the suit property and sought a declaration that the registered sale deed dated 03.11.1990 is null and void. 32. On going through the aforementioned plaint, it is noticed that the plaintiff has questioned the sale deed executed by defendant No.1. When the plaintiff contends that 6 acres 13 - 18 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 guntas is allotted to the share of defendant No.1, the plaintiff cannot question the said sale deed as the said property belongs to defendant No.1. Hence, the suit which is dismissed for non- prosecution is in substance in the suit in respect of 6 acres 13 guntas and not 13 acres. Though some reference is made to the total extent of Sy.No.65 in the plaint, it is also noticed that in the cross-examination, the plaintiff has stated that there was settlement between the plaintiff and the defendant in the said suit and accordingly, the suit was not pressed. 33. By considering the materials on record, this Court has to hold that the plaintiff by not prosecuting the said suit has given-up her claim in respect of 6 acres 13 guntas which according to the plaintiff was allotted to defendant No.1. The plaintiff has not given-up her claim in respect of remaining 13 acres in the said survey number. 34. Now the question is whether the Trial Court is justified in holding that the plaintiff is the owner of the suit property by answering issue No.1. The plaintiff has produced partition deed to substantiate her contention. The Trial Court did not accept the partition deed on the premise that it is not - 19 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 sufficiently stamped and is not duly registered. On this account, the document is held to be inadmissible. No fault can be found with the said finding of the Trial Court which is accepted by the First Appellate Court as well. However, the Trial Court has concluded that the remaining portion in Sy.No.65 excluding the portion sold by defendant No.1 under the registered sale deed dated 03.11.1990 is the property of the plaintiff because of the recital in the sale deed which says the remaining portion of the property allotted to the share of plaintiff's husband. This, recital is by defendant No.1, and defendant No.5 has not denied the contents of the sale deed. Defendant No.5 has not given any explanation as to why the remaining portion in Sy.No.65 is shown as the property of the plaintiff's husband if the said property was not the property of the husband of the plaintiff. Under these circumstances, the Trial Court has concluded that the plaintiff is the owner of the property. This Court does not find any reasons to interfere with the said finding. 35. As far as the contention of the defendants/appellants that during the pendency of suit, the plaintiff has sold the property, as such the plaintiff cannot prosecute the suit is concerned, the law is well-settled and such - 20 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 contention cannot be accepted. Merely because the plaintiff has sold the property, it does not mean that the plaintiff cannot prosecute the suit which was filed when the plaintiff had ownership over the suit property as on the date of the suit. After having sold the property, during the pendency of the suit, the plaintiff has an obligation to ensure that the vendor does get title over the suit property pursuant to the sale deed. Hence, the obligation lies to prosecute the suit and the plaintiff can prosecute the suit even after selling the suit property during the pendency of the suit. 36. The learned counsel appearing for the appellants would contend that the transaction is hit by the provision of lis pendens. It is relevant to note that the provision relating to lis pendens does not bar the alienation during the pendency of the suit or the proceeding. Only rider is the alienation of the suit property during the pendency of the suit will be subject to the result of the suit or proceeding. Hence, the contention that the suit property could not have been sold cannot be accepted. 37. For the aforementioned reasons, this Court is of the view that the plaintiff was the owner of the suit property as on - 21 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 the date of the suit and entitled to the relief of declaration of title and in case, the plaintiff has sold the suit property during the pendency of the suit, the purchaser/s will acquire valid title over the suit property. The decree in O.S.No.122/1999 does not bind the plaintiff and said decree does not confer any title in favour of defendant No.1. The suit of the plaintiff is not hit by Order IX Rule 9 of the Code. To the said extent, the decrees passed by the Trial Court and the First Appellate Court holding that the second suit is hit by Order IX Rule 9 of the Code have to be set aside and accordingly set aside. 38. For the aforementioned reasons, this Court is of the view that the substantial questions of law framed have to be answered against the appellant in RSA No.7376/2011 and in favour of the appellants in RSA No.7386/2011. 39. Hence, the following: ORDER (i) RSA No.7386/2011 is allowed and RSA No.7376/2011 is dismissed. (ii) The impugned Judgment and Decree dated 18.06.2009 in O.S No.220/2004 on the file of Civil Judge, Senior Division, Shorapur, and - 22 - NC: 2025:KHC-K:1932 RSA No. 7376 of 2011 C/W RSA No. 7386 of 2011 Judgment and Decrees dated 10.08.2011 in RA No.13/2010 and RA No.16/2010 on the file of District Judge, Yadagiri are modified. (iii) The plaintiff is declared as the owner of the suit property and defendants are restrained from interfering in the plaintiff's peaceful possession and enjoyment of the suit property. (iv) In case, the suit property is sold during the pendency of the suit, the purchaser/s is/are entitled to the benefit of the decree in favour of the plaintiff and name of the purchaser/s under the registered sale deed from the plaintiff is/are to be entered in the property records of the suit property. (v) If there is no sale by the plaintiff, then the name of the plaintiff shall be entered in the property records of the suit property bearing Sy.No.65 measuring 13 acres situated in Boodanoor Village, Taluk Shahpur. (vi) No order as to cost. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP List No.: 1 Sl No.: 44