- 1 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 500 OF 2007 (DEC/INJ) BETWEEN: 1. SRI FAZULULLA, S/O SATTARSAB KALIGAR, AGED ABOUT 60 YEARS, 2. SMT ZAHIRABI, W/O FAZALULLA, AGED ABOUT 52 YEARS, (SINCE DECEASED BY LRS APPELLANT NO.1,3 & 4) 3. ARIFULLA, S/O FAZALULLA, AGED ABOUT 30 YEARS, 4. AMANULLA, S/O FAZALULLA AGED ABOUT 28 YEARS, (APPELLANTS 1 AND 4 RESIDING AT BHUSENAHALLI ROAD, BEHIND HIGHER PRIMARY (BOYS) SCHOOL, CHANANGIRI TOWN - 577 213, HAVERI DISTRICT. 5. SABJANSAB KALIGAR, S/O DASTHAGIRSAB KALIGAR, AGED ABOUT 63 YERS, EX-MUNICIPAL COUNCILOR, LASKAR MOHALLA, CHANNAGIRI TOWN - 577 213, HAVERI DISTRICT. 6. SMT PYARIJAN, W/O SABJAN SAB KALIGAR, Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 AGED ABOUT 53 YEARS, HOUSEHOLD,LASKAR MOHALLA, CHANNAGIRI TOWN, 577 213, HAVERI DISTRICT. 7. MAHAMMAD FAZIL, S/O SABJAN SAB KALIGAR, AGED ABOUT 32 YEARS, TIMBER WORKER, LASKAR MOHALLA, CHANNAGIRI TOWN, (SINCE DECEASED BY LRS APPELLANT NO.5,6,8 AND 9 AMENDED AS PER COURT ORDER DT 18.11.2019) 8. MOHAMMED SANAULLA, S/O SABJAN SAB KALIGAR, AGED ABOUT 30 YERAS,TAILOR, LASKAR MOHALLA,CHANNAGIRI TOWN. 9. MOHAMMED SAMIULLA, S/O SABJAN SAB KALIGAR, AGED ABOUT 28 YEARS, AGRICULTURIST,LASKAR MOHALLA, CHANNAGIRI TOWN. 10. RAHIM SAB, S/O DASTAGIRI SAB KALIGAR, AGED ABOUT 67 YERAS, AGRICULTURIST,LASKAR MOHALLA, CHANNAGIRI TOWN. 11. RAHAMATH, S/O RAHIMSAB AGED ABOUT 37 YEARS, AGRICULTURIST,LASKAR MOHALLA, CHANNAGIRI TOWN. 12. SHAFI, S/O RAHIM SAB, AGED ABOUT 32 YEARS, AUTO DRIVER, 13. MOHAMMED ISMAILSAB, S/O MOHAMMED SAB KALIGAR, - 3 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 AGED ABOUT 67 YEARS, AGRICULTURIST, (SINCE DECEASED REPRESENTED BY LRS APPELLANT NO.14 AND 15 V/O/DT 13.1.2023) 14. FAHATAULLA, S/O MOHAMMED ISMAIL SAB AGED ABOUT 37 YEARS, SOUND SYSTEM BUSINESS, 15. LLIYAS, S/O MOHAMMED ISMAIL SAB, AGED ABOUT 35 YEARS,TAILOR, 16. HIDAYATHULLA, S/O MOHAMMED ISMAIL SAB, AGED ABOUT 32 YEARS, SOUND SYSTEM BUSINESS, (APPELLANTS 10 TO 16 ARE R/O LASKAR MOHALLA CHANNAGIRI TOWN) 17. ATHAULLA, S/O AHAMED SHARIF SAB, AGED AOBUT 52 YEARS, MUTTON MERCHANT,TIPPU NAGARA, BEHIND RASHEEDA SAW MILL, CHANNAGIRI TOWN. 18. KHALANDARSAB, S/O DASTAGIRI SAB KALIGAR, AGED ABOUT 77 YEARS, AGRICULTURIST, SIHINEERU BHAVI RASTE,CHANNAGIRI TOWN (SINCE DECEASED BY HIS LR'S) 18(a) SHRI NAVSAB KALIGAR, S/O DASTAGIR SAB KALIGAR, AGE 40 YEARS, R/O LASHKAR MOHALLA, TAL: CHANNAGIRI, DIST: DAVANAGERE 19. GAFFARSAB, S/O DASTHAGIRI SAB KALIGAR, AGED ABOUT 62 YEARS, - 4 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 AGRICULTURIST, R/O KALLAHALLI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK, SHIMOGA DISTRICT. …APPELLANTS (BY SRI SHIVARAM R BHAT, ADVOCATE SRI VARUN JAYKUMAR PATIL, ADVOCATE FOR A1, A3 TO A12 AND A14 TO A17 AND A19, V/O/DT 18.11.2019, A5, A6, A8 AND A9 ARE LR'S OF DECEASED A7, SRI CHANDRAKANTH R PATIL, ADVOCATE FOR LR'S OF DECEASED A18, V/O/DT 13.01.2023, A1, A3 AND A4 ARE LR'S OF DECEASED A14 AND A15 ARE TREATD AS LR'S DECEASED A13) AND: 1. SMT KHATHUNNISA SINCE DECEASED BY HER LR'S 1(a) INTHEYAJI SAB, S/O WARDI DAWADSAB, R/O OPP. MAJEED E RAHAMANEY, LASKAR MOHALLA, CHANNAGIRI TOWN (SINCE DECEASED REPRESENTED BY LRS RESPONDENT NO.1(b) & 1(e)) 1(b) AHZEEZE SAB, S/O WARDI DAWAD SAB, R/O OPP.MANAGRASA, SHIKARIPURA TALUK, SHIMOGA DISTRICT. 1(c) IIAYAZ SAB, S/O WARDI DAWAD SAB, KEB CONTRACTOR, R/O TANK MOHALLA, SHIMOGA TOWN, 1(d) PARVEEZ SAB, S/O WARDI DAWAD SAB, - 5 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 R/O OPP. MAJEED, E RAHAMANEY, LASKAR MOHALLA, CHANNAGIRI TOWN. 1(e) GULZAR PASHA, S/O WARDI DAWAD SAB, KEB CONTRACTOR, OPP: MAJEED E RAHAMANEY, LASKAR MOHALLA, CHANNAGIRI TOWN. 1(f) BADARUNISA, D/O WARDI DAWAD SAB, OPP: NEW SHANTI MAYDDAN, H.M.M. SAW MILL, CHANNAGIRI TALUK. 1(g) AHZEEZA UNISA BANU, D/O WARDI DAWAD SAB, R/O ANWAR CALLUNE, BADRAVATI TALUK, SHIMOGA DISTRICT. 1(h) FARKUNDA BANU, D/O WARDI DAWAD SAB, R/O BENKE NAGAR, 1ST CROSS, HARIHAR TALUK, DAVANAGERE DISTRICT. (SINCE DECEASED REPRESENTED BY LRS RESPONDENT NO.1(b) & 1(d)) 1(i) FAYAZANI UNISA, D/O WARDI DAWAD SAB, R/O TIPPALLAPUR ARALIHALLI VILLAGE, BADRAVATI TALUK, SHIMOGA DISTRICT. …RESPONDENTS (BY SRI R GOPAL, ADVOCATE FOR R1(C, D, E, F, G AND I) R1(B) - NOTICE SERVED, V/O/DT 13.1.2023 R1(B) & (E) ARE TREATED AS LR'S OF DECEASED R1(A) V/O/DT 13.0.2023 R1(B) & (D) ARE TREATED AS LR'S OF DECEASED R1(H)) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED 15.12.2006 PASSED IN R.A.NO.34/2005 ON THE FILE OF THE DISTRICT JUDGE, DAVANAGERE, ALLOWING THE APPEAL AND SETTING ASIDE - 6 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 THE JUDGEMENT AND DECREE DATED 18.7.2005 PASSED IN OS.NO.135/2001 ON THE FILE OF THE II ADDL.CIVIL JUDGE, CJM (SR.DN.), DAVANGERE. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT This appeal is filed against the divergent finding in a suit for declaration and injunction. Plaintiff's suit for declaration of title and injunction is dismissed by the Trial Court on the premise that the suit is not in time. The Trial Court also observed that the boundary shown in the suit is similar to the boundary shown in the earlier suit, and in the earlier suit, the Court has come to a conclusion that there is a discrepancy in the boundary. 2. The Trial Court also recorded a finding that the plaintiff is the owner of the property bearing assessment No.905 and held that the plaintiff is in possession and the Court also found that the suit is not hit by principle of resjudicata. - 7 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 3. Aggrieved by the judgment and decree, the plaintiff filed an appeal. First Appellate Court found that the plaintiff to be the owner of the property and held that the suit is in time and consequently, decreed the suit. First Appellate Court also held that the second suit filed by the plaintiff is not hit by principle of resjudicata. Hence, the present Second Appeal by the defendants. 4. The appeal was admitted on 20.02.2009 to answer the following substantial question of law: "In the light of the pronouncement in the case of SULOCHANA AMMA VS. NARAYAN NAIR, reported in AIR 1994 SC 152, whether the lower appellate Court was justified in holding that suit is not hit by principles of resjudicata with reference to Ex.D2?" 5. Learned counsel for the defendants/appellants taking through the facts of the case would contend that, earlier, the present respondent had filed a suit against the present appellants in O.S.No.249/1986. The said suit was for injunction in respect of same property and the said suit was - 8 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 decreed. The appeal by the defendants against the said decree was allowed and the suit was dismissed holding that there is a discrepancy in the boundary. Then the present respondents who are the plaintiffs in the earlier suit filed RSA No.682/1983. And the said appeal was dismissed confirming the judgment and decree passed by First Appellate Court. Thus, it is his contention that the suit filed by the plaintiff for relief of declaration and injunction showing the same boundary is impermissible and hit by principle of resjudicata, and that the suit is time barred by limitation. 6. It is further submitted that the plaintiff ought to have filed the suit for declaration of title and injunction when the present defendants had denied plaintiff's title long back even before the plaintiff filed earlier suit referred to above. 7. On the above said premise, it is urged that the limitation has to start from the date when the present appellants disputed the plaintiff's title and First Appellate Court erred in holding that the cause of action starts after boundary was fixed by Zilla Panchayat. It is also his further - 9 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 submission that earlier, this Court has held that the boundaries shown by the plaintiff are not correct and in view of the discrepancy found in the boundary of the suit property, suit was dismissed. Second suit is filed in respect of the same property showing the same description showing the same boundary, as such First Appellate Court erred in holding that the suit is not hit by principle of resjudicata. He would submit that the boundary shown earlier is already adjudicated to be erroneous, and that being the position, First Appellate Court could not have held that the earlier judgment does not operate as resjudicata in a subsequent suit which is filed showing same boundary. 8. Learned counsel appearing for the respondents on the other hand would submit that though there was a finding by this Court to the effect that the discrepancy and the description of the suit property, is not proved, the plaintiffs moved the Competent Authority for correction/fixation of the boundary and the Competent Authority after issuing notice to all the parties concerned, rectified the boundaries. Subsequent to rectification of the boundary, the suit is filed. - 10 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 Even the rectified boundary is disputed by the present appellants, as such there is cause of action after rectification of the boundary and suit is in time. 9. It is further submitted that earlier finding in Regular Second Appeal relating to the discrepancy of the boundary cannot be treated as resjudicata in a subsequent suit filed after correction of the boundary and it is further submitted that even if the boundary shown in the subsequent suit are one and the same, it is to be considered as the correct boundary in view of the finding of the Competent Authority refixing the boundary and said finding has attained finality as there is no challenge to the rectified boundary by the appellants. 10. Learned counsel for the respondent would submit that the issue in the earlier proceeding operates as a resjudicata and as the same boundary is against shown in the present plaint. It is also his submission that in the earlier proceeding in RSA.No.682/1983, this Court has already - 11 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 dismissed the second appeal as such, First Appellate Court is justified in allowing the appeal and dismissing the suit. 11. Certain facts are not in dispute. On earlier occasion, the present respondents filed suit in respect of property bearing Assessment No.905 in Chennagiri town. The extent of the property is 90x57. The plaintiffs have mentioned boundaries on all 4 sides of the said property. The suit was initially decreed. But later, the Appellate Court has reversed the said decree on the premise that boundaries are not established. This Court in RSA No.682/1983 has also dismissed the said appeal on the premise that the boundaries are not established. 12. On going through the judgments in all the Courts in earlier round proceedings, it is noticed that the plaintiff's ownership over suit schedule property bearing Assessment No.905 was held to be established. However, the suit for injunction is dismissed on the premise that the boundaries are not ascertained. Later, the plaintiff approached the Zilla Panchayat for fixation of boundary. In the said proceeding, - 12 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 the notice was issued to the present appellants. The appellants participated in the proceeding and took a contention that property bearing Assessment No.906 belongs to them and the plaintiffs are laying claim over the said property bearing Assessment No.906. After hearing both the parties, Zilla Panchayath concluded that the property bearing No.906 does not exist and property bearing No.905 is numbered as 906 and has come to the conclusion that the earlier proposal to grant a property in favour of the present appellants is already rejected by the Government. Thus, directed the Panchayat to fix the boundary of the property bearing Assessment No.905. 13. Said order passed by Zilla Panchayat is called in question by the appellant in Writ Petition No.19729/2024. Said petition is dismissed for non prosecution. The petitioner filed a review and the review petition is also dismissed. Pursuant to the direction issued by the Zilla Panchayat, the Gram Panchayat undertook the exercise of fixing the boundary and a committee was formed for this purpose and the committee submitted a report and pursuant to the - 13 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 report, the entries were made in the property extract disclosing the boundaries and said property extract is marked at Exhibit P5. The order passed by Zilla Panchayat is marked at Exhibit P11. This being the position, this Court has to hold that the boundaries pertaining to the said property is finally fixed and the said order is not challenged by the present appellants. 14. As already noticed, the Government has not granted property bearing Assessment No.906 to the appellants. The Zilla Panchayat has taken a view that property bearing Assessment No.905 is sought to be re- numbered as No.906 recording the name of the Municipality and said exercise is held to be erroneous. The said order passed by the Gram Panchayat has attained finality. 15. Under these circumstances, the cause of action to file the suit has arisen after the fixation of the boundary. Hence, the trial Court could not have held that the suit is time barred. - 14 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 16. As far as the plea relating to resjudicata is concerned, though the technical contention relating to resjudicata appears to be correct at first brush as the boundaries mentioned in both the plaints i.e. the former suit as well as the present suit are one and the same, what is required to be noticed is when the suit was dismissed pursuant to the judgment in RSA No.682/1983 passed by this Court, this Court has only held that the boundaries are not ascertained and accordingly, the suit is dismissed. Later the boundaries are ascertained and the boundaries fixed by the Panchayat, pursuant to the order passed by the Zilla Panchayat which is not questioned by the appellants. 17. Under these circumstances, the previous judgment does not operate as resjudicata. First Appellate Court is justified in allowing the appeal, the substantial question of law framed, is answered against the appellants in favour of the respondent. - 15 - HC-KAR NC: 2025:KHC:26780 RSA No. 500 of 2007 18. Appeal is dismissed. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP/CHS List No.: 1 Sl No.: 43