- 1 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1772 OF 2013 (DEC) BETWEEN: NARASIMHAIAH SINCE DEAD BY LRS 1. SMT. LALITHAMMA W/O LATE NARASIMHAIAH, AGED ABOUT 50 YEARS, 2. LAKSHMINARASIMHAIAH S/O LATE NARASIMHAIAH, AGED ABOUT 48 YEARS, 3. KRISHNAPPA S/O LATE NARASIMHAIAH, AGED ABOUT 40 YEARS, 4. RAMANJI S/O LATE NARASIMHAIAH, AGED ABOUT 35 YEARS, 5. SANNAPAPANNA S/O LATE NARASIMHAIAH, AGED ABOUT 28 YEARS, RESPONDENT NO.1 TO 5 ARE RESIDENTS OF MUTHYALAMMA TEMPLE STREET, KURUBAGER, PAVAGADA TOWN, TUMKUR DISTRICT - 572 101. 6. NARASIMHAIAH S/O SUNNAKAL DASAPPA, Digitally signed by SHILPABAI S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 AGED ABOUT 58 YEARS, R/AT MUTHYALAMMA TEMPLE STREET, KURUBARAGERE PAVAGADA TOWN, PAVAGADA TALUK, TUMKUR DISTRICT - 572 101. …APPELLANTS (BY SRI. HARISH H.V, ADVOCATE AND SRI. SHEKARAPPA, ADVOCATE) AND: BHAGYALAKSHMAMMA SINCE DEAD BY LRS 1. P.V KRISHNAMURTHY, S/O P.V RATHNAIAHSETTY R/AT PENUGONDA ROAD 2. P.V. RAVINDRANATH AGED ABOUT 46 YEARS S/O P.V. RATHNAIAHSETTY, RESPONDENT NO.1 AND 2 ARE R/AT PENUGONDA ROAD, PAVAGADA TOWN, TUMKUR DIST. - 572 101. 3. DHANALAKSHMI AGED ABOUT 55 YEARS, D/O P.V. RATHNAIAHSETTY, R/AT NEAR HEAD POST OFFICE, PAVAGADA TOWN, TUMKUR DIST - 572 101. 4. P.V. SEETHALAKSHMI AGED ABOUT 53 YEARS D/O P.V. RATHNAIAHSETTY, NEAR ALANKAR TALKIES, PAVAGADA TOWN, TUMKUR DIST. - 572 101. 5. P.V. RUKMINAMMA AGED ABOUT 45 YEARS D/O P.V. RATHNAIAHSETTY, - 3 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 W/O VENKATESHALU, R/AT GORANTLU, HINDUPUR TALUK, ANANTHAPUR DIST, AP. 6. P.V. KRISHNAMURTHY AGED ABOUT 56 YEARS, SINCE DEAD BY LR'S 6(A). SMT. SUNANDAMMA, W/O P.V. KRISHNAMURTHY, AGED ABOUT 45 YEARS, 6(B). DHEERENDRA KUMAR, W/O P.V. KRISHNAMURTHY, AGED ABOUT 25 YEARS, BOTH ARE R/AT PAVAGADA TOWN, PENUKONDA ROAD, PAVAGADA TALUK, TUMKUR DISTRICT - 572 101. 7. P.V. RAVINDRANATH AGED ABOUT 53 YEARS, S/O P.V. RATHNAIAHSETTY, R/AT PAVAGADA TOWN, PENUKONDA ROAD, PAVAGADA TALUK, TUMKUR DIST. - 572 101. …RESPONDENTS (BY SRI. P.N. NANJA REDDY, ADVOCATE FOR R2 AND ALSO FOR PROPOSED R6(A & B); R3 AND R4 AND R7 ARE SERVED VIDE ORDER DATED 15.0.2019, APPEAL DISMISSED AS AGAINST R1; VIDE ORDER DATED 15.0.2023, APPEAL AGAINST R5 IS DISMISSED) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 27.4.2013 PASSED IN R.A.NO.15/2004 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE & JMFC., MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 12.1.2004 PASSED IN OS.NO.341/2000 ON THE FILE OF THE CIVIL JUDGE (JR.DN) & JMFC., PAVAGADA. - 4 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the legal representatives of plaintiff No.1 and plaintiff No.2 challenging the judgment and decree dated 27.04.2013, passed in R.A.No.15/2004 by the learned Senior Civil Judge, Itinerary Court, Pavagada, and the order on preliminary issue i.e., recasted issue No.11 dated 12.01.2004 passed in O.S.No.341/2000 by the learned Civil Judge (Jr. Dn.) and JMFC, Pavagada. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. Appellant Nos.1 to 5 were the legal representatives of deceased plaintiff No.1, appellant No.6 was plaintiff No.2 and respondent Nos.1 to 5 were defendant Nos.1(a) to 1(e), deceased respondent No.6 was defendant No.2, and respondent No.7 was defendant No.3. - 5 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 3. Brief facts, leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit for a declaration and possession over the suit schedule property. It is the case of the plaintiffs that the plaintiffs are the owners of the suit schedule property, and the defendants are the owners of land in Sy.No.50/2 measuring to the extent of 29 acres 01 guntas. Both lands are adjacent to each other. Sy.No.50/1 is situated on the western side of Sy.No.50/2. Defendant No.1 got Sy.No.50/2 under a gift deed on 22.04.1955 and the father delivered the possession of the property in Sy.No.50/2 suit schedule property. It is contended that defendant No.1 filed the suit in O.S.No.279/1989 for a declaration and a permanent injunction regarding 6 acres 20 guntas of the land belonging to the plaintiffs. The plaintiffs herein, were the defendants in the said suit. After a full fledged trial, the suit was partly decreed, holding that the defendants herein, are in possession and enjoyment of 6 acres 20 - 6 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 guntas of land, and granted a perpetual injunction in favour of the defendants herein, and dismissed the relief of the declaration. The liberty was reserved to the real owner to file a suit for title and possession. The defendants preferred an appeal before the First Appellate Court and the same is pending. It is contended that the defendants encroached on the suit property to the extent of 6 acres 20 guntas in 1989, and denied the right and title of the plaintiffs over the suit schedule property. Hence, a cause of action arose for the plaintiffs to file a suit for a declaration and a possession. Hence, prays to decree the suit. 3.1. The defendants filed a written statement admitting that G. Narayanasetty gifted Sy.No.50/2 under a registered gift deed dated 20.04.1996. It is denied that he gifted 29 acres 1 gunta. The said extent was recently mentioned in the revenue records due to a wrong survey. The boundaries specified in the gift deed for the schedule property measure 6 acres 20 guntas, which is totally - 7 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 measuring 35 acres 26 guntas, inclusive of kharab, as per the rectified survey. It is denied that the plaintiffs are the owners to the extent of 6 acres 20 guntas of land in Sy.No.50/1. It is contended that the plaintiffs have no right, title or interest over the suit schedule property. It is contended that the plaintiffs are bound by the decisions in the said suit. Hence, he prays to dismiss the suit. 3.2. The Trial Court, based on the aforementioned pleadings, framed the following issues: Issues: 1) Whether the plaintiff proves that they are the owners of land measuring 19 acres 30 guntas in Sy.No.50/1 and defendants are owners of Sy.No.50/2 of Pavagada? 2) Whether the plaintiffs further proves that the 1st defendant has filed suit in O.S.No.279/1989 against the defendants for declaration and injunction with respect to 6 acres 20 guntas which belongs to plaintiffs and she also claimed adverse possession to an extent of 6 acres 20 guntas in Sy.No.50/1? 3) Whether the plaintiffs further proves that judgment in O.S.No.279/1989 the Court observed that real owners can file a suit for their title and possession and until then - 8 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 1st defendant is entitled for perpetual injunction against the present plaintiffs? 4) Whether the plaintiffs further prove that the 1st defendant encroached suit property in the year 1989 and denied the right and title of the plaintiffs? 5) Whether the plaintiffs further prove that subsequently suit property was merged with Sy.No.50/2 of Pavagada? 6) Whether the plaintiffs further prove that the suit property in Sy.No.50/1 was wrongly included due to defective Survey? 7) Whether the plaintiffs further prove that in judgment of O.S.279/89 the Court observed that defendants in that suit are not having any better title to the suit property? 8) Whether the defendants further prove that the plaintiffs are estopped from contending that they are the owners of the suit property? 9) Whether the plaintiffs further prove that the boundaries given to the suit property are incorrect? 10) Whether the defendants further prove that this suit is barred by limitation, unwarranted and infractitous? 11) Whether the plaintiffs further prove that the plaintiffs have no locus-standi to file this suit as they are bound by decision in O.S.No.279/89 and they are not the owners of the property measuring 6 acres 20 guntas involved in O.S.No.279/89? - 9 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 12) What order? 3.3. The plaintiffs, to substantiate their case, the plaintiffs were examined as PW.1 and PW.2, examined one witness as PW.3, and marked 18 documents as Exs.P1 to P18. In rebuttal, the power of attorney holder of defendant No.1 was examined as DW.1, and marked 9 documents as Exs.D1 to D9. The trial Court, after hearing the learned counsel for the parties, while passing the judgment, recasted the issue No.11 and treated issue No.11 as preliminary issue and answered preliminary issue, in the affirmative, and consequently, dismissed the suit of the plaintiffs on the ground that the suit filed by the present plaintiffs is barred under the Principles of Res Judicata i.e., under Section 11 of the CPC, 1908. Accordingly, the suit of the plaintiffs was dismissed vide judgment dated 12.01.2004. 3.4. The plaintiffs, aggrieved by the order on preliminary issue, preferred an appeal in R.A.No.15/2004 - 10 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 on the file of the learned Senior Civil Judge (Itinerary Court0 Pavagada. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration: 1) Whether the trial Court is justified in dismissing the suit of the plaintiffs? 2) Whether there are grounds to interfere in the impugned judgment and decree of the learned trial Court? 3) What order? 3.5. The First Appellate Court, on hearing the parties and after reassessing the verbal and documentary evidence, answered point No.1 in the affirmative, point No.2 in the negative, and point No.3 as per the final order. The appeal was dismissed vide judgment dated 27.04.2013. 3.6. The plaintiffs, aggrieved by the judgment passed in R.A.No.15/2004, and the order on preliminary issue in O.S.No.341/2000, filed this Regular Second Appeal. - 11 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 4. This Court, on 26.06.2023, admitted the appeal to consider the following substantial question of law : Whether the trial Court and First Appellate Court are justified in dismissing the suit of the plaintiff on the ground of res judicata? 5. Heard the arguments of the learned counsel for the plaintiffs, and the learned counsel for the defendants. 6. Learned counsel for the plaintiffs submits that the trial Court framed the issues and, thereafter, the parties have lead the evidence based on the issues framed by the trial Court. He submits that the trial Court, while passing the judgment, has recasted issue No.11 and, without providing an opportunity to the parties to lead evidence, recasted the issue i.e., issue No.11, treated it as a preliminary issue and dismissed the suit of the plaintiffs solely on the ground that, the suit is hit by the Principles of res judicata. He submits that the defendants have neither produced a copy of the plaint in O.S.No.279/1989 - 12 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 nor produced the copy of issues. He submits that the trial court, without providing an opportunity to the parties to lead the evidence on the recasted issue, has treated the issue as a preliminary issue, and proceeded to pass the order on the preliminary issue. He submits that the procedure adopted by the trial Court in passing the order on preliminary issue is illegal. Hence, he submits that the matter requires reconsideration by the trial Court. Hence, on these grounds, he prays to allow the appeal, and set aside the judgment passed in R.A.No.15/2004 and the order on preliminary issue i.e., recasted issue No.11 passed in O.S.No.341/2000. 7. Per contra, the learned counsel for the defendants submits that the defendants herein had filed a suit in O.S.No.279/1989 for the relief of a declaration and a perpetual injunction. He submits that the suit for perpetual injunction was decreed, and relief of the declaration was dismissed. He submits that the appeal was filed challenging the judgment and decree passed in - 13 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 O.S.No.279/1989, which is pending for consideration. He submits that the trial Court was justified in recasting issue No.11, and rightly treated issue No.11 as a preliminary issue. He submits that the suit is hit by principles of res judicata. He submits that the judgment and order passed on the preliminary issue by the courts below are just and proper, and do not call for any interference. Hence, on these grounds, he prays to dismiss the appeal. 8. Perused the records, and considered the submissions of learned counsel for the parties. 9. Reg. Substantial question of law: The plaintiffs filed a suit for avdeclaration and a possession over the suit schedule property. It is contended that the land of the plaintiffs and the defendants an adjacent to each other and the defendants had encroached upon the property of the plaintiffs. The defendants herein filed a suit in O.S.No.279/1989 for relief of a declaration of title and a perpetual injunction. The said suit was partly decreed, and - 14 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 a relief of perpetual injunction was granted, and relief of declaration was dismissed. The appeal challenging the judgment and decree passed in O.S.No.279/1989 is pending consideration. The parties have led the evidence. The trial court, after hearing the parties while passing the impugned judgment, has recasted issue No.11 and, without notifying the recasting of issue No.11, treated issue No.11 as a preliminary issue, and proceeded to pass the order on the preliminary issue. The trial Court has committed a serious irregularity for not notifying the parties regarding recasting of issue No.11 and treating issue No.11 as a preliminary issue. The First Appellate Court, without examining the said aspect, has affirmed the order passed on the preliminary issue in O.S.No.341/2000. Thus, both the courts below have committed a serious error in passing the impugned judgment, and the order on the preliminary issue. When the trial Court frames an issue, the trial Court must provide an opportunity for the parties to adduce evidence on the issue framed. - 15 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 Admittedly, in the instant case, the trial Court has not provided any opportunity to the parties to adduce evidence on the recasted issue and thus, the matter requires reconsideration by the trial Court. In view of the above discussion, I answer the substantial question of law in the negative. 10. In view of the aforesaid facts, and circumstances, I proceed to pass the following: ORDER i. The Regular Second Appeal is allowed. ii. The judgment dated 27.04.2013 passed in R.A.N.15/2004 and the order passed on preliminary issue dated 12.01.2004 in O.S.N.341/2000 are set aside. iii. O.S.No.341/2000 is restored to its original file. iv. The trial Court is directed to provide an opportunity to the parties to lead evidence on recased issue No.11, and thereafter, - 16 - HC-KAR NC: 2025:KHC:25880 RSA No. 1772 of 2013 pass appropriate order in accordance with law. v. This Court has not made any adjudication on merits in issue. vi. All the contentions of the parties are kept open. vii. The office is directed to transmit the records to the trial Court forthwith. viii. The parties are directed to appear before the trial Court on 01.09.2025 without awaiting any notice. In view of the dismissal of the appeal, I.A.No.2/2013 does not survive for consideration. Accordingly, disposed of. Sd/- (ASHOK S.KINAGI) JUDGE SSB CT: BHK