- 1 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO.676 OF 2013 (DEC/INJ) BETWEEN: 1. SMT. LAKSHMAMMA, 1ST W/O LATE THIMMEGOWDA @ BUNDEGOWDA, AGED ABOUT 72 YEARS, 2. SMT. LAKSHMAMMA, 2ND W/O LATE THIMMEGOWDA @ BUNDEGOWDA 3. SRI KRISHNANANDA S/O LATE THIMMEGOWDA @ BUNDEGOWDA, AGED ABOUT 52 YEARS, 4. SRI. MADHU S/O LATE THIMMEGOWDA @ BUNDEGOWDA AGED ABOUT 46 YEARS 5. SRI. VISHWESHWARA, S/O LATE THIMMEGOWDA @ BUNDEGOWDA, AGED ABOUT 42 YEARS, 6. SRI. DINESHA, S/O. LATE THIMMEGOWDA @ BUNDEGOWDA, AGED ABOUT 39 YEARS, 7. SMT. ANUPAMA D/O. LATE THIMMEGOWDA @ BUNDEGOWDA, AGED ABOUT 33 YEARS, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 8. SMT. SUJATHA, W/O. SHEKAR D/O. LATE THIMMEGOWDA @ BUNDEGOWDA, AGED ABOUT 42 YEARS ALL ARE RESIDENTS OF P. HOSAHALLI VILLAGE, BELAGOLA HOBLI SRIRANGAPATNA TALUK-570 401. …APPELLANTS (BY SRI. AKARSH KUMAR GOWDA, ADVOCATE FOR SRI. NARENDRA D.V., ADVOCATE) AND: 1. SRI. RAMEGOWDA, S/O. MENGAPPA, AGED MAJOR, R/AT HOSAHALLY VILLAGE, BELAGOLA HOBLI, SRIRANGAPATNA TALUK-570 401. 2. THE SECRETARY, P. HOSAHALLY GRAMPANCHAYATH, P. HOSAHALLY VILLAGE, BELAGOLA HOBLI, SRIRANGAPATNA TALUK-570 401. …RESPONDENTS (BY SRI. N. NAGARAJA AND SMT. S. VIJAYA KUMAR, ADVOCATES FOR R1) THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT & DECREE DATED 15.12.2012 PASSED IN R.A.NO.23/2011 ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN) & JMFC., SRIRANGAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 18.3.2011 PASSED IN OS.NO.49/2008 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN) & JMFC., SRIRANGAPATNA. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: - 3 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This regular second appeal is filed by the appellants challenging the judgment and decree dated 15.12.2012 passed in R.A. No.23/2011 by the Principal Civil Judge (Sr. Dn.) and JMFC., Srirangapatna and the judgment and decree dated 18.03.2011 passed in O.S.No.49/2008 by the Principal Civil Judge (Jr. Dn.) and JMFC., Srirangapatna. 2. For convenience, the parties are referred to based on their rankings before the trial Court. The appellants were the plaintiffs and the respondents were the defendants. 3. The brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit for declaration of title and perpetual injunction. It is the case of the plaintiffs that originally the suit schedule property was owned by Boramma wife of Chikkahonnegowda, who is the aunt of Thimmegowda @ Bundegowda, said Thimmegowda @ Bundegowda is the husband of plaintiff Nos.1 and 2 and father of plaintiff Nos.3 to 7 and father-in-law of plaintiff No.8. The said Boramma was in - 4 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 lawful possession and enjoyment of the suit schedule property as a lawful owner as she had acquired the said property in partition effected between her husband's family members. The said Boramma executed a will in favour of the said Thimmegowda @ Bundegowda on 28.02.1968 and bequeathed the suit schedule property in his favour. The said Boramma passed away on 12.10.1968. After her demise, the said Thimmegowda @ Bundegowda became the absolute owner of the suit schedule property. 4. It is contented that defendant No.1 filed a suit in O.S.No.149/1995 against the said Thimmegowda @ Bundegowda. The said suit was dismissed. Defendant No.1 preferred an appeal in R.A.No.14/1999, the said appeal came to be allowed and set-aside the judgment and decree passed in O.S.No.149/1995 and consequently decreed the suit of defendant No.1 and declared that defendant No.1 is the absolute owner of the property. It is contented that the boundary mentioned regarding the subject matter of the said suit was incorrect and defendant No.1 has no right, interest over the suit schedule property herein. It is further contended that defendant No.1 is making an attempt to create an illegal - 5 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 document regarding the suit property by colluding with defendant No.2. Hence, a cause of action arose for the plaintiffs to file a suit for the declaration of title and permanent injunction. 5. The defendants filed a written statement contending that the suit schedule property is the ancestral property of the defendants and the same was acquired by defendant No.2 and his sibling under a registered partition deed dated 26.02.1964. Based on the registered partition deed, Khata was changed in the name of Rame Gowda i.e., defendant No.1 and he was paying the tax of the said property. It is contended that the plaintiff has wrongly furnished incorrect boundaries in the plaint. It is admitted that the defendant No.1 filed a suit in O.S.No.149/1995. The said suit came to be dismissed and thereafter an appeal came to be filed in R.A.No.14/1999. The said appeal was allowed vide judgment dated 30.07.2005. Thus, the defendant No.1 became the absolute owner of the suit schedule property and the suit filed by the plaintiffs is not maintainable. It is also contented that the suit is barred by the principles of res-judicata and prays to dismiss the suit. - 6 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 6. The trial Court, based on the pleadings of the parties, framed the following issues: '' 1. Whether the plaintiffs prove their ownership, title and possession over the suit schedule property by one Boramma in favour of the one Thimmaiah @ Bundegowda? 2. Whether the plaintiffs further prove that alleged interference of the defendants to their possession and enjoyment to the suit schedule property? 3. Whether the defendants prove that they are the owners Din possession and enjoyment of the suit schedule property by virtue of partition deed dated 26/02/1964? 4. Whether the defendants further prove that the suit of the plaintiff is barred by the principles of res-judicata? 5. Whether the plaintiffs are entitled for the relief as sought for? 6. What order?'' 7. The plaintiffs, to substantiate their case, plaintiff No.3 was examined as PW1, examined two witnesses as PW2 and PW3 and marked 17 documents as Ex.P1 to Ex.P17. In rebuttal, defendant No.1 was examined as DW1, examined one witness as DW2 and marked 17 documents as Ex.D1 to Ex.D17. The trial Court, after recording the evidence, hearing on both sides, and assessing the verbal and documentary evidence answered issue Nos.1 and 2 in the negative, issue Nos.3 and 4 in the affirmative, issue No.5 as not entitled, issue No.6 as per - 7 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 the final order, the plaintiffs' suit was dismissed vide judgment dated 18.03.2011. 8. The plaintiffs, aggrieved by the dismissal of suit in O.S.No.49/2008, preferred an appeal in R.A.No.23/2011 on the file of learned Principal Civil Judge (Sr. Dn.) and JMFC., Srirangapatna. The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for its consideration: ''1. Whether the trial court is justified in holding that the plaintiffs are not the owners in possession of the suit property? 2. Whether the trial court is justified in holding that the suit is barred by principles of res-judicata? 3. Whether the judgment of the trial court is perverse, capricious and opposed to principles of law? 4. Whether any interference is called for by this court and if so? to what extent? 5. What order?'' 9. The First Appellate Court, after reassessing the verbal and documentary evidences answered point Nos.1 and 2 in the affirmative, point Nos.3 and 4 in the negative and point No.5 as per the final order. Further, the appeal was dismissed vide judgment dated 15.12.2012 and consequently the judgment and decree passed in O.S.No.49/2008 was confirmed. The - 8 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 plaintiffs aggrieved by the impugned judgments passed by the Courts below filed the present regular second appeal. 10. Heard the learned counsel for the plaintiffs and learned counsel for the defendants. 11. Learned counsel for the plaintiffs submits that the Courts below have committed an error in passing the impugned judgment on the ground that the suit is hit by the principles of res-judicata and contented that the subject matter of O.S.No.149/1995 and the subject matter of the suit property in the instant case, are different. The Courts below without comparing the boundaries shown in both suits have committed an error in recording the findings that the defendant No.1 was declared as a owner in O.S.No.149/1995 and the present suit is hit by principles of res-judicata. He submits that the Courts below have not properly appreciated the entire evidence placed on record. The trial Court has dismissed the suit only on the ground that the present suit is hit by principles of res-judicata and the First Appellate Court without properly re-appreciating the evidence on record, confirmed the judgment passed by the trial Court. Hence, on these grounds, prays to allow the appeal. - 9 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 12. Per contra, learned counsel for the defendants supported the impugned judgments and contented that defendant No.1 filed a suit in O.S.No.149/1995 for the relief of declaration of title and permanent injunction, the said suit was dismissed by the trial Court vide judgment dated 17.12.1998. Defendant No.1 filed an appeal in R.A.No.14/1999. The First Appellate Court, vide judgment dated 30.07.2005, allowed the appeal and set-aside the judgment and decree passed in O.S.No.149/1995 and consequently, decreed the suit of the defendant No.1. He submits that the suit filed by the present plaintiffs is hit by principles of res-judicata. In the earlier suit, in O.S.No.149/1995, defendant No.1 has been already declared as the owner and permanent injunction was granted. Both Courts below have rightly passed the impugned judgments. Hence on these grounds, prays to dismiss the appeal. 13. This Court vide order dated 16.06.2016, framed the following substantial questions of law: ''1. Were the Courts below justified in dismissing the suit of the plaintiffs ignoring Ex.P14 the Will executed by Boramma who had a right under Ex.D1? 2. Were the Courts below justified in dismissing the suit of the plaintiffs holding that the present suit is hit by the principles of res-judicata, when the description, - 10 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 measurement and suit schedule properties are entirely different from the schedule in O.S.No. 149/1995? 3. Were the Courts below justified in dismissing the suit of the plaintiffs without considering the oral and documentary evidence on record properly? 4. Were the Courts below justified in dismissing the suit of the plaintiffs in the facts and circumstances of the present case?'' Regarding substantial questions of law Nos.2 to 4 14. This Court is discussing substantial questions of law Nos.2 to 4 at the first instance. If this Court comes to the conclusion that the judgments and decrees passed by the Courts below are arbitrary, erroneous and without properly considering the oral and documentary evidence on record, then there is no need to consider substantial question No.1 15. Substantial questions Nos.2 to 4 are interlinked and are taken up together for common discussion to avoid the repetition of facts. 16. The plaintiffs filed a suit for declaration of title and perpetual injunction, claiming that the plaintiffs are the owners of the suit schedule property and they are in possession of the suit schedule property. Originally, the suit schedule property was owned and possessed by one Boramma, who is the aunt of - 11 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 Thimmegowda @ Bundegowda, i.e., the husband of plaintiff Nos.1 and 2, the father of plaintiff Nos.3 to 7 and the father-in- law of plaintiff No.8. The said Boramma executed a Will, bequeathing the suit schedule property in favour of said Thimmegowda @ Bundegowda, on 28.02.1968. The said Boramma passed away on 12.10.1968. After her demise, Thimmegowda @ Bundegowda became the absolute owner of the suit schedule property by virtue of the Will executed by Boramma in his favour. Defendant No.1 had filed a suit against the father of plaintiff No.3 to 7 i.e., Thimmegowda in O.S.No.149/1995. The said suit was dismissed. Defendant No.1 herein aggrieved by the judgment and decree passed in O.S.No.149/1995, filed an appeal in R.A.No.14/1999. The said appeal was allowed vide judgment dated 30.07.2005 and consequently decreed the suit of the defendant No.1 and declared that he is the owner of the suit schedule property in O.S.No.149/1995. It is the case of the plaintiffs that the boundary of the subject matter of suit in O.S.No.149/1995 is incorrect. 17. Plaintiffs, to substantiate their case, plaintiff No.3 was examined as PW1. He reiterated the plaint averments in the - 12 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 examination-in-chief and produced 17 documents as Ex.P1 to Ex.P17. The plaintiffs also examined two witnesses as PW2 and PW3, to prove that the plaintiffs are in peaceful possession and enjoyment of the suit schedule property. In rebuttal, defendant No.1 was examined as DW.1. He reiterated the written statement averments in the examination-in-chief and got marked 17 documents as Ex.D1 to Ex.D17 and defendant No.1 examined one witness as DW2. From the perusal of the entire judgment passed by the trial Court, the trial Court has not recorded any findings on the Will alleged to have been executed by Boramma in favour of Thimmegowda @ Bundegowda and also on the partition deed dated 26.02.1964 on the basis of which defendant No.1 is claiming to be the owner of the suit property. The trial Court has dismissed the suit only on the ground that the suit is hit by the principles of res-judicata. To consider the case on hand, whether the subject matter of the suit properties in O.S.No.149/1995 and the subject matter of the instant suit are one and the same. I have compared the boundaries shown in O.S.No.149/1995, with the boundaries of the suit schedule property in the instant - 13 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 case. The subject matter of the suit in O.S.No.149/1995 reads as follows: ''Vacant site situated at Hosahally Village, Belagola Hobli, Srirangapatna Taluk, bounded on East; Vacant site (now recently converted as road by Panchayat), West; House of Cheluvegowda @ Shethigowda, South; Backyard of Rajegowda, and North: Road. '' 18. The suit property involved in the instant case is; ''Vacant site situated at P. Hosahally Village, Belagola Hobli, Srirangapatna Taluk, measuring about East-West 12.5 Meter (Gaja) and North-South 16.75 Meter (Gaja), bounded on East: Plaintiff's site allotted from Panchayath. West: Defendant No.1-Ramegowda's site. North: Road. South: Backyard of Rajegowda. '' 19. I have compared the boundaries shown in both suits. They are totally different suit properties. The Courts below without considering the said aspect has dismissed the suit only on the ground that the suit is hit by the principles of res- judicata. The trial Court without considering that defendant No.1 is claiming to be the absolute owner based on Ex.D1 i.e., the partition dated 26.02.1964 has passed the impugned - 14 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 judgment and further the perusal of the judgment passed by the First Appellate Court, the First Appellate Court discloses that has not re-appreciated the entire evidence of DW1 and DW2 and the documents produced by the defendants. The judgment and decree passed by the First Appellate Court is not in compliance with Order XLI Rule 31 of Code of Civil Procedure. From the perusal of the judgments of both Courts below, both the Courts below have not considered the case on merits, only have disposed of the suit based on the principles of res-judicata. The Courts below have not properly considered the entire evidence on record and committed an error in passing the impugned judgments. Thus, the matter requires reconsideration by the trial Court. 20. Thus, in view of the above discussion the judgments and decrees passed by the Courts below are arbitrary, erroneous and same are liable to be set-aside. In view of the above discussion, I answer substantial questions of law Nos.2, 3 and 4 in the negative. As the substantial questions of law Nos.2 to 4 are answered in the negative, the matter requires reconsideration by the trial Court. - 15 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 21. In view of the above discussions, substantial question of law No.1 does not arise for consideration. In view of the aforesaid facts and circumstances, I proceed to pass the following: ORDER (i) The appeal is allowed. (ii) The judgment and decree dated 15.12.2012 passed in R.A. No.23/2011 by the Principal Civil Judge (Sr. Dn.) and JMFC., Srirangapatna and the judgment and decree dated 18.03.2011 passed in O.S.No.49/2008 by the Principal Civil Judge (Jr. Dn.) and JMFC., Srirangapatna are hereby set-aside. (iii) The matter is remitted to the trial Court. The trial Court is directed to dispose of the suit after considering the entire evidence placed on record and pass an appropriate judgment in accordance with law. - 16 - HC-KAR NC: 2025:KHC:42398 RSA No.676 of 2013 (iv) It is made clear that this Court has not made any adjudication on merits in issue. (v) All the contentions of the parties are kept open. (vi) The parties are directed to appear before the trial Court on 24.11.2025 without awaiting any further notice. The Registry is directed to transmit the records to the trial court forthwith. Sd/- (ASHOK S.KINAGI) JUDGE RL List No.: 2 Sl No.: 3