- 1 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 915 OF 2020 (INJ) BETWEEN: 1. CHINNASWAMY S/O MAHANTHADEVARU AGED ABOUT 49 YEARS 2. RAJASHEKAR S/O MAHANTHADEVARU AGED ABOUT 41 YEARS BOTH ARE R/AT JYOTHIGOWDANAPURA VILLAGE CHANDAKAVADI HOBLI, CHAMARAJANAGARA TALUK AND DISTRICT. …APPELLANTS (BY SRI. P. MAHESHA, ADVOCATE) AND: 1. MALLIKARJUNAPPA S/O LATE SHIVABASAVADEVARU AGED ABOUT 71 YEARS 2. MAHADEVAPPA S/O KUMBAIAHNA MADAPPA AGED ABOUT 76 YEARS BOTH ARE R/AT JYOTHIGOWDANAPURA VILLAGE CHANDAKAVADI HOBLI, Digitally signed by JYOTHI MANJUNATH Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 CHAMARAJANAGAR TALUK AND DISTRICT - 571 117. …RESPONDENTS (VIDE ORDER DATED 08.08.2024, NO NECESSITY OF TAKING STEPS FOR BRINGING LRS OF DECEASED R2; R1 - SERVICE HELD SUFFICIENT) THIS RSA IS FILED UNDER SEC.100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 25.10.2019 PASSED IN RA.NO.129/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND CJM., CHAMARAJANAGAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE 12.08.2016 PASSED IN OS.NO.222/2012 ON THE FILE OF THE PRINCIPAL CVIIL JUDGE AND JMFC, CHAMARAJANAGAR. THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri. P. Mahesha, learned counsel for the appellants. None appears for the respondents. Second respondent is dead and first respondent is served with notice and service of notice to the first respondent is held sufficient. - 3 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 2. Parties are referred to as plaintiffs and defendants for sake of convenience. 3. Facts in the nutshell which are utmost necessary for disposal of the present appeal are as under: Plaintiffs filed a suit for bare injunction against the defendants in O.S.No.222/2012 in respect of following property (hereinafter referred as 'suit schedule property') SCHEDULE Vacant site measuring East to West yards, North to South 17 1/2 yards situated in Jyothigowdanapura Village, Chamarajanagar Taluk out of which excluding the constructed portion utilised to construct two four pillered houses bounded: East by : Hittal of Madappa West by: Constructed portion of the houses in the backyard North by: Hittal of the defendants not alienated as shown in the sketch marked in 72/1982 South by : Lane - 4 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 4. Plaintiffs claim that their father had filed a suit against the father of the defendants in O.S.No.73/1982 for declaration and injunction and the said suit on contest came to be decreased and confirmed in Second Appeal before this Court. 5. Despite such a decree of declaration and injunction, after the death of the father of the defendants, defendants again tried to interfere with the suit schedule property. Therefore, a fresh suit for injunction was initiated. 6. Pursuant to the suit summons defendants entered appearance and denied the plaint averments and they set up a defense stating that land bearing Sy.No.248/1 of Jyothigowdanapura Village, Chamarajanagara Taluk, measuring 0-02 guntas originally belonged to one Madappa who is none other than the grandfather of the first defendant and he had purchased the said 0-02 guntas of land through a registered sale - 5 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 deed dated 13.05.1942 and from that day, grandfather, father of the defendants were in possession and after their death, defendants are in exclusive possession of 0-02 guntas of land in Sy.No.248/1 of Jyothigowdanapura Village, Chamarajanagar Taluk. 7. Therefore the declaration and injunction obtained by the father of the plaintiffs has no effect on the 0-02 guntas of land in Sy.No.248/1 and resisted the suit. 8. Suit on contest, came to be dismissed. 9. Being aggrieved by the same, plaintiffs filed an appeal before the First Appellate Court in R.A.No.129/ 2016. 10. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties and dismissed the appeal of the plaintiffs and observed that plaintiffs can take advantage of the judgement and decree passed in O.S.No.73/1982. - 6 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 11. Being further aggrieved by same, plaintiffs are before this Court in this appeal on following grounds : The impugned judgement and decree passed by the learned courts below are illegal, erroneous and also against the law, facts and probabilities of the case therefore the same is not maintainable either under law or on facts. The learned trail court and first appellate court have erred in dismissing the suit of the plaintiff though they have produced judgment and decree of O.S.No. 73/1982. It is clear from record, the father of the plaintiff filed suit against father of defendant for declaration and injunction which was the decree and same is confirmed before this Hon'ble court despite not decreeing the suit is erroneous and same is deserves to be set aside. Both the courts erred in holding that if at all any interference by defendant, the plaintiff can file contempt proceeding against defendant holding so dismissing the suit is not justified as the prayer of the suit is restrained the defendant from interference of measurement of Suit Schedule Property. - 7 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 Both the courts below erred in holding that the plaintiff has failed to prove they have made efforts to measure the Suit Schedule Property in fact it is specific case of the plaintiff, the defendants are not allowing to measure the property and deposed before the court to that effect. Without appreciating the contention of the plaintiff and evidence produced by him, dismissing the suit on such ground is illegal and deserves to be set aside. The nature of defense taken by the defendants clearly shows their interference on the suit schedule property without appreciating facts and circumstances, dismissing the suit will take away the legitimate rights of the plaintiff. The measurement in previous suit in O.S.No. 73/1982 which was a comprehensive suit for declaration and injunction which is decreed and present suit is only for measurement of suit schedule property as the measurement and boundaries were one and the same in both the suit and without appreciating such facts, dismissing the suit on frivolous defense is not justified. By looking into any angle of the matter the learned trail and first appellate court not justified - 8 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 in dismissing the suit of the plaintiff hence interference of this Hon'ble court is necessary. 12. In the appeal, the following substantial questions of law raises: 1. Whether the learned trail court and first appellate court are justified in dismissing the suit of the plaintiff? 2. Whether the judgment and decree of learned trail court and first appellate court justified in dismissing the suit without comparing the judgement and decree of previous suit in O.S.No.73/1982? 3. Whether the learned trail court and first appellate court justified in passing the impugned judgment by misreading of Documents and oral evidence of the plaintiffs? 13. Sri. P. Mahesha, learned counsel for the appellants-plaintiffs reiterating the grounds urged in the appeal memorandum contended that the defense set up by the defendants that their grandfather had purchased 0-02 guntas of land in Sy.No.248/1 by registered sale - 9 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 deed dated 13.05.1942 was also considered by the Court in O.S.No.73/1982 and thereafter decree for declaration and injunction was granted in favaour of the plaintiffs. Therefore defendants cannot have any independent rights as is claimed by them and dismissal of the suit by the Trial Court confirmed by the First Appellate Court has resulted in miscarriage of justice and sought for admitting the appeal for further consideration. 14. Respondent No.1 is served and unrepresented, respondent No.2 is a stranger to the suit property and there is no claim against him is the submission made on behalf of the appellant. 15. In the light of the arguments addressed on behalf of the appellants, this Court perused the material on record meticulously. 16. On such perusal, in the plaint itself, the plaintiffs have contended that their father obtained the - 10 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 decree of declaration and injunction in O.S. No.73/1982 which was confirmed by this Court in the second appeal. 17. If that is so, the order of perpetual injunction will bind the defendants or their legal representatives and anybody claiming under them for all time to come. 18. In fact that is the observation made by the First Appellate Court while dismissing the appeal of the plaintiffs, plaintiffs can very well take advantage of the judgement and decree in respect of the suit property so long as the suit property in the present suit and the property in O.S.No.73/1982 are one and the same. 19. With that observation, the substantial questions of law raised in the appeal do not merit for further consideration. - 11 - HC-KAR NC: 2025:KHC:32975 RSA No. 915 of 2020 20. Accordingly, the following Order: ORDER Appeal is meritless and hereby dismissed. SD/- (V SRISHANANDA) JUDGE SNC List No.: 1 Sl No.: 41 CT: BHK