- 1 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 7TH DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO. 100506 OF 2018 (PAR) BETWEEN: 1. SHRI.BHARMA S/O PUNNAPPA KADOLKAR AGE: 71 YEARS, OCC: AGRICULTURE, R/O: H.NO.430, AMBEWADI, POST: HINDALAGA-591108, TQ AND DIST: BELAGAVI. 1(A) SMT. RENUKA W/O. BHARMA KADOLKAR AGED 65 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.430, AMBEWADI, POST: HINDALAGA-591108, TQ AND DIST: BELAGAVI. 1(B) SHRI RAJU S/O. BHARMA KADOLKAR AGED 49 YEARS, OCC: RETIRED ARMY R/O: H.NO.430, AMBEWADI, POST: HINDALAGA-591108, TQ AND DIST: BELAGAVI. 1(E) SHRI KISHOR S/O. BHARMA KADOLKAR AGED 49 YEARS, OCC: RETIRED ARMY R/O: H.NO.430, AMBEWADI, Digitally signed by BHARATHI H M Location: HIGH COURT OF KARNATAKA Date: 2025.01.24 10:32:59 +0530 - 2 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 POST: HINDALAGA-591108, TQ AND DIST: BELAGAVI. 1(D) SMT. RESHMA W/O. RAGHUNATH KANABARKAR AGE: 42 YEARS, OCC: HOUSEHOLD WORK, R/O: H.NO.422/1, AMBEWADI, POST: HINDALAGA-591108, TQ AND DIST: BELAGAVI. …APPELLANTS (BY SRI. SHEKHARGOUDA M. NAGANURI, ADVOCATE FOR (A TO D)) AND: 1. SHRI. MANOHAR S/O. PUNNAPPA KADOLKAR AGE: 65 YEARS, OCC: BUSINESS, R/O: HINDALAGA-591108, TQ: AND DIST: BELAGAVI. 2. SHRI VAIJU S/O. PUNNAPPA KADOLKAR AGE: 63 YEARS, OCC: CARPENTER, R/O: HUNKAL, POST: KARAMBAL-591302, TQ: KHANAPUR, DIST: BELAGAVI. 3. SMT. MALAN WD/O. BABU KADOLKAR AGE: 55 YEARS, OCC: HOUSEWIFE, R/O: HINDALAGA-591108, TQ AND DIST: BELAGAVI. 4. SHRI YOGESH S/O. BABU KADOLKAR AGE: 34 YEARS, OCC: BUSINESS, - 3 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 R/O: HINDALAGA-591108, TQ AND DIST: BELAGAVI. 5. SHRI RAHUL S/O. BABU KADOLKAR AGE: 30 YEARS, OCC: BUSINESS, R/O: HINDALAGA-591108, TQ AND DIST: BELAGAVI. …RESPONDENTS (BY SRI. SHREEVATSA HEGDE, ADVOCATE FOR R1; VIDE ORDER DTED 23.10.2020, APPEAL AGAINST R2 IS DISMISSED AS ABATED; NOTICE TO R3 SERVED; R4 AND R5 HELD SUFFICIENT) THIS RFA IS FILED UNDER SEC. 96(1) READ WITH ORDER 41 RULE 1 OF CPC., 1908, AGAINST THE JUDGMENT AND DECREE DATED:30.06.2018 PASSED IN O.S.NO.116/2011 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BELAGAVI, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI AND THE HON'BLE MR. JUSTICE UMESH M ADIGA - 4 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) 1. The present appeal is filed challenging the judgment and decree dated 30.06.2018, passed in O.S.No.116/2011, by the learned IV Addl. Senior Civil Judge and JMFC, Belagavi. 2. For convenience, the parties are referred to based on their ranking before the Trial Court. The appellant was the plaintiff and the respondents were the defendants. 3. Brief facts leading rise to the filing of this regular first appeal are as follows: 4. The plaintiff filed a suit against the defendants for partition and separate possession. One Punnappa Kadolkar was the original propositus. He had a wife by name Lakshmi. The plaintiff, defendant Nos.1, 2 and one Maruthi are the children of original propositus. Defendant Nos.3 to 5 are the LRs. of the deceased Maruti. It is the case of the plaintiff, that the suit schedule properties are the ancestral properties of the plaintiff and defendants. No partition took place - 5 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 between the plaintiff and the defendants. It is stated that, the defendants have obtained collusive decree in O.S.No.340/2007. The plaintiff demanded for partition and separate possession, but the defendants refused to effect a partition. Hence, a cause of action arouse for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 5. Defendant No.1 filed a written statement, wherein, he denied the plaint averments and admitted the relationship. It is contended in the written statement that, the plaintiff and defendants have signed the compromise petition in O.S.No.340/2007. The plaintiff and defendants have accepted the properties allotted to their respective shares and given up their claim over the suit schedule properties, by virtue of compromise decree. The plaintiff, aggrieved by the compromise decree passed in O.S.No.340/2007 filed a suit in O.S.No.10/2011 challenging the compromise decree, and the said suit was dismissed, and the plaintiff has not challenged the dismissal of the said suit in O.S.No.10/2011. The judgment and decree passed in - 6 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 O.S.No.10/2011 has attained the finality. It is contended that, the said suit is barred by provision of Order II Rule 2 of Code of Civil Procedure and also, the said suit is not maintainable. Hence, prays to dismiss the suit. 6. The trial Court, based on the pleadings of the parties, framed the following issues: 1. Does the defendant No.1 proves that the suit is not maintainable in view of the compromise decree between the parties in O.S.No.340/2007? 2. Does the 1st defendant proves that the compromise decree in O.S.No.340/2007 between all the parties has been fully acted upon? 3. Does the plaintiff proves that the 1st defendant with dishonest intension and by manipulation did not include the suit plot Nos.10 to 29 out of R.S.No.202/2B? 4. Does the plaintiff proves that the suit plot Nos.10 to 29 out of R.S.No.202/2B are available for partition? 5. Whether the Court fee paid on the plaint is sufficient? 6. Does the plaintiff proves that he is entitled to 1/5th equal share in the suit property and for an order of injunction as prayed for? 7. What order or decree? 7. To substantiate his case, the plaintiff examined himself as PW.1 and marked seven documents as Ex.Ps.1 to 7. In rebuttal, defendants have not led their evidence, and - 7 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 no documents were marked on behalf of the defendants. After recording the evidence of PW-1 and assessing oral and documentary evidence, the trial court answered Issue No.1, 2 and 5 in the affirmative, Issue No.3, 4 and 6 in the negative and Issue No.7 as per the final order. The trial Court dismissed the suit of the plaintiff with cost vide judgment and decree dated 30.06.2018. The plaintiff, aggrieved by the said judgment and decree passed in O.S.No.116/2011, filed this Regular First Appeal. 8. Heard the learned counsel for the plaintiff. 9. Learned counsel for the plaintiff submits that, the present suit schedule properties were not the subject matter in O.S.No.340/2007, and the suit filed by the plaintiff is maintainable. He submits that, the trial Court has committed an error in dismissing the plaintiff’s suit, because if, fraud had been played on the plaintiff, the plaintiff should have filed an application for recalling the order of setting aside the compromise decree. He submits that, the present suit schedule properties were not the subject matter of O.S.No.340/2007. Hence, the question of filing an application - 8 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 for setting aside the compromise decree does not arise. Hence, on these grounds, he prays to allow the appeal. 10. Perused the records and considered the submission of the learned counsel for the appellant. 11. The points that would arise for our consideration are: Point No.1: Does the plaintiff proves that the trial Court has committed an error in dismissing the plaintiff’s suit? Point No.2: What order or decree? 12. Point No.1: It is not disputed that, the parties to the suit filed, O.S.No.340/2007 for the relief of partition and separate possession, in respect of the suit schedule properties in O.S.No.340/2007. The present plaintiff was defendant No.1 in O.S.No.340/2007. The suit ended in a compromise, and the compromise petition was filed. The trial Court had drawn a compromise final decree on 10.01.2008. After drawing up of the final decree, defendant No.1 herein, filed a suit in O.S.No.1508/2010 against the - 9 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 plaintiff and other defendants for the relief of permanent injunction. 13. The plaintiff herein, filed a suit in O.S.No.10/2011 against the defendants for setting aside the compromise decree and consequential relief of injunction. In the said suit, the trial Court has framed issues and additional issues and additional issue No.1 was treated as a preliminary issue. The trial Court has passed an order on preliminary additional Issue No.1 and answered preliminary issue in the affirmative and consequently, dismissed the suit in OS No.10/2011 vide order dated 01.10.2016. It is the case of the plaintiff that, the suit schedule properties are the joint family properties of the plaintiff and defendants. The plaintiff therein ought to have included the present suit schedule properties in O.S.No.340/2007. However, the plaintiff therein did not include present suit schedule properties in OS No.340/2007. The plaintiff filed, suit after the suit against the defendants. - 10 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 14. It is necessary to examine Explanation IV to Section 11 of Code of Civil Procedure, which reads as follows: Explanation IV- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. The rule of constructive res judicata which is pleaded against him, in the present appeal, is in a sense somewhat technical or artificial rule, prescribed by the Code of Civil Procedure. This rule, postulates that, if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same party in a subsequent proceeding, which is based on the same cause of action; but basically, even this view, it is founded on the same consideration of public policy, because, if the doctrine of constructive res judicata is not applied to the proceedings, it would be open to the party to take one proceeding, after another and urge new grounds every time; and that, plainly is inconsistent with - 11 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 considerations of public policy and also, the Order II Rule 2 of Code of Civil Procedure, which reads as under: 2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. - 12 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 15. The object of Order II Rule 2 of CPC is based on cardinal principle of law that, the defendants should not be vexed twice for the same cause. • The principle is meant to counteract two evils, namely, (i) splitting up of claims and (ii) splitting up of remedies. • Order II Rule 2 of CPC provides that the suit should include the whole claim: Order II Rule 2(1) provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. • Order II Rule 2(2) provides for relinquishment of part of claim: Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his - 13 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. • Order II Rule 2(3) provides for omission to sue for one of several reliefs: A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation: For the purposes of this rule an obligation and collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action. 16. Hon’ble Apex Court, in the case of Cuddalore Powergen Corporation Ltd Vs. M/S Chemplast Cuddalore Vinyls Limited and Anr. (Civil Appeal No.372/373-2005) dated: 15.01.2025, has made - 14 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 it very clear that, the true import of bar under Order 11 Rule 2 of the Civil Procedure Code must be that it operates preclude a plaintiff from instituting a second suit, on the same cause of action, for a claim, any portion of a claim, or reliefs, which the plaintiff was entitled to avail at the time of filing of the first suit. 17. Admittedly, in the instant case, the plaintiff has omitted to include the present suit schedule properties in O.S.No.340/2007. The plaintiff has not sought the leave of the Court, to sue for all such reliefs. Hence, the plaintiff has relinquished his right in the suit schedule properties by virtue of Order II Rule 2 of the Code of Civil Procedure. The trial Court, considering the entire material on record, has rightly held that, the suit filed by the plaintiff is not maintainable. We do not find any error in the impugned order passed by the trial court. 18. Therefore, in view of the above discussions, we answer Point No.1 in the negative. Accordingly, we proceed to pass the following: - 15 - NC: 2025:KHC-D:174-DB RFA No. 100506 of 2018 ORDER i) The appeal is dismissed. ii) The order on preliminary issue dated 30.06.2018, passed in O.S.No.116/2011 by the learned IV Addl. Senior Civil Judge and JMFC, Belagavi is hereby confirmed. iii) No order as to the cost. Sd/- (ASHOK S. KINAGI) JUDGE Sd/- (UMESH M ADIGA) JUDGE VB/- CT-CMU LIST NO.: 1 SL NO.: 16