- 1 - NC: 2025:KHC-D:2256 RSA No. 100603 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 5TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO. 100603 OF 2018 (DEC/INJ-) BETWEEN: SURESH S/O. NARAYAN DESHPANDE, AGE: 82 YEARS, OCC: AGRICULTURE, R/O: DHAVALESHWAR VILLAGE, TQ: MUDHOL, DIST: BAGALKOTE. (NOTE: APPELLANT IS REPRESENTED BY THE GPA HOLDER NAMELY NARAYAN S/O. SURESH DESHPANDE) …APPELLANT (BY SMT. DEEPA P. DODDATTI, AND SRI. PAVAN B. DODDATTI, ADVOCATES) AND: ANNAPPA S/O. ADIVEPPA HANDIGUND, AGE 48 YEARS, OCC: AGRICULTURE, R/O: DHAWALESHWAR VILLAGE, TQ: MUDHOL, DIST: BAGALKOT. …RESPONDENT (BY SRI GIRISH A. YADAWAD, ADVOCATE) THIS RSA IS FILED U/SEC.100 OF CPC, IS PRAYING TO SET-ASIDE THE JUDGMENT AND DECREE PASSED BY THE COURT OF I ADDL. DISTRICT AND SESSIONS JUDGE, BAGALKOT TO SIT AT JAMAKHANDI AT JAMAKHANDI DATED 03/07/2018 PASSED IN R.A.NO. 91/2013 IN REVERSING THE V N BADIGER Digitally signed by V N BADIGER Location: High Court of Karnataka, Dharwad Bench Date: 2025.02.10 16:47:18 +0530 - 2 - NC: 2025:KHC-D:2256 RSA No. 100603 of 2018 JUDGMENT AND DECREE PASSED BY THE COURT OF SENIOR CIVIL JUDGE MUDHOL DATED 28.08.2013 IN O.S. NO. 03/2011, BY ALLOWING THIS APPEAL AND SUIT OF THE PLAINTIFF MAY KINDLY BE DISMISSED, IN THE INTEREST OF JUSTICE AND EQUITY. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE E.S.INDIRESH) This appeal is preferred by defendant, challenging the judgment and decree dated 03.07.2018 in RA No.91/2013 on the file of I Additional District and Sessions Judge, Bagalkote - sitting at Jamakhandi (for short, hereinafter referred to as ‘First Appellate Court’), allowing the appeal and setting aside the judgment and decree dated 28.08.2013 in OS No.3/2011 on the file of Senior Civil Judge and JMFC, Mudhol (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit in part. 2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court. 3. It is the case of the plaintiff that, the plaintiff is the owner in possession of the suit schedule property having - 3 - NC: 2025:KHC-D:2256 RSA No. 100603 of 2018 purchased the same as per registered sale deed dated 25.07.2003 from Hanamant Gopal Deshpande for consideration of Rs.2,15,000/-. It is stated that the revenue records have been mutated accordingly. It is also stated in the plaint that, the defendant without considering the title of the plaintiff has interfered with the suit schedule property based on the judgment and decree in OS No.171/1996 which came to be dismissed and therefore, sought for relief of declaration with regard to the suit schedule property. 4. On service of notice, the defendant entered appearance and filed detailed written statement stating that suit in OS No.171/1996 was filed seeking partition against the vendor of the plaintiff, which came to be dismissed and same was reversed in RA No.69/1998 and thereafter, same was confirmed in RSA No.1188/2004 and accordingly sought for dismissal of the suit. 5. The Trial Court based on pleadings formulated the issues for its consideration. 6. In order to establish their case, two witnesses were examined by the plaintiff as PW1 and PW2 and 14 documents - 4 - NC: 2025:KHC-D:2256 RSA No. 100603 of 2018 were marked as Ex.P1 to P14. Defendant has examined one witness as DW1 and got marked a document as Ex.D1. 7. The Trial Court after considering the material on record decreed the suit holding that the plaintiff is entitled for ½ share in suit claim bearing Sy.No.216/3 of Dhawaleshwar village, and dismissed the suit with regard to nullify the registered sale deed dated 25.07.2003. Feeling aggrieved by the same, the plaintiff has preferred RA No.91/2013, and the said appeal was resisted by the defendant. The First Appellate Court after re-appreciating the material on record by its judgment and decree dated 03.07.2018 allowed the appeal. Consequently, held that the plaintiff is absolute owner in possession of the suit schedule property in entirety. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal. 8. This Court vide order dated 14.09.2020 formulated the following substantial question of law. “1) Whether the First Appellate Court was justified in reversing the findings of the Trial Court overlooking the fact that partition which had reached finality operated as res-judicata and purchaser of a divided share was not entitled to - 5 - NC: 2025:KHC-D:2256 RSA No. 100603 of 2018 seek reopening of partition by way of a suit for declaration and injunction? 2) Whether the First Appellate Court was justified in reversing the findings of the Trial Court without considering the fact that Tahasildar, Mudhol in RTS-SR.No.14/1996-97 has held that suit land is still joint family property and it has not been partitioned in the year 1961 as per certification of M.E. No.666 and that subsequent partition in M.E. No.6043 has been cancelled on 24.10.1997? 3) Whether the First Appellate Court was justified in reversing the findings of the Trial Court without considering the fact that sale transaction is hit by Section 52 of Transfer of Property Act, 1882?” 9. I have heard Smt. Deepa P. Doddatti, learned counsel appearing for the appellant and Sri. Girish A Yadawad, learned counsel appearing for the respondent. 10. Learned counsel appearing for the appellant contended that, the appellant herein has filed OS No.171/1996 against the vendor of the plaintiff seeking relief of partition and separate possession and the said suit came to be dismissed and the appellant herein has filed RA No.69/1998 before the First Appellate Court wherein, the said appeal came to be allowed and declared that the plaintiff is entitled for ½ share in the suit - 6 - NC: 2025:KHC-D:2256 RSA No. 100603 of 2018 schedule property. The said judgment and decree in RA No.69/1998 is confirmed in RSA No.1188/2004 and also by the Hon’ble Supreme Court in SLP No.33698/2013 disposed off on 01.11.2013 and accordingly, sought for interference of this Court. 11. Per contra, learned counsel appearing for the respondent sought to justify the impugned judgment and decree passed by the First Appellate Court and contended that the defendant has claimed ½ share with respect of the suit schedule property and not claimed share in all the family properties and accordingly, sought for dismissal of the appeal. It is also submitted by the learned counsel for the respondent that, liberty was reserved to the plaintiff/respondent in SLP No.22542 of 2019 by the Hon'ble Supreme Court vide order dated 10.01.2020 to institute fresh suit seeking proper remedy and as such, the plaintiff/respondent has filed suit in OS No.3 of 2011. 12. Having heard the learned counsel appearing for the parties, it is not in dispute that the plaintiff has purchased the suit schedule property as per registered sale deed dated 25.07.2003 (Ex.P14) from Hanamant Gopal Deshpande, who is - 7 - NC: 2025:KHC-D:2256 RSA No. 100603 of 2018 the defendant in OS No.171/1996 filed by the defendant herein. The said suit came to be dismissed. Consequently, the defendant has preferred RA No.69/1998 which came to be allowed holding that, the defendant herein is entitled for ½ share in the suit schedule property. The said judgment and decree is confirmed by this Court in RSA No.1188/2004 and by the Hon’ble Supreme Court in SLP No.33698/2013 dated 01.11.2013. 13. In that view of the matter, the Trial Court after appreciating the material on record rightly held that the plaintiff is entitled for ½ share in suit land bearing Sy. No.216/3 of Dhawaleshwar village. However, same has been erroneously interfered with by the First Appellate Court. The First Appellate Court has not property re-appreciated the material on record as required under Order 41 Rule 31 of CPC and has misconstrued the rulings by this Court in RSA No.1188 of 2004 and RSA No.100250 of 2018 and the Hon’ble Supreme Court confirming the judgment and decree in RA No.69/1998. It is also to be noted that, the appeal preferred by the plaintiff /respondent confirmed in RSA No.100250 of 2018 by this Court and the Hon’ble Supreme Court in SLP No.22542 of 2019 dated - 8 - NC: 2025:KHC-D:2256 RSA No. 100603 of 2018 10.01.2020 and therefore, the relief sought for by the plaintiff is only to the extent of ½ share in land bearing Sy.No. 216/3 of Dhavaleshwara Village. In that view of the matter, I find force in the submission made by learned counsel appearing for the appellant and accordingly, appeal is allowed by setting aside the judgment and decree passed by the First Appellate Court by restoring the judgment and decree passed by the Trial Court. In the result, I pass the following: ORDER i) Appeal is allowed. ii) Judgment and decree dated 03.07.2018 in RA 91/2013 on the file of I Additional District and Sessions Judge, is set aside. iii) Judgment and decree dated 28.08.2013 in OS No.3/2011 on the file of Senior Civil Judge, Mudhol, is hereby confirmed. iv) Suit is partly decreed accordingly. Sd/- (E.S.INDIRESH) JUDGE SMM List No.: 1 Sl No.: 38