- 1 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 4TH DAY OF JUNE 2025 BEFORE THE HON'BLE MR. JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO.6032/2012(DEC/INJ) BETWEEN: FAKKIRAWWA W/O. FAKKIRAPPA BALEHOSUR, AGE: MAJOR, OCC: AGRICULTURE AND HOUSEHOLD, R/O: SANSHI, TQ: KUNDAGOL, DIST: DHARWAD, PIN: 581 113. …APPELLANT (BY SRI. MAHESH WODEYAR, ADVOCATE) AND: 1. HUSSIANSAB S/O. ALLASAAB AVARADI, SINCE DECEASED BY HIS LRS, 1A. SMT. FATHIMA W/O. MAKTUMSAB MULLA, AGE: 62 YEARS, OCC: HOUSEHOLDK WORK, R/O: SANSHI, TQ: KUNDAGOL, DIST: DHARWAD - 581 113, NOW RESIDING AT MUMBAI. 1B. GOUSESAB S/O. HUSSAINSAB AVARADI, AGE: 55 YEARS, OCC: AGRICULTURE, R/O: SANSHI, TQ: KUNDAGOL, DIST: DHARWAD – 581 113. 1C. MULLASAB S/O. HUSSAINSAB AVARADI, AGE: 53 YEARS, OCC: AGRICULTURE, R/O: SANSHI, TQ: KUNDAGOL, DIST:DHARWAD – 581 113. Digitally signed by SAROJA HANGARAKI Location: High Court of Karnataka, Dharwad Bench, Dharwad - 2 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 1D. SMT. JANGAHMA W/O. BABUSAB YALIGAR, AGE: 51 YEARS, OCC: HOUSEHOLD, R/O: ROTTIGAWAD, TQ: KUNDAGOL, DIST: DHARWAD – 581 113. … RESPONDENTS (BY SMT. POOJA S. KULKARNI, ADVOCATE FOR SRI. DINESH M. KULKARNI, ADVOCATE FOR R1(B TO D); V/O DATED: 05.12.2018 NOTICE TO R1(A) IS DISPENSED WITH) THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC, CALL FOR RECORDS; SET ASIDE THE JUDGMENT AND DECREE DATED 16.07.2012 PASSED BY THE LEAREND II ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI IN R.A.NO.95/2005 CONFIRMING THE JUDGMENT AND DECREE DATED 28.02.2005 PASSED BY THE LEAREND CIVIL JUDGE (JR.DN) AND JMFC, KUNDGOL, IN O.S.NO.44/2001, AND CONSEQUENTLY DECREE THE SUIT AND ETC., THIS APPEAL, COMING ON FOR ADMISSION THIS DAY JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE M.G.S. KAMAL) 1. The unsuccessful plaintiff is before this Court being aggrieved by the judgment and decree, dated 28th February 2005, passed in O.S. No.44/2001, on the file of the Civil Judge (Jr. Dn.) & JMFC, Kundgol (for short “the trial Court”), dismissing the suit of the plaintiff seeking relief of declaration of her title over the suit schedule property and also for a consequent mandatory injunction for - 3 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 the possession of the suit schedule property, which is confirmed by the judgment and decree, dated 16th July 2012, passed in R.A. No.95/2005, on the file of the II – Addl. Senior Civil judge, Hubli (for short “the First Appellate Court”). 2. The case of the plaintiff is that, the suit schedule property bearing VPC Nos.1496 and 1497 consisting of residential house and backyard situated at Saunshi Village, originally belonged to her mother namely Iravva Balehosur. Upon her demise, the plaintiff became the absolute owner of the suit schedule property by virtue of inheritance. That one Kallavva Balappa Alagawadi and her son Siddappa Balappa Alagawadi were the owners of property bearing VPC No.1463, which was sold by them to one Savavva Basappa Dyavanur. Thus, the said Kallavva and her son have no property adjoining to the property of the plaintiff. The defendant came to Saunshi for his livelihood, and as he had no residence, the plaintiff permitted him to reside in the western portion of the suit schedule property on a leave - 4 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 and licence basis. That the defendant has no manner of right, title and interest. That he in collusion with the Panchayat authorities created documents, showing that western side of the suit schedule property, there is a property of one Kallavva Balappa Alagawadi and got his name entered in the Boguvatedar Column as well as in the ownership column of the said property. The plaintiff learnt about the aforesaid aspect of the matter when the defendant had filed suit in O.S. No.14/1992 against the plaintiff and others, which was decreed as the plaintiff did not contest the said suit out of ignorance. That the said decree in O.S. No.14/1992 is null and void and not binding on the plaintiff. The defendant had filed execution in E.P. No.2/2001 against the plaintiff seeking execution of the said decree. It is only then, the plaintiff learnt about the fabrication and forgery of documents committed by the defendant. Accordingly, she was constrained to file the present suit seeking the relief of declaration of her title over the suit property and for consequential relief of mandatory - 5 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 injunction and for possession of western portion of the suit schedule property. 3. The defendant in his written statement, while denying the case of the plaintiff in its entirety contended that the property measuring 11 cubits east-west and north- south 120 cubits consisting of a house, front yard and back yard was originally belonging to one Yallappa Bhimappa Balehosur, the father-in-law of the plaintiff. That the said property was sold by said Yallappa Bhimappa Balehosur for himself and also on behalf of his minor children in favour of the defendant as 03.06.1948 for a valuable sale consideration by executing a deed of sale. That the property sold by Yallappa Bhimappa Balehosur was bearing VPC No.509 with specific boundaries and the defendant has been in possession and enjoyment of the suit property and there is a fencing in between the property of defendant and the property of Yallappa Bhimappa Balehosur. That the property purchased by the defendant has been renumbered as VPC No.1495. That the plaintiff had attempted to interfere with - 6 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 the possession and enjoyment of the aforesaid property of the defendant, constraining him to file the suit in O.S. No.14/1992, which is decreed against the present plaintiff and others. The defendant has also filed execution of the decree in E.P. No.2/2001. Hence, sought for dismissal of the suit. 4. The trail Court based on the pleadings, framed the following issues: 1. Whether the plaintiff proves that originally suit property was belongs her mother Iravva? 2. Whether plaintiff proves her title over the suit property? 3. Whether plaintiff proves that she allowed the defendant to occupy the portion of the suit property on permissive possession? 4. Whether plaintiff proves that the decree in O.S.No.14/1992 against her was obtained fraudulently? 5. Whether plaintiff proves that the title deeds in favour of defendant in respect of Western - 7 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 portion of the suit house is fraudulent document? 6. Whether plaintiff is entitled for the relief of declaration of her title over the suit schedule property? 7. Whether plaintiff is entitled for the possession of Western portion of suit house? 8. Whether the suit is not maintainable? 9. Whether defendant proves that plaintiff’s father-in-law Yallappa Bhimappa Balehosur sold the portion of the suit property to him? 10. Whether the suit is barred by law of Limitation? 11. Whether the suit is hit by doctrine of res- judicata? 12. Whether the suit is bad of non-joinder of necessary parties? 13. Whether the valuation of the suit property is in- correct? 14. Whether the Court Fee paid is in sufficient? 15. What Order or Decree? - 8 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 5. The plaintiff examined herself as PW1 and two other witnesses as PW2 and PW3 and exhibited 22 documents marked as Exs.P1 to P22. The defendant himself examined as DW1 and closed his side. 6. On appreciation of the evidence, the trial Court answered issue Nos.1, 8, 9, 10, 13 & 14 in the affirmative and issue Nos.2, 3, 4, 5, 6, 7, 11 & 12 in the negative and consequently dismissed the suit. 7. Being aggrieved, the plaintiff preferred appeal in R.A. No.95/2005 before the First Appellate Court, , who on consideration of the grounds urged and based on the pleadings, framed the following points for its consideration: 1. Whether the plaintiff proves her title over the suit properties? 2. Whether she further proves that the defendant is in permissive possession of western portion of suit house? 3. Whether she further proves that the decree obtained in O.S.No.14/1992 against her and others is fraudulent one? - 9 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 4. Whether the suit is barred by principles of res- judicata? 5. Whether the suit is barred by limitation? 6. Whether the judgment and decree of the trial court is based upon proper appreciation of law and facts? 7. Whether the interference of this court is necessary? 8. What order or decree? 8. The First Appellate Court on re-appreciation of the evidence, answered point Nos.1 to 5 & 7 in the negative, point No.6 partly affirmative and consequently dismissed the appeal confirming the judgment and decree passed by the trial Court. 9. Being aggrieved, the plaintiff is before this Court. 10. Learned counsel Shri Mahesh Wodeyar appearing for the appellant taking this Court extensively through the judgment and decree passed by the trial Court and the First Appellate court and submits that when the trial Court as - 10 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 well as the First Appellate court had concluded that the suit properties namely the property bearing VPC Nos.1496 and 1497 absolutely belonged to one Iravva Balehosur, who was none other than the mother of the plaintiff, and when the plaintiff is claiming only western portion of the said property, ought not to have dismissed the suit on the premise of the plaintiff not being able to provide the measurement of the property claimed by her. He submits that the finding and conclusion arrived at by the trial Court and First Appellate Court on issue No.1 run contrary to the reasoning assigned while answering issue No.2. Thus, the judgment and decree passed by the Courts below suffer from perversity and material irregularity giving raise to the substantial question of law. 11. Per contra, learned counsel Smt. Pooja S.Kulkarni appearing for the respondents submits that the property being claimed by the plaintiff is different and distinct from the property being claimed by the defendant. She submits that the plaintiff herself had produced the title - 11 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 deeds of the defendant in respect of the property being claimed by him. Besides, the plaintiff has admitted during the cross-examination about the right, title and interest of the defendant, which is extensively extracted by the trial Court as well as the First Appellate Court. Hence, no substantial question of law would arise for consideration in the matter and hence, seeks for dismissal of the appeal. 12. Heard. Perused the records. 13. The plaintiff is seeking the relief of declaration of her title in respect of the property bearing VPC Nos.1496 and 1497 with specific boundaries as mentioned in the plaint. The claim of the plaintiff is that, the defendant was permitted by her to occupy western portion of the said property on leave and licence basis. 14. The case of the defendant on the other hand is that he purchased the property measuring 11 cubits east- west and north-south 120 cubits earlier bearing VPC No.509 later renumbered as VPC No.1495 from one Yallappa - 12 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 Bhimappa Balehosur, the father in law of the plaintiff. It is his case that he has enclosed his property by erecting fence and has got his name entered in the revenue records. Besides, he had also filed suit in O.S. No.14/1992 against the plaintiff and others and had obtained the decree of injunction restraining them from interfering with his peaceful possession and enjoyment of the property which has attained finality. 15. The trial Court while answering issue Nos.2 and 5 has taken note of the deposition of the plaintiff, in which the plaintiff in her unambiguous and categorical terms has admitted that the property being claimed by the defendant was purchased by him from her father-in-law in terms of deed of sale dated 03.06.1948 as per the sale deed at Ex.P21 produced by herself. The plaintiff has further gone on to admit that the said document at Ex.P21 is in marathi modi language and that she has read and understood the said document. She has also admitted that she was aware of the defendant having purchased the property and having - 13 - HC-KAR NC: 2025:KHC-D:7296 RSA No. 6032 of 2012 got his name mutated in the revenue records for over 40 years and she not having taken any steps in this regard. The trial Court and the First Appellate Court based on the aforesaid categorical admission made by the plaintiff and by the documents produced by herself with regard to the right, title interest of the defendant in respect of the property being claimed by him, which is admittedly distinct, different and separate from the property being claimed by the defendant. Further in the absence of plaintiff establishing her right, title and interest over the property claimed by the defendant, as taken note of by the trial Court and First Appellant Court, in the considered view of this Court, the reasons and conclusions arrived at by the trial Court and First Appellant Court are just and proper warranting no interference and no substantial question of law would arise for consideration. Accordingly the appeal is dismissed. Sd/- (M.G.S. KAMAL) JUDGE VNP / CT-ASC/List No.: 1 Sl No.: 23