- 1 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 2107 OF 2016 (DEC/INJ) BETWEEN: 1. SMT LALITHAMMA @ LEELAVATHAMMA, W/O LATE D.C.RAMACHANDRA, AGED ABOUT 67 YEARS, AMRUTHA NILAYA, NO.6-2, 68/49, AMAR KHED LAYOUT, RAICHUR-584101 2. SRI.D.R.RANGANATHA S/O LATE D.C.RAMACHANDRA, AGED ABOUT 54 YEARS, RESIDING AT NO.31 PRAKRUTHI NARAYANAPPA LAYOUT, NEW BANK COLONY, KONANA KUNTE, BANGALORE-560062 3. SRI. D.R.RAGHU S/O LATE D.C.RAMACHANDRA, AGED ABOUT 51 YEARS, AGM, BEML, SINGRAULI, MADHYA PRADESH-486889 4. SRI.D.R.SRINATHA S/O LATE D.C.RAMACHANDRA, AGED ABOUT 56 YEARS, AMRUTHA NILAYA, NO.6-2, 68/49, AMAR KHED LAYOUT, RAICHUR-584101 …APPELLANTS (BY SRI. RAVINDRANATH K, ADVOCATE) AND: Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 SMT NALINA W/O B.S.NAGARAJ AGED ABOUT 54 YEARS, RESIDING AT MOODALIYAR STREET, NEAR KSRTC BUS STAND, ARASIKERE TOWN, HASSAN DISTRICT 573201 …RESPONDENT (BY SRI. A RAVISHANKAR ,ADVOCATE) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.09.2016 PASSED IN RA NO. 253/2015 ON THE FILE OF THE 5TH ADDL. DISTRICT AND SESSIONS JUDGE HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 31.03.2015 PASSED IN OS NO. 249/2004 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE HASSAN AND ETC. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 01.09.2016, passed in RA.No.253/2015 by the learned V Additional District and Sessions Court, Hassan. 2. For convenience, the parties are referred to based on their rankings before the Trial Court. The appellants were the defendants, and the respondent was the plaintiff. - 3 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendant for the relief of declaration and permanent injunction. It is the case of the plaintiff that the plaintiff is the absolute owner in possession of the suit schedule property belonged to one Smt. Kallamma, wife of Rajashetty. She had sold the same in favour of Smt. Lakshmamma for a valuable consideration under a registered Sale Deed 29.03.1975. Thereafter, Smt. Lakshmamma alienated and got converted the said land into non agricultural purposes vide order of the Deputy Commissioner dated 31.01.1990 and later on she along with her son sold the property in favour of Sri. BL Thimmegowda under the registration Sale Deed dated 17.01.1991. Sri. BL Thimmegowda intended to construct a house over the same and applied of to the concerned authority. Later on, he sold the same in favour of Sri. LN Doddamallegowda under a registered Sale Deed dated 26.09.1992. Sri. LN Doddamallegowda, sold the suit schedule property to the plaintiff under a registered Sale Deed dated 15.05.1996. The plaintiff is in possession and enjoyment of the suit schedule property. It is contended that - 4 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 the husband of defendant No.1 and the father of other defendants came near the suit schedule property stating that the suit scheduled property belonged to him. Though the plaintiff explained to him about the factual position. The defendants filed a suit in OS.No.440/1997 on the file of the Principal Civil Judge (Jr Dn), JMFC, Hassan, for the relief of permanent injunction. 4. The plaintiff did not contest the said suit, and the said suit was decreed. It is contended that the defendants have denied the plaintiff’s title over the suit schedule property. Hence, a cause of action arise for the plaintiff to file a suit for declaration and permanent injunction. Accordingly, prays to decree the suit. 5. The defendants have filed a written statement denying that the plaintiff is the owner and is in possession of the suit schedule property. It is contended that the defendants are in possession and enjoyment of the suit schedule property. It is contended that the plaintiff tried to interfere with the peaceful possession and enjoyment of the defendants over the suit schedule property. The defendants filed a suit in - 5 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 OS.No.440/1997 on the file of the Principal Civil Judge (Jr Dn), JMFC, Hassan, and the suit was decreed. The present suit is hit by principles of res judicata and the suit is barred by limitation. Hence, on these grounds prays for the dismissal of the suit. 6. The Trial Court, based on the pleadings of the parties, has framed the following issues and additional issues; “1. Whether the plaintiff proves that she is the absolute owner in possession and enjoyment of the suit schedule property by virtue of the registered sale deed dated 15.05.1996 executed by L.N.Doddamallegowda in her favour? 2 Whether the plaintiff proves that her predecessor-in- title were the absolute owners-in-possession of the suit schedule property? 3 Whether the plaintiff proves the suit schedule boundaries? 4 Whether the plaintiff proves the alleged interference by the defendants? 5 Whether the defendants prove that the sale deed dated 29.03.1975 executed by Smt.Kalamma and all subsequent sales are void and invalid? 6 Whether the defendants prove that late D.C.Ramachandra was the absolute owners-in- possession of the suit schedule property as per the sale deed dated 9.12.1965 and they inherited the same from the said D.C.Ramachandra? - 6 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 7 Whether the suit is hit by the principle of res-judicata? 8 Whether the plaintiff is entitled for judgment and decree as prayed for? 9 To what order or decree? ADDITIONAL ISSUE NO.1 1 Whether the defendant prove that suit of the plaintiff is barred by limitation? ADDITIONAL ISSUE NO.2 1 Whether defendant proves that court fee paid is incorrect?” 7. The plaintiff to substantiate the case, examined herself as PW.1, examined one witness as PW.2 and marked 22 documents as Ex.P.1 to Ex.P.22. On the other hand, defendant No.4 examined himself as DW.1 and marked 11 documents as Ex.D.1 to Ex.D.11. The Trial Court, after recording the evidence of the parties, hearing on both sides and on assessment of oral and documentary evidence answered issue Nos.1 to 8, and additional issue Nos.1 and 2 in the negative. Issue No.9 as per the final order. The suit of the plaintiff was dismissed vide judgment dated 31.03.2015. The plaintiff aggrieved by the judgment and decree passed in OS.No.249/2004, preferred an - 7 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 appeal in RA.No.253/2015 on the file of V Additional District and Sessions Court, Hassan. 8. The First Appellate Court, after hearing the learned counsel for both the parties, has framed the following points for consideration: “1. Whether the trial court has not appreciated the oral as well as documentary evidence in proper perspective and hence the Judgment and decree passed by the court below calls for interference? 2. What order?” 9. The First Appellate Court, on re-assessment of the verbal and documentary evidence answered point No.1 in the affirmative and point No.2 as per the final order. The appeal was allowed, the judgment and decree in OS.No.249/2004 was set aside, and the plaintiff’s suit was decreed, by declaring that the plaintiff is the absolute owner of the suit schedule property, and the defendants were restrained from interfering with the peaceful possession and enjoyment over the suit schedule property of the plaintiff. The defendants, aggrieved by the impugned judgment and decree passed in RA.No.253/2015, filed this Regular Second Appeal. - 8 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 10. Heard arguments of learned counsel Sri. Ravindranath. K., appearing for the defendants and learned counsel Sri. A Ravishankar., appearing for the plaintiff. 11. Learned counsel for the defendants submit that the First Appellate Court has not properly framed the points for adjudication and it is not in compliance with Order 41 Rule 31 of Code Of Civil Procedure, 1908 (hereinafter referred ‘CPC’), and he also submits that the defendants have filed a suit in OS.No.440/1997 against the plaintiff for a relief of permanent injunction. The said suit was decreed. The First Appellate Court has not recorded any finding on the judgment rendered in OS.No.440/1997. He submits that the First Appellant Court, being a final fact finding Court, is required to answer all the issues framed by the Trial Court and has to frame the points for consideration and re-appreciate the entire evidence on record. He submit that admittedly, the First Appellate Court has not re- appreciated the entire evidence on record. He submits that the impugned judgment passed by the First Appellate Court is not in compliance with Order 41 Rule 31 of CPC. Hence, he prays to set aside the impugned judgment passed by the First Appellate - 9 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 Court and remit the matter to the First Appellate Court for re- consideration in accordance with Order 41 Rule 31 of CPC. 12. Per contra, learned counsel for the plaintiff supported the impugned judgment, he submit that the First Appellate Court has re-appreciated the entire evidence on record and rightly passed the impugned judgment. Hence, on these grounds, he prays to dismiss the appeal. 13. This Court admitted the appeal on 15.12.2016, to consider the following substantial questions of law: “i) Whether the First Appellate Court has committed any serious legal error in not considering the effect of the previous suit in OS.No.440/1997 between the same parties, wherein the possession of the appellant has been up held by the trial Court and it has not been challenged by the respondent any where and sofar as the possession is logically determined by the courts and that the suit of the plaintiff is hit by principles of resjudicata. ii) Whether the First Appellate Court has committed any serious legal error in not formulating any points for consideration with reference to the issues raised by the parties and answering the same and thereby violating under Order 41 Rule 1 read with Section 151 of CPC?” - 10 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 Substantial question No.i:- The plaintiff filed a suit for declaration and permanent injunction claiming that the plaintiff had purchased the suit schedule property under a registered Sale Deed dated 15.05.1996 and the husband of defendant No.1 and father of other defendants i.e., Sri. DC Ramachandra came near the suit schedule property and claimed that the suit schedule property belonged to him. The plaintiff informed Sri. DC Ramachandra that he had purchased the suit schedule property under the registered Sale Deed dated 15.05.1996. The defendants filed a suit for permanent injunction in OS.No.440/1997 against the plaintiff herein. The said suit was decreed, holding that the defendants are in possession and enjoyment of the suit schedule property, and granted a permanent injunction restraining the plaintiff herein from interfering with the peaceful possession and enjoyment over the suit schedule property. The defendants have produced a copy of the judgment passed in OS.No.440/1997, marked as Exs.D.9 and 10. The First Appellate Court without considering the judgment passed in OS.No.440/1997 has passed the impugned judgment. - 11 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 14. The impugned judgment passed by the First Appellate Court is without considering the effect of the previous suit in OS.No.440/1997. It is an admitted fact that the present plaintiff did not challenge the judgment and decree passed in OS.No.440/1997. The judgment passed in OS.No.440/1997 has attained the finality. 15. I have perused the judgment passed by the First Appellate Court. The First Appellate Court has not recorded any finding on the judgment rendered in OS.No.440/1997 and granted a decree for permanent injunction, contrary to the judgment rendered in OS.No.440/1997. Thus the First Appellate Court has committed an error in passing the impugned judgment. 16. In view of the above discussion, I answer substantial question No.i in the affirmative. The substantial question No.ii The First Appellate Court, being the final fact finding Court, is required to frame the points for adjudication to answer all the issues framed by the Trial Court and re- appreciate the entire evidence on record. - 12 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 17. The First Appellate Court, after hearing the learned counsel for both the parties has framed the following points for consideration: “1. Whether the trial court has not appreciate the oral as well as documentary evidence in proper perspective and hence the Judgment and decree passed by the court below calls for interference? 2. What order?” 18. In my opinion the First Appellate Court did not consider the point involved in the matter, it ought to have. The First Appellate Court has failed to consider the judgment rendered in OS.No.440/1997. Order 41 Rule 31 of CPC provides for the contents, date and signature of the judgment, which reads as follows: “Rule 31 provides that the judgment of the of the First Appellate Court shall be in writing and shall state- a) the points for determination; b) the decision thereon; c) the reasons for the decision; and d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the judge or by the judges concurring therein.” - 13 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 19. The perusal of the impugned judgment, discloses that the First Appellate Court has not framed the points for determination properly, and there is no proper discussion of the records produced by the parties. The First Appellate Court has not properly assigned the reasons in reversing the judgment and decree passed by the Trial Court. The judgment and decree passed by the Trial Court is in violation of Order 41 Rule 31 of CPC. The appeal is required to be re-considered by the First Appellate Court. The First Appellate Court is required to re- appreciate the entire evidence on record and the matter is required to be reconsidered by the First Appellate Court. 20. In view of the above discussion, I answer substantial question No.ii in the affirmative. 21. Accordingly, I proceed to pass the following: ORDER i) The appeal is allowed; ii) The judgment and decree dated 01.09.2016 passed in RA.No.253/2015 passed by the V Additional District and Sessions Court, Hassan, is set aside; iii) The appeal in RA.No.253/2015 is restored to its original position, and the First Appellate court is - 14 - NC: 2025:KHC:14238 RSA No. 2107 of 2016 directed to frame the points for adjudication and thereafter pass the judgment in compliance with Order 41 Rule 31 of CPC; iv) It is made clear that this Court has not made any adjudication on merits in issue; v) Parties are directed to appear before the First Appellate Court on 09.06.2025 without awaiting any notice; vi) The office is directed to transmit the records to the First Appellate Court; vii) All the contentions of the parties are kept open. Sd/- (ASHOK S.KINAGI) JUDGE PNV List No.: 1 Sl No.: 8