- 1 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100065 OF 2020 (DEC/INJ-) C/W REGULAR SECOND APPEAL NO. 100064 OF 2020 IN RSA NO.100065/2020 BETWEEN: 1. SMT.P.G.GOURI, W/O. DR.LAXMAN MULLATTI AGED ABOUT: 64 YEARS, OCC: RETIRED TEACHER, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. 2. PALLAVI D/O.LAXMAN MULLATTI, AGED ABOUT: 39 YEARS, OCC:ADVOCATE, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. 3. SHIVAKUMAR S/O. LAXMAN MULLATTI, AGED ABOUT: 38 YEARS, OCC: ADVOCATE, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST ROAD, DHARWAD – 580001. …APPELLANTS (BY SRI. G. I. GACHCHINAMATH, ADVOCATE FOR R1 & A2; SRI. SHIVAKUMAR S/O. LAXMAN MULLATTI – PARTY IN PERSON (A3) Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 AND: 1. DR.LAXMAN S/O. CHANNAPPA MULLATTI, AGED ABOUT: 90 YEARS, OCC: RETD. PROFESSOR, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. (NOW DECEASED) 2. SANGAMESH S/O. BASAVARAJ DODAMANI, AGED ABOUT: 50 YEARS, OCC: ENGINEER, R/O: IV MAIN, VII CROSS, CHANNABASAVESHWAR NAGAR, SAPTAPUR, DHARWAD, NOW R/O: GAVI SHARANYA, AADI SHAKTI COLONY, NEAWR BEST PU COLLEGE, SAPTAPUR, DHARWAD. 3. SMT.VINUTA CALLING HERSELF AS W/O LAXMAN MULLATTI, AGED ABOUT 55 YEARS, OCC: ADVOCATE, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. 4. MAHADEV S/O. BHIMAPPA HEGGANNAVAR, AGED ABOUT 60 YEARS, OCC: SERVICE, R/O. GURUDATTA APARTMENTS, ‘A’ WING, PLOT NO.22, 5TH FLOOR NEAR R.S. ROAD, YAMMIKERI, DHARWAD, NOW RESIDING AT ARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. - 3 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 5. SMT. HEMALATHA, D/O. PUNDALIK AMMINABHAVI, AGED ABOUT 50 YEARS, OCC: NOT KNOWN, R/O. GURUDATTA APARTMENTS, ‘A’ WING PLOT NO. 22, 5TH FLOOR, NEAR R.S. ROAD, YAMMEKERI, DHARWAD NOW RESIDING AT AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. …RESPONDENTS (BY SRI. ARUN L. NEELOPANT, ADVOCATE FOR R3; SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV. FOR R4 & R5) THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO CALL FOR RECORDS AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 12.12.2019 MADE IN R.A.NO.199/2018 PASSED BY THE IV ADDITIONAL DISTRICT & SESSIONS JUDGE, DHARWAD AND THE IMPUGNED JUDGMENT AND DECREE DATED 20.10.2018 MADE IN O.S.NO.160/2004 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DHARWAD AND FURTHER DECREE THE COUNTER CLAIM MADE BY THE DEFENDANTS NO.2 AND 3. IN RSA NO.100064/2020 BETWEEN: 1. SMT.P.G.GOURI, W/O. DR.LAXMAN MULLATTI AGED ABOUT: 64 YEARS, OCC: RETIRED TEACHER, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. - 4 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 2. PALLAVI D/O.LAXMAN MULLATTI, AGED ABOUT: 39 YEARS, OCC:ADVOCATE, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. 3. SHIVAKUMAR S/O. LAXMAN MULLATTI, AGED ABOUT: 38 YEARS, OCC: ADVOCATE, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST ROAD, DHARWAD – 580001. …APPELLANTS (BY SRI. G. I. GACHCHINAMATH, ADVOCATE FOR R1 & A2; SRI. SHIVAKUMAR S/O. LAXMAN MULLATTI – PARTY IN PERSON (A3) AND: 1. DR.LAXMAN S/O. CHANNAPPA MULLATTI, AGED ABOUT: 90 YEARS, OCC: RETD. PROFESSOR, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. (NOW DECEASED) 2. SANGAMESH S/O. BASAVARAJ DODAMANI, AGED ABOUT: 50 YEARS, OCC: ENGINEER, R/O: IV MAIN, VII CROSS, CHANNABASAVESHWAR NAGAR, SAPTAPUR, DHARWAD, NOW R/O: GAVI SHARANYA, AADI SHAKTI COLONY, NEAWR BEST PU COLLEGE, SAPTAPUR, DHARWAD. - 5 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 3. SMT.VINUTA CALLING HERSELF AS W/O LAXMAN MULLATTI, AGED ABOUT 55 YEARS, OCC: ADVOCATE, R/O: AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. 4. MAHADEV S/O. BHIMAPPA HEGGANNAVAR, AGED ABOUT 60 YEARS, OCC: SERVICE, R/O. GURUDATTA APARTMENTS, ‘A’ WING, PLOT NO.22, 5TH FLOOR, NEAR R.S. ROAD, YAMMIKERI, DHARWAD, NOW RESIDING AT ARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. 5. SMT. HEMALATHA, D/O. PUNDALIK AMMINABHAVI, AGED ABOUT 50 YEARS, OCC: NOT KNOWN, R/O. GURUDATTA APARTMENTS, ‘A’ WING PLOT NO. 22, 5TH FLOOR, NEAR R.S. ROAD, YAMMEKERI, DHARWAD NOW RESIDING AT AARATI BUILDING, UNIVERSITY ROAD, SAPTAPUR LAST CROSS, DHARWAD – 580001. …RESPONDENTS (BY SRI. ARUN L. NEELOPANT, ADVOCATE FOR R3; SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV. FOR R4 & R5) THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO CALL FOR RECORDS AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 12.12.2019 MADE IN R.A.NO.200/2018 PASSED BY THE IV - 6 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD AND THE IMPUGNED JUDGMENT AND DECREE DATED 20.10.2018 MADE IN O.S.NO.315/2005 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM., DHARWAD AND FURTHER DECREE THE COUNTER CLAIM MADE BY THE DEFENDANTS NO.2 AND 3. THESE APPEALS COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL ORDER These appeals are filed by the defendants in OS No.160/2004 and OS No.315/2005, challenging the judgment and decree dated 12.12.2019 in RA No.199/2018 and RA No.200/2018 on the file of IV Additional District and Sessions Judge, Dharwad (for short, hereinafter referred to as ‘First Appellate Court’), dismissing the appeals and confirming the judgment and decree dated 20.10.2018 in OS No.160/2004 and OS No.315/2005 on the file of Principal Senior Civil Judge and CJM, Dharwad (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit of the plaintiff. - 7 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. Facts in RSA No.100065/2020: 3. It is the case of the plaintiff – Dr. Laxman Channappa Mullatti, that the schedule property situate in Plot No.45/1A1A1A1A1A/1+B+1B measuring 04 guntas 10 annas, consisting of three out houses having RCC building at Saptapur, Dharwad has been purchased by the plaintiff for valuable consideration through his own earnings. It is also stated in the plaint that, the said RCC building had a first floor and the first floor is not the subject matter of the suit. It is stated in the plaint that, the plaintiff was working as Lecturer in Philosophy from 1957-1967 at Karnataka University, Dharwad and thereafter, he has promoted as Reader in the University and thereafter secured further promotion as Professor and HOD of the Department of Philosophy during 1982-1992 and attained superannuation during 1992. It is further stated in the plaint that, the plaintiff had purchased plot - 8 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 No.17 of Saptapur as per Registered Sale Deed dated 11.09.1963 for sale consideration of Rs.1,000/- and thereafter, the plaintiff constructed ground floor and veranda during 1967 and constructed first floor during 1975. It is stated in the plaint that, he had availed loan from the Karnataka University, Dharwad and also from Life Insurance Corporation for the purpose of construction made in suit schedule property. It is stated that, the plaintiff was residing at first floor. 3.1. It is further stated in the plaint that, the plaintiff married one Smt. Leela Mullatti during 1959 and on account of family rift the marriage between them was dissolved by the Competent Court. It is also stated that, the plaintiff came in contact with the defendant No.1 and accordingly, the plaintiff had living relationship with the defendant No.1 since 1984 and permitted the defendant No.1 to live in a portion of the first floor of the suit schedule property. In their companionship two children were born namely defendant Nos.2 and 3, however it is - 9 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 stated in the plaint that, there was no marriage between the plaintiff and defendant No.1 and contended that the defendant No.1 is not a legally wedded wife of the plaintiff but, acknowledged the children namely defendant Nos.2 and 3 as his children. It is also stated in the plaint that, there was misunderstanding between the plaintiff and the defendant No.1 and has stated that, the defendant No.1 made a claim to grab the schedule property from the plaintiff and in this regard the plaintiff has filed civil and criminal cases against the defendant No.1 before the Competent Courts. Thereafter, the plaintiff married Smt. Vinuta on 02.06.1993 and the marriage was consummated and in their wedlock a child was born. It is stated in the plaint that, the plaintiff is residing with Smt. Vinuta in the ground floor and leading marital life. It is also alleged in the plaint that, the defendant No.1 taking undue advantage of residing in the first floor which had been given by the plaintiff to the defendant No.1 and as such interfering with the peaceful enjoyment of the suit schedule property and also claiming title insofar as the - 10 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 portion of the property is concerned, and as such the plaintiff presented the suit. 3.2. It is stated in the plaint that, the defendant Nos.1 to 3 have no semblance of right, title or interest over the suit schedule property and in this regard the plaintiff has filed OS No.17/1994 against the defendants before the Civil Court, seeking relief of injunction restraining the defendant No.1 herein not to interfere with the marital life of the plaintiff and the said suit, came to be dismissed as withdrawn. 3.3. It is also stated in the plaint that, the defendant Nos.2 and 3 have filed Miscellaneous Petition against the plaintiff seeking maintenance and the plaintiff is obeying the order passed by the Competent Court in Miscellaneous Petition. It is also stated in the plaint that, the plaintiff has filed OS No.109/1995 against the defendant No.1 seeking relief of possession of the schedule property and the defendant No.1 has filed written statement. It is also stated that, the plaintiff has withdrew the said suit stating - 11 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 that there were some negotiations between the parties and as such, the plaintiff allowed the defendants to reside in the portion of the ground floor of the schedule property. 3.4. It is also stated that, the defendant No.1 arrested in a criminal case having possession of brown sugar. It is also stated in the plaint that, the defendants herein are causing harassment to the plaintiff and his wife Smt. Vinuta and as such the plaintiff has filed OS No.160/2004 seeking relief of declaration with consequential relief of permanent injunction restraining the defendants from interfering with the suit schedule properties. 4. On service of notice, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the specific case of the defendants that, the defendant No.1 is the legally wedded wife of the plaintiff and in their wedlock two children were born and further stated that, the plaintiff has - 12 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 withdrawn OS No.109/1995 without seeking leave to file fresh suit and therefore, sought for dismissal of the suit. 5. Defendant Nos. 2 and 3 have filed separate written statement and taken up counter claim against the plaintiff. It is the case of the defendant Nos.2 and 3 that, the suit properties are the joint family properties of plaintiff and defendants and further stated that, the defendant No.1 had contributed towards construction of the building in the suit schedule property and therefore, sought for 1/5th share each in the suit schedule property. 6. Insofar as, the counter claim filed by the defendant Nos.2 and 3 is concerned, the defendant No.4 has filed written statement alleging that, the defendant No.4 has purchased the portion of the suit schedule property from Smt. Vinuta for valuable consideration as a bonafide purchaser. 7. The Trial Court based on pleadings on record formulated issues for its consideration. In order to establish their case, plaintiff was examined as PW1 and - 13 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 has produced 58 documents and same were marked as Ex.P.1 to P.58. Defendant No.3 was examined as DW1 and produced 45 documents and same were marked as Ex.D.1 to D.45. 8. The Trial Court after considering the material on record by its judgment and decree dated 20.10.2018 decreed the suit in part holding that the plaintiff is the owner of the suit schedule property and restrained the defendants from interfering with peaceful possession and enjoyment of the suit schedule properties. The counter claim filed by the defendant Nos.2 and 3 came to be dismissed. Feeling aggrieved by the same, the defendants had preferred RA No.199/2018 before the First Appellate Court and same was resisted by the respondents therein. The First Appellate Court after considering the material on record by its judgment and decree dated 12.12.2019 dismissed the appeals, consequently, confirmed the judgment and decree passed in OS No.160/2004. Feeling - 14 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 aggrieved by the same, the defendants have preferred RSA No.100065/2020. Facts in RSA No.100064/2020: 9. The plaintiff has filed OS No.315/2005 seeking relief of declaration with consequential relief of possession of the suit schedule property. The facts urged in OS No.160/2004 are on similar lines with the facts in the present suit. It is the specific case of the plaintiff that, he was disgusted with the behavior of defendant No.1 and has married Smt. Vinuta on 02.06.1993 and residing with Smt. Vinuta. It is also stated in the plaint that, the defendant No.1 is illegally interfered with the rights of the plaintiff in respect of the suit schedule property and as such the plaintiff has tried to vacate the first floor of the property in question, however, the defendants have not handed over the possession and as such the plaintiff filed OS No.17/1994. 10. On service of notice, the defendants entered appearance and filed written statement denying the - 15 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 averments made in the plaint and have disputed the fact that the suit schedule property was purchased and construction put up by the plaintiff alone as false and stated that, the defendant No.1 has contributed her earnings for the purpose of construction of the building in the suit schedule property and accordingly, sought for dismissal of the suit. 10.1. It is also stated by the defendant Nos.2 and 3 that they have preferred counter claim in OS No.160/2004 seeking relief of partition and accordingly, sought for dismissal of the suit. 11. The aforementioned two suits were clubbed together and common evidence was recorded in OS No.160/2004. The Trial Court after considering the material on record by common judgment and decree dated 20.10.2018, decreed the suit and feeling aggrieved by the same, the defendants have preferred RA No.200/2018 before the First Appellate Court and same was resisted by the respondents herein. The First Appellate Court by - 16 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 judgment and decree dated 12.12.2019, dismissed the appeal, consequently, confirmed the judgment and decree in OS No.315/2005. Feeling aggrieved by the same, the defendant Nos.1 to 3 have preferred RSA No.100064/2020. 12. I have heard Sri. G. I. Gachchinamath, learned counsel appearing for the appellant Nos.1 and 2, Sri. Shivakumar – appellant No.3, appearing in-person, Sri. Arun L. Neelopant, learned counsel appearing for respondent No.3 and Sri. Mallikarjunswamy B. Hiremath, learned counsel appearing for respondent Nos.4 and 5. 13. Sri. Shivakumar – appellant No.3 argued by referring to the facts narrated in the plaint and pleaded that, the plaintiff had married Smt. Leela and the said marriage was dissolved by the Competent Court and thereafter, the plaintiff had contact with defendant No.1 and through their relationship defendant Nos.2 and 3 were born. It is also stated that, the plaintiff married Vinuta, being a third wife and was living with her. It is also argued - 17 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 that, the plaintiff had filed OS No.17/1994 seeking relief of injunction restraining the defendant No.1 herein not to interfere with the marital life of the plaintiff and the said suit came to be withdrawn without leave to file fresh suit. 13.1. It is also argued by Sri. Shivakumar- appellant No.3 that, the plaintiff has filed OS No.109/1995 against the defendants seeking relief of injunction in respect of the suit schedule property and the said suit came to be dismissed as withdrawn and in the said suit also, no leave was granted by the Civil Court, to prefer now suit, hence, it is the principal submission of Shivakumar- appellant No.3 that, the suit in OS No.160/2004 and OS No.315/2005 attracts provision contained under Order 23 Rule 1 of CPC as well as Order 2 Rule 2 of CPC and therefore, it is argued that the suits itself are not maintainable before the Trial Court. 13.2. In this regard, he refers to the judgment of Hon’ble Supreme Court in the case of Moreshar Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi - 18 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 (D) Thr. Lrs. and Others1 and argued that, not only the suit is barred under Order 2 Rule 2 of CPC but, also the necessary parties have not been brought on record and accordingly, sought for interference of this Court. 13.3. It is also argued by Sri. Shivakumar – appellant No.3 that, IA Nos.11 and 18 were allowed by the Trial Court and the third wife of the plaintiff – Smt. Vinuta was ordered to be impleaded in the suit as per order dated 22.10.2009, however, without impleading the said proposed defendant, suit came to be decreed and therefore, sought for interference of this Court. 13.4. It is also argued by Sri. Shivakumar – appellant No.3 that, even if the defendant Nos.2 and 3 be considered as illegitimate children born in wedlock of the plaintiff with the defendant No.1 and as such the defendant Nos.2 and 3 are entitled for share as per the judgment of the Hon’ble Supreme Court in the case of Revanasiddappa and Another Vs. Mallikarjun and 1 2022 LiveLaw (SC) 802 - 19 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 Other2 and accordingly sought for interference of this Court. 13.5. Nextly, it is contended by Sri. Shivakumar – appellant No.3 that, the entire averments made in the plaint are false and accordingly submitted, that the defendant No.1 has contributed for construction of building in the suit schedule property and that apart, the land belonging to the plaintiff was acquired by the competent Land Acquisition Officer for the purpose of Hippergi Project, Athani, and the plaintiff was awarded with compensation and on account of receiving compensation, construction as well as the suit property was purchased and therefore, it is argued that the suit schedule property is not the self acquired property of the plaintiff and accordingly, sought for interference of this Court. 14. Sri. G. I. Gachchinamath, learned counsel appearing for the appellant Nos.1 and 2 argued on similar lines with Sri. Shivakumar – appellant No.3 and further 2 (2023) 10 SCC 1 - 20 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 contended that, the suit schedule property is not self acquired property of the plaintiff and the contribution has been made by the defendant No.1, being working as Teacher at the relevant point of time and accordingly, sought for interference of this Court stating that both the Courts below have committed error in misconstruing the documents on record and therefore, sought for interference of this Court. 15. Per contra, Sri. Arun L. Neelopant, learned counsel for respondent No.3 contended that, the respondent No.3 – Smt. Vinuta is legally wedded wife of the plaintiff and their marriage was solemnized on 02.06.1993 and in their wedlock a child is born. 15.1. Referring to the arguments advanced by the appellants regarding applicability of Order 2 Rule 2 of CPC and under Order 23 Rule 1 of CPC, it is argued that, the said argument has been advanced by the appellant for the first time before this Court and no such plea was - 21 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 raised before both the Courts below and accordingly, sought for dismissal of the appeals. 15.2. Sri. 15.2. Sri. Arun L. Neelopant, learned counsel for the respondent No.3 referred to Ex.P.37 and argued that, the first floor of the construction was completed and thereafter, the plaintiff had contact with the defendant No.1 and therefore, countered the submission of the appellants. He also invited the attention of the Court to the finding recorded by the First Appellate Court at paragraph No.35 and argued that, the suit schedule property is the self acquired property of the plaintiff and on his demise the defendant No.3 is entitled for the same and further, he submitted by referring to the Gift Deed dated 14.11.2018 executed by the plaintiff in favour of Smt. Vinuta (respondent No.3 herein) and submitted that, the plaintiff died on 02.10.2021 and accordingly, sought for dismissal of the appeals. 15.3. It is also argued by the learned counsel appearing for respondent No.3 that, though the Trial Court - 22 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 has dismissed the counter claim filed by defendant Nos.2 and 3, however, same has reached finality as there was no appeal against the said dismissal of the counter claim. 16. Sri. Mallikarjunswamy B. Hiremath, learned counsel appearing for respondent Nos.4 and 5 argued that, the respondent Nos.4 and 5 have purchased the suit schedule property as per Registered Sale Deed dated 14.02.2022 from respondent No.3 (Smt. Vinuta) and accordingly submitted that, the respondent Nos.4 and 5 are in possession of suit schedule property and accordingly, sought for dismissal of the appeals. 17. In the light of the submissions made by the learned counsel appearing for the parties, as well as the appellant No.3 as party-in-person, it is not in dispute that the plaintiff was working as Lecturer of philosophy at Karnataka University, Dharwad from 1957 onwards till attains superannuation during 1992. It is also forthcoming from the finding recorded by both the Courts below that, the plaintiff was working as a Reader and thereafter, - 23 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 promoted to the post of Professor and HOD of Department of Philosophy during 1982-1992. It is also not in dispute that, the plaintiff married one Smt. Leela Mullatti during 1959 and the said marriage was dissolved by the Competent Court, on the ground of incompatibility during 1990. It is also not in dispute that, the plaintiff has contracted relationship with defendant No. 1 and put the defendant No.1 in possession of part of first floor of the suit schedule property. It is the contention of the plaintiff that, he has not married the defendant No.1 however, acknowledged the birth of children through the defendant No.1 as his children (defendant Nos.2 and 3). It is also to be noted that, the plaintiff has filed OS No.17/1994 against the defendants herein seeking relief of injunction that, the defendants be restrained from interfering with the marital life of the plaintiff No.1 herein with Smt. Vinuta (respondent No.3 herein), who has been arraigned as plaintiff No.1 in the said suit. The said suit, on contest, came to be dismissed by judgment and decree dated - 24 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 01.08.1996 by the Trial Court. It is also not in dispute that, the issue No.1 in OS No.17/1994, reads as under; i) Whether the plaintiff proves that plaintiff No.1 is the legally wedded wife of plaintiff No.2 and their marriage took place on 02.06.1993? 18. Though dismissed the suit rejecting the plaint of perpetual injunction however, affirmed the issue No.1 and therefore, it could be concluded that the plaintiff in OS No.160/2004 and OS No.315/2005 had married Smt. Vinuta (respondent No.3 herein), as per Ex.P.28. It is also forthcoming from the finding recorded by the Trial Court that OS No.109/1995, filed by the plaintiff which came to be dismissed as withdrawn and the memo filed by the plaintiff in the said suit was marked as Ex.P.2, which reads as under: “Herein the plaintiff submits that the following memo. That the plaintiff is not interested in prosecuting the matter. Hence, the same may be dismissed as not pressed and half of the Court Fee - 25 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 may be refunded in the interest of justice and equity. “ Dharwad Dated:31.08.1998 plaintiffs” 19. Ex.P.3 is the order sheet in OS No.109/1995 and therefore, taking into consideration the aforementioned aspect makes it clear that, OS No.109/1995 was filed by the plaintiff seeking relief of injunction and therefore, the withdrawal of the said suit does not affect the right of the plaintiff to claim declaratory with consequential relief in OS No.160/2004 and OS No.315/2005 as the cause of action is different. Though the subject matter in the suit are identical however, the reliefs claimed by the plaintiff is totally different and the title was not under cloud in OS No.109/1995 and therefore, arguments advanced relating to applicability of Order 2 Rule 2 of CPC and Order 23 Rule 1 of CPC is not applicable to the case on hand. 20. In this regard, it is apt to follow the declaration of law made by the Hon’ble Supreme Court in the case of - 26 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 Alka Gupta Vs. Narender Kumar Gupta3, wherein it is held that bar of second suit is impermissible on a different and distinct cause of action. It is also held that, the only question for relevancy is whether relief claimed in both suits arose from same cause of action and the conduct of plaintiff is not relevant in determining applicability of said bar. The condition precedent for applicability of Order 2 Rule 2 of CPC is that, unless plea of such bar raised by the parties and issue is framed thereon, held court cannot dismissed the suit as so barred. In the backdrop of these aspects, I have given my anxious consideration to the impugned judgment and decree passed by the courts below, wherein the defendants / appellants herein have not raised the said plea before the Courts below and in this regard, I find force in the submission made by the learned counsel appearing for the respondent No.3. 21. Insofar as, the contention raised by the defendants / appellants herein with regard to IA Nos.11 3 (2010) 10 SCC 141 - 27 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 and 18, this Court in WP No.60875/2010 C/w. WP No.62170/2009 disposed on 21.03.2014 with regard arraigning the parties as co-defendants and at paragraph Nos.6 and 7, which reads as under: 22. Having noticed the observation made by this Court referred to above, the submission of the defendants/appellants cannot be accepted at this length of time as the defendants never urged the said plea before the Trial Court or before the First Appellate Court and therefore, the judgment in Moreshar (supra) referred to by the appellant No.3 in the present case as the plaintiff has filed suit seeking relief of declaration with consequential relief against the defendants, who had interfered with the possession and questioned the title of the plaintiff, so also, the defendant Nos.2 and 3 have filed counter claim seeking relief of partition, which ultimately rejected by the Trial Court by its judgment and decree dated 20.10.2018 which had reached finality as the defendants / appellants have not questioned the rejection - 28 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 of counter claim by the Trial Court. Therefore, contention raised by the appellants herein cannot be considered to arrive at a conclusion that the defendants are also entitled for share in the suit schedule property. 23. It is also forthcoming from the finding recorded by both the Courts below that the plaintiff had executed Gift Deed dated 14.11.2018 in favour of Smt. Vinuta (respondent No.3 herein) and same was admitted by the appellants herein, which is produced by the appellants herein in IA No.1/2022. It is also not in dispute that, the suit schedule property has been purchased by the respondent Nos.4 and 5 from the respondent No.3 as per Registered Sale Deed dated 14.02.2022 for valuable consideration. The plaintiff died on 02.10.2022 and as such, on the date of death of plaintiff, the property was gifted by the plaintiff to the respondent No.3 herein as per the Gift Deed dated 14.11.2018. It is also forthcoming from the finding recorded by both the courts below that as the plaintiff came in contact with defendant No.1 during - 29 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 1984 and by the said period, the property was already purchased by the plaintiff during 1963 and the construction of the building was completed as per the completion report as per Ex.P.37 dated 16.09.1975 issued by Hubballi-Dharwad Municipal Corporation. In that view of the matter, as the first floor was constructed by 1975 and second floor was constructed that, too, before the contact of the plaintiff with the defendant No.1, I do n ot find substance in the arguments of the appellants. It is also pertaining to mention here that, the defendants have not established that the earnings of defendant No.1 was utilized for the purpose of construction of building in suit schedule property and further it is evident from Ex.P.40 issued by Hubballi-Dharwad Municipal Corporation dated 13.06.1984 and therefore, the arguments advanced by the learned counsel appearing for the appellant and party-in- person / appellant No.3 herein cannot be accepted to interfere with the well reasoned judgment and decree passed by both the Courts below and therefore, I do not find any perversity in the judgment passed by the both the - 30 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 Courts below and this Court is relucted to interfere with the findings recorded by both the Courts below. 24. That apart, it is also useful to refer to the judgment of the Hon'ble Supreme Court in the case of LAXMIDEVAMMA AND OTHERS v. RANGANATH AND OTHERS4, whereunder at paragraph Nos.13 and 16 of the judgment, it is observed as under: “13. Based upon oral and documentary evidences, the courts below have recorded concurrent findings that the plaintiffs are the owners of 'A' schedule property. While so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact. … 14 and 15. xxx xxx xxx 16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of 4 (2015) 4 SCC 264 - 31 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 evidence. While so, the High Court proceeded to observe 100 that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.” 25. In the case of THULASIDHARA AND ANOTHER v. NARAYANAPPA AND OTHERS5, at paragraph Nos.7.2 and 7.3 of the judgment, the Hon’ble Supreme Court has observed thus: “7.2 As observed and held by this Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999)3 SCC 722, in the Second Appeal under Section 100 of the 5 (2019) 6 SCC 409 - 32 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being: (i) Contrary to the mandatory provisions of the applicable law; OR (ii) Contrary to the law as pronounced by the Apex Court; OR (iii) Based on inadmissible evidence or no evidence. It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal. 7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain v. Sohan Lal, - 33 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 (2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held: 10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so. 11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion. 12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible. 13. In either of the above situations, a substantial question of law can arise.” - 34 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 26. The Hon’ble Supreme Court in the case of S. SUBRAMANIAN v S RAMASAMY ETC.6, at paragraph Nos.8.1, 8.2 and 8.5 of the judgment, has observed thus: “8.1. …As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re-appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law. 8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of ‘a substantial question of law’ is a sine qua 6 2019 SCC 3056 - 35 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, in a second appeal under 103 Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous…. 8.3. and 8.4. xxx xxx xxx 8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has reappreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High - 36 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of Code of Civil Procedure. High Court to re- appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC.” 27. It is also settled principle of law that even if two inferences are possible in a given set of circumstances, the finding recorded by the lower appellate court is binding on - 37 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 the high Court. In this connection, it is relevant to deduce the observation made by the Hon'ble Supreme Court in the case of DODDANARAYANA REDDY (DEAD) BY LRs AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LRs AND OTHERS7, wherein at paragraph Nos.25 and 26 of the judgment the Hon'ble Supreme Court has observed thus: “25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: “12. This Court had repeatedly held that the power of the High Court to interfere in second 105 appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of 7 (2020) 4 SCC 649 - 38 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record. 13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held: "It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did." 14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held : "Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. … Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view - 39 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 taken by the first appellate court was based on no material." 15. Again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held: "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible." 26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under: “5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. - 40 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence.” 28. In the light of the discussion made above, and in view of the law declared by the Hon'ble Supreme Court as stated above, in my considered view, the impugned - 41 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 judgment and decree passed by the courts below require to be confirmed by dismissing the appeal. 29. In the result, appellants have not made out a case to interfere with the judgment and decree passed by both the Courts below, accordingly, both the appeals are dismissed at the stage of admission as the appellants have not made out a case to frame substantial question of law as required under section 100 of Cr.P.C. 30. After the conclusion of proceedings, Sri. G. I. Gachchinamath, learned counsel appearing for appellant Nos.1 and 2, on instructions, submitted that the appellants were residing in the first floor of the suit schedule property for more than four decades, he further submitted that, the appellants herein shall file an affidavit with an undertaking that they shall vacate the suit schedule property within two months from today, subject to preferring an appeal before the Hon’ble Supreme Court. 31. Learned counsel appearing for the respondent, Sri. Arun L. Neelopant, opposed the said submission made - 42 - NC: 2025:KHC-D:3801 RSA No. 100065 of 2020 C/W RSA No. 100064 of 2020 by the learned counsel appearing for the appellants, however, taking into consideration the hardship that may be caused to the appellants, I find force in the submission made by the appellants taking into consideration the age of the appellant No.1 as 65 years, two months time is granted to stay in the suit schedule property, in terms of the undertaking that may be filed by the appellants. 32. In view of disposal of appeals, pending interlocutory applications, if any, do not survive for consideration and are disposed off accordingly. Sd/- (E.S.INDIRESH) JUDGE SMM / CT:ANB List No.: 1 Sl No.: 19