- 1 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 425 OF 2013 (INJ) C/W REGULAR SECOND APPEAL NO. 5 OF 2020 IN RSA No. 425/2013 BETWEEN: 1. SRI C K UMESH S/O LATE KALINGA SETTY SINCE DEAD REP. BY HIS LEGAL REPRESENTATIVES 1(A) SMT. LAKSHMAMMA W/O LATE C.K. UMESH AGED ABOUT 48 YEARS 1(B) SRI. MOHAN S/O LATE C.K. UMESH AGED ABOUT 26 YEARS 1(C) SRI. YOGESH S/O LATE C.K. UMESH AGED ABOUT 23 YEARS 1(D) SRI. PARAMESHA S/O LATE C.K. UMESH AGED ABOUT 22 YEARS APPELLANTS 1(A) TO 1(D) ARE R/AT Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 GUNDAPPA STREET CHIKKAMAGALURU - 577 201. …APPELLANTS (BY SRI. H N M PRASAD &. SRI. R. MOHAN KUMAR, ADVOCATES) AND: SMT CHANNAMMA AGED ABOUT 43 EYARS W/O LATE C K JANARDHAN SETTY RESIDING AT PLEGINAMMA STREET VIJAYAPURA EXTENSION CHIKKAMAGALURU - 577 101. …RESPONDENT (BY SRI. V D RAVIRAJ &. SRI. A.N. ANIL KUMAR, ADVOCATES) THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 9.1.2013 PASSED IN R.A.NO.18/2011 ON THE FILE OF ADDL. SENIOR CIVIL JUDGE, CHIKMAGALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 14.1.2011 PASSED IN OS.NO.154/2007 ON THE FILE OF I ADDITIONAL CIVIL JUDGE, CHIKKAMAGALURU. IN RSA NO. 5/2020 BETWEEN: 1. SMT. LAKSHMI W/O LATE C K UMESH, AGED ABOUT 54 YEARS, 2. SRI MOHAN S/O LATE C K UMESH AGED ABOUT 29 YEARS, - 3 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 3. SRI YOGEESHA S/O LATE C K UMESH AGED ABOUT 27 YEARS, 4. SRI PARAMESHA S/O LATE C K UMESH AGED ABOUT 25 YEARS ALL ARE R/AT OPP. TO MUNICIPAL HOSPITAL ROAD GUNDAPPA STREET, CHIKKAMAGALURU - 577 201 ...APPELLANTS (BY SRI. MANJUNATH PRASAD H N., ADVOCATE) AND: SMT. S B CHANNAMMA W/O LATE C K JANARDHAN SETTY, AGED ABOUT 52 YEARS, R/AT ANJANEYA TEMPLE ROAD, NEAR MARCO MESS VIJAYAPURA EXTENSION CHIKKAMAGALURU - 577 201. ...RESPONDENT (BY SRI. V.D. RAVIRAJ, ADVOCATE) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 28.10.2019 PASSED IN RA NO.30/2018 ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, AT CHIKKAMAGALURU DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.04.2018 PASSED IN OS NO.92/2016 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE AND CJM., CHIKKAMAGALURU. THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI - 4 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 ORAL JUDGMENT In R.S.A. No.5 of 2020: This appeal is filed by the appellants challenging the judgment and decree dated 28.10.2019 passed in RA No.30/2018 by the learned II Additional District and Sessions Judge, Chikkamagalur ('First Appellate Court' for short), and the judgment and decree dated 28.04.2018 passed in OS No.92/2016 by the learned Principal Senior Civil Judge and CJM, Chikkamagalur ('Trial Court' for short). 2. For convenience, the parties are referred to based on their ranking before the Trial Court. The appellants were the defendants and the respondent was the plaintiff. 3. Brief facts leading rise to the filing of this appeal are as follows: 3.1. The plaintiff filed a suit for declaration that she is the absolute owner of the suit schedule property and for possession. It is the case of the plaintiff that, the plaintiff - 5 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 is the absolute owner of the suit schedule property and the suit property, the Mangalore-tile house measuring 37 x 17 sq.ft. situated at Gunddappa Street, Chikkamagalur City. Earlier, the property was owned and possessed by mother-in-law of the plaintiff by name Smt. Channamma W/o Kalinga Shetty. She had purchased the said property measuring 17 x 61 sq.ft. under a registered sale deed dated 25.09.1967 from its lawful vendor and she was put in possession and enjoyment of the suit schedule property. During her lifetime, she executed a registered gift deed in favour of her son Sri. C.K.Ramachandra to an extent of 17 x 25 sq.ft. and also in favour of her son Sri. C.K.Umesh to an extent 14 x 24 sq.ft. The said C.K.Umesh is no more. Defendant No.1 is the wife and defendants No.2 to 4 are the children of C.K.Umesh. They have no right, title and interest over the suit schedule property. The plaintiff had purchased the schedule property from her mother-in-law and her brother-in-law C.K.Ramachandra under a registered sale deed dated 15.05.2007. Since - 6 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 from the date of purchase, the plaintiff is in possession and enjoyment over the suit schedule property. C.K.Umesh died on 04.06.2007. The deceased C.K.Umesh had tried to trespass into the suit schedule property to encroach the same. The plaintiff had resisted the illegal act of C.K.Umesh and lodged a complaint against him before the concerned Police. The Police have not taken any action against C.K.Umesh. Plaintiff filed a suit in OS No.154/2007 seeking a relief of perpetual injunction. The said suit was decreed. During the pendency of the appeal in RA No.18/2011, the defendants dispossessed the plaintiff from the suit schedule property. It is contented that, the appeal in RA No.18/2011 filed by the defendant was dismissed by the First Appellate Court and the First Appellate Court confirmed the judgment and decree passed in OS No.154/2007. Thereafter, the plaintiff filed an execution petition in EP No.36/2013. During the pendency of the execution petition, C.K.Umesh died. At that time, the defendants requested the plaintiff to allow - 7 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 them to reside in the suit schedule property for performing the rituals/ceremonies C.K.Umesh. The plaintiff and her husband, considering the relationship between the parties to the suit, permitted the defendants to reside in the suit schedule property. But, after completion of funeral ceremony, the defendants failed to hand over the possession of the suit schedule property. Hence, a cause of action arose for the plaintiff to file a suit for declaration of title and possession. 4. Defendant No.1 filed a written statement and defendants No.2 to 4 filed a memo adopting the written statement filed by defendant No.1. Defendant No.1 denied the averments made in the plaint and contended that, the plaintiff has given a wrong boundaries on the eastern side of the property measuring 37 x 17 sq.ft. On the eastern side of the property measuring 37 x 17 sq.ft, the house property measuring 24 x 17 sq.ft. belonging to the defendants is situated and it has been gifted to C.K.Umesh by his mother Channamma. It was contended that, - 8 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 Channamma had purchased the property measuring 17 x 61 sq.ft. under a registered sale deed dated 25.09.1967. The defendants were not aware of the gift deed executed by Channamma in favour of C.K.Ramchandra and it was denied that Channamma gifted the property in favour of C.K.Umesh and C.K.Ramchandra. They admitted that, the plaintiff filed a suit in OS No.154/2007 against C.K.Umesh. The said suit was decreed and the appeal was preferred by C.K.Umesh in RA No.18/2011 on the file of Additional Senior Civil Judge, Chikkamagalur. The said appeal was dismissed vide judgment and decree dated 09.01.2013. The defendant preferred a second appeal in RSA No.425/2013, which is pending for consideration before this Court. Hence, on these grounds, prays to dismiss the suit. 5. The Trial Court, based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiff proves that she is the absolute owner of the suit schedule property? - 9 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 2. Whether the plaintiff proves that, the defendants occupied the suit schedule property 4.5.2015 on with the permission of the plaintiff to conduct the funeral ceremony of Late Sri C.K.Umesh and thereafter failed to hand over the vacant possession of the suit schedule property to the plaintiff? 3. Whether the plaintiff is entitle for the reliefs sought for in the suit? 4. What order and decree? 6. The plaintiff, to substantiate her case, examined herself as PW-1 and marked six documents as Exs.P1 to P6. In rebuttal, defendant No.1 was examined as DW-1, examined one witness as DW-2 and marked one document as Ex.D1. 7. The Trial Court, after hearing on both sides and assessing the verbal and documentary evidence, answered issue Nos.1 to 3 in the affirmative and issue No.4 as per the final order. Consequently, the Trial Court decreed the suit, declaring that the plaintiff is the absolute owner of - 10 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 the suit schedule property and directed the defendants to vacate and hand over the possession of the suit schedule property to the plaintiff within two months from the date of the judgment. It was also made clear that ,if the defendants failed to vacate the same within the said period, the plaintiff is at liberty to take action in accordance with law. 8. The defendants, aggrieved by the judgment and decree passed in OS No.92/2016, preferred an appeal in RA No.30/2018 on the file of II Additional District and Sessions Judge, Chikkamagalur. 9. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1. Whether the appellants have made out valid grounds to allow I.A. No.II to IV? 2. Whether the appellants establish that the findings of Trial Court on issues are contrary to law and facts? - 11 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 3. Whether the appellants establish that the judgment of Trial Court is perverse and conspicuously erroneous and is liable to be set aside? 4. What order? 10. The First Appellate Court, after re-assessing the verbal and documentary evidence, answered points No.1 to 3 in the negative and point No.4 as per the final order. The appeal was dismissed, and the judgment and decree dated 28.04.2018 passed in OS No.92/2016 was confirmed. 11. The defendants, aggrieved by the impugned judgments, filed this regular second appeal. 12. Heard the learned counsel for the defendants and also the learned counsel for the plaintiff. 13. Learned counsel for the defendants submits that, Channamma had purchased the property under a registered sale deed dated 25.09.1967 and during her lifetime, she had executed a registered gift deed, wherein - 12 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 she has gifted portions of the property in favour of two sons i.e., C.K.Ramachandra and C.K.Umesh measuring 17 x 25 sq.ft. and 14 x 24 sq.ft. respectively. He submits that, the defendants are in possession and enjoyment over the suit schedule property. The said aspect was not properly considered by the Courts below and committed an error in passing the impugned judgments. He also submits that, the judgment and decree passed in OS No.154/2007 will become redundant in view of the subsequent suit filed by the plaintiff in OS No.92/2016, wherein the plaintiff has filed a suit for declaration of title and possession. He also submits that, in case if the Court comes to a conclusion that there are no merits in the appeal, liberty be reserved to the defendants to work out their remedy in the execution petition. Hence, on these grounds, he prays to allow the appeal. 14. Per contra, learned counsel for the plaintiff submits that, the property was owned and possessed by Channamma and during her lifetime, she executed a - 13 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 registered gift deed in favour of her two sons i.e., C.K.Ramachandra and C.K.Umesh. Based on the registered gift deed, the plaintiff became the absolute owner of the property in question. He also submits that, the plaintiff had purchased the suit schedule property from Channamma and C.K.Ramachandra under a registered sale deed dated 15.05.2007. Since from the date of purchase, the plaintiff is in possession and enjoyment of the suit schedule property and on the basis of the registered sale deed dated 15.05.2007, the plaintiff became the absolute owner of the suit schedule property measuring to an extent of 17 x 37 sq.ft. He also submits that, the defendants, after the demise of C.K.Umesh, requested the plaintiffs to provide accommodation for time being to perform the funeral ceremony of the deceased C.K.Umesh. He submits that, the plaintiff provided the suit schedule property to the defendants for temporary use. He submits that, after completion of funeral ceremony, the plaintiff requested the defendants to vacate and hand over - 14 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 the possession of the suit schedule property. He submits that, the defendants refused to vacate the suit schedule property. He submits that, there is no dispute regarding the ownership of the plaintiff over the suit schedule property to an extent of 17 x 37 sq.ft. The Trial Court has rightly declared that the plaintiff is the absolute owner of the suit schedule property and directed the defendants to hand over the vacant possession of the suit schedule property. The First Appellate Court had re-appreciated the entire evidence on record and rightly confirmed the judgment and decree passed by the Trial Court. Hence, he submits that, the judgments and decrees passed by the Courts below are just and proper and do not call for any interference at the hands of this Court. Hence, on these grounds, he prays to dismiss the appeal. 15. This Court, vide order dated 10.01.2020, admitted the appeal to consider the following substantial questions of law: - 15 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 1. Whether the Courts below were justified in deciding the suit filed by the respondent-plaintiff inspite of the fact that in another suit filed by the very same plaintiff in O.S.No. 154/2007, when an order of permanent injunction was granted to the respondent herein and was confirmed by the First Appellate Court, this appellant approached this Court in RSA No.425/2013 and this Court by order dated 28.08.2013 ordered that the parties shall maintain status-quo till further orders and when the same is pending consideration at the hands of this Court, whether the Courts below were justified in proceeding to decide the second suit filed by the very same respondent-plaintiff? 2. Whether the Courts below were justified in decreeing the suit when admittedly the suit schedule property being a Mangalore tiled house was never divided by metes and bounds at the time of execution of gift deeds dated 04.11.2004 in favour of C.K.Ramachandra and C.K.Umesh, being the children of Smt.S.B.Channamma? the executant - 16 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 3. Whether the Courts below were justified in ignoring the discrepancy in the measurement pointed out at Ex.Pl and Ex.D1, which were fatal to the case of the plaintiff? 4. Whether the Courts below were justified in granting the relief of possession in the absence of proper identification of the property in question? Reg. Substantial Question of Law No.1: 16. There is no dispute that the plaintiff, before filing of this suit, filed a suit in OS No.154/2007 seeking for a relief of perpetual injunction restraining the defendant from interfering with the peaceful possession and enjoyment over the suit schedule property. The Trial Court, after full fledged trial, decreed the suit vide judgment and decree dated 14.01.2011. C.K.Umesh, aggrieved by the judgment and decree passed in OS No.154/2007, preferred an appeal in RA No.18/2011. The First Appellate Court, after re-appreciating the entire evidence on record, dismissed the appeal vide judgment - 17 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 and decree dated 09.01.2013 and confirmed the judgment and decree passed in OS No.154/2007. The legal representatives of the deceased C.K.Umesh, aggrieved by the judgment and decree passed in OS No.154/2007 and RA No.18/2011, filed appeal in RSA No.425/2013. This Court, vide order dated 28.08.2013, directed the parties to maintain status-quo. During the pendency of the appeal in RSA No.425/2013, the plaintiff filed a suit in OS No.92/2016 for the relief of declaration of title and possession in respect of the suit schedule property based on the register sale deed dated 15.05.2007 executed by C.K.Ramchandra and Channamma. Though this Court directed the parties to maintain status-quo in regard to the possession of the suit schedule property, but this Court has not stayed the further proceedings in OS No.92/2016. There was no legal impediment for the Trial Court to proceed the suit in OS No.92/2016. The Trial Court was justified in proceeding with the suit in OS No.92/2016. As observed above, there was no interim order of stay of - 18 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 further proceedings in RSA No.425/2013. The Courts below were justified in proceeding to decide the suit in OS No.92/2016. In view of the above discussion, I answer substantial question of law No.1 in the affirmative. Reg. Substantial Question of Law No.2: 17. Admittedly, the suit schedule property was owned and possessed by Channamma. During her lifetime, she executed a registered gift deed in favour of C.K.Ramchandra and C.K.Umesh, and gifted the property measuring to an extent of 17 x 25 sq.ft. in favour of C.K.Ramchandra and 14 x 24 sq.ft. in favour of C.K.Umesh under the registered gift deed dated 04.11.2004. Based on the registered gift deed, C.K.Ramachandra and C.K.Umesh became the absolute owners to an extent of 17 x 25 sq.ft. and 14 x 24 sq.ft. respectively. The plaintiff had purchased the property from Channamma i.e., mother-in-law of the plaintiff and from her brother-in-law C.K.Ramachandra under the registered sale deed dated 15.05.2007. The - 19 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 vendor of the plaintiff had put the plaintiff in possession of the property under registered sale deed dated 15.05.2007. The plaintiff, to prove her ownership and possession, produced the document Ex.P1 the registered sale deed executed by C.K.Ramachandra and Channamma in favour of the plaintiff. It discloses that, the plaintiff had purchased the property to the extent of 37 x 17 sq.ft. Exs.P2 and P3 are the Khata extracts, which disclose that the plaintiff is the absolute owner of the suit schedule property. Ex.P4 is the certified copy of the judgment and decree passed in OS No.154/2007, which discloses that the plaintiff herein filed a suit against C.K.Umesh for the relief of perpetual injunction restraining C.K.Umesh from interfering and obstructing over the suit schedule property. The Trial Court, after full-fledged trial, decreed the suit vide judgment and decree dated 14.01.2011. Ex.P5 is the certified copy of the judgment and decree passed in RA No.18/2011, which discloses that C.K.Umesh, aggrieved by the judgment and decree passed - 20 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 in OS No.154/2007, preferred an appeal in RA No.18/2011 on the file of the Additional Senior Civil Judge, Chikkamagalur. The First Appellate Court, after re- assessing the verbal and documentary evidence, dismissed the appeal filed by C.K.Umesh vide judgment and decree dated 09.01.2013. Ex.P6 is the certified copy of the gift deed, which discloses that Channamma executed the gift deed in favour of C.K.Ramchandra and C.K.Umesh. During the cross-examination, nothing has been elicited from the mouth of this witness to disbelieve the evidence of PW-1. In rebuttal, defendant No.1 was examined as DW-1. She reiterated the written statement averments in the examination-in-chief and produced the document Ex.D1 the certified copy of the gift deed (Ex.P6), which discloses that Channamma gifted the portions of the suit property in favour of C.K.Ramachandra and C.K.Umesh. Defendant No.1 is the wife of C.K.Umesh and defendants No.2 to 4 are the children of C.K.Umesh. The defendants are admitting the ownership of the plaintiff over the suit - 21 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 schedule property. The Trial Court, considering Ex.P1 i.e., the registered sale deed executed by Channamma and C.K.Ramachandra in favour of the plaintiff, has rightly held that the plaintiff is the absolute owner of the suit schedule property. The defendants have not produced any record to show that in what capacity the defendants or C.K.Umesh was/were in possession of the suit schedule property. It is the case of the plaintiff that, the plaintiff permitted the legal representatives of C.K.Umesh i.e., the defendants to reside in the suit schedule property only for performing funeral ceremony. After the completion of funeral ceremony, the plaintiff requested the defendants to hand over and vacate the suit schedule property. The defendants, despite request, did not vacate it. Further, C.K.Umesh was also claiming to be the owner based on the registered gift deed dated 04.11.2004. Entire house property boundaries were shown in both the registered gift deeds dated 04.11.2004. The house was not divided by metes and bounds at the time of execution of registered - 22 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 gift deeds dated 04.11.2004 executed in favour of C.K.Ramchandra and C.K.Umesh. If the house property was not divided by meets and bounds at the time of execution of a registered gift deed dated 04.11.2004, the remedy left to the defendants is to file a suit for partition and separate possession. The defendants have not filed a suit for partition and separate possession till date. The Trial Court, considering the entire evidence on record, has rightly decreed the suit of the plaintiff. In view of the above discussion, I answer substantial question of law No.2 in the affirmative. Reg. Substantial Question of Law No.3: 18. The defendants have contended that, there is a discrepancy in the measurement. Insofar as discrepancy in the measurement is concerned, it is not a substantial question of law. In view of the proposition laid down by this Court in the case of - 23 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 Smt. Muniyamma Vs. Chikkanarayanappa1, Substantial Question of Law No.3 does not arise for consideration and is answered accordingly. Reg. Substantial Question of Law No.4: 19. The Courts below, considering the entire evidence on record and also that the defendants have failed to prove the nature of possession over the suit schedule property, have rightly granted a relief of possession. In view of the same, both Courts below were justified in passing the impugned judgments. I do not find any error in the impugned judgments passed by the Courts below. I concur with the findings. In RSA No.425/2013: 21. The appellants filed this appeal being aggrieved by the judgment and decree dated 09.01.2013 passed in RA No.18/2011 by the learned Additional Senior Civil Judge, Chikkamagalur ('First Appellate Court', for short) 1 RSA No.469/2015, decided on 24.04.2024 - 24 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 and the judgment and decree dated 14.01.2011 passed in OS No.154/2007 by the learned I Additional Civil Judge, Junior Division, Chikkamagalur ('Trial Court' for short). 22. For convenience, the parties are referred to based on their ranking before the Trial Court. The deceased appellant was the defendant and the respondent was the plaintiff. 23. Brief facts leading rise to the filing of this appeal are as follows: 23.1. The plaintiff filed a suit against the defendant for the relief of perpetual injunction. It is the case of the plaintiff that, the plaintiff is the owner in possession of the suit schedule properties under the registered sale deeds executed by C.K.Ramchandra and Channamma w/o Kalingashetty. The vendors of the plaintiff have put the plaintiff in possession of the suit schedule properties. The defendant has no right to title or interest over the suit schedule properties and is trying to interfere with the - 25 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 peaceful possession and enjoyment over the suit schedule properties. The plaintiff requested the defendant not to cause any obstruction or interference over the suit schedule properties. Despite the request made by the plaintiff, the defendant did not give any heed to the request. Hence, a cause of action arose for the plaintiff to file a suit for perpetual injunction. 24. The defendant filed a written statement denying the averments made in the plaint and contended that the defendant is in possession and enjoyment of the suit schedule properties. The suit filed by the plaintiff is not maintainable. Hence, prays to dismiss the suit. 25. The Trial Court, based on the pleadings of the parties, framed the following issues: 1) Whether plaintiff proves that she is in lawful possession over the suit schedule property as on the date of suit? 2) Whether the plaintiff proves that defendant is interfering in the peaceful - 26 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 possession and enjoyment of the suit schedule property? 3) Whether plaintiff is entitled for the suit claim? 4) What order or decree? 26. The plaintiff, to substantiate her case, examined herself as PW-1, examined one witness as PW-2 and marked ten documents as Exs.P1 to P10. In rebuttal, the defendant examined himself as DW-1 and no documents were marked on his behalf. 27. The Trial Court, after recording the evidence, hearing on both sides and assessing the verbal and documentary evidence, answered Issues No.1 to 3 in the affirmative and Issue No.4 as per the final order. The suit of the plaintiff was decreed vide judgment and decree dated 14.01.2011 and the defendant was restrained from interfering with the plaintiff's peaceful possession and enjoyment over the suit schedule properties. - 27 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 28. The deceased defendant, aggrieved by the judgment and decree passed by the Trial Court, preferred an appeal in RA No.18/2011 on the file of the First Appellate Court. 29. The First Appellate Court, after hearing the learned counsel for the parties, frame the following points for consideration: 1. Whether the plaintiff has proved her actual and physical possession and enjoyment of the suit schedule property, as per the measurement and boundaries shown in the plaint schedule? 2. Whether the impugned judgment of the trial Court is against law, fact, evidence and probabilities of the case and liable to be intervened by this Court? 3. What order or decree? 30. The First Appellate Court, after re-appreciating the verbal and documentary evidence, answered point - 28 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 No.1 in the affirmative, point No.2 in the negative, point No.3 as per the final order. The appeal was dismissed with cost vide judgment and decree dated 09.01.2013 and the First Appellate Court confirmed the judgment and decree passed by the Trial Court. 31. The defendant, aggrieved by the impugned judgments and decrees, filed this regular second appeal. 32. During the pendency of this appeal, the original defendant died leaving behind his legal representatives. His legal representatives were brought on record. 33. Heard the learned counsel for the legal representatives of the deceased defendant and the learned counsel for the plaintiff. 34. Learned counsel for the legal representatives of the deceased defendant submits that, in view of the filing of the suit in OS No.92/2016, the judgment and decree passed has become redundant. In view of the same, nothing survives for consideration. He submits that, in - 29 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 view of the filing of subsequent suit for possession, the injunction granted by the Trial Court becomes redundant. Hence, on this ground, he prays to allow the appeal. 35. Per contra, learned counsel for the plaintiff submits that, during the pendency of the first appeal in RA No.18/2011, the defendant has dispossessed the plaintiff from the suit schedule properties. Hence, the plaintiff was forced to file a suit in OS No.92/2016. He also submits that, in view of dismissal of appeal in RSA No.5/2020, nothing survives for consideration in this appeal. Accordingly, he prays to dispose of the appeal. 36. This Court admitted the appeal on 28.08.2013 to consider the following substantial questions of law: 1) In a suit for bare injunction filed by respondent without seeking any declaration about existence of Oni, is the judgment of the Trial Court sustainable when the defendant has seriously disputed existence of such passage between the properties? - 30 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 2) Was it not required for the Courts below to relegate the plaintiff to seek the relief of declaration about existence or non- existence of common passage and only then to decide the lis between the parties. Reg. Substantial Questions of Law Nos.1 & 2 : 37. There is no dispute that the plaintiff filed a suit in OS No.154/2007 for the relief of perpetual injunction. The said suit was decreed by the Trial Court vide judgment and decree dated 14.01.2011. The defendant, C.K.Umesh, aggrieved by the judgment and decree passed in OS No.154/2007, filed an appeal in RA No.18/2011. The said appeal was dismissed confirming the judgment and decree passed by the Trial Court. Thereafter, C.K.Umesh, aggrieved by the impugned judgments, filed this regular second appeal. 38. During the pendency of this appeal, the plaintiff filed a suit in OS No.92/2016 for the relief of declaration of title and possession. In the said suit, the plaintiff has - 31 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 contended that the defendants have dispossessed the plaintiff from the suit schedule properties. Hence, filed a suit for the relief of possession. As the plaintiff has filed a suit for the relief of declaration of title and possession, in view of the plaintiff's filing of subsequent suit OS No.92/2016, the judgment and decree passed in OS No.154/2017 and the judgment and decree passed in RA No.18/2011 have become redundant. In view of the same, both the substantial questions of law do not arise for consideration. 39. In view of the above discussion, I proceed to pass the following: 20. In view of the above discussion, I proceed to pass the following: ORDER i. The Regular Second Appeals in RSA No.425/2013 and RSA No.5/2020 are dismissed; - 32 - HC-KAR NC: 2025:KHC:39619 RSA No. 425 of 2013 C/W RSA No. 5 of 2020 ii. The impugned judgments and decrees passed by the Courts below are hereby confirmed; iii. Liberty is reserved to the defendants (in O.S. No.92/2016) to work out their remedy before the appropriate forum, if so advised. iv. Pending interlocutory applications, if any, shall stand disposed of. Sd/- (ASHOK S.KINAGI) JUDGE PA List No.: 1 Sl No.: 1