- 1 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE REGULAR SECOND APPEAL NO. 941 OF 2013 (DEC) BETWEEN: 1. SRI MAHADEVAPPA SINCE DEAD BY LRS 1(a) SMT YASHODAMMA, W/O MAHADEVAPPA, AGED ABOUT 56 YEARS, R/AT NO.46, LINGAYIT BIDI, HUNESEPALYA, BAILURE POST, KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT - 571457. 1(b) SMT RAJESHWARI M, W/O VIDYANATHA SWAMY, AGED ABOUT 38 YEARS, R/AT NO.13/9, MIDDLE STREET, MUDIGUNDAM, KOLLEGAL TALUK, CHAMARAJANAGARA DISTRICT. 1(c) SANTHOSH M, S/O MAHADEVAPPA, AGED ABOUT 36 YEARS, R/AT NO.46, LINGAYIT BIDI, HUNESEPALYA, BAILURE POST, KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT - 571457. 1(d) MANJU M, S/O MAHADEVAPPA, AGED ABOUT 31 YEARS, R/AT NO.46, LINGAYIT BIDI, Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 HUNESEPALYA, BAILURE POST, KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT - 571457. 1(e) NAVEEN KUMAR, S/O MAHADEVPPA, AGED ABOUT 28 YEARS, R/AT NO.46, LINGAYIT BIDI, HUNESEPALYA, BAILURE POST, KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT - 571457. 1(f) NAGENDRA, S/O MAHADEVAPPA, AGED ABOUT 25 YEARS, R/AT NO.46, LINGAYIT BIDI, HUNESEPALYA, BAILURE POST, KOLLEGAL TALUK, CHAMARAJANAGAR DISTRICT - 571457. …APPELLANTS (BY SRI R S RAVI, SR. ADVOCATE FOR SRI AKARSH KUMAR GOWDA, ADV. FOR APPELLANTS 1(a to f)) AND: SMT RATHNAMMA, W/O SHIVASWAMY, AGED ABOUT 51 YEARS, VEERASHIVA CASTE, R/A P.G. PALYA VILLAGE, KOLLEGAL TALUK 571138. …RESPONDENT (RESPONDENT IS SERVED) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 16.4.2013 PASSED IN R.A.NO.5/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE & JMFC., KOLLEGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 1.3.2012 PASSED IN OS.NO.248/2008 THE FILE OF THE PRL. CILVIL JUDGE AND JMFC., KOLLEGALA. - 3 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 THIS APPEAL, COMING ON FOR FURTHER DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE ORAL JUDGMENT Heard the learned Senior counsel appearing for the appellants. 2. There is no representation on behalf of the respondent, though the respondent is duly served. 3. This appeal is arising from the concurrent finding in a suit for declaration of title and possession. The suit is dismissed primarily on the premise that the suit is hit by principle of res judicata. 4. First Appellate Court also concurred with the finding of the Trial Court that the suit is hit by principle of res judicata. 5. This Second Appeal was admitted on 07.02.2020 to answer the following substantial questions of law: - 4 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 “(i) Whether the Courts below were justified in dismissing the suit for declaration and possession on the ground that the previous proceedings for ejectment of the defendant in O.S. No.229/2005 was dismissed on the ground that the plaintiff had failed to proved his title? (ii) Whether there was any issue regarding title that was determined by the Court in terms of Ex.P.12?” 6. The plaintiff had earlier filed a suit in respect of the same property against the same defendant in O.S.No.229/2005 for eviction of the defendant on the premise that the defendant is the tenant under the plaintiff. The defendant in the said suit disputed the tenancy as well as the plaintiff’s ownership over the property. Defendant contended that the defendant is the owner of the property. 7. The Trial Court in the said suit in O.S.No.229/2005 has framed 8 issues. Said issues are as under: (1) Whether the plaintiff proves that the suit schedule property is (sic) belongs to him? - 5 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 (2) Whether the plaintiff proves that the defendant is the tenant under him in the suit schedule property on a monthly rent of Rs.100/- from 15.06.1992? (3) Whether the plaintiff proves that the suit schedule property is required for his personal use? (4) Whether the plaintiff proves that the tenancy has been terminated as per law? (5) Whether the defendant proves that the suit property is the part and parcel of their residential house bearing Assessment No.730 and have acquired title to the same by way of adverse possession? (6) Whether the defendant proves that the suit is bad for non-joinder of necessary party? (7) Whether the plaintiff is entitle for the reliefs as sought for? (8) What order or decree? 8. The Trial Court recorded a finding that the plaintiff has not proved that the property belongs to him. At - 6 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 the same time, the Court also recorded a finding that the defendant has not established ownership over the property. 9. It is noticed that the plaintiff has not produced title deed in the said suit and consequently the suit was dismissed. Thereafter, the present suit in O.S.No.248/2008 is filed seeking declaration of title and possession. 10. Defendant again disputed the plaintiff’s ownership and also contended that the suit is hit by principle of res judicata. 11. Before the Trial Court, the plaintiff produced original sale deed pertaining to the suit property and asserted that the plaintiff is the owner and defendant is the acquiring the property under the agreement dated 15.06.1999 between the plaintiff and the defendant has not vacated the premises. 12. Trial Court concluded that issue relating to ownership is also negatived by the Trial Court in O.S.No.229/2005 and said finding has attained finality, as such the plaintiff has not established his right over the - 7 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 property as the said contention is hit by principle of res judicata. First Appellate Court also concluded that the suit is hit by principle of res judicata on the premise that the previous suit in O.S.No.229/2005, the plaintiff has failed to establish his ownership over the property. 13. Learned Senior counsel appearing for the plaintiff/appellants would contend that earlier suit was dismissed on the premise that the plaintiff did not establish the title over the property as he had not produced title deed pertaining to the said property. It is his submission that the said finding on the issue relating to the ownership is not a conclusive finding and it is a finding for want of necessary evidence to establish the title deed. He would also submit that the claim of the defendant relating to the title is negatived by the Trial court and this being the position, plaintiff’s second suit seeking declaration of title based on the title deed is not hit by principle of res judicata. 14. It is also his further submission that the suit could not have been dismissed on such technical plea which leads - 8 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 to a situation that nobody is having right over the property and such situation is not contemplated as no third party is making any claim over the property. The property has to be either the property of the plaintiff or the defendant and the Trial Court and First Appellate Court ought to have considered the title deed produced by the plaintiff and should have decided whether the plaintiff is the owner of the property or not, and if it is found that the plaintiff is the owner of the property, then there should have been an appropriate decree for possession as the finding that the defendant is not the owner of the property has attained finality. 15. Or assuming that the defendant is also at liberty to establish his title over the property, the evidence led by the defendant is not conclusive enough to hold that the defendant is the owner of the property and the plaintiff having established his title on the basis of registered sale deed, the suit ought to have been decreed is his submission. - 9 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 16. On 30.08.2025, this case was heard and the judgment was dictated in part. The case was adjourned to today for further dictation. As already noticed, the respondent though served is not represented. 17. Learned Senior counsel appearing for the appellant would submit that the plea of res judicata does not apply to the present case as in the previous proceeding the issue relating to the title was not adjudicated. It is his further submission that the suit was filed by the plaintiff on the premise that plaintiff is the land lord and defendant is the tenant and the Court has held that the relationship of the land lord and the tenant is not established. Later, he has filed a suit for possession and declaration based on title. 18. In support of his claim he has also relied on the judgment of the Hon’ble Apex Court in the case of Tribhuvanshankar vs. Amrutlal1 19. This Court has considered the contentions raised at the bar and perused the records. 1 (2014) 2 SCC 788 - 10 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 20. It is noticed that in the earlier suit, the plaintiff claimed that the property belongs to him and following issue was framed which reads as under: “Whether the plaintiff proves that the suit schedule property belongs to him?” 21. This being the position, this Court is of the view that the said suit filed by the plaintiff for relief of declaration of title and possession is not hit by principle res judicata. However, the case is not decided on merits, the case is dismissed and plea of res judicata. It is also noticed that earlier the plaintiff had filed a suit on the premise that he is the landlord and defendant is the tenant. The present suit is based on title and seeks possession from the defendant on the premise that the defendant has no right to occupy the property. 22. Learned Senior counsel would also urge that in case the suit is to be dismissed as having hit by principle of res judicata, the plaintiff be permitted the leave to challenge the earlier decree in O.S.No.229/2005 which was decided on - 11 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 25.06.2008 and the time spent in prosecuting the present suit in O.S.No.248/2008 be excluded in computing the limitation. 23. It is noticed that earlier suit in O.S.No.229/2005 is disposed of on 25.06.2008. The present suit is filed on 24.11.2008. In case the plaintiff is permitted to file the appeal against the judgment and decree in O.S.No.229/2005 with an observation that the time spent in prosecuting O.S.No.248/2008 and the R.A. No.05/2012 and this Second Appeal, probably the appeal against the judgment and decree in O.S.No.229/2005 will have to be considered on merits. In case the appellants seek to produce the title deed in the said appeal to be filed against the judgment and decree in O.S.No.229/2005, the plaintiffs' claim relating to title over the property has to be considered in the light of the title deed sought to be produced. 24. In the peculiar facts and circumstances of this case, this Court is of the view that the judgments and decrees passed by the Trial Court and First Appellate Court - 12 - HC-KAR NC: 2025:KHC:34912 RSA No. 941 of 2013 have to be set-aside. Accordingly the said judgments and decrees are set-aside. Since there is no adjudication on merits, the matter has to be remitted to the Trial Court for fresh adjudication. 25. Hence, the following: ORDER (i) The Regular Second Appeal is allowed in- part. (ii) The impugned judgment and decree dated 16.04.2013 in R.A. No.5/2012 on the file of Senior Civil Judge, Kollegala are set aside. (iii) The impugned judgment and decree dated 01.03.2012 in O.S.No.248/2008 on the file of Civil Judge, Kollegala are set aside. (iv) The matter is remitted to the Trial Court to decide the case afresh on merits without reference to the plea of resjudicata raised by the defendant. Sd/- (ANANT RAMANATH HEGDE) JUDGE GVP List No.: 1 Sl No.: 11