- 1 - NC: 2025:KHC-D:2538 RSA No. 100468 of 2022 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100468 OF 2022 (DEC/POS-) BETWEEN: ANANADAPPA S/O. GURAPPA HUDDAR, AGE. 80 YEARS, OCCUPATION. AGRICULTURE, R/O. TERADAL, TQ. JAMAKHANDI, DIST. BAGALKOT. …APPELLANT (BY SRI. S. S. BAWAKHAN, ADVOCATE) AND: SMT. CHANDRAWWA W/O. MALLAPPA HOSATTI, AGE. 73 YEARS, OCCUPATION. HOUSEHOLD, R/O. TERADAL, TQ. JAMAKHANDI, DIST. BAGALKOT. …RESPONDENT (BY SRI. M.C.HUKKERI, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., PRAYING TO CALL FOR LCR’S IN O.S.NO.90/2007 ON THE FILE OF CIVIL JUDGE, BANAHATTI AND TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE DATED 07.01.2021, PASSED BY THE SENIOR CIVIL JUGE AND JMFC., BANAHATTI IN R.A.NO.47/2016 AND IMPUGNED JUDGMENT AND DECREE DATED 24.04.2015, PASSED BY THE CIVIL JUDGE, BANAHATTI, IN O.S.NO.90/2007 AND DISMISS THE SUIT BEARING O.S.NO.90/2007 ON THE FILE OF CIVIL JUDGE, BANAHATTI AND AWARD COSTS OF THE PROCEEDINGS. THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.15 12:21:10 +0530 - 2 - NC: 2025:KHC-D:2538 RSA No. 100468 of 2022 CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is preferred by the defendant challenging the judgment and decree dated 07.01.2021 in R.A.No.47/2016 (R.A.No.90/2007) on the file of the Senior Civil Judge and JMFC, Banahatti1 dismissing the appeal and confirming the judgment and decree dated 24.04.2015 in O.S.No.90/2007 on the file of the Civil Judge (Jr.Dn.), Banahatti2 decreeing the suit of the plaintiff. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. The plaintiff has filed O.S.No.90/2007 against the defendant seeking relief of declaration that the suit schedule property is belonging to the plaintiff. In this regard, it is the case of the plaintiff that the plaintiff had acquired the suit property as per the order passed by the Land Tribunal, Jamkhandi (Ex.P.8), hence, the suit is filed. 1 hereinafter referred to as ‘First Appellate Court’ 2 hereinafter referred to as ‘Trial Court’ - 3 - NC: 2025:KHC-D:2538 RSA No. 100468 of 2022 4. On service of notice, the defendant entered appearance and filed detailed written statement denying the averments made in the plaint and submitted that the plaintiff has not proved the possession as well as the acquisition of the property in question before the Land Tribunal and accordingly it is stated in the written statement that the defendant is in possession of the suit schedule property. Accordingly, sought for dismissal of the suit. 5. The Trial Court based on the pleadings on record, has framed issues for its consideration. In order to establish their case, the plaintiff has examined himself as PW.1 and produced 19 documents and same were marked as Exs.P.1 to P.19. The defendant has examined himself as DW.1 and produced 10 documents and same were marked as Exs.D.1 to D.10. 6. The Trial Court after considering the material on record, by its judgment and decree dated 24.04.2015 decreed the suit and held that the plaintiff is the owner of - 4 - NC: 2025:KHC-D:2538 RSA No. 100468 of 2022 land bearing Sy.No.37 of Kallatti village and accordingly decreed the suit. Feeling aggrieved by the same, the defendant has preferred R.A.No.90/2007 which thereafter renumbered as R.A.No.47/2016 before the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court after re-appreciating the material on record, by its judgment and decree dated 07.01.2021, dismissed the appeal, consequently confirmed the judgment and decree in O.S.No.90/2007. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 7. I have heard Sri.S.S.Bawakhan, learned counsel appearing for the appellant and Sri.M.C.Hukkeri, learned counsel appearing for the respondent. 8. It is submitted by the learned counsel appearing for the appellant that this Court in RSA No.2584/2005 at the time of admission itself without issuing notice to the appellant herein, disposed of the appeal reserving liberty to the plaintiff to file fresh suit - 5 - NC: 2025:KHC-D:2538 RSA No. 100468 of 2022 seeking comprehensive relief of declaration and therefore he submitted that the judgment and decree in O.S.No.90/2007 is hit by res-judicata. It is also submitted by the learned counsel appearing for the appellant that in the absence of grant of suit house separately by the Land Tribunal, suit of the plaintiff cannot be accepted to grant relief of declaration and accordingly sought for interference of this Court. 9. Per contra, learned counsel appearing for the respondent invited attention of the Court to Exs.P.8 and P.9 and submitted that the Land Tribunal has granted the land in question including the house property and same has reached finality and therefore sought for dismissal of the appeal. 10. In the light of the submission made by the learned counsel appearing for the parties, it is not in dispute that the land bearing Sy.No.37 was granted in favour of the husband of the plaintiff and Irappa Yadavannavar as the owner. It is the contention of the - 6 - NC: 2025:KHC-D:2538 RSA No. 100468 of 2022 defendant before the Trial Court that the house property situated in Sy.No.37, cannot be included in the granted land made in favour of the plaintiff. However, taking into consideration the factual aspects on record as per Ex.P.9 wherein the Land Tribunal has granted the land bearing Sy.No.37 including house situated in favour of the plaintiff and same has reached finality and therefore both the Courts below having taken note of the order passed by the Land Tribunal as per Exs.P.8 and P.9, rightly decreed the suit in favour of the plaintiff. In that view of the matter, taking into consideration the plaintiff had acquired the suit property as per the order passed by the Land Tribunal, I do not find any merit in the appeal. 11. It is also to be noted that, though the plaintiff herein has filed O.S.No.69/1997 seeking relief of mandatory injunction against the defendant which came to be dismissed and confirmed in R.A.No.58/2001, however, this Court in RSA No.2584/2005, has passed the following order, which reads as under: - 7 - NC: 2025:KHC-D:2538 RSA No. 100468 of 2022 "A suit for mandatory injunction without the relief of declaration is not maintainable. If the plaintiffs title is admitted by the defendant, when admittedly defendant is in possession of the property plaintiff should have filed a suit for possession. Under the circumstances, when a specific contention was taken by the defendant that the suit for mandatory injunction was not maintainable the courts below have rightly held that the suit for mandatory injunction is not maintainable. Though the relief sought for by the plaintiff possession of the property, the suit as brought is only for mandatory injunction. Admittedly, the suit is not valued as required under law for the relief of possession. If the relief sought for was mandatory injunction and suit had been valued for possession then there was substance in the argument of the learned counsel for the appellant. When the plaintiff has filed the suit for mandatory injunction and while valuing the suit only for the relief mandatory injunction an attempt is made to void payment of court fee for the relief of possession and mandatory injunction. Therefore I do not fine any substantial question of law do arising for consideration in this second appeal which merit admission. Accordingly the appeal is dismissed at the stage of admission itself, reserving liberty to the plaintiff to file comprehensive suit in a competent Civil Court after valuing the suit as required under law and seek all the relief to which she is entitled". - 8 - NC: 2025:KHC-D:2538 RSA No. 100468 of 2022 12. Taking into consideration the fact that this Court has reserved liberty to the plaintiff to file fresh comprehensive suit before the Civil Court and thereafter the Trial Court after considering the material on record particularly Exs.P.8 and P.9 has rightly come to the conclusion that the land in question has been granted in favour of the plaintiff and in that view of the matter, I do not find any merit in this appeal. Accordingly, the appeal is dismissed. Sd/- (E.S.INDIRESH) JUDGE SH CT:ANB List No.: 1 Sl No.: 9