- 1 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL No. 1547 OF 2016 (DEC) BETWEEN: ABDUL KAREEM SAB S/O LATE ISMAIL SAB AGED ABOUT 56 YERAS R/AT RUDRAPATTANNA VILLAGE RAMANATHAPURA HOBLI ARAKALGUD TALUK HASSAN DISTRICT. …APPELLANT (BY SRI BOPAIAH A G, ADVOCATE) AND: 1. 1(a) AMEER JAN SINCE DECEASED BY HIS LRS HASEEBI B W/O LATE AMEERJAN, AGED ABOUT 65 YEARS. 1(b) IMTHIYAZ S/O LATE AMEERJAN AGED ABOUT 59 YEARS R/AT KONANUR TOWN AND HOBLI ARAKALGUD TALUK HASSAN DISTRICT. 1(c) RIYAZ AHMED S/O LATE AMEERJAN AGED ABOUT 51 YEARS R/AT SHIVAPPA EXTENSION Digitally signed by SHARMA ANAND CHAYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 PERIYAPATNA TALUK AND TOWN MYSORE DISTRICT. 1(d) NAYAZ AHMED S/O LATE AMEERJAN AGED ABOUT 59 YEARS. RESPT 1(a) AND 1(d) ARE RESIDING AT RUDRAPATTANNA VILLAGE RAMANATHAPURA HOBLI ARAKALGUD TALUK HASSAN DISTRICT. …RESPONDENTS (BY SRI SAMPATH KUMAR A V, FOR SRI PRATHEEP K C, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.06.2016 PASSED IN RA No.218/2012 ON THE FILE OF THE III ADDL. DISTRICT JUDGE, HASSAN, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 24.09.2012 PASSED IN OS No.83/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., ARKALGUD AND ETC, THIS APPEAL COMING ON FOR ADMISSION THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH ORAL JUDGMENT 1. This appeal is filed by the plaintiff assailing the judgment and decree dated 06.06.2016 in R.A. No. 218/2012 on the file of III Additional District and Sessions Judge, Hassan allowing the appeal and setting aside the - 3 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 judgment and decree dated 24.09.2012 in O.S. No. 83/2008, on the file of the Senior Civil Judge and JMFC at Arakalgudu granting share in the Schedule - A property. 2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. 3. It is the case of the plaintiff that the defendant is his maternal uncle. Plaintiff is the son of Sri. Ismail Sab and Smt. Mohideen Bi. Smt. Mohideen Bi is the sister of defendant - Ameerjan, and Ameerjan is the son of Mohammad Sab. It is the case of the plaintiff that, the parents of the plaintiff had 3 properties, namely Schedule A, B and C properties. It is also stated in the plaint that, the mother of the plaintiff - Smt. Mohideen Bi is entitled for 1/8th share in schedule property and the plaintiff being a residuary will be entitled for 7/8th share in the suit schedule property of late Ismail Sab. It is also stated that mother of the plaintiff died on 09.05.1998, leaving behind a Will dated 23.01.1998 in favour of her brother – - 4 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 Ameerjan and therefore, the plaintiff had filed O.S. No. 83/2008 seeking 7/8th share in the schedule property. It is also stated in the plaint that, the plaintiff was minor when his mother-Smt. Mohideen Bi filed O.S. No. 525/1953 before the Court of Munsiff, Arkalagudu against her husband seeking maintenance for herself and the plaintiff, and the said suit came to be compromised and accordingly schedule A property was handed over to the mother of the plaintiff - Smt. Mohideen Bi for maintenance. It is also stated in the plaint that, the mother of the plaintiff had filed O.S. No. 381/1983 against her husband, seeking declaration in respect of schedule-A property and the said suit, came to be dismissed insofar as the declarative relief claimed by the plaintiff therein, however the trial Court granted the relief of permanent injunction against which an appeal was preferred in R.A. No. 55/1992 and the said appeal came to be dismissed. It is also stated in the plaint that the plaintiff has filed O.S. No. 174/1998 before the Civil Judge (Jr.Dn.), Arakalagudu - 5 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 against the defendant seeking relief of declaration with consequential relief of injunction in respect of schedule-A property and said suit came to be dismissed by the trial Court on 14.12.2000 and being aggrieved by the same, plaintiff has preferred and appeal before the first appellate Court in R.A. No. 126/2001 and the same was withdrawn by the plaintiff and therefore, it is the case of the plaintiff that the plaintiff has filed a comprehensive suit in O.S. No. 83/2008 seeking share in schedule-A property before the trial Court. 4. After service of notice defendants entered appearance and filed written statement, denying the averments made in the plaint. It is the specific case of the defendants that Ameerjan had acquired the property as per the registered Will dated 23.01.1998 and as such the defendant had become owner in possession of schedule-A property and in this regard plaintiff has filed O.S. No. 174/1998 which came to be dismissed and confirmed in - 6 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 R.A. No. 126/2001 and therefore, defendant has sought for dismissal of the suit. 5. The trial Court, based on the pleadings on record had formulated issues. In order to prove his case plaintiff examined himself as P.W.1 and produced 12 documents and the same are marked as Ex.P.1 to Ex.P.12. Defendant examined 2 witnesses as D.W.1 and D.W.2 and produced 12 documents as Ex.D.1 to Ex.D.12. The trial Court after considering the material on record, by its judgment and decree dated 24.09.2012, partly decreed the suit holding that plaintiff has been declared as owner of Schedule B and C properties and further held that, plaintiff is entitled for 37/45th share in schedule-A property. Being aggrieved by the same, defendant preferred an appeal in R.A. No. 218/2012 before the First Appellate Court and the same was resisted by the plaintiff. The First Appellate Court by judgment and decree dated 06.06.2016 allowed the appeal and consequently set aside the judgment and decree passed by the trial Court in O.S. - 7 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 No. 83/2008 in respect of schedule-A property. Being aggrieved by the same, plaintiff has preferred this appeal. 6. Heard Sri. Bopaiah A.G., learned counsel for appellant and Sri. Sampath Kumar A.V., learned counsel for Pratheep K C., learned counsel for respondents. 7. Sri. Bopaiah A.G., learned counsel appearing for appellant submitted that the First Appellate Court has committed an error in interfering with the finding recorded by the trial Court in respect of schedule-A property despite the fact that the mother of plaintiff has no absolute right in respect of bequeathing the entire property in favour of defendant – maternal uncle of plaintiff and therefore, he contended that the plaintiff is entitled for share in schedule-A property. It is also argued by learned counsel appearing for appellant that, since the plaintiff has filed a comprehensive suit in O.S. No. 83/2008, and as such plaintiff has withdrawn appeal in R.A. No. 126/2001 and - 8 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 therefore, finding recorded by First Appellate Court requires interference by this Court. 8. Per contra, Sri. Sampath Kumar A.V., learned counsel appearing for respondents sought to justify the impugned judgment and decree passed by the First Appellate Court and submitted that since the suit filed by the plaintiff in O.S. No. 174/1998 seeking declaration in respect of schedule-A property came to be dismissed and the same has reached finality, in view of withdrawal of the appeal R.A. No. 126/2001 by the plaintiff and accordingly, sought for dismissal of the appeal. 9. In the light of the submission made by learned counsel for parties and careful examination of the finding recorded by both the Courts below would indicate that the defendant is the maternal uncle of the plaintiff. Plaintiff has claimed share in 3 items of the schedule properties, namely, A, B and C. It is the case of the plaintiff, that his mother Smt. Mohideen Bi had executed registered Will - 9 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 dated 23.01.1998 in favour of the defendant and died on 09.05.1998 and therefore it is the contention of the plaintiff that the mother of the plaintiff does not have any legal right to execute Will in respect of the entire schedule property in favour of the defendant and accordingly filed a suit in O.S. No. 83/2008. In this regard, careful examination of the findings recorded by the courts below would indicate that the mother of the plaintiff - Smt. Mohideen Bi had filed O.S. No. 525/1953 against the father of the plaintiff seeking maintenance and the said suit came to be decreed in terms of the compromise wherein schedule-A property was given to mother of the plaintiff for maintenance. Plaintiff was a party in the said suit. It is also to be noted that the mother of the plaintiff - Smt. Mohideen Bi has filed O.S. No. 381/1983 seeking declaration in respect of schedule-A property and the said suit came to be decreed in part holding that the mother of the plaintiff is having a right in respect of the maintenance only and insofar as the relief claimed for declaration, came - 10 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 to be dismissed. In the backdrop of these aspect, I have carefully examined the finding recorded by the trial Court in O.S. No. 174/1998 filed by the plaintiff seeking declaration in respect of the schedule-A property, which came to be dismissed by the trial Court, by judgment and decree dated 14.12.2000. 10. Issue No. 1 in O.S. No. 174/1998 reads as under: “Does the plaintiff prove his ownership over the suit property as alleged? “ 11. The Trial Court has answered in negative in respect of issue No.1 in the suit holding that the plaintiff in the said suit has not proved the ownership in respect of schedule-A property in judgment and decree passed in O.S. No. 174/1998 is marked as Ex.D.7 before the trial Court. The said judgment and decree passed by the trial Court was questioned in R.A. No. 126/2001 by the plaintiff and the said appeal was withdrawn by the plaintiff herein without seeking liberty to file fresh suit. In that view of the - 11 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 matter, since the said appeal came to be withdrawn without leave of the Court to file fresh suit seeking relief of declaration, I am of the view that the finding recorded by the trial Court in O.S. No. 174/1998 on issue No. 1 confirmed in R.A. No. 126/2001 is binding on the plaintiff. It is to be noted that, as plaintiff had withdrawn the appeal without seeking permission from the trial Court to file fresh suit, second suit filed seeking similar relief under the same cause of action is barred by Rule (1) of Order 23 of CPC as the plaintiff while withdrawing the appeal in R.A. No. 126/2001, did not seek permission of the Court to file fresh suit on the same cause of action. 12. Following the declaration of law made by Hon'ble Supreme Court in the case of University of Agricultural Sciences vs. Saroj Gupta reported in (2021) 16 SCC 768 at paragraph Nos. 9 to 11 held as follows: "9. After hearing the learned counsel for the parties, we are of the considered opinion that the appeal deserves - 12 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 to be allowed on the singular ground that too in view of the admitted fact that the judgment of the previous case had been exhibited before the trial court. The previous suit was admittedly filed with respect to the very same suit land for relief of permanent injunction based on title with the averment that suit land had not been acquired for the purpose of the Agricultural University. The said suit was dismissed on merits on the basis of the finding that land had not been acquired. The regular first appeal arising out of the same was withdrawn vide order dated 13-8-2001 [Saroja Gupta v. University of Agricultural Sciences, 2001 SCC OnLine Kar 835] and also the suit. Since the suit as well as the appeal was withdrawn and the liberty has not been reserved for instituting a fresh suit under Order 23 Rule 1(3). Hence the provision under Order 23 Rule 1(4) preclude the plaintiff to institute the fresh suit. 10. Order 23 Rule 1 is extracted hereunder: “1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub- rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader - 13 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this Rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” (emphasis supplied) 11. Bare reading of the aforesaid Order 23 Rule 1(4) makes it crystal clear that the plaintiff can, as against all or any of the defendants, abandon his suit or abandon a - 14 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 part of his claim with the permission to file fresh suit in respect of the very same subject-matter or such part of the claim. The court under Order 23 Rule 1(3) can grant permission to file fresh suit in the exigencies provided under Order 23 Rules 1(3)(a) and (b); in case permission has not been granted under Order 23 Rule 1(3), Rule 1(4) of Order 23 precludes institution of fresh suit in respect of such subject-matter or its part of the claim. Merely by the fact that in the fresh suit prayer had been added for declaration of title along with injunction would not change the complexion of the case. The relief of declaration of title could have been claimed in the earlier suit otherwise also previous suit was based on title. The bar of Order 23 Rule 1(4) is clearly attracted and fresh suit could not be said to be maintainable." 13. In that view of the matter, the second suit filed by the plaintiff is hit by Section 11 of CPC since the parties are one and the same and relief sought for by the plaintiff is identical to the relief sought in O.S. No. 174/1998. In that view of the matter, taking into consideration the above mentioned aspects, the trial Court has committed an error in granting the relief of declaration to the plaintiff to an extent of share in schedule-A property and same - 15 - HC-KAR NC: 2025:KHC:30515 RSA No. 1547 of 2016 was rightly rejected by the First Appellate Court. In that view of the matter taking into consideration re- appreciation of material by the First Appellate Court as per paragraph Nos. 11 and 12 wherein the First Appellate Court, on detailed consideration of the finding recorded by the trial Court in O.S. No. 174/1998 (Ex.D.7) which has reached finality in withdrawal of the appeal in R.A. No. 126/2001, I am of the opinion that no interference is called for in this appeal as the appellant herein has not made out a case for formulation of substantial question of law as required under Section 100 of CPC. Accordingly, appeal is dismissed at the stage of admission. Sd/- (E.S.INDIRESH) JUDGE LRS List No.: 1 Sl No.: 34