- 1 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF MARCH, 2026 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO. 1653 OF 2021 (RES) BETWEEN: 1. SMT. MANIKYAMMA D/O LATE VENKATASWAMY AGED ABOUT 71 YEARS R/AT NO.131/1, AND NEW NO.U-17 AND 15 , J J NAGAR, RAYAPURA MAIN ROAD GORIPALYA, BANGALORE - 560 018. 2. SMT ARUN KUMARI D/O MUNI BHADRAIAH AGED ABOUT 45 YEARS 3. SRI PADMA NAGA S/O MUNI BHADRAIAH AGED ABOUT 43 YEARS 4. SRI PADMA BHUSHAN S/O MUNI BHADRAIAH AGED ABOUT 40 YEARS 5. SRI GOWRI SHANKAR S/O MUNI BHADRAIAH AGED ABOUT 37 YEARS 6. SRI CHETHAN KUMAR S/O MUNI BHADRAIAH AGED ABOUT 33 YEARS APPELLANT NO. 2 TO 6 ALL R/AT CHEKENA HALLI VILLAGE KESARAMUDA POST, HURIDIGERE HOBLI TUMKUR TALUK TUMKUR DISTRICT – 572 122. …APPELLANTS (BY SRI. C R SUBRAMANYA, ADVOCATE) Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 AND: 1. SRI. C. VITTAL KUMAR S/O LATE D CHIKKAGIRIYAPPA AGED 39 YEARS R/AT ODL NO.130, NEW NO.2/1 J J NAGAR, RAYAPURA MAIN ROAD GORIPALYA BANGALORE - 560 018. 2. SRI. SRINIVAS S/O LATE D CHIKKAGIRIYAPPA AGED ABOUT 39 YEARS R/AT ODL NO.130, NEW NO.2/1 J J NAGAR, RAYAPURA MAIN ROAD GORIPALYA, BANGALORE - 560 018. 3. SMT PARVATHI D/O LATE DODDAGIRIYAPPA AGED 57 YEARS 4. SRI BANGARADA GIRI S/O LATE DODDAGIRIYAPPA AGED 53 YEARS 5. SRI CHINNADAGIRI S/O LATE DODDAGIRIYAPPA AGED 51 YEARS 6. SRI THUKARAM S/O LATE DODDAGIRIYAPPA AGED 37 YEARS 7. SRI MANJUNATH S/O LATE DODDAGIRIYAPPA AGED 32 YEARS SINCE DECEASED R-3 TO R-10 ARE HIS LRS ALREADY ON RECORD. AMENDED CARRIED OUT ON 11.11.2025 AS PER ORDER DATED: 11.11.2025. 8. SMT PUSHPALATHA D/O LATE DODDAGIRIYAPPA AGED ABOUT 41 YEARS - 3 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 9. SRI ANANDA S/O LATE DODDAGIRIYAPPA AGED ABOUT 41 YEARS 10. SRI RAVI KUMAR S/O LATE DODDAGIRIYAPPA AGED 38 YEARS R-1 TO R-10 ARE ALL R/AT 1/1, OLD NO. 131, J.J.NAGAR RAYAPURA MAIN ROAD GORIPALYA, BENGALURU – 560 018. 11. SRI. MUNI BHADRAIAH S/O HOSALAIAH AGED ABOUT 73 YEARS 12. SRI. NAVEEN SHANKARA S/O MUNI BHADRAIAH AGED ABOUT 48 YEARS. R-11 & R-12 ARE R/AT CHEKENA HALLI VILLAGE KESARAMUDA POST HURDIGERE HOBLI, TUMKUR TALUK AND DISTRICT – 572 101. …RESPONDENTS (BY SRI. GIRIDHAR S V, ADVOCATE FOR C/R-9 & R-10 AND ALSO R-1 TO R-6 & R-8 VIDE ORDER DATED: 11.11.2025 R-9 TO R-10 ARE TREATED AS LR’S OF DECEASED R-7) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE ORDER DATED 11.01.2021 PASSED IN MIS.NO.451/2013 ON THE FILE OF THE XIX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, PARTLY ALLOWING THE PETITION FILED UNDER SEC.144 OF CPC. THIS APPEAL IS BEING HEARD AND RESERVED ON 08.12.2025 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR CAV JUDGMENT This appeal by the respondents in Misc.No.451/2013 is directed against the impugned order dated 11.01.2021 passed by the XIX Addl.City Civil and Sessions Judge, Bangalore, whereby the said petition filed by respondents 1 to 10 under Section 144 CPC was partly allowed by the trial court, thereby directing the petitioners to hand over possession of the schedule property to the respondents 1 to 10 within a period of three months. 2. For the sake of convenience, the parties are referred to their rankings before the trial court. 3. Brief facts giving rise to the present appeal are as under:- Respondents 1 to 10 instituted the aforesaid petition in Misc.No.451/2013 invoking Section 144 CPC seeking restoration of the schedule property from the petitioners and for other reliefs interalia contending that they were illegally dispossessed from the property, pursuant to the final decree in FDP No.62/2000 which was executed in Ex.No.783/2003 before the trial court. It is - 5 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 contended that the petitioners herein along with their mother had instituted a suit in O.S.No.1799/1967 seeking 1/3rd share in the property bearing Municipal No.131/1 without providing measurements and the said suit having been decreed by the trial court, the petitioners instituted a final decree proceedings in FDP No.62/2000, in which, they got themselves allotted property bearing No.131/1 by providing measurements as 30ft East – West and 66.6ft North – South and executed a said decree in Ex.No.783/2003 and thereby illegally dispossessed the respondents 1 to 10 on 28.06.2003 from the schedule property bearing No.130/1 and their share in property No.131/1, which was owned and possessed by respondents 1 to 10. It was further contended that the final decree did not bind the respondents 1 to 10 in respect of property No.130/1 owned and possessed by them and accordingly, respondents 1 to 10 instituted one more suit in O.S.No.3346/2003 for declaration that the said final decree proceedings were null and void and not binding upon respondents 1 to 10 for permanent injunction and for other reliefs. The said suit in O.S.No.3346/2003, in which the petitioners herein were arrayed as defendants was contested by them and thereafter, was decreed - 6 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 in favour of respondents 1 to 10 (plaintiffs) against the petitioners herein (defendants) vide judgment and decree dated 24.03.2010, thereby holding that the final decree dated 10.10.2003 passed in FDP No.62/2000 was null and void and not binding upon respondents 1 to 10 in respect of site No.130 and their share in site No.131/1. 3.1 Aggrieved by the said judgment and decree passed by the trial court, the petitioners herein preferred an appeal in RFA No.729/2010, in which, respondents 1 to 10 herein preferred cross- objections in RFA Crob.No.18/2011 against the adverse findings recorded by the trial court. By judgment and decree dated 30.07.2013, this Court dismissed RFA No.729/2010 filed by the petitioners herein (defendants) and allowed RFA Crob.No.18/2011 filed by respondents 1 to 10 (plaintiffs), thereby upholding the entire claim of the respondents 1 to 10 (plaintiffs) and rejecting the claim of the petitioners (defendants). Aggrieved by the said judgment and decree passed by this Court, petitioners herein filed a review petition in R.P.No.750/2013 which also came to be dismissed by this Court vide order dated 06.01.2014. - 7 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 3.2 It was therefore contended that having regard to the claim of the respondents having been upheld and the claim of the petitioners having been rejected right up to this Court and the same having attained finality and become conclusive and binding upon the petitioners, respondents 1 to 10 invoked the provisions contained in Section 144 CPC and sought for restitution by restoration of the possession of the schedule property for compensation and damages of Rs.6,63,000/- from the petitioners and for other reliefs by filing the aforesaid petition in Misc.No.451/2013 before the trial court. 3.4 The petitioners filed their objections to the said Misc.No.451/2013 and disputed and denied the claim of respondents 1 to 10 and sought for dismissal of the Misc.petition. 4. Based on the aforesaid pleadings of the parties, the trial court framed the following points for consideration: 1. Whether the petitioners have been dispossessed from the schedule property in the pursuance to the final decree in FDP No. 62/2000 and the Ex.No.783/2003 by order dated: 26.06.2003? 2. Whether the petitioners prove that the final decree passed in FDP.No.62/2000 dated: 10.10.2003 is - 8 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 set-aside by the competent Civil Court in OS.No.3346/2003? 3. Whether the Petitioners are entitled for restoration of possession of the schedule property under Section 144 of Code of Civil Procedure Code? 4. Whether the petitioners are entitled for compensation and damages of Rs.6,63,000/-? 5. What Order?” 5. The respondent No.9 herein was examined as PW-1 and documentary evidence at Exs.P1 to P4 were marked on behalf of respondents 1 to 10, while one R.Maruthish Kumar, the GPA holder of the petitioners was examined as RW-1 and two witnesses as RW-2 and RW-3 and Exs.R1 to R50 were marked on their behalf. After hearing the parties, the trial court proceeded to partly allow the petition filed by respondents 1 to 10 in part and directed the petitioners to hand over the possession of the schedule property to the respondents 1 to 10, whose claim for compensation and damages of Rs.6,63,000/- was dismissed by the trial court. 6. Aggrieved by the impugned order passed by the trial court, petitioners-appellants are before this Court by way of the present appeal. - 9 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 7. Heard learned counsel for appellants and learned counsel for respondents and perused the material on record. 8. In addition to reiterating the various contentions urged in the appeal and referring to the material on record, learned counsel for the appellants submits that the trial court committed an error in allowing the petition filed by respondents 1 to 10 by improper and erroneous appreciation of the material on record. It was submitted that apart from the fact that the Miscellaneous petition filed by respondents 1 to 10 was not maintainable, respondents 1 to 10 were not entitled to any relief and the petition filed by them was liable to be dismissed by setting aside the impugned order. 9. Per contra, learned counsel for respondents 1 to 10 would support the impugned order and submits that there is no merit in the appeal and the same is liable to be dismissed. 10. The following points arise for consideration in the present appeal are as under:- (i) Whether the trial court was justified in allowing the petition filed by respondents 1 to 10 under Section 144 CPC? - 10 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 (ii) Whether the impugned order passed by the trial court warrants interference by this Court in the present appeal? Re-Point Nos. 1 and 2: 11. Since both the points are interlinked with each other, they are taken up together for consideration. 11.1 A perusal of the material on record will indicate that it is an undisputed fact that the petitioners herein and respondents 11 and 12 are the legal representatives of Smt.Gangamma, Smt.Manikyamma and Smt.Nagamma, who were the plaintiffs in O.S.No.179/1967 filed by them for partition and separate possession of their alleged 1/3rd share in the suit schedule properties bearing Municipal Nos.131/1 and 144 situated at Goripalya (J.J.Nagar), Mysore Road, Bangalore. It is relevant to state that the measurements of the suit schedule properties had not been mentioned or stated in the plaint and consequently, the same did not find a place in the preliminary decree dated 11.10.1973, in pursuance of which, the final decree proceedings in FDP No.62/2000 were initiated by the said Smt.Gangamma and others in which, for the first time, the measurements of the properties were given in the final decree proceedings, which were - 11 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 disposed of on 21.07.2001 and a final decree was drawn up by the trial court, which was sought to be enforced by filing Ex.No.783/2003, in which, possession of the property bearing No.130/1 and portion of No.131/1 was taken over by the petitioners herein on 28.06.2003. Meanwhile, on 19.05.2003, respondents 1 to 10 had instituted the aforesaid suit in O.S.No.3346/2003 for declaration that the final decree in FDP No.62/2000 was not binding upon them in respect of the suit schedule properties which were described as “property bearing No.130/1 and No.131/1” and for other reliefs. 11.2 As stated supra, the said suit in O.S.No.3346/2003 was decreed by the trial court in favour of respondents 1 to 10 vide judgment and decree dated 24.03.2010 and confirmed in RFA No.729/2010 by this Court on 30.07.2013, which also set aside the adverse findings recorded by the trial court and allowed RFA Crob.No.18/2011 filed by respondents 1 to 10. It is also a matter of record and an undisputed fact that the review petition filed by the petitioners herein in R.P.No.750/2013 was dismissed by this Court vide order dated 06.01.2014. It follows therefrom that the various contentions and claims put forth by the appellants had been - 12 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 completely and totally rejected by the trial court and upheld by this Court and the same had attained finality and become conclusive and binding upon the appellants herein. In this context, it is necessary to extract the judgment and decree passed by this Court in RFA No.729/2010 c/w RFA Crob.No.18/2011 dated 30.07.2013 as hereunder:- JUDGMENT This is an appeal by the defendants. 2. The parties are referred to by their rank before the trial court for the sake of convenience. 3. The suit was one for a declaration that the final decree proceedings in FDP 62/2000 was not binding on the plaintiffs, in so far as the suit property is concerned and for permanent injunction restraining the defendants from interference with the suit property. It was the case of the plaintiffs that the defendants nos.1 to 3 had instituted a suit for partition and separate possession, against defendants no.4 and 5, in O.S.1799/1967, which was later renumbered as OS 1799/1981, on the file of the Court of the City Civil Judge, Bangalore. Item no.1 of the suit Schedule property, in that suit, was property bearing No. 131/1, Goripalya, Mysore Road. Bounded on the East by: Main Road, West by: Imam Sab’s property, North by: Doddagiriyappa’s House and South by: Conservancy lane. Significantly, the - 13 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 dimensions of the said property were not provided. The suit was decreed. The first defendant was the widow of one Venkataswamy. Defendants 2 and 3 were said to be her daughters. Defendant no.4 and 5 were the brothers-in-law of Defendant no.1 (brothers of Venkataswamy). They were the sons of Sangiriyappa. The said Sangiriyappa had a elder brother, Doddagiriyappa, who had died without any issues. During his life time, he had been allotted a site bearing no.130, Rayapuram Main Road, measuring 30 feet by 40 feet. Doddagiriyappa had executed a will in favour of Venkatalakshmamma, wife of Ramaiah, bequeathing the said site to her. The genealogical tree of the family is as under : FAMILY TREE Bangisiddaiah Doddagiriyappa Sannagiriyappa (Owner of property bearing No.130) (Owner of property bearing No.131) Dasappa – D-4 Venkataswamy – Ramaiah- Thimmamma (wife) Gangamma – – – Venkatalakshmamma - wife D5 X X X W X D - 14 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 (a) Manickyamma – (a) Girijamma Dodda- D. Chikka- Tolasamma (b) Nagamma – (b)Thimmamma giriyappa giriyappa - (c) Tolasamma Kenchamma – – Ananda - Rani – Venkatalakshmamma, in turn, on inheriting the same, is said to have divided the property in equal halves and had retained the northern half, measuring 20 feet by 30 feet, and had gifted the southern half to the sons of Defendant no.4, also named, Doddagiriyappa and Chikkagiriyappa. Upon the death of Venkataswamy, defendant no.1 had left the family and was believed to have started living with another man. In that background, Defendants 4 and 5 had entered into a partition deed, where by Defendant no.5 was said to have been allotted one half of the above said property bearing no.130. The other half was allotted to Defendant no.4, who in turn had conveyed the same in favour of his wife, Thimmamma, under a deed dated 20.9.1966, in lieu of maintenance, as he had taken another woman as his spouse. D2 D3 P1 P2 W P3 P4 - 15 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Plaintiff no.1 was the son of Thimmamma and plaintiff no.2 was the wife of Plaintiff no.1. On the death of Thimmamma, the said plaintiffs claim to have succeeded to the property. Plaintiff no.1 and his brother, Doddagiriyappa having also acquired the other half of the said property no.130, under a gift deed executed by Venkatlaksmamma, dated 6.7.1960, the plaintiffs claimed as absolute and exclusive owners of Property no.130. It was the further case of the plaintiffs, that in the proceedings in FDP 62/2000, the Schedule and the description therein of the properties involved was inconsistent and was not identical with the properties described in O.S.No.1799/1981. This is patent from the description of Item no.1 of the properties, in FDP 62/2000 which reads as under :- “All that part and parcel of the property bearing Municipal No.131/1 (New No.U15), situated at Goripalya (J.J.Nagar), Mysore Road, Bangalore – 560 018, measuring east to west 30 feet and north to south 66.6” feet, which is bounded on East by : Main Road West by : Imam Sab’s house, North by: Doddagiriyappa’s house South by: Conservancy Lane” The plaintiffs, who were not parties to the said proceedings, had no way of contesting the misleading claim. It was only in retrospect that the plaintiffs had become aware of the mischief. In that, the defendants had surreptitiously included the land of the plaintiffs in the Final Decree - 16 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Proceedings and the same was indicated as 66 feet north to south and 30 feet east to west. Whereas item no.1 of the suit property in O.S.No.1799/1981 was only 30 feet by 40 feet – bounded on the east by: Main Road, West by: Imam Sab’s property, North by: Doddagiriyappa’s house and South by: Conservancy Lane. It transpires that in the Final Decree Proceedings, a surveyor had been appointed to prepare a sketch and to report as regards the feasibility of division. The surveyor having furnished a report on the basis of the incorrect description of the property provided, and had opined that the purported share of the defendants to the extent of one-third could be conveniently provided towards the northern portion of property no.131/1, purportedly measuring 30 feet by 66 feet, thereby conveniently extending beyond the extent of 30 feet by 40 feet – by this process, the suit schedule property of the plaintiffs was sought to be usurped. The surveyor’s report having been accepted by the court and the final decree having been drawn up, the defendants had produced the same before the Bangalore Mahanagara Palike to obtain transfer of Khatha. It is only at that stage, the plaintiffs claim to have become aware of the designs of the defendants – which according to the plaintiffs was pre-meditated and fraudulent, in misleading the court to literally confer title over the plaintiffs’ property on the defendants. Hence the suit had been filed. 4. The defendants had entered appearance and had contested the suit. They had denied the plaint averments. - 17 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 However, it was admitted that the suit was decreed in the year 1973. But it was denied that the Final Decree Proceedings were initiated only after a period of almost three decades. It was claimed that the father of defendants 4 and 5 had filed a Miscellaneous Petition in the above suit filed by the defendants in O.S.1799/1981 and the same was ultimately dismissed only in 1989. As against the said order, yet another miscellaneous petition was filed, which in turn, was dismissed only in the year 1994. It is hence contended that there was no delay. It was asserted that the joint family of Doddagiriyappa and Sannagiriyappa consisted of three sons of Sannagiriyappa, namely, Dasappa, Venkataswamy and Ramaiah. The suit for partition instituted by the widow and children of Venkataswamy had been contested since the year 1967 and the suit was ultimately decreed granting one third share in favour of the defendants herein and that the Final Decree Proceedings had been instituted and had been dealt with in accordance with law and hence the plaintiffs had no claim and interest in the suit property. As there was resistance to the defendants taking possession of the property allotted to them, they were constrained to file an execution petition in Case no.783/2003 and had obtained possession of the suit property in accordance with law. It is thereafter that the suit was filed by the plaintiffs in collusion with defendants 4 and 5 and sought dismissal of the suit. 5. On the basis of the above pleadings, the trial court framed the following issues :- - 18 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 “1. Whether the plaintiffs prove that they have perfected their title to the suit property by adverse possession? 2. Whether the plaintiffs prove that proceedings in FDP No.62/2000 are null and void and they are not binding on the plaintiffs so far as the suit property is concerned? 3. Whether the plaintiffs prove that defendants are unlawfully claiming suit property? 4. Whether the suit is maintainable? 5. Are the plaintiffs entitled to the decree sought for?” The trial court has answered Issues no.1 in the negative and Issues nos. 2 and 3 partly in the affirmative and partly in the negative and has answered Issues no.4 and 5 in the affirmative. It is this which is challenged in appeal by the defendants. The plaintiffs in turn have filed cross objections in so far as the trial court had refused the relief of injunction in favour of the plaintiffs. 6. The learned counsel for the defendants contends that the suit of the defendants had culminated in the execution proceedings in case no.783/2003, wherein defendants 4 and 5 had been arrayed as judgment debtors. The plaintiffs are claiming under Dasappa, defendant no. 4, and hence could not have filed a suit in view of the express bar under Section 47 of the Code of civil Procedure, 1908(Hereinafter referred to as the ‘CPC’, for brevity). It is further pointed out that the earlier suit having been decreed after contest, and in the absence of any contention to the effect that there was a misdescription of the suit property, - 19 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 namely, that the property was described as no.131/1 to include no.130, it was not open for the plaintiffs to set up a new case altogether. It is contended that the basis of the claim of the plaintiffs to title was through Venkataklaksmamma who was alleged to be the foster daughter of Doddagiriyappa, who had bequeathed the entire property to her and she had in turn gifted the southern portion to the sons of Dasappa, while retaining the northern half. The alleged will was seriously disputed by the defendants and hence it was incumbent on the plaintiffs to have proved the will in accordance with Section 68 of the Indian Evidence Act, 1872 (Hereinafter referred to as the ‘IE Act’, for brevity). It is also sought to be pointed out that Venkatlakshmamma was claiming to be the adopted daughter of Doddagiriyappa, there was no attempt to prove any such alleged adoption. Therefore, the suit of the plaintiffs was without any foundation and hence, the suit having been decreed, has resulted in serious prejudice to the defendants. It is further pointed out that even assuming the existence of property bearing no. 130, the same would have devolved on Sannagiriyappa and his children as Class-II heirs, on the death of Doddagiriyappa, who died issueless. Consequently, the husband of the first defendant would have succeeded to an undivided one-third share in the properties in nos.131/1 and 144, apart from the alleged property in no.130. It is hence contended that the division of shares would still remain equitable and hence there was no warrant for interference. - 20 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 It is contended that the trial court committed a mistake in decreeing the suit on the basis of an innocuous admission in the written statement to the effect that property no.130 and 131/1 were jointly acquired by Doddagiriyappa and Sannagiriyappa. The learned counsel would contend that this has been sufficiently clarified in the evidence of the defendants, as being an inadvertent mistake. It is pointed out that in the garb of seeking a declaration of the validity of the decree in favour of the plaintiffs, they have sought a declaration of title, as it were, to property no.130, which is non-existent, as against the defendants. This is in the face of the admitted circumstance that the plaintiffs had not produced any title deed to the property in question. It is asserted that the plaintiffs had sought to rely on a will said to have been executed by Doddagiriyappa, (Ex.P-1), a Sale deed dated 20-9-1966 (Ex.P-2) apart from Exs.P-6, P- 7, P-8 and P-10, however no attempt was made to prove the same. The learned counsel hence seeks dismissal of the appeal. 7. On the other hand, the learned counsel for the plaintiffs seeks to justify the findings of the trial court, except in so far as the trial court has held that the plaintiffs were not entitled to the relief of injunction. It is contended that the primary case of the plaintiffs was that the Final Decree Proceedings in FDP 62/2000 were a nullity. It was their further contention that it was apprehended that their possession of the suit properties - 21 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 would be disturbed by virtue of the same. The thrust of the plaintiffs’ case was this. The same is evident from the following averment in the plaint : “ … …….In terms of the Surveyor’s report, property in possession of the plaintiff is in danger of being usurped by the defendants who have acted collusively, fraudulently and with deliberate mala fides.” It is contended that in the circumstances the trial court ought to have exercised its power under Order VII Rule 7 CPC, to mould the relief in the light of the necessary pleadings in support of such a relief. It is pointed out that it was subsequent to the institution of the suit, that the appellants had sought to execute the final decree and had dispossessed the plaintiffs , albeit through the process of the court. However, the Court ultimately having held that the final decree proceedings in FDP 62/2000 were a nullity, it followed that the consequential relief ought to have been granted notwithstanding that the plaintiffs had been dispossessed by then, but only in view of the delivery warrant issued pursuant to the very final decree proceedings which are nullified. The court below ought to have taken the result of the suit to its logical conclusion. In that, their possession was lawful and ought to have been restored. In any event the trial court had not assigned any tenable reasons for refusing the relief of injunction, while having granted the main relief. Hence, the learned counsel seeks that the fuller relief to which the plaintiffs were entitled to be granted. - 22 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 8. In the light of the above contentions and on a perusal of the record, it is to be seen whether the findings of the court below can be sustained. There is no dispute that Doddagiriyappa and Sannagiriyappa were brothers. Dodda giriyappa died issueless. Sannagiriyappa had three sons and a daughter - Dasappa (defendant no.4), Venkataswamy (dead) and Ramaiah (defendant no.5) were the sons. Plaintiff no.1 and 2 are the son and widowed daughter-in-law of Dasappa, defendant no.4, respectively,(plaintiff no. 2 was the widow of Dasappa’s other son, Doddagiriyappa). Defendants 1 to 3 are the widow and daughters of Venkataswamy, respectively. The dispute, as asserted by the plaintiffs, is that the suit filed by the defendants in OS 1799/1981, for partition was in respect of two items of property, namely, property no.131/1 and No. 144. It is sought to be pointed out that the dimensions of the property were not indicated of property no.131/1 in the said suit. Property no. 130, which the plaintiffs claim, was not shown in that suit. It is the case of the plaintiffs that for the first time in the final decree proceedings the alleged measurements and boundaries shown of Property no.131/1, mischeviously enveloped property no. 130 as well. Therefore, the present suit is only in respect of property nos. 130 and 131/1 and does not involve no. 144. It is the case of the plaintiffs that Doddagiriyappa had been allotted a site measuring 30’ by 40’ bearing no.130, Rayapuram Main Road. Sannagiriyappa had also been allotted a site measuring 30’ by 40’, bearing no.131/1. In the - 23 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Final Decree Proceedings arising out of the suit in O.S.No.1799/1981 – Schedule-I was described as property no.131/1 situated at Goripalya, Mysore Road, Bangalore, measuring east to west 30’ and north to south 66’.6’. Bounded on the East by Main Road, West by: Imam Sab’s house North by: Doddagiriyappa’s house and South by: Conservancy lane. The decree was drawn up accordingly, whereby it was directed that the defendants 1 to 3 were entitled to one-third share in property no.131/1 as described therein. The said defendants took out execution and are said to have been put in possession of the same as per a surveyor’s report. The trial court has found that on a plain comparison of the description of the property as described in the judgment and decree dated 11.10.1973 in O.S.No.1799/1967 (re- numbered as 1799/1981), Ex.D-3 and as described in the petition in final decree proceedings, Ex.P-4, the description does not tally. It was however, possible to accommodate the extent as sought to be claimed by the defendants only if it was accepted that there are properties bearing nos.130 and 131/1 each measuring 30’ by 40 ‘ feet adjacent to each other, which were allotted to Doddagiriyappa and Sannagiriyappa, respectively. Though it was the case of the defendants that there was no property bearing no.130 in existence, it was categorically admitted by the defendants in their written statement that Doddagiriyappa and Sannagiriyappa had acquired the respective sites bearing nos.130 and 131. The trial court had thus concluded the admission by the defendants was not a conditional one, in that, there was no - 24 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 indication of any measurement of the properties. This admission is also found by the trial court to be in consonance with Ex.D-3 and D-4, the judgment and decree in O.S.No.1799/1981, where the northern boundary of property no.131/1 is shown as Doddagiriyappa’s property. It is an admitted fact that Doddagiriyappa died issueless. The plaintiffs had claimed that Doddagiriyappa had executed a will dated 18.5.1960 in favour of Venkatlakshmamma, whom he had fostered and had bequeathed the said site no.130 in her favour. She was the wife of Ramaiah, the third son of Sannagiriyappa. She had divided the said property no.130, in to two halves. She had retained the northern half, with’ B’ Street as one of its boundaries, for herself and the other half measuring 20’ by 30’ was gifted to the sons of Dasappa (defendant no.4) namely, Doddagiriyappa and Chikkagiriyappa. It was hence the case of the plaintiffs that one half of no.130 was in the possession of Venkatlakshmamma and the other half in the possession of plaintiff no.1 and the husband of plaintiff no.2 . After the death of Venkataswamy, Defendants 4 and 5 are said to have divided the property no.131 between themselves, excluding the widow and daughters of Venkataswamy. It was alleged by the plaintiffs that defendant no.1, the widow of Venkataswamy, had abandoned the family and was living with another man elsewhere. Defendant no. 4 had thereafter conveyed that share in favour of Thimmamma, his wife in lieu of maintenance, as he had taken another woman as his spouse and had settled elsewhere. Thimmamma was the mother of the plaintiff no.1. It is in this - 25 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 manner that the plaintiffs claimed that they were in possession of half portion in property no.130 measuring 20’ by 30‘ and in half portion of property no.131/1 measuring 20’ by 30‘. Ramaiah, the other son of Sannagiriyappa had sold his share to third parties. Hence the defendants had played fraud by indicating the measurement of property no. 131/1 as being 30’ by 66’.6”. The plainitiffs had sought to prove the existence of property no.130 by reference to Ex.P-1, the gift deed executed by Venkatlakshmamma in favour of sons of Dasappa, dated 6.7.1960. The said property is described therein as follows: No.130, II Cross, Gowripalya, East by: Second Cross road, West by: Dilkush Cycle Shop, North by: Property retained by donor and South by: Property belonging to her paternal uncle Sannagiriyappa. The sale deed executed by Dasappa in favour of his wife Thimmamma, dated 20.9.1966, describes the property conveyed thus: East by: Rayapuram Main Road, West by: Muslim’s (Sahebra, in Kannada ) house, North by: Sannagiriyappa’s house, South by: property belonging to Ramaiah. Ex.P-3 was the rough sketch of the entire properties belonging to Doddagiriyappa and Sannagiriyappa , to demonstrate that the boundaries as shown in the aforesaid documents executed at an undisputed point of time was consistent and clearly demonstrated the existence of property no.130. - 26 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 In so far as the reliance placed on the will said to have been executed in favour of Venkatlakshmamma, the foster daughter of Doddagiriyappa is concerned, in meeting the contention on behalf of the defendants that the same had not been proved in terms of Section 68 of the IE Act is concerned, the trial court has accepted the contention of the plaintiffs that the plaintiffs were not relying on the will to claim title, but was only produced for the collateral purpose of establishing the existence of the property no.130 on the northern side of Sannagiriyappa’s property. The inconsistency in the description of the concerned properties and as claimed by the rival parties may be graphically depicted as follows : 1) Sketch of schedule property as per O.S.1799/1967 N Doddagiriyappa’s House W E Main Road S Imam Saheb Conservancy Lane 2) Sketch of property as per FDP 62/2000 # 131/1 Measurement not furnished - 27 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Doddagiriyappa N W E S Imam Saheb Main Road Conservancy E-W – 30 feet N-S – 66.6. feet 3) Sketch of property as per Decree registered N B. Street W E S Rayapuram Imam Saheb Main Road 30” 66.60” #131/1 30” 66.6” 66.6” Remaining Portion - 28 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Conservancy Notes: 1) Shaded portion is the southern boundary instead of conservancy. 2) Northern Boundary of Doddagiriyappa’s property is missing and is substituted by ‘B’ Street. 5) Suit Sketch as per Exhibit – P3 N B. Street W E S ImamSaheb’s R Rayaoyran Main Road House Conservancy 30” A --------- 130 -------- C 30” ----------- 131 ----------- - 29 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Notes:- 1) Property bearing No.130 was owned by Doddagiriyappa son of Bangisiddappa measuring 30”x40”. 2) He bequeathed the same to his nephew’s (Ramaiah) wife Smt. Venkatalakshmamma. 3) She divided No.130 into 2 portions being northern and southern portion. She retained portion A and gifted portion B in favour of her nephew (plaintiffs) as per Exhibit – P1. 4) Entire property No.130 is not available for partition and cannot be included in final decree proceedings when such property was not existing . 5) In respect of property bearing No.131 the same was divided into 2 portions identified as “C” and “D”. 6) Dasappa (D-4) and father of first plaintiff sells the portion “C” in favour of his wife Thimmamma towards maintenance as per Exhibit P-2. 7) Ramaiah (D-5) sells southern half being the portion “D” in favour of Mehaboobi. 8) Property amenable to partition is No.131 only measuring East to West 30 feet and North to South 40 feet. 9) Final Decree Proceedings could have been filed only in respect of the property measuring 30” x 40” and the share if any to be allotted is one-third of 30”x40” i.e., 13.33” x 30”. - 30 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Therefore, from the above, it is evident that the plaintiffs had established their case as found by the trial court’s well reasoned order. The denial of the relief of injunction though, was the only failing in the judgment of the court below. In view of the final decree proceedings having been found to be vitiated, it was but consequential to reverse any action taken pursuant thereto and it was open for the court to have exercised power under Order VII Rule 7 CPC to have directed that the plaintiffs be restored their possession which was taken away by virtue of the final decree that stood nullified. Accordingly the appeal is dismissed and the cross objections are allowed, the suit is decreed in its entirety, with costs.” 11.3 So also, the final order dated 06.01.2014 passed in R.P.No.750/2013 is as under:- “ Heard the learned Counsel for the petitioners. The present petition is filed questioning the correctness of the judgment, not by virtue of any error apparent, though it is sought to be canvassed that since this court, in its judgment, had left out of its purview site no.144, which had been allotted to the share of the respondents in an earlier demarcation by a Court Commissioner and since by virtue of the petitioners’ claim in respect of site no.131/1 having been restricted, the petitioners’ entitlement to have a share - 31 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 in site No.144 is not taken note of and therefore stands deprived of the same. 2. This may be a ground for appeal and is not a ground on which a review petition can be admitted. The view taken by this court is a conscious one and cannot be characterized as being an error apparent on record. Therefore, the petitioners are left to their remedies by way of an appeal. 3. It is incidentally contended that reference to Section 47 of the Code of Civil Procedure, 1908, as regards the petitioners’ door being closed insofar as the execution of the decree that has attained finality and unless this court is to rework the rights of the parties and the entitlement of the petitioners being addressed, the petitioners would be left with no remedy. This however, would not be correct. If the petitioners are in a position to satisfy the appellate court in seeking to challenge the present judgment of this court, it would be possible for the petitioners to obtain appropriate relief. There is no warrant for interference and the petition is rejected.” 11.5 As can be seen from the aforesaid orders passed by this Court, the claim of the respondents 1 to 3 was completely and totally upheld by the trial court in O.S.No.3346/2003 and confirmed by this Court in RFA No. 729/2010 c/w RFA Crob.No.18/2011 and R.P.No.750/2013; as stated supra, in the said suit in - 32 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 O.S.No.3346/2003, having been filed by respondents 1 to 10 on 19.05.2003, and the petitioners and respondents 11 and 12 having dispossessed the respondents 1 to 10 from the schedule properties on 28.06.2023 during the pendency of the said suit, which was ultimately decreed in favour of the respondents 1 to 10 against the petitioners and respondents 11 and 12, I am of the considered opinion that the trial court was fully justified in invoking / applying the provisions contained in Section 144 CPC as well as principles of restitution by allowing the petition filed by the respondents 1 to 10 and passing the impugned order in their favour, thereby restoring the possession of the schedule properties to them by holding as under:- The plaintiffs have filed this suit to declare that the FDP No.62/2000 dated 10.10.2003 is null and void and not binding on the plaintiffs in so far as the suit schedule property is concerned and consequential relief of Permanent Injunction. 2. The brief facts are as under: The defendants 1 to 3 have instituted suit against defendants 4 and 5 in O.S.No. 1799/67, which is renumbered as 1799/1981. The suit schedule property item No.1 in that plaint was property bearing municipal No.131/1 situated at Gowripalya Mysore Road, bounded by to the - 33 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 East: Main Road, to the West: Imam Sab house, to the North: Dodda Giriyappa's house and South: Conservancy lane. The said suit for partition was decreed. It is submitted that the suit is bad in the eye of law, as women sharers would not have preferred a suit for partition against men sharers over a dwelling house, as the suit is barred under section 23 of Hindu Succession Act. It is averred that defendant No.1 is wife of one Late Venkataswamy, defendants 2 and 3 are their daughters. Defendant No. 4 and defendant Not 5 are brothers. They are the sons of late Sanna Giriyappa. Sanna Giriyappa had elder brother by name Dodda Giriyappa who died issueless. Dodda Giriyappa was got allotted a site measuring 30'x40' bearing No.130, Rayapuram Main Road. Sanna Giriyappa procured allotment of site bearing No.131 measuring 30x40'. Dodda Giriyappa had executed a Will on 18.5.1960 infavour of Smt. Venkatalakshmamma i.e. wife of Venkata Ramaiah conveying his entire 30'x40' site. Lakshmamma divided the said property bearing No. 130, into two parts. Each measuring 20'x30'. Northern portion of the said site, abutting to 'B' street was retained by her, the southern portion measuring 20'x30' was gifted infavour of Chikka Giriyappa and Dodda Giriyappa, who are the grand sons of Sannagiriyappa and sons of Dasappa son of Sannagiriyappa, defendant No. 4. 3. On the death of Venkataswamy, the younger other of defendant No. 4 and elder brother of defendant No. 5, his wife defendant No. 1 vanished from the area and was said to be living with somebody. As she had deserted the joint - 34 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 family, the defendant No. 4 and 5, underwent a partition among themselves and defendant No. 5 was given 30' East to West and 20 North to South abutting to conservancy. He sold the said piece of land during 1966. The other portion of the dimension was taken by defendant No. 4 Dasappa and he executed a Sale Deed infavour of his wife in lieu of maintenance as he had married another woman and was settled in Venkataswamy garden. Thimmamma is the owner of property measuring 20'x30' who is none other than the mother of 1st plaintiff and the mother-in-law of 2nd plaintiff. After the death of Thimmamma, her property was devolve upon the plaintiffs. Thus the plaintiffs are absolute owners in possession and enjoyment of land and building measuring 30x40'. Thimmamma procured the said property from Dasapura on 20.9.1966 plaintiff No. 1 and his brother Dodda Giriyappa procured property from Venkata Lakshmamma through gift dated 6.7.1966. Since then the plaintiffs are in possession and enjoyment of the said property as an absolute owners without interruption from anybody else. 4. It is further contended that the defendants 1 to 3 have filed final decree petition, bearing FDP No.62/00 on the file of Addl. City Civil Judge, Bangalore. The schedule property shown in FDP No.62/00 is entirely different from one shown in O.S.No. 1799/1967. The schedule property shown in FDP 62/00 was part and parcel of property bearing Municipal No.131/1, new No.U-15, situated at Goripalya, Mysore Road, measuring East to West 30' and North to South 66'6", which is bounded by, to the East: Main - 35 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Road, to the West: Imam Saab house, to the North: Dodda Giriyappa's house and to the South: Conservancy lane. The schedule property is shown wrongly where as the actual measurement of the said property was only 30x40'. The parties to the suit, in order to snatch away the property of plaintiffs have deliberately shown the measurement 30x66'. 5. The plaintiffs had no knowledge of the schedule of the plaint, they were not parties in the original suit filed by defendants 1 to 3. The deliberate insertion of the property belonging to the plaintiffs in FDP No.62/00 came to the knowledge of plaintiffs only when the defendants 1 to 3 tried to dispossess them. The title deeds belonging to the plaintiffs over suit schedule property i.e. gift deed from Smt. Venkata Lakshmamma to the plaintiffs and his brother Dodda Giriyappa etc., shown that the plaintiffs are owners of the said property. The dimension of the property which really requires under going partition among the defendants is only 30x40'. But the defendants 1 to 3 got the surveyor appointed in FDP proceedings who has given report with sketch that 1/3 share of defendants 1 to 3 may conveniently be given to them in the northern portion of 30'x66', meaning thereby 30x22' beyond their 30x40'. 6. In terms of the surveyor's report, the property in possession of plaintiffs is in danger of being usurped by the defendants who have acted collusively, fraudulently and with deliberate malafide. The surveyor's report has been accepted by the court and final decree has been drawn. At that time the plaintiffs came to know of the fraud played by the defendants on the court and upon the plaintiffs. The - 36 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 plaintiffs have submitted their objections for change of katha and filed the present suit. 7. The suit was decreed in the year 1973. FDP proceedings have been filed after lapse of 27 years. The rights of the plaintiffs over two items of suit schedule property has been rendered absolute and unshakable both by prohibition and by adverse possession in so far as second item of the schedule property is concerned. Therefore, the final decree petition was barred by limitation. Hence, the plaintiffs are constrained to file this suit to set aside the final decree passed in FDP No.62/2000 dated 10.10.2003 and also consequential relief of Permanent Injunction. 8. After service of summons, the defendants appeared before the court and defendants 1 to 3 have filed their written statement as under: 9. The defendants have denied that they have not given dimension of suit property as alleged by the plaintiffs. It is denied that the suit is barred u/s 23 of Hindu Succession Act. Regarding para 3 of the plaint, the relationship of the parties is admitted. But submitted that site No.130 and 131 were acquired by Sanna Giriyappa and Dodda Giriyappa jointly. It is denied that Dodda Giriyappa has executed Sale Deed infavour of Smt. Venkatalakshmamma wife of Ramaiah conveying his entire site measuring 30x40' as alleged by the plaintiff. It is denied that Venkata Lakshmamma has divided the said property measuring 30x40 feet bearing No.130 of Rayapuram road, into two parts, each measuring 20x30'. It is denied that the - 37 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 northern portion of 20'x30' abutting to 'B' street was retained by her. It is denied that southern 20'x30' was gifted away to Chikkagiriyappa and Dodda Giriyappa the defendant No. 4 as alleged. It is denied that upon the death of Venkataswamy younger brother of defendant No. sons of 4 and elder brother of defendant No. 5, his wife defendant No. 1 vanished from the area and was said to be living with somebody as alleged. It is denied that she had deserted the joint family of defendant No. 4 and 5. It is denied that defendants 4 and 5 underwent a partition among themselves and defendant No. 5 was given 30' East to West and 20' North to South abutting to conservancy as alleged. It is further denied that defendant No. 5 has sold the said piece of site in 1966 and other portion of the said dimension was taken by defendant No. 4 Dasappa. It is denied that Dasappa had executed a Sale Deed infavour of his wife in lieu of maintenance, that he had married another woman and was settled in Venkataswamy garden as alleged. It is denied that Thimmamma was owner of property measuring 20'x30' who is none other than the mother of 1st plaintiff and mother-in-law of 2nd plaintiff. It is denied that after the death of Thimmamma her property was devolved on the plaintiffs as an absolute owner in possession and enjoyment of the said property. It is led that plaintiff No. 1 and his brother Dodda Giriyappa procured property from Venkatalakshmamma through gift deed dated 6.7.1966. It is denied the schedule property shown in FDP No.66/2000 is entirely different from the property shown in O.S.No. 1799/1967. It is denied that the actual measurement of the - 38 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 said property is only 30'x40' and the plaintiffs therein in order to snatch away the property, they described it deliberately as 30'x66'. It is contended that the interest of the plaintiffs was properly represented by Dasappa who was party in O.S.No. 1799/1967 and FDP No.67/00. Further the admissions of kartha in a suit is binding in the later suit. Therefore, the present suit is barred by Doctrine of Res- judicata u/s 11 of C.P.C. It is denied that the defendants have got concocted and created documents. It is submitted that the surveyor has executed warrant as per the directions of the court, after hearing both the parties, It is submitted that the court accepted the report and final decree is drawn. It is submitted that the original suit was decreed in the year 1973. The delay in filing FDP was due to the filing of Misc. petitions by the father of plaintiffs, Defendant No. 4 and 5 had filed Misc. petition No.468/73, the said petition was dismissed by the court on 4.8.1989. Against the said order the Misc. petition No.561/89 was filed and that was dismissed on 4.1.1994. Therefore, there is no delay in filing FDP petition. It is further denied that the plaintiffs have perfected their title by prescription and adverse possession as alleged by the plaintiffs. It denied that the final decree proceedings were barred by limitation. The plaintiffs are not entitled to claim adverse possession because it is barred under the principles of constructive resjudicata. 10. The court fee paid is not proper. 11. The defendants 1 to 3 have submitted that the joint family of Dodda Giriyappa and Sanna Giriyappa. consisted of 3 sons of Sanna Giriyappa by name defendant - 39 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 No. 4 Dasappa, late Venkataswamy the husband of defendant No. 1 and Ramaiah defendant No. 5. The suit was filed in the year 1967 and it was contested by the defendants therein. The suit was decreed allotting 1/3 share in suit property to the present defendants 1 to 3. After passing of the decree, the defendants 4 and 5 have protracted the proceedings by filing miscellaneous petitions bearing No.468/83 and 561/89. Therefore, the present defendants 1 to 3 were prevented from filing final decree petition. The final decree was drawn by the order dated 20.9.2002 and the same is registered in the Sub-Registrar's Office. The present suit is filed by the plaintiffs at the instance of defendant No. 4 and 5 and it is a collusive suit. The plaintiffs and defendants 4 and 5 are still causing hindrance to the settled title of the property that was granted by the court after a long battle of 36 years. Equal properties are allotted by the court to defendants 4 and 5 also, which includes the shares of plaintiffs herein. They have not paid the stamp duty required in final decree proceedings. Hence, even if the right is existed in respect of schedule property, the same property conveyed and distributed to all the parties entitled there to. The present defendants 1 to 3 have obtained the possession of their share in execution petition No.783/2003 through court Commissioner. Subsequently, defendants 4 and 5 moved an application in E.P.No. 783/03 to recall the order of delivery warrant, the same was dismissed by the court. 12. On the above pleadings, my learned Predecessor then in office has framed the following issues: - 40 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 1. Whether the plaintiffs prove that they have perfected their title to the suit property by adverse possession? 2. Whether the plaintiffs prove that proceedings in FDP No.62/2000 are null and void and they are not binding on the plaintiffs so far as the suit property is concerned? 3. Whether the plaintiffs prove that defendants are unlawfully claiming suit property? 4. Whether the suit is maintainable? 5. Are the plaintiffs entitled to the decree sought for? 6. What Order or Decree? 13. The plaintiff No.1 is examined as P.W. 1 and got marked Ex.P.1 and Ex.P.14 in support of his case. The defendant No. 2 is examined as DW.1 and got marked Ex.D.1 to D.43. 14 Heard arguments. 15. My findings on the above issues are as under: Issue No.1: In the Negative Issue No.2: Partly Affirmative, partly Negative Issue No.3: Partly Affirmative & Partly Negative Issue No.4: In the Affirmative Issue No.5: In the Affirmative Issue No. 6: IAs per the final order. REASONS 16. Issue Nos.2 to 4: Before discussing the issue No.1, I feel it is proper to discuss on the issue No.2 to 4. These issues are interconnected with each other. The plaintiffs have filed the present suit to declare that the decree passed in FDP No.62/2000 dated 10.10.2003 as null - 41 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 and void and not binding on the plaintiffs and consequential relief of Permanent Injunction. 17. It is not disputed that one Sanna Giriyappa and Dodda Giriyappa were brothers. It is further not disputed that Dodda Giriyappa had no issues. Sanna Giriyappa had three sons and one daughter. It is further admitted that Dasappa, Venkataswamy and Ramaiah are the 3 sons of Sanna Giriyappa. The plaintiff No.1 and husband of plaintiff No. 2 are the sons of defendant No. 4 Dasappa. The husband of defendant No. 1 and father of defendants 2 and 3 by name Venkataswamy is 2nd son of Sanna Giriyappa and the brother of defendants 4 and 5. The grievance of the plaintiffs is that the defendants 1 to 3 herein had filed O.S.No. 1799/1967 for Partition and Separate Possession of their share in a suit property bearing No.131/1 situated at Gowripalya, Mysore Road with boundaries, to the East: Main Road, to the West Imam Sab house, to the North: Dodda Giriyappa property and to the South: Conservancy lane and the share in property No.144. It is made it clear here only that property No.144 which was also one of the suit property in O.S.No. 1799/1967 is not suit property in the present suit. The present suit is only in respect of property No.131/1 and 130/1. 18. The plaintiffs have contended during life time of Dodda Giriyappa he was got allotted a site measuring 30'x40 bearing No.130 Rayapura Main Road and Sanna Giriyappa procured the allotment of site No.131. Both sites are measured 30'x40'. - 42 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 19. The defendants 1 to 3 have taken contention that site No.131/1 was measuring 30'x80'. The preliminary decree has been passed in O.S.No. No.1799/67. Against the said Preliminary Decree the present defendants 4 and 5 had filed Miscellaneous Petition No.468/1983 which was dismissed for non-prosecution on 4.8.1983. For restoration of the said Miscellaneous petition, the present defendants 4 and 5 had filed another Miscellaneous petition No.561/89 and the same was dismissed on 4.1.1994. Thereafter the present defendants 1 to 3 had filed FDP No. 62/2000 for partition by demarcating the properties and to hand over the possession of 1/3 share to the present defendants 1 to 3. The said final decree No.62/2000 was disposed off infavour of the present defendants 1 to 3. Thereafter they have filed Ex. Petition No.783/2003 in which the final decree has been executed against the present defendants 4 and 5 and possession of 1/3 share in property No.131/1 was handed over to present defendants 1 to 3. Therefore, they have contended that already the share of the defendants 1 to 3 is handed to them by way of execution of final decree passed in FDA No.62/2000. Therefore, the suit itself is maintainable. 20. On the other hand, it is a case of plaintiffs that in O.S.No. No.1799/67 the plaintiffs therein had described property No.131/1 with the boundaries and no measurement of the property was given. In FDP proceedings at the first time the plaintiffs therein have given measurement of property No.131./1 by committing mis-chief on the court. It is submitted in a plaint in O.S.No. 1799/1967 - 43 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 the property described in schedule I was municipal No.131/1 situated in Gowripalya, Mysore Road, Bangalore bounded on the East by: Main Road, West by: Imam Sab house, North by: Dodda Giriyappa's house and South by: Conservancy lane. The defendants have produced Ex.D. 3 the certified copy of the judgment and Ex.D. 4 the Certified copy of the decree passed in O.S.No. 1799/67. It is submitted that at the first instance the plaintiffs therein have filed the Misc. petition has a pauper suit, subsequently it is numbered as O.S.No. 1799/1967. Ex.D. 3 discloses that the said suit was disposed off on 11.10.1973. The plaintiffs have produced the Ex.P. 4 the Certified copy of the petition filed in FDP No. 62/00 wherein the schedule I is described as Municipal No.131/1 (New No. U-15) situated at Gowripalya (J.J. Nagar) Mysore Road, Bangalore measuring East to West: 30' and North to South: 66.6", bounded by to the East Main Road, to the West: Imam sab house, to the North: Doddagiriyappa's house, and to the south: Conservancy lane. If we peruse Ex.D. 3 and Ex.P. 4 clearly it shows the difference in the description of suit schedule No. I property. In FDP 62/00 the decree has been executed and the court Ammen has executed the final decree and handed over the possession of schedule I property as described in Ex.P.4 to the present defendants 1 to 3. 21. Therefore, the Advocate for plaintiffs submit that the defendants have obtained the possession of schedule I property by committing mis-chief and fraud. It is submitted that there are two properties bearing No.130 and 131 - 44 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 situated at Goripalya village. Property No.130 measuring 30'x40' belonging to Doddagiriyappa and property No.131 measuring 30'x40' was belonging to Chikka Giriyappa. Therefore, the total area of site No.130 and 131 is 30'x80'. The advocate for defendants 1 to 3 submits that site No.130 is not at all in existence and it is not belonging to Doddagiriyappa. Therefore, the contention of plaintiffs with regard to site No.130, its existence and the ownership of Dodda Giriyappa were all disputed by the present defendants 1 to 3. The advocate for plaintiffs submits that in the written statement para No.3, page no.2, the defendants 1 to 3 have clearly submitted that site No.130 and 131 were acquired by Sanna Giriyappa and Dodda Giriyappa jointly. Therefore, the say of present defendants that the site No.130 is not in existence is not acceptable. It is submitted that the admitted facts need not be proved. When in the written statement the defendants 1 to 3 have admitted the existence of site No.130 and 131, now they should not be permitted to withdraw their admission. 22. The Advocate for plaintiffs has relied upon 1993 part II BLJR 1273, Lohia Properties (Plaintiff) ltd. Tinsukia, Dibrugarh, Assam Vs. Atmaram Kumar wherein it is held as under: "Tenancy -requirement - order 8 Rule 3 and 5 of C.P.C, 1908 matter related to provisions of Order 8 Rule 5 Order 8 Rule 3 requires that defendant must deal specifically with each allegation of fact of which he does not admit truth Order 8 Rule 5 provides that every allegation of fact if not denied in written statement shall be taken to be admitted by defendant - non - traverse would constitute implied admission" - 45 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 23. The Advocate for plaintiffs has further relied upon AIR 1967 SC 109, Juhari Sah and others Vs. Dwarika Prasad Jhunjhunwala and others wherein it is held as under: "(A) Civil P.G. (1908), O.8 R.5 Facts taken to be admitted- Denial of facts-To say that defendant has not known ledge of a fact pleaded by the plaintiff is not tantamount to a denial of existence of fact, not even an implied denial." 24. The Advocate for plaintiff has further relied upon JT 1993 Part V SC 223, Lohia Properties (P) Ltd. Tinusukia, Dibrugarh Assam vs. Atmaram Kumar wherein it is held as under: "O. 8, R.5 - Admission - Service of notice - Allegation of fact no denied specifically - Non - traverse would imply admission - Appeal allowed." 25. The Advocate for plaintiff has further relied upon (2008) 7 Supreme Court Cases, 85, Before S.B Sinha and Vs. Sirpukar. JJ., wherein it is held as under: "An admission made in an pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the suit is admissible against him proprio vigore." 26. The Advocate for plaintiff has further relied upon 2007 Part I AWC 434 (SC), Avtar Singh & ors. Vs. Gurdial Singh & ors. wherein it is held as under: "Held, admission forms the best evidence- Admission does not create any title, but nature of kind can form subject matter of admission Section 58 of the Evidence Act postulates that things admitted need not be proved - Appeal dismissed" 27. The Advocate for plaintiff has relied upon AIR 1964 SC 538, Badat and Co. Vs. East India Trading Co., wherein it is held as under: - 46 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 "These three rules from an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing The written from its non-compliance. statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary." 28. The Advocate for plaintiff has further relied upon AIR 2007 SC 2380, Gannmani Anasuya and others Vs. Parvatini Amarendra Chowdhary and others., wherein it is held as under: "An admission made by a party can be used against him. When such admission is made by a karta of the Hindu undivided family, who is managing the family property as well as family business affairs, the same would be a relevant fact. When a claim was made by the plaintiffs for rendition of accounds in the lis, issuance of a document purported to have been authored by one of the parties, in our opinion, was required to be taken into consideration." 29. He has rightly relied on these rulings. It is now well established principle that admitted facts need not be proved. It is also established fact that if the defendant has not specifically denied the plaint allegations or if his answer is evasive then it is deemed to be admitted by defendant. 30. On the otherhand, the Advocate for defendants 1 to 3 submits that stray admission cannot be considered as an admission. The defendants have not admitted the existence of property No.130, and its ownership with Dodda Giriyappa. The present defendants 4 and 5 who are the father and uncle of plaintiff No. 1 were appeared before the court in O.S.No. No.1799/67 and contested the suit. They have not disclosed the existence of property No.130 - 47 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 belonging to Dodda Giriyappa. Therefore, now the plaintiffs cannot be permitted to take contention that there are two properties bearing No.130 and 131 belonging to Dodda Giriyappa and Sanna Giriyappa. Mere mentioning in the written statement about the existence of properties belonging to Dodda Giriyappa and Sanna Giriyappa is not amounting to admission in respect of measurement of the site property. It is submitted there is only one property bearing No.131 and it is totally measuring 30'x80". 31. Now we have to see whether the contentions taken by defendants in their written statement in response to the contents taken in plaint para No.3 amounts to admission. 32. As observed above, in plaint para No.3 the plaintiffs have clearly mentioned the existence of site No.130 and 131 having measurement of 30'x40' each, where as the defendants in their written statement para 3 have submitted that site No.130 and 131 were acquired by Sanna Giriyappa and his brother Dodda Giriyappa jointly. The defendants have not stated anything about the measurement of the said sites as stated in plaint para No.3. Either they have not denied the said measurement or admitted the said measurement with clear words. Their only submission is site No.130 and 131 were acquired by both Sanna Giriyappa and Dodda Giriyappa. It shows that there is no dispute about the of existence of site No.130 which is alleged to be belonging to Dodda Giriyappa as per the plaintiffs. Further in view of failure on the part of defendants to deny the measurement of the said sites as mentioned in - 48 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 the plaint, I am of the opinion that the measurement as mentioned in the plaint is admitted by defendants. It is not stray admission as contended by the Advocate for defendant. This fact is further supported by Ex.D. 3, Ex.D. 4. Ex.D. 3 and Ex.D. 4 disclose that on the northern side of site No.131/1 there is a property belonging to Dodda Giriyappa. It shows the existence of property belonging to Dodda Giriyappa on the northern side of schedule I in O.S.No. 1799/1967. 33. It is specific case of plaintiff that the said Doddagiriyappa had no issues. This fact is not disputed by defendants 1 to 3. It is submitted by plaintiffs that Dodda Giriyappa had executed a Will dated 18.5.1960 infavour of his foster daughter Venkatalakshmamma who is none other than the wife of Ramaiah i.e. 3rd son of Sanna Giriappa by name Ramaiah. The said Venkatalakshmamma got divided site No.130 measuring 30'x40' feet in two parts each measuring The northern portion of 20'x30' was retained by her abutting to 'B' street. The southern portion measuring 20'x30' was gifted away to Chikka Giriyappa and Dodda Giriyappa who are the sons of defendant No. 4 Dasappa. Therefore, in site No.130 half portion was in possession of Venkatalakshmamma and the remaining half portion was gifted away to the present plaintiff No. 1 and husband of plaintiff No. 2. 34. It is further submitted that after the death of Venkataswamy i.e. the 2nd son of Sanna Giriyappa who is husband of defendant No. 1, the present defendants 4 and 5 have got divided site No.131 in which the Northern portion - 49 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 measuring 20 x 30' was given to defendant No. 4 and the southern portion 20' x 30' was given to the share on the ground after the death of of Ramaiah on the ground after the death of Venkataswamy, the present defendant No. 1 vanished from the area and was said to be living with somebody. She had deserted the joint family of defendants No.4 and 5. Therefore, site No.131 was got partitioned only among defendants 4 and 5 excluding the Venkataswamy and his legal heirs. Thereafter defendant No. 4 Dasappa had executed a Sale Deed in respect of the property fallen to his share in site No.131, infavour of his wife Thimmamma in lieu of maintenance as he had married 2nd wife and settled in Venkataswamy garden. The said Thimmamma is a mother of plaintiff No. 1 and mother-in-law of plaintiff No. 2. Therefore, the plaintiffs have contended that they are in possession of half portion measuring 20'x30' feet in site No.131 and half portion measuring 20'x30', feet in site No. 130. Ramaiah had sold his share in site No.131 to the 3rd parties. Therefore, it is submitted the defendants 1 to 3 had no right to take share in the said properties. But they have obtained the final decree by committing mischief by showing the measurement of site No.131 as 30'x66'6" which is wrong measurement. 35. To prove the existence of site No.130 belonging to Doddagirwappa, the plaintiffs have produced Ex. P 1 the Gift deed executed by Venkatalakshmamma in favour of Doddagiriyappa and Chikkagiriyappa sons of Dasappa dated 6.7.1960. Under this document Venkatalakshmamma has donated Site No.130 Goripalaya - 50 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 2nd Cross southern house bounded by to the east 2nd cross road, to the west Dilkush Cycle Shop owner House, to the north the property retained by her, to the south property belonging to her younger father in law late Sannagiriyappa measuring east to west 30 feet north to south 20 feet including the Mangalore tiles house. It shows that Venkatalaskhmamma has gifted the half portion in property No.130 in favour of present plaintiff No.1 and husband of plaintiff No.2, further it shows that the existence of site No.130 on the northern side of property belonging to Sannagiriyappa. 36. Ex. P 2 is sale deed executed by Dasappa in favour of his wife Thimamma dated 20.9.1966 for the purpose of maintenance on the ground he has taken 2nd wife. The property referred in Ex. P 2 is property bearing No.131/1 situated at Goripalaya Rayapura Main road having Mangalore Tile house with boundaries. To the east Rayapura Mainroad, to the west Sahebara House, to the to Sannagiriyappa and North property belonging Doddagiriyappa, to the south property belonging to Ramaiah measuring east to west 30 feet north to south 20 feet. It is submitted the property belonging to Chikkagiriyappa and Doddagiriyappa referred on the northern side of subject of matter of Ex. P 2, is the portion of Site NO.130 belonging to plaintiff No.1 and his brother under Ex P 1. The plaintiffs have produced Ex. P 3 the rough sketch to show the entire property belonging to Doddagiriyappa and Sanngiriyappa abutting to 'B' street to on the north side and conservancy lane on the southern - 51 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 side. There is no dispute about the boundaries of property situated on eastern and western side. As per Ex. P 3 the property shown by letter EFGD is the property retained by Venkatalakshmamma which was bequeathed by Doddagiriyappa. The property shown by letter C,D,G,H is owned by present plaintiffs, gifted by Smt. Venkatlakshmamma under Ex. P 2. the property shown by letters ABCHIJ is property No.131 and it was divided between the present defendants 4 and 5 Dasappa and Ramaiah on the ground after the death of the husband of defendant No.1, the defendant NO.1 left the joint family of defendants 4 an5 and started to reside with some body else. The property shown by letter BCHI was taken to the share of Dasappa in partition between himself and defendant No.5 and the same is sold in favour of his 1st wife Thimmama, who is non other than the mother of plaintiff No.1 and mother in law of Plaintiff No.2. The property shown by letters ABIJ was taken to the share of Ramiah and it was sold to 3rd party. 37. Ex. P 4 is certified copy of the petition filed in FDP No.62/2000 Ex.P 5 is notice issued by Assistant Revenue officer Bangalore in respect of bifurcation and katha property No.2 Rayapura main road. Ex. P 6 is Assessment extract of property No.2/1 standing in the name of plaintiff No.1. Ex. P7 to P 10 are the tax paid receipts for payment of tax to property No.2/1. The C/C of the plaint filed In O.S.NO. 305/1996, subsequently registered as 1399/67 is produced at Ex. P 11. the c/c of the judgment and decree passed in O.S.No. 1799/1967 are produced at - 52 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Ex. P 12 and P 13 respectively. The original will executed by Doddagiriyappa dated 18.5.1969 in favour of Smt. Venkatalakshamma is produced at Ex P 14 subject to the objection raised by advocate for defendants. 38. The plaintiffs have contenteded tha Doddagiriyapa who was owner of site No;130 had bequeathed the same in favour of Smt. Venaktlakshmamma by way of execution of will dated 18.5.1960 in favour of Venkatlakshmamma. The said Venkalakshmmama under the said will became the owner of Site No.130 and executed Ex. P 1 in favour of Doddagiriyappa and Chikkagiriyappa. 39. The Advocate for defendants 1 to 3 has strongly argued that the will produced by the plaintiff at Ex. P 14 is not proved as required under the provisions of Indian Evidence Act. The attesting witnesses of the said will are not examined before the court and the will is not proved. Therefor the plaintiffs should not be permitted to relied on the said will . 40. In that respect the Advocate for defendants has relied upon AIR 2009 Supreme Court 1766 Bharapur Singh & Ors.Vs. Shamsher Singh. Where in it is held as under: The provisions of Section 90 of the Evidence Act keeping in view the nature of proof required for proving a Will have no application. A will must be proved in terms of the provisions of Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. In the event the provisions thereof cannot be compiled with the other provisions contained therein, namely Sections 69 and 70 of the Evidence Act providing for exceptions in relation thereto would be attracted. Compliance with statutory requirements for proving an ordinary document is not sufficient, as Section 68 postulates that execution must be proved by attesting witness is alive and subject - 53 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 to the process of the Court and capable of giving evidence. Where, however, the validity of the Will is challenged in the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. 41. AIR 2003 Supreme court 161 (2009) 3 SCC 687 Bharpur Singh and Others Vs. Shamsher Singh Where in it is held as under: A. Evidence Act, 1872 Ss.90, 69 and Presumptions regarding documents thirty years old, held, not applicable to will A will must be proved in terms of 8.63 (c), Succession Act, 1925 and S.68, Evidence Act - In case the said provisions cannot be complied with, Ss, 69 and 70, Evidence Act providing for exceptions in relations thereto, would be attracted Succession Act, 1925 S.63 (c) -Family and Personal Laws Will Mode of proving. 42. I have no dispute about the principles laid down in the above rulings. It is well established principle that when ever the party to the suit claims his right over the suit property on the basis of the will executed by its previous owner, such person shall prove the due execution of the will beyond all suspicious circumstances. Two assisting witness must be present at the time of execution of the will and the attestation of the will should be proved atleast by examining one of the attesting witness. 43. On the other hand the advocate for plaintiff has relied upon AIR 1939 Allahabad 269 Pt. Shyam Lal Vs. Lakshmi Narain and Ors. Where in it is held as under: The question at issue is whether the word "it shall not be used as evidence until one attesting witness at least has been called", etc. are to be held to imply the words “t shall not be so used as evidence for any purpose'; or whether the words are to be held merely as applying to a suit for enforcement of the document leaving the ordinary provisions of law in. - 54 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 44. Section 67 of Evidence Act is applicable where the document is to be used for any other purpose. On general considerations it would appear difficult to hold that Section 68 must always apply to the use of a document in evidence which is required by law to be attested. 45. He has relied upon AIR (34) 1947 Allahabad 161 Where in it is held as under: Evidence Act (1872), S. 68- Section applies only if document is relied upon as one requiring attestation Use of document for collateral purpose - Non - compliance with S.68 is no bar. 46. Section 68 applies only if a document is relied upon as one requiring attestation eg. A will. Non compliance with the provisions of S.68, however, does not prevent the document from being used in evidence under S.72 for any other or collateral purpose. 47. AIR (38) 1951 Supreme court page No.214 Sree Sree Iswar Gopal Jieu Thakur Vs. Pratapmal Bagaria & Ors where in it is held as under: (a) Hindu law- Alienation-shebait - Legal necessity- proof of- recitals in old document. It is well settled that if all the original parties to the transfer by a Shebait & those who could have given evidence on the relevent points such as legal necessity have passed away a recital consisting of the principal circumstance of the case assumes greater importance & cannot be lightly set aside. 48. On going through the rulings referred by learned Advocates for both the parties, it is clear that when the person claims his rights on the basis of will itself, he has to prove the execution of will as required under law beyond all suspicious circumstance. Where the will is produced only for collateral purpose to prove some other things which are - 55 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 referred in the said document, the strict proof of will as required under Sec. 68 of Indian Evidence Act is not necessary. 49 In the present suit the plaintiffs have produced Ex. P 14 not claiming any right under the said document in the present suit, but to prove the existence of property No.130 on the northern side of the property belonging to Sarınagiriyappa and on the southern side of B street as shown in Ex. P 3. Ex P1 and P 14 supported the contention of plaintiffs that there are two sites bearing No.130 and 131 where in Doddagiriyappa has acted as owner of Site No.130 and bequeathed the same in favour of Venkatlakshmamma. In view of para No.3 of the written statement filed by defendants 1 to 3 the defendants are not disputing the existence of site No.130 abutting to southern side of B street and this fact is supported by the documents produced at ex. P 1 and P 14 . Admittedly the plaintiffs are not claiming the declaration of their ownership rights over site No. 130 оn the basis of Ex. P 14 and Ex. P. 1 that site No 130 was not subject matter in OS.No. 1799/1967 Therefore the contention of Advocate for defendants 1 to 3 that the wil is not proved as required under law holds no water. 50. It is specific case of plaintiffs that all the 3 sons-of Sannagiriyappa had got shares in site No.131 measuring 40'x30', but it was got divided into two shares in between Dasappa and Ramaiah who were the two sons of Sannagiriyappa, on the ground after the death of Venkataswamy, the present defendant No.1 that is wife of Venkataswamy had left the joint family of Dasappa and - 56 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Ramajah and started to reside with somebody else Therefore it is submitted if the legal heirs of Venkataswamy are entitled to take any share in the property of Sannagiryappa, 51. They are entitled to take only 1/3 share in a site No.131 Measuring 30x40 feet and not in site No.130 as claimed the defendants. It is further brought to the notice of the Court that in O.S.No. 1799/1967 the Suit schedule property was shown as site No. 131/1, on the Northern side of which the property of Doddagiriyappa is shown 52. In support of the plaintiffs contention, they have produced the Ex.P.1 and P.14 to show that, on the Northern Side of Site No.131 there is a property belonging to Doddagiriyappa, out of which half portion was in possession of present plaintiffs under the gift deed executed by Smt Venkatalakshmamma. 53. On the other hand the Defendants 1 to 3 in support of their contention, have produced Ex. D.1 the certified copy of Sale deed dated: 10.11.2003 executed by one Sri Mahommed Afzal in respect of the site No.132, Goripalya measuring East to West 15 feet and North to South 80 feet. In the said document to the Eastern side the property belonging to some 3rd party is shown but the name of said person is not mentioned in the document. Admittedly, this property is situated on the Western side of present suit schedule property. It is measuring 80 feet North to South. In Cross-examination of P.W 1 the suggestion has been made to P.W. 1 that on the Eastern side subject matter of Ex.D.1 is the suit property is existing. Though this - 57 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 fact is not disputed, Ex.D.1 not helpful to the Defendant 1 to 3 to prove that site No.131/1 which was shown as schedule property in O.S.No. 1799/67 was also measuring 30 feet x 80 feet. Therefore, Ex.D.1 is not helpful to the Defendants to support their case. Ex.D.2 and D.3 are the positive photos of the schedule property 54. P.W. 1 has deposed that the blue colour door shown in Ex.D.2 was his house and during pendency of this suit he was forcibly evicted from the said house, in view of the delivery warrant issued in a execution Petition No.783/03. Ex.D.3 is a Certified Copy of the judgement passed in O.S.No. 1799/67 wherein Schedule one is in respect of property No.131/1 and its Northern boundary is shown as the property of Doddagiriyappa. Ex.D.4 is a Certified Copy of the Decree passed in the said suit. BxD5 is a Certified Copy of the Order Sheet in Misc. Petitioner No. 458/83 . Ex D.6 is a certified Copy ofbthe Order Sheet in Misc. Petition No. 561/89. Present defendants 4 and 5 had filed them, and they both were dismissed for non- prosecution. Ex.D.7 is a Certified Copy of the Order Sheet in FDP No.62/2000. Ex.D.8 is a Certified Copy of the final decree passed in FDP No.62/2000. This document along with FDP Petition discloses that, the plaintiffs there in, at the first time have shown measurement of Site No.131/1 as East to West 30 feet and North to South 66 feet. In FDP Petition also Northern boundary is shown as property of Doddagiriyappa. It is pertinent to note here that, as per the sketch annexed to Ex.D 1(a), the Northern side boundary is shown as B-Street and not the house of Doddagiriyappa. - 58 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 The sketch discloses that, the total area BEFD shown by yellow colour measuring 30 feet x 66' 6' was given to the Defendants No.1 to 3 at the time of execution of the final decree. When on the Northern side of Site No. 131/1, the house of Doddagiriyappa is shown in Schedule 1 of the plaint submitted in O.S.No. 1799/67, in the Petition bearing FDP No. 62/2000, it is clear that, the house belonging to Doddagiriyappa is also included in Site No. 131 and the entire area measuring 30 feet x 66.6 inch was given to the Defendants 1 to 3 excluding the present plaintiffs. No where, the Defendants have taken contention in the written statement that, property No. 144 as described in a Schedule 2 in O.S.No. 1799/67 was given to the share of present plaintiffs and Defendant No.5 and they have relinquished their right in Site No 131. Therefore, when the plaintiffs in O.S.No. 1799/1967 were entitled to take only 1/3 share in BEFD area, how the entire area measuring 30 feet x 66.6" was given to Defendant 1 to 3, is not properly explained by Defendants 1 to 3. 55. It is further necessary to observe here that the plaintiffs in O.S.No. 1799/67 have not whispered about If their the property shown by ABCD in their plaint. contention is Site No. 131 is a totally measuring 30 feet x 80 feet, it is not clear why they have shown ABCD area in the final decree sketch without claiming any right over the same . Therefore, apparently it is clear that the Defendants 1 to 3 herein have got 30 feet x 66.6 inch illegally without disclosing the true fact before the Court, and have obtained - 59 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 the entire area BEFD which includes the property of Doddagırıyappa. 56., Assuming that, Doddaginyappa has not executed any will, bequeathing his Site No 130 in favour of Smt Venkatalakshmama and she has not gifted the Southern portion in Site No 130 to the present plaintiffs, then also the legal heirs of Sannagiriyappa are entitled to take each 1/3 share in the entire property bearing No. 130 and 131 each measuring 30 x 40 feet Therefore, the present Defendants 1 to 3 are though entitled to take 1/3 share in a Site No. 131/1, they have taken the possession of property 30 feet x 66'6" which was not granted to them in judgement passed in OS No. 1799/67. Under these circumstances, I am of the opinion that, the plaintiffs have proved that the proceedings in FDP No. 62/2000 are null and Vold, and it is not binding on them in respect of property site No.130, and as per preliminary decree passed in O.S.No. 1799/67, the present defendants are having share 1/3 in site No.131/1 only. The plaintiffs have further proved that the Defendants 1 to 3 are unlawfully claiming the present SUIT SCHEDULE PROPERTY though they are entitled to take only 1/3 share in a Site No.131/1. Hence, I answer Issues 2 ands 3 accordingly. 57. Issue No.1: The plaintiffs have taken contention that, they are in possession and enjoyment of SUIT SCHEDULE PROPERTY since from the days of their father Sannagiriyappa and Doddagiriyappa Thereafter, Doddagiriyappa who had no issues had executed will bequeathing Site No. 130 in favour of Smt - 60 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 Venkatalakshmamma. The said Venkatalakshmamma gave half portion in Site No. 130 to the plaintiffs by way of execution of gift deed. The remaining Site No. 131 was got divided into 2 shares in between Dasappa and Ramaiah, sons of Sannagiriyappa. Dasappa who is father of plaintiff No. 1 had executed Sale deed in favour of Smt Thimmamma ie., Mother of plaintiff No.1 for the purpose of maintenance as he had got 2nd wife. In that respect plaintiffs have produced Ex.P.1, P.2 and P.14. It is submitted by the plaintiffs that they are residing in the said property with an intention, that they are obsolete owners of the said property having hostile intention over the right of Defendants 1 to 3 on the said property Therefore, the plaintiffs have perfected their title over the suit property by way of adverse possession. 58. Admittedly, the Defendants 1 to 3 are legal heirs of Venkata Swamy who is deceased brother of Dasappa and Ramaiah and he also legal heir of Sannagiriyappa. Nowhere, the plaintiffs have taken contention that they have excluded the present Defendant 1 to 3 from in heriting the property of Sannagiriyappa and they were ousted from the said property When the property is a joint family property of Dasappa, Venkataswamy and Ramaiah, their possession is a joint possession and it cannot be said as exclusive possession. Therefore, the contention of plaintiffs that they have perfected their title over the suit property by way of adverse possession cannot be accepted. Hence, I answer Issue No. 1 accordingly. - 61 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 59. Issue No. 4: The advocate for Defendants 1 to 3 has vehemently argued that mere suit for declaration is not maintainable without claiming the possession of the property. 60. In respect of this contention he has relied upon AIR 1993 Supreme Court 957 Vinay Krishna, Appellant V. Keshav Chandra and another, Respondents. Specific Relief Act (1877), 8.42- Applicability -Suit for declaration of share in property - Plaintiff was not in exclusive possession of property because two other persons and also tenants were occupation -Failure of plaintiff to claim relief of possession -Discretion of Court in granting decree for declaration barred Mere prayer in plaint that such other relief be granted to plaintiff without specific plea for possession -Not sufficient. 61. He has relied upon (2005) 5 Supreme court Cases 548 N.V. Srinivasa Murthy and others, Appellants V. Mariyamma (dead) by Proposed Lrs and others, Respondents. A. Civil Procedure Code, 1908 Or.7 11(d), 7 & 8- Omitting to claim relief warranted on facts q - Impermissibility. B. Specific Relief Act, 19638.34 and Or.7 Rr. 7 & 8, C.P.C. Declaration as to absolute ownership of property - Necessity of claiming relief's on which such tile dependent- Title of appellant- plaintiffs resting on execution of agreement for reconveyance of suit property by respondent- defendants to them -Appellants neither claiming declaration as to nature of registered sale deed executed by them in favour of respondents (to show that it was merely security for a loan) nor claiming specific performance of alleged agreement for reconveyance of suit property Consequence Held, said declaration of absolute title could not have been claimed by appellants without claiming the above reliefs on which their title was dependent. - 62 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 62. On perusal on the rulings referred above it can be seen that in a suit for specific performance of contract mere declaration is not sufficient but claim for possession is also necessary. If the possession is not handed over to the purchaser at the time of execution of the sale agreement. 63. The facts and circumstarices of said rulings are entirely different and they are not applicable to the facts and circumstances of the present suit In the present suit the plaintiffs are claiming that the decree obtained in FDP No. 62/2000 is null and wide and not binding on the plaintiffs, on the ground that, the plaintiffs in O.S.No. 1799/67 have not given measurement of the property, but the said measurement is wrongly given in FDP No. 62/2000. It is further contended that, the plaintiffs for the said final decree proceedings were entitled to take only 1/3 share in Site No.131 measuring 30 feet x 40 feet, but they have taken the possession of property bearing Site No.130 and 131 to the extent of 30 feet X 66.6", which includes the property of Doddagiriyappa and also the share of present plaintiffs. On the date of institution of the present suit the plaintiffs were in possession of the said property and they are evicted by way of delivery warrant during the pendency of this suit... Therefore, the contention taken by Advocate for Defendants 1 to 3 that the suit without claiming possession is not maintainable holds no water. Hence, I answer Issue No.4 accordingly. 64. Issue No.5 and 6: These issues are interconnected with each other. The above discussion shows that, the plaintiffs are claiming that Site No.131 - 63 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 measuring 30 x 40 feet is belonging exclusively to the ownership of Sannagiriyappa and Site No. 130 situated on the Northern side of Site No.131 measuring 30x40 feet was exclusively belonging to the ownership of Doddagiriyappa who was a brother of Sannagiriyappa. It is proved by the documents produced by both the parties, plaintiffs in O.S.No. 1799/67 have not mentioned the measurement of Site No.131/1 and shown the property of Doddagiriyappa on the Northern side of Schedule - 1 property. It is further clear by the petition filed in FDP No.62/2000 that, at the first time the petitioners there in have mentioned the measurement of Site No.131/1 as 30x66.6 inch without giving any explanation about ABCD area shown in the sketch annexed to final decree. It is further pertinent to note here that, the final decree petition discloses the existence of property of Doddagiriyappa on the Northern side of Site No. 131/1, but the sketch annexed to the said final Street, on the decree discloses the existence of B Northern side property allotted to the petitioners there in. Therefore, the defendants in FDP proceedings have committed mis-chief in showing the measurement of suit schedule property wrongly. Under these circumstances, I am of the opinion that, the plaintiffs have proved that the final decree passed in FDP No.62/2000 dated: 10.10.2003 is not accordance with the preliminary decree passed in O. S.No. 1799/67. The same is null and wide in respect of share of present plaintiffs in the said property. Hence, plaintiffs are entitled for the reliefs sought for in respect of declaration of final decree passed in - 64 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 FDP No.62/2000 as null and void, to the extent of site No.130 and their share in site No.131/1. 66. In prayer Column (b) of the plaint, the plaintiffs are claiming the judgment and decree for permanent injunction to restrain the defendants or anybody claiming. under them in the suit schedule property. The prayer is not clear what is to be restrained. Therefore, this prayer cannot be considered. Hence, I proceed to pass the following: ORDER The suit is decreed with costs. It is hereby declared that the final decree in FDP No. 62/2000 dated: 10.10.2003 is null and void and not binding on the plaintiffs, in respect of their share in Site No. 131/1 . Draw decree accordingly. 9.3 Upon re-appreciation, re-evaluation and reconsideration of the entire material on record, I am of the view that the impugned order passed by the trial court cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse warranting interference by this Court in the present appeal. Point Nos. 1 and 2 are accordingly answered against the appellants and in favour of respondents. - 65 - HC-KAR NC: 2026:KHC:18205 RFA No. 1653 of 2021 10. In view of the aforesaid discussions, I do not find any merit in the appeal and the same is hereby dismissed. Sd/- (S.R.KRISHNA KUMAR) JUDGE Srl.