- 1 - HC-KAR NC: 2025:KHC:29909 RSA No. 798 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF AUGUST, 2025 BEFORE THE HON'BLE MR. JUSTICE V SRISHANANDA REGULAR SECOND APPEAL NO. 798 OF 2025 (INJ) BETWEEN: T.K. KRISHNAMURTHY S/O LATE KRISHNAPPA, AGED ABOUT 75 YEARS, BUSINESSMAN, R/O KODICAMP, TARIKERE - 577 228. …APPELLANT (BY SRI. M.K. BHASKARAIAH, ADVOCATE) AND: SIKINDHAR NAWAB KHAN DEAD BY LRS' 1. SMT. GULZAR BANU W/O LATE SAHEB JAN, D/O SIKINDAR NAWAZ KHAN, AGED ABOUT 50 YEARS, H.NO.196, 5TH CROSS, HUSMAINIYA, N.R. MOHALLA, KESARE, MYSORE CITY. 2. GULAB JAN, W/O KALANDAR HUSSAIN, D/O SIKINDAR NAWAZA KHAN, AGED ABOUT 48 YEARS, Digitally signed by R MANJUNATHA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:29909 RSA No. 798 of 2025 RESIDING AT GARAGADA HALLI VILLAGE, GARAGADA HALLI POST, TIPATURU TALUK - 577 228. 3. FAIROZ NAWAZ KHAN S/O SIKINDAR NAWAZ KHAN, AGED ABOUT 51 YEARS, RESIDING AT 3RD CROSS, BHOVI COLONY, KODICAMP, TARIKERE TOWN - 577 228. 4. REMATH BI W/O LATE SIKINDAR NAWAZ KHAN, AGED ABOUT 80 YEARS, RESIDING AT 3RD CROSS, BHOVI COLONY, KODICAMP, TARIKERE TOWN. 5. FAIROZ NAWAZ KHAN S/O ABDUL JALLEL SAB, AGED ABOUT 88 YEARS, R/O KODICAMP, TARIKERE TOWN - 577 228. …RESPONDENTS (BY SRI. GNANESH N.I, ADVOCATE FOR C/R3) THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 19.03.2025 PASSED IN RA.NO.49/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL JMFC TARIKERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 28.08.2020 PASSED IN OS.NO.378/2014 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, TARIKERE. - 3 - HC-KAR NC: 2025:KHC:29909 RSA No. 798 of 2025 THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT Heard Sri.M.K.Bhaskaraiah, learned counsel for the appellant and Sri.Gnanesh N. I., learned counsel for the respondent. 2. Unsuccessful plaintiff is the appellant challenging the validity of the judgment passed in O.S.No.378/2014 whereby the suit of the plaintiff came to be dismissed which was confirmed in RA No.49/2020. 3. Facts in brief which are utmost necessary for disposal of the present appeal are as under: 3.1. Plaintiff filed a suit for bare injunction in respect of the property which is a ‘malige’ and vacant site bearing assessment No.5851/3 measuring 30 x 80 feet situated in - 4 - HC-KAR NC: 2025:KHC:29909 RSA No. 798 of 2025 Upparabasavanahalli village (Kodicamp) Tarikere Town, Tarikere with following boundaries: East by: Thatched house of Sikandar Nawaz West by: Property of Sudhakar North by: Railway Track South by: B.H.Road 3.2. Plaintiff claims that he had earlier filed a suit in O.S.No.207/2001. Another suit in O.S.No.127/2011 against the municipality. It is his case that he being the owner of the property, defendant No.1 – Sikindhar Nawab Khan started interfering at the first instance. 3.3. During the pendency of the suit, said Sikindhar Nawab Khan sold the property in favour of defendant No.2 – Fairoz Nawaz Khan. It is his further case of the plaintiff that, unable to digest the decree obtained by the plaintiff, defendant No.1 clandestinely sold the property in favour of defendant No.2. After the sale, defendant No.2 started interfering with the suit property and therefore, there was a necessity to file one more suit against the defendants. - 5 - HC-KAR NC: 2025:KHC:29909 RSA No. 798 of 2025 4. The suit was resisted and on contest, came to be dismissed. 5. Learned Judge in the First Appellate Court confirmed the judgment of the Trial Court in dismissing the suit. 6. Being further aggrieved by the same, plaintiff has filed the present appeal raising following substantial questions of law: "i. Whether, the judgement and decree passed by the learned judges of the court below is justified in view of the judgement and decree passed in favour the appellant and against the respondents in O.S.No. 207/2001 and O.S.No. 127/2011? ii. Whether, the judgement and decree passed by the learned judges of the court below against the appellant in the present suit is contrary and inconsistent to the judgement and decree passed in O.S.No. 207/2001 and O.S.No. 127/2011 in between the same parties in respect of the same subject matter will not amount to res judicata? iii. Whether, the learned judges of the court below have been not considered the clear admission by the 1st respondent that, by the side of the appellant Eastern site of the respondent the property is not coming and the same is belonged to Municipal Council which - 6 - HC-KAR NC: 2025:KHC:29909 RSA No. 798 of 2025 has already suffered an order of permanent injunction? iv. Whether, the courts below ought to have drawn adverse inference against the right of the respondents as they have not produced any document and proved possession over the said vacant space as contended by them? v. Whether the courts below were justified in dismissing the suit of the appellant in view of the above said judgment and decrees by applying the ratio of the decision rendered by the Hon'ble Apex Court in view of the clear title and possession of the appellant over the site? 7. Learned counsel for the appellant reiterating the grounds urged in the appeal memorandum vehemently contended that the plaintiff is already having an order of injunction in O.S.No.207/2001 and 127/2011 against the municipality and the erstwhile defendant No.1. 8. When that being so, in order to somehow disturb the peaceful possession and enjoyment of the plaintiff, defendant No.1 clandestinely sold the property in favour of defendant No.2 who is a person with muscle and money power started interfering with peaceful possession of suit property. Therefore, present suit came to be filed - 7 - HC-KAR NC: 2025:KHC:29909 RSA No. 798 of 2025 which has not been properly taken note by the learned Trial Judge and wrongly dismissed the suit of the plaintiff which was also wrongly confirmed by the learned Judge in the First Appellate Court resulting in miscarriage of justice and sought for admitting the appeal for further consideration. 9. Per contra, learned counsel for the respondents opposes the appeal grounds and contends that there is no cause of action against the legal representatives of defendant No.1 or for that matter against defendant No.2 who is the purchaser of the suit property from defendant No.1 and sought for dismissal the appeal. 10. Having heard the parties in detail, this Court perused the material on record meticulously. 11. On such perusal of the material on record, earlier judgments and decree in O.S.No.207/2001 and 127/2011 has already been marked as exhibits before the Trial Court. - 8 - HC-KAR NC: 2025:KHC:29909 RSA No. 798 of 2025 12. Plaintiff is already having benefit of an order of injunction not only against defendant No.1 and also his successor in interest. The second suit is surplusage. However, if there is any dispute with regard to the identity or title of the property, parties are at liberty to file appropriate suit in accordance with law. 13. With that observation, this Court is of the considered opinion that substantial questions of law do not merit for further consideration. 14. Accordingly, the following: ORDER Appeal is meritless and hereby dismissed. Sd/- (V SRISHANANDA) JUDGE KAV List No.: 1 Sl No.: 63 CT: BHK