- 1 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 18TH DAY OF FEBRUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100220 OF 2022 (DEC/INJ) BETWEEN: MAYAPPA S/O CHINNAPPA KAMBALI, SINCE DECEASED BY HIS LR’S 1. SMT. MAYAWWA W/O MAYAPPA KAMBALI AGE: 64 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL DIST. BAGALKOT-587313. 2. SHRI. SIDDAPPA S/O MAYAPPA KAMBALI AGE: 35 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL. DIST. BAGALKOT-587313. 3. SHRI. HANAMAPPA S/O MAYAPPA KAMBALI AGE: 40 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL. DIST. BAGALKOT-587313. 4. SHRI. PARAMANAND S/O MAYAPPA KAMBALI AGE: 42 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL. DIST. BAGALKOT-587313. SHRI LAKKAPPA S/O MAYAPPA KAMBALI, SINCE DECEASED BY HIS LR’S ARE ALREADY ON RECORD. MOHANKUMAR B SHELAR Digitally signed by MOHANKUMAR B SHELAR Date: 2025.03.01 11:06:42 +0530 - 2 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 5. SHRI. HANAMAPPA S/O CHINNAPPA KAMBALI AGE: 62 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL. DIST. BAGALKOT-587313. 6. SHRI. LAKKAPPA S/O CHINNAPPA KAMBALI AGE: 57 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL. DIST. BAGALKOT-587313. SHRI HALAPPA S/O CHINNAPPA KAMBALI, SINCE DECEASED BY HIS LR’S 7. SMT. LAKAWWA W/O HALAPPA KAMBLI AGE: 45 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL. DIST. BAGALKOT-587313. 8. SMT. HANAMAWWA W/O ALLAPPA MUGALYAL, AGE: 30 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAGALI, TALUK: MUDHOL DIST. BAGALKOT-587313. 9. SMT. LASAMAWWA W/O UDDAPPA KULAGUDADAR MUGALYAL, AGE: 28 YEARS, OCC: HOUSEHOLD WORK, R/O: BELAGALI, TALUK: MUDHOL DIST. BAGALKOT-587313. 10. SMT. JYOTI W/O ASHOK OGGANAR, AGE: 26 YEARS, OCC: AGRICULTURE, R/O: NINGANUR, TALUK: GOKAK, BELAGAVI-590002. …APPELLANTS (BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV) - 3 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 AND: 1. SHRI. HANAMANT SIDDAPPA JADIPUJARI AGE: 60 YEARS, OCC: AGRICULTURE, R/O: KADAPATTI, TALUK: JAMAKHANDI, DISTRICT: BAGALKOT-587101. 2. SHRI. BASAPPA ISHWARAPPA HALAKI, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: BELAGALI, TALUK: MUDHOL, DISTRICT: BAGALKOT-587101. 3. SHRI. GHATIGEPPA BASAPPA KURABET, AGE: 83 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL, DISTRICT: BAGALKOT-587101. 4. SHRI. BASALINGAPPA BASAPPA KURABET, AGE: 72 YEARS, OCC: AGRICULTURE, R/O: AKKIMARADI, TALUK: MUDHOL, DISTRICT: BAGALKOT-587101. …RESPONDENTS (BY SRI. MRUTYUNJAY TATA BANGI, ADV FOR R1 & R2, NOTICE TO R3 & R4 ARE SERVED) THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED 20.12.2021 PASSED IN O.S.NO.102/2017 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL, DISMISSING THE SUIT FILED FOR DECLARATION AND INJUNCTION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 4 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellants challenging the judgment and the preliminary decree dated 20.12.2021 passed in O.S.No.102/2017 by the Additional Senior Civil Judge and JMFC, Mudhol. 2. For convenience, the parties are referred to, based on their ranking before the trial court. The appellants were the plaintiffs, and respondents were the defendants. 3. Brief facts leading rise to the filing of this regular first appeal are as follows: 4. The plaintiffs filed a suit against the defendants for the relief of declaration that they are the joint owners and in possession of the suit schedule ‘A’ lands by holding that the alleged Will deed dated 10.10.2000 said to have been executed by late Smt.Parvatewwa in favour of defendant No.1 is sham and bogus and for consequential relief of injunction. It is the case of the plaintiffs that - 5 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 Siddappa Kambali was the propositus and the owner of the land bearing Sy.No.57/1, 50/1, 98/1 and 54 of Akkimaradi village. He died leaving behind him three sons, i.e., Honnappa, Chinnappa and Satteppa. Honnappa died on 18.08.2009, leaving behind his wife Parvatewwa, and plaintiff Nos.2 to 4 and Mayappa. The said Mayappa also died leaving behind his wife, plaintiff No.1A, i.e., Mayawwa and three sons, plaintiff Nos.1B to 1D. Another son of the propositus i.e., Satteppa also died issueless in 1998. It is contended that, Parvatewwa, the wife of deceased Honnappa had filed a suit in O.S.No.80/1988 against Chinnappa for partition and separate possession. The said suit was partly decree vide preliminary decree dated 21.01.1992. Against the judgment passed in O.S.No.80/1988, the defendant-Chinnappa preferred an appeal in R.A.No.11/1992. The said appeal was allowed vide judgment dated 25.08.1995. Against the judgment and decree passed in R.A.No.11/1992, Smt.Parvatewwa filed RSA No.1327/1993 before this court and the second appeal was allowed, restoring the judgment and decree - 6 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 passed in O.S.No.80/1988. Thereafter, the final decree proceedings were initiated in FDP No.1/2001. During the pendency of the said proceedings, Smt.Parvatewwa died issueless on 22.08.2004. Chinnappa being the Class-I heir has succeeded her share and got entered his name in the revenue records. Thereafter, Chinnappa intended to sell Sy.No.57/1, and defendant Nos.3 and 4 after verifying the documents agreed to puchase the said land for valuable consideration of Rs.7,30,000/-, and got registered the sale deed on 18.08.2009. Based on the said sale deed, the names of defendant Nos.3 and 4 were entered in the revenue records. It is contended that defendant No.1 is falsely claiming that Parvatewwa executed a Will dated 10.10.2000 on his favour, and became the owner based on the Will dated 10.10.2000. It is contended that the said Will was got created and on the strength of the Will dated 10.10.2000 alleged to have been executed by Parvatewwa, defendant No.1 filed I.A.No.3 to bring himself on record in FDP No.1/2001. The said application was allowed for the limited purpose to represent the estate of - 7 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 said deceased Parvatewwa. It is contended that the trial court is drawing the final decree in FDP No.1/2001. Hence, the plaintiffs filed the suit for declaration and permanent injunction. 5. Defendant No.1 filed a written statement contending that he was allotted with the land bearing R.S.No.54/3 and the lands after disposal of FDP No.1/2001 and accordingly, entered his name. Thereafter, for his family and legal necessity, sold the portion of the land in R.S.No.54/3. Defendant No.2 purchased the same for valuable consideration under the registered sale deed dated 27.10.2016, and defendant No.2 was put in possession of the suit schedule properties. It is contended that the plaintiffs filed a suit by suppressing the material facts and the suit is hit by the principles of res judicata. Hence, on these grounds, he prays to dismiss the suit. 6. Defendant No.2 filed a written statement reiterating the written statement averments filed by defendant No.1. - 8 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 7. Defendant Nos.3 and 4 filed a written statement contending that Parvatewwa never executed a Will bequeathing the properties in favour of defendant No.1. It is contended that the alleged Will is fabricated. It is contended that defendant Nos.3 and 4 after verifying the record that Chinnappa is the owner of the suit properties, purchased the portion of Sy.No.57/1 for valuable consideration. It is contended that defendant Nos.3 and 4 are bonafide purchasers for value without notice. It is contended that the defendants filed a suit in O.S.Misc.No.44/2011 to set aside the decree passed in FDP No.1/2001 and pray to reject the claim of defendant Nos.1 and 2 on the basis of alleged Will dated 10.10.2000. 8. The trial court, based on the pleadings of the parties, framed the following issues. 1) Whether the plaintiffs prove that, they are the joint owners of suit schedule properties? - 9 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 2) Whether the plaintiffs prove that, they are in joint possession and enjoyment of suit schedule ‘A’ properties as on the date of suit? 3) Whether the plaintiffs prove that, the defendants are causing interference in their peaceful possession and enjoyment of the suit schedule properties? 4) Whether the defendant Nos.1 and 2 prove that, the suit is hit by principles of resjudicata? 5) Whether the defendant Nos.1 and 2 prove that, the suit is barred by limitation? 6) Whether defendant No.2 to 4 prove that, they are bonafide purchasers? 7) Whether plaintiffs are entitled for relief sought for? 8) What order or decree? 9. The plaintiffs, to prove their case, plaintiff No.3 was examined as P.W.1, examined two witnesses as P.Ws.2 and 3 and marked 6 documents as Exs.P1 to P6. - 10 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 On the other hand, defendant No.1 was examined as D.W.1, examined two witnesses as D.Ws.2 and 3, and marked 9 documents as Exs.D1 to D9. Defendant No.2 was examined as D.W.4, marked 11 documents as Exs.D10 to D20. Defendant No.2 also examined three witnesses as D.Ws.5 to 7. The trial court, after recording the evidence, hearing both side and on assessment of the oral and documentary evidence answered issue Nos.1 to 3, 6 and 7 in the negative, issue Nos.4 and 5 in the affirmative and issue No.8 as per the final order. The suit of the plaintiffs was dismissed vide judgment dated 20.12.2021. The plaintiffs, aggrieved by the judgment and the preliminary decree passed in O.S.No.102/2017 have preferred this Regular First Appeal. 10. Heard the learned counsel for the plaintiffs and learned counsel for the defendants. 11. Learned counsel for the plaintiffs submits that R.A.No.32/2011 was the subject matter of second appeal in RSA No.5829/2012 c/w CRP No.100045/2015. He submits that the learned Single Judge vide judgment - 11 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 dated 16.01.2023, allowed the appeal and set aside the judgment and decree passed in R.A.No.32/2011 by the Fast Track Court, Jamakhandi, and the order dated 13.01.2011, passed in FDP No.1/2001, by the Additional Senior Civil Judge, Jamakhandi sitting at Mudhol was also set aside. The matter was remitted back to the trial court with a direction to pass appropriate orders, in terms of the law laid down by the Hon’ble Apex Court in the case of BINAPANI KAR CHOWDHURY VS. SRI SATYABRATA BASU AND ANOTHER reported in (2006) 10 SCC 442. He submits that, in view of setting aside the judgment passed in R.A.No.32/2011, the judgment passed by the trial court is liable to be set aside and the present suit has to be clubbed along with FDP No.1/2001. Hence, on these grounds, he prays to allow the appeal. 12. Per contra, learned counsel for the defendants fairly concedes that, in view of the judgment passed in RSA No.5829/2012, the matter requires reconsideration by the trial court, and prays to dispose of the appeal. - 12 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 13. Perused the records and considered the submissions of the learned counsel for the parties. The points that arise for our consideration are; 1) Whether the plaintiffs prove that, in view of subsequent developments, i.e., disposal of RSA No.5849/2012, the matter requires reconsideration by the trial court? 2) What order or decree? Point No.1. 14. It is not in dispute that the parties to the suit have filed a suit for partition and separate possession in O.S.No.80/1988. The said suit was partly decreed by the trial court, vide judgment and the preliminary decree dated 21.01.1992. The original defendant in the said suit preferred an appeal in R.A.No.11/1992 on the file of the II Additional District Judge, Bijapur. The said appeal was allowed vide judgment and decree dated 25.08.1995. The plaintiff in the said suit, aggrieved by the judgment and decree passed in R.A.No.11/1992, preferred second appeal - 13 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 in RSA No.1327/1995 before this court. This court vide judgment dated 04.08.1998 allowed the appeal, and set aside the judgment and decree passed in R.A.No.11/1992, and restored the decree passed in O.S.No.80/1988. Parvetewwa, the original plaintiff in O.S.No.80/1988 initiated the final decree proceedings in FDP No.1/2001 on the file of the Additional Senior Civil Judge, Jamakhandi for effecting partition. During the pendency of the final decree proceedings, Parvetawwa died. Thereafter, the final decree was drawn on 13.01.2011. Aggrieved by the final decree, defendant No.1(B) to 1(G) preferred an appeal in R.A.No.32/2011 before the first appellate court. The first appellate court dismissed the appeal vide judgment and decree dated 17.06.2012, and confirmed the final decree. Defendant Nos.1(B) to 1(G) in the said final decree proceedings, aggrieved by the judgment and the decree passed in R.A.No.32/2011 preferred second appeal in RSA No.5829/2012. Defendant Nos.3 and 4 had filed a petition for setting aside the decree passed against his vendor, and it was registered as O.S.Misc.No.44/2011. The said - 14 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 petition was also dismissed vide order dated 03.11.2014. The petitioner in O.S.Misc.No.44/2011, aggrieved by the dismissal of the petition preferred CRP.No.100045/2015. The learned Single Judge vide judgment dated 16.01.2023, allowed the second appeal and disposed of the revision petition. The learned Single Judge in paragraphs 25, 26, 27. 28 and 29 held as under; “25. Consequently, the appeal is allowed. 26. Judgment and order dated 07.06.2012 passed in R.A.No.32/2011 on the file of the Fast Track Court, Jamakandi and the order dated 13.01.2011 passed in FDP.No.1/2001 on the file of the Additional Senior Civil Judge, Jamakandi are set aside. 27. Matter is remitted to the Trial Court with direction to pass appropriate orders in terms of the law laid down by the Apex Court in the aforesaid judgment in the case of BINAPANI KAR CHOWDHURY (SUPRA). 28. The trial Court shall determine and dispose of the matter considering long pendency of the matter within six months from the receipt of the certified copy of the order. 29. All contentions are left open.” 15. The subject matter of the suit properties in the present case and the said FDP case are one and the same, and the parties are also same. In order to avoid conflicting decision, the matter requires reconsideration by the trial - 15 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 court. We have also taken judicial note of the disposal of the second appeal and the revision petition. Hence, we are of the opinion that the present suit is required to be remitted back to the trial court, to consider the same along with FDP No.1/2001, and the trial court is directed to dispose of the matters, in accordance with law. Based on the above discussion we answer point No.1 in the affirmative. Point No.2. 16. In view of the above discussions, we proceed to pass the following: ORDER i) The appeal is allowed. ii) The judgment and the preliminary decree dated 20.12.2021 passed in O.S.No.102/2017 by the Additional Senior Civil Judge and JMFC, Mudhol, is hereby set aside. iii) The suit is restored to the trial court. - 16 - NC: 2025:KHC-D:3284-DB RFA No. 100220 of 2022 iv) The trial court is directed to club both O.S.No.102/2017 and FDP No.1/2001, and pass appropriate orders, in accordance with law. v) Needless to say that this court has not made any adjudication on the merits of the case. vi) All the contentions of the parties are kept open. vii) The parties are directed to appear before the trial court on 24.03.2025, without awaiting further notice. viii) Office is directed to send back the TCR to the trial court along with copy of this judgment. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE MBS CT: BSB List No.: 1 Sl No.: 10