- 1 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 17TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 5241 OF 2008 (POS-) BETWEEN: SHARANAMMA W/O. SIDDALINGAPPA BANDI, AGE: 60 YEARS, OCC: COOLIE, R/O. TALAWAGERI NOW AT KUSTAGI, TQ: KUSTAGI, DIST: KOPPAL. SINCE DEAD REP BY HER LRs. 1A. SHARANAPPA SHIDDALINGAPPA BANDI @ TALAWAGERI AGE; 42 YEARS, OCC: AGRICULTURE, R/O. H.N. 756, WARD NO.16, KUSHTAGI-584121 DIST: KOPPAL. …APPELLANT (BY SRI. AAYUSH G. BHAT, ADVOCATE) AND: 1. MALLANGOUDA S/O MAHANTHAGOUDA SANNASIDANAGOUDAR, AGE: MAJOR, OCC: AGRICULTURE, R/O: TALAWAGERI, TQ: KUSTAGI, DIST: KOPPAL. 1A. KASTURAVVA MALLANGOUDA SANNASIDDANAGOUDAR, AGE: 46 YEARS, OCC: HOUSEHOLD, 1B. SRISHAILAPPA MALLANGOUDA SANNASIDDANAGOUDAR, AGE: 32 YEARS, OCC: AGRICULTURE, 1C. NINGAPPA MALLANGOUDA SANNASIDDANAGOUDAR, AGE: 30 YEARS, OCC: AGRICULTURE, 1D. SHIVAPPA MALLANGOUDA SANNASIDDANAGOUDAR, AGE: 26 YEARS, OCC: HOUSEHOLD, Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 ALL ARE R/O. TALAWAGIRI, TQ: KUSTAGI, DIST: KOPPAL. 2. MAHADEVAMMA W/O. IRAPPA AGE: MAJOR, OCC: HOUSEHOLDINGS, R/O: TALWAGERI, TQ: KUSTAGI, DIST: KOPPAL. …RESPONDENTS (BY SPACE LAW ASSOCIATES, SRI. SURESH P. HULEDAGUDDI, SRI. A.C. PURAD AND SRI. V.B. NADUVINAMANI, ADVOCATES) THIS RSA IS FILED U/S. 100 OF CIVIL PROCEDURE CODE, 1908 PRAYING TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.11/2004 DATED 05.07.2008 PASSED BY THE FAST TRACK COURT-I, KOPPAL AND THE JUDGMENT AND DECREE PASSED IN O.S.NO.133/1998 DATED 11.06.2004 ON THE FILE OF THE CIVIL JUDGE SR. DIVISION, KOPPAL AND ALLOW THE APPEAL. THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This Regular Second Appeal is filed by the plaintiff challenging the judgment and decree dated 05.07.2008 passed in RA No.11 of 2004 on the file of the Fast Track Court-I, Koppal (for short, ‘First Appellate Court’), dismissing the appeal and confirming the judgment and decree dated 11.06.2004 passed in OS No.133 of 1998 on the file of the Civil - 3 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 Judge, (Sr. Dn), Koppal (for short, ‘Trial Court’), dismissing the suit of the plaintiff. 2. For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the Trial Court. 3. The plaint averments are that, Ninganagouda, son of Andanagouda Sanna Siddanagoudar was the father of the plaintiff. The said Ninganagouda died leaving behind the plaintiff, who is the only daughter. Defendant Nos.1 and 2 are the children of Mahantagouda, who is the son of Gurusiddanagouda (Brother of Ninganagouda). It is the case of the plaintiff that, schedule property belongs to the Ninganagouda-father of the plaintiff and as such, it is stated that, defendant Nos.1 and 2 have no right in respect of suit schedule property and have changed the revenue entries in collusion with the village - 4 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 accountant. It is also stated that, pursuant to the death of Ninganagouda, the plaintiff succeed to the estate of the Ninganagouda. Plaintiff has filed suit in OS No.26 of 1990 seeking declaration with consequential relief of injunction in respect of the suit schedule property and the said suit came to be dismissed on 04.08.1993. It is held by the Trial Court that the plaintiff is the owner of the suit property and as the plaintiff is not in possession of the suit schedule property declined to interfere with the possession of the defendants and as such, the plaintiff filed RA No.113 of 1993 before District Court, Raichur, and in the said appeal, the defendants filed cross-objections and the First Appellate Court dismissed both the appeal and cross-objection and confirmed the judgment and decree in OS No.26 of 1990. It is the case of the plaintiff that, the defendants are in possession of the suit schedule property since the year - 5 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 1998, after the entry made in the mutation, without the consent of the plaintiff and as such, the plaintiff filed OS No.133 of 1998 before the Trial Court, seeking relief of possession in respect of suit schedule property. 4. After service of summons, the defendants entered appearance and filed detailed written statement denying the averments made in the plaint. It is the case of the defendants that, the suit filed by the plaintiff seeking relief of declaration and injunction was dismissed and as such, the defendants have perfected the title by adverse possession, as the plaintiff is not in possession of the suit schedule property and therefore, the suit itself is not maintainable. It is also urged by the defendants that, the father of the plaintiff-Ninganagouda had adopted the defendant No.1 and further executed Will in respect of the suit schedule property in favour of - 6 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 defendant No.1 and therefore, contended that, suit is liable to be dismissed. 5. On the basis of the rival pleadings, the trial Court has formulated issues for its consideration. 6. In order to establish their case, the plaintiff has examined two witnesses as PW1 and PW2 and got marked 11 documents as Exs.P1 to P11. On the other hand, defendants have examined three witnesses as DW1 to DW3 and produced 43 documents as Exs.D1 to D43. 7. The Trial Court, after considering the material on record, by its judgment and decree dated 11.06.2004 dismissed the suit of the plaintiff and being aggrieved by the same, the plaintiff has preferred Regular Appeal in RA No.11 of 2004 on the file of First Appellate Court and the said appeal was resisted by the defendants. The First Appellate Court, after re- - 7 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 appreciating the facts on record, by its judgment and decree dated 05.07.2008 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS No.133 of 1998. Being aggrieved by the same, the original plaintiff and legal representative of the plaintiff have preferred this Regular Second Appeal under Section 100 of CPC. 8. This court vide order dated 10.06.2013 has formulated following substantial questions of law for its consideration. 1) Whether the court below was justified in answering issue No.2 in the affirmative when the said issue is already decided in OS No.26 of 1990 on the file of the Assistant Sessions Judge, Koppal, disposed of on 04.08.1993 ? 2) Whether the said finding is hit by res-judicata ? - 8 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 9. I have heard Sri Ayush G. Bhat, learned counsel for the appellants and Sri. Space Law Associates- Suresh P. Hudedagaddi, Sri. A.C.Purad and Sri. V.B. Naduvinamani, learned counsel appearing for the respondents. 10. Learned counsel for the appellants submitted that, the question relating to ownership of the suit schedule property was decided in OS No.26 of 1990, which came to be confirmed in RA No.113 of 1996 by the First Appellate Court and the said aspect of the matter was not properly appreciated by the both the courts below. The suit schedule property belongs to Ninganagouda, who is father of the original plaintiff. The defendant No.1 claims that, he has been adopted by the father of the plaintiff, however, same has not been proved before the Trial Court and therefore, the impugned judgment and decree passed by the courts below requires interference of this Court. It is also - 9 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 submitted by the learned counsel for the appellants that, respondents herein have made a claim that, they have perfected the title by way of adverse possession and both grounds urged by the defendants, though alternative, cannot run together and therefore, sought for interference of this Court. 11. It is further contended by the learned counsel for the appellants that, the father of the original plaintiff died during the year 1979, however, the mutation has been changed illegally by the defendants and the original plaintiff (Sharanamma) being legal representative of the deceased Ninganagouda ought to have been considered as legal representative to succeed to the estate of deceased Ninganagouda and the said aspect of the matter was not considered by the Trial Court and accordingly, sought for interference of this Court. In order to buttress his arguments, learned counsel for the appellants relied - 10 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 upon the judgment of the Hon'ble Supreme Court in the case of Alka Gupta vs. Narender Kumar Gupta reported in (2010) 10 SCC 141 and in the case of Government of Kerala and another vs. Joseph and others reported in 2023 SCC Online SC 961 and accordingly, sought for interference of this Court. 12. Per contra, learned counsel for the respondents submits that both the courts below have concurrently held against the original plaintiff that, plaintiff is not in possession of the suit schedule property and further the earlier suit filed by the plaintiff came to be dismissed seeking relief of declaration and therefore, no interference is called for in this appeal and accordingly, sought for dismissal of the appeal. In order to support his arguments, learned counsel for the respondents relied upon the judgment of the Hon'ble Supreme Court in the case of Mehar Chand Das Vs. Lal Babu Siddique and others reported in - 11 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 AIR 2007 SC 1490 and therefore, sought for dismissal of the appeal. 13. Heard the learned counsel appearing for both the parties and perused the records. In order to ascertain the relationship between the parties, it is relevant to extract the genealogy of the parties which is as under: Andanagouda Sannasiddanagouda Gurasiddanagouda Paramma (died) Ninganagouda (died) = Guruvbasamma Mahantagouda Andanagouda Iramma Sharanamma (plff) (died) = Adivewwa (died) Mallanagouda Gurusiddagouda Shekappa Sharanappa Amregouda Madevamma (died) (Deft 1) (Deft.2) = Kasturevva (R.1(a) Ningappa Shrishailappa Shivappa R.1 (c) R.1(b) R.1(d) 14. Perusal of genealogy would indicate that, Anandagouda Sannasiddanagouda was grandfather of plaintiff and great grandfather of defendant Nos.1 and - 12 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 2. The said Anandagouda Sannasiddanagouda had three children namely, Gurasiddanagouda, Paramma (died without leaving any legal representatives) and Ninganagouda (father of the plaintiff). Gurusiddanagouda had three children, Mahantagouda, (father of defendant Nos.1 and 2), Andanagouda and Eramma. Dispute in the present suit is between the two branch of Mahantagouda son of Gurusiddanagouda and Ninganagouda. It is the case of the plaintiff that, her father-Ninganagouda died on 20.06.1979 leaving behind the plaintiff as sole legal representative to succeed to the estate of her father. On the other hand, defendant No.1 stated that, he was adopted by said Ninganagouda and also taken a plea that, the defendants perfected title by way of adverse possession. It is also to be noted that the plaintiff has filed suit in OS No.26 of 1990, seeking declaration with consequential relief of injunction - 13 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 which came to be dismissed on 04.08.1993 (Ex.P1). Issue Nos.3 and 4 framed by the Trial Court in OS No.26 of 1990 reads as under: “ 3. Whether the defendants further prove that, one year prior to his death, the said Ninganagouda executed a Will deed in favour of defendant No.1 bequeathing suit properties ? 4. Whether the defendants further prove that they have perfected their title to the suit properties by adverse possession as contended in paragraph 8 of the written statement ?” 15. On careful perusal of the aforementioned Issues Nos.3 and 4, wherein, the Trial Court, rejected the claim made by the defendants and on the other hand, the Trial Court dismissed the suit on the ground that, the plaintiff has claimed relief of declaration without seeking relief of possession and accordingly, dismissed the suit which came to be confirmed by the Appellate Court in RA No.113 of 1996. It is also to be noted that - 14 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 the defendants have preferred Cross Appeal in RA No.113 of 1996 (Ex.P3) which also came to be dismissed and same has reached finality. In that view of the matter, the plea raised by the defendants with regard to seeking relief of perfecting the title by adverse possession as well as seeking relief of adoption of defendant No.1 has reached finality and same cannot be urged in the present suit i.e. OS No.113 of 1998. The said aspect of the matter was not considered by the both the courts below and erroneously decided the case of the original plaintiff, without considering the judgment and decree passed in OS No.26 of 1990 and RA No.113 of 1996, particularly, issue Nos.3 and 4. Therefore, both the courts below have misconstrued the entire case of the plaintiffs and same has caused miscarriage of justice to the plaintiffs. - 15 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 16. It is also pertinent to mention that, in the earlier suit, i.e. OS No.26 of 1990, the Trial Court at paragraph 14 held that, the father of the original plaintiff died on 20.06.1979 and mutation entry has been changed in the name of the defendants and perusal of the paragraphs 2 and 4 of the plaint, wherein, the plaintiff has stated that, the mutation has been changed illegally without the consent of the original plaintiff and the plaintiff was unaware about the change of entry and also it is to be noted that, the Trial Court in OS No.26 of 1990 answered the issue in favour of the original plaintiff holding that, the plaintiff is the owner of the suit schedule property, however, in the suit, the plaintiff has not pleaded for possession of the suit schedule property and same was sought in present suit. It is pertinent to mention here that, as the original plaintiff is claiming right from her father, through succession and therefore, both the courts - 16 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 below were misleaded with the evidence of the parties and not assessed the finding recorded by Trial Court in OS No.26 of 1990 in a right perspective and therefore, I find force in the submission made by the learned counsel for the appellants. The Hon'ble Supreme Court in the case of Government Kerala (Supra) has held that, animus possedendi is required to be proved in adverse possession and the said possession shall be adverse to the title of true owner. In the present case, the original plaintiff succeeds to the estate of her father and therefore, it cannot be held that, the plaintiff is disentitled from the relief of possession. Insofar as the arguments advanced with regard to applicability of Order II Rule 2 of CPC is concnered, in view of the judgment of the Hon'ble Supreme Court in the case of Alka Gupta (supra), it is not in dispute that the original plaintiff has not sought for relief of possession in OS No. 26 of 1990 and therefore, the - 17 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 arguments advanced by the learned counsel for the respondents cannot be accepted, taking into consideration the fact that plaintiff is claiming right through succession. 17. Under these facts and circumstances, I am of the opinion that, the finding recorded by both the courts below is contrary to the oral and documentary evidence and misconstruction of the earlier judgment and therefore, the substantial question of law framed above the favours the plaintiffs/appellants. Hence, the appeal is required to be allowed. In the result, I pass the following: ORDER i) The Regular Second Appeal is allowed; ii) Judgment and decree dated 05.07.2008 passed in RA No.11 of 2004 on the file of the Fast Track Court-I, Koppal, dismissing the - 18 - NC: 2025:KHC-D:3173 RSA No. 5241 of 2008 appeal and confirming the judgment and decree dated 11.06.2004 passed in OS No.133 of 1998 on the file of the Civil Judge, Senior Division, Koppal, is hereby set aside. iii) Suit in OS No.133 of 1998 is decreed. Sd/- (E.S.INDIRESH) JUDGE SB List No.: 1 Sl No.: 29