Karnataka High Court
Sri. Mallaiah vs Smt. Jampakka on 2 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:50150
RSA No. 1496 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1496 OF 2022 (PAR)
BETWEEN:
SRI MALLAIAH
S/O LATE BADAIAH
AGED ABOUT 69 YEARS
R/O H GOLLARAHATTI VILLAGE
HOSAKERE MAJARA
MIDIGESHI HOBALI
MADHUGIRI TALUK
TUMKUR DISTRICT-572132
...APPELLANT
(BY SRI SHIVAKUMAR V, ADVOCATE)
Digitally signed
by DEVIKA M AND:
Location: HIGH
COURT OF 1. SMT. JAMPAKKA
KARNATAKA W/O LATE ERANNA
AGED ABOUT 78 YEARS
2. SMT. MALLAKKA
D/O LATE ERANNA
AGED ABOUT 58 YEARS
R/AT KATAGANAHATTI
KASABA HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT-572132
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NC: 2025:KHC:50150
RSA No. 1496 of 2022
HC-KAR
3. SMT. ERAMMA
D/O LATE ERANNA
AGED ABOUT 53 YEARS
4. SMT. SANNAMMA
D/O LATE ERANNA
AGED ABOUT 51 YEARS
5. SRI NAGARAJU
S/O LATE ERANNA
AGED ABOUT 48 YEARS
6. SMT. MALLAKKA
D/O LATE ERANNA
AGED ABOUT 46 YEARS
7. SMT. CHIKKEERAMMA
D/O LATE ERANNA
AGED ABOUT 44 YEARS
R/AT MALLEKAVU GOLLARAHATTI
C N DURGA HOBLI
KORATAGERE TALUK-572129
8. SRI NAGABUSHANA
S/O LATE ERANNA
AGED ABOUT 42 YEARS
9. SMT. MANGALAMMA
D/O LATE ERANNA
AGED ABOUT 39 YEARS
10. SRI SAKRAPPA
S/O LATE ERANNA
AGED ABOUT 37 YEARS
RESPONDENTS NO.1, 3 TO 6, 8 TO 10 ARE
R/AT H. GOLLARAHATTI VILLAGE
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NC: 2025:KHC:50150
RSA No. 1496 of 2022
HC-KAR
HOSAKERE MAJARA
MEDIGESHI HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT-572132
11. SMT. DODDAKKA
W/O LATE ERANNA
AGED ABOUT 69 YEARS
R/AT H GOLLARAHATTI VILLAGE
HOSAKERE MAJARA
MIDIGESHI HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT-572132
...RESPONDENTS
(BY SRI CHETHAN CHANDRASHEKHAR, ADVOCATE FOR
SRI KASHYAP N NAIK, ADVOCATE)
THIS RSA IS FILED UNDER ORDER SECTION 100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
23.12.2021 PASSED IN R.A.NO.5033/2021 ON THE FILE
OF THE IV ADDL. DISTRICT JUDGE TUMAKURU SITTING
AT MADHUGIRI AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
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NC: 2025:KHC:50150
RSA No. 1496 of 2022
HC-KAR
ORAL JUDGMENT
This second appeal is also filed against the concurrent finding of the Trial Court and the First Appellate Court.
2. This matter is listed for admission. Heard the learned counsel appearing for the respective parties.
3. The factual matrix of case of objector in Ex.No.125/2010 before the executing Court that applicant Mallaiah S/o late Badaiah filed an application to adjudicate his claim in respect of the petition schedule property. The main contention is that legal representatives of decree holder have instituted the execution petition before the Trial Court against the JDr-Doddakka for obtaining sale deed in respect of the suit schedule property more fully detailed in the schedule as per the terms of decree passed in O.S.No.36/2015. In the process, the sale deed was got executed through the process of law. When, the decree holders were proceeding to obtain actual possession, obstruction was caused by this objector claiming along with his son, their independent title to the suit property. It is the specific case of this objector-Mallaiah that suit schedule property bearing Sy.No.110/11 measuring 2 acres 3 -5- NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR guntas is an ancestral and joint family property, wherein he got vested legitimate half share by birth in the family as a brother of husband of JDr namely, Eranna. After the death of Eranna, the JDr-Doddakka who is the wife of deceased Eranna, tried to alienate the said property and therefore, this objector had filed the suit for partition in O.S.No.49/2005 and the same was decreed granting half share to him in the suit properties and the other properties of the family. Therefore, his claim is that he is having a vested right in the suit property and entitled for half share and hence, decree in O.S.No.36/2005 obtained by decree holder is not executable against him. Therefore, he sought for determination of questions under Section 47 of CPC in addition to raising of objection regarding attachment of property under Order XXI Rule 58 of CPC by filing IA.
4. In response to the notice, the legal representatives of DHr have filed objections contending that the JDr being an absolute owner had agreed to sell the suit property and after contest, the suit in O.S.No.36/2005 was decreed. It is further contended that objector got himself examined as PW2 at the earlier point of time and now as RW1 and relied upon the -6- NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR documentary evidence marked as Ex.P1 to P15. In the result, the Trial Court came to the conclusion that provision under Section 47 and Order XXI Rule 58 of CPC cannot be made applicable to the facts and circumstances of the case and proceeded to reject the application filed by the objector vide common Order on I.A.Nos.12 & 13 dated 22.10.2019. Thus, the applicant/ objector, feeling aggrieved by an impugned order passed by the Trial Court had preferred an appeal assailed the same to be improper, incorrect and illegal.
5. After hearing the matter on merits, the District Court has rejected the application with an observation that the applicant could have pressed into service the provisions of Order XXI Rule 97 or 99 of CPC. Also an observation is made that if any application under Order XXI to 97 or 99 of CPC is moved by either DHr or third party objector, if so advised, permissible under law. In such an event, instead of again directing to the parties to adduce fresh evidence, the Court may have reference to the evidence already placed on record and to give further opportunity to adduce additional evidence. -7-
NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR Then, determine the question of executability of the decree against the objector in accordance with law.
6. Having taken note of the same, the applicant/ objector in support of his IA has sworn to an affidavit and stated that he has filed this application as an objector and prayed the Court to adjudicate his claim. It is his claim that land in dispute bearing Sy.No.110/11 totally measuring 2 acres 3 guntas and based on the decree obtained, the present execution petition is filed and the petition schedule property is his ancestral property. The petition schedule property and other properties were joint family properties of himself and his brother-Eranna. The said Eranna is no more. During the lifetime of Eranna, himself and Eranna were in joint possession and enjoyment of the petition schedule property along with their family properties. The petition schedule property and other properties were not divided between him and his brothers. After the death of Eranna, since the JDr-Doddakka tried to alienate the petition schedule property. He had filed a suit against Doddakka seeking partition in O.S.No.49/2005 and -8- NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR there was a decree and later on, FDP No.9/2005 also filed and the said FDP is disposed of as settled out of Court.
7. It is also the contention that colluding with Dodakka, cooked up agreement and got illegal decree by playing fraud on her. The said decree which is obtained by DHr is subsequent to filing of suit by him. The decree passed in O.S.No.36/2005 is not binding on him and also in respect of his right to an extent of half share i.e., 1 acre 1½ guntas of land in petition schedule property. He is not a party to the decree. The DHr has obtained decree against the said Doddakka including his half share and hence, his right has to be adjudicated. The decree holder has also obtained delivery warrant from the Court and hence, filed an application to adjudicate the same.
8. The Trial Court considering the pleadings of the parties and also the rival contentions, framed the point for consideration that whether the applicant has made out grounds to allow the application. The Trial Court having considered both oral and documentary evidence available on record, in detail discussed the evidence which have been placed before the -9- NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR Court. The applicant and his son have produced order sheet, plaint and written statement in O.S.No.303/2010 and the same also placed as Ex.P1, P3 and P5 wherein the Nagaraju who is the son of the applicant had filed a suit for declaration of title on the basis of Ex.P14. The suit was filed in respect of 8 properties including half share in the petition schedule property. The suit was filed on 08.09.2010 and the same reveals that the said suit is filed only after passing of judgment and decree in O.S.No.36/2005. The compromise petition is at Ex.P2 wherein the defendant/JDr had admitted the Will dated 28.02.1998 and she further admitted that the plaintiff/applicant's son Nagaraju became owner of the suit schedule property on basis of Will.
9. The Trial court also discussed with regard to the claim made in O.S.No.303/2010 in paragraph 31 and also taken note that at Ex.P12, the applicant Mallaiah had filed a suit against JDr for the relief of partition and separate possession in O.S.No.49/2005 and the suit was filed on 10.03.2005, after the execution of suit agreement of sale by JDr in favour of DHr and preliminary decree was also passed based on the memo and
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR subsequently, taken note that the FDP proceedings was also closed wherein it is reported that they have compromised the matter and also taken note of judgment passed in O.S.No.514/2010 wherein Mallaiah had filed a suit for partition and declaration of title against JDr and DHr herein on the file of the Principal Civil Judge, Madhugiri and that has been discussed in paragraph 33. In paragraph 35, taken note of mutation register and other documents and comes to the conclusion that obstructer and his son have produced the certified copy of the registered sale deed dated 25.01.1958 wherein the suit property was purchased in the name of the obstructer. But the records reveal that thereafter the revenue records of the suit property were changed in the name of the husband of JDr. This fact also presupposes that there was a partition and in the said partition, the suit property fell to the share of husband of JDr. The obstructer and his son have produced a Will dated 28.02.1998 said to be executed by husband of JDr bequeathing properties of his share in favour of applicant's son Nagaraju. In the Will deed, the properties were described with boundaries. If there was no partition, how the properties were mentioned with specific boundaries as properties of share of husband of JDr.
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR Further assuming that the properties narrated in the schedule of the Will were fallen to share of husband of JDr, then why the obstructer had again filed a suit in O.S.No.49/2005 against JDr for partition. If as per the sale deed at Ex.P15, the obstructer was the owner, then why the son of obstructer got executed the Will from husband of JDr. All these factors were taken note of in paragraph 35.
10. The discussion was also made that the obstructer had filed a suit in O.S.No.49/2005 in paragraph 36 and comes to the conclusion that Ex.P7 shows that JDr had filed FDP proceedings for final decree and comes to the conclusion that there was no any demarcation of the property in the FDP proceedings even though there was a compromise decree in the earlier suit. All these factors were taken note of by the Trial Court while considering the application filed before the executing court when the independent claim is made by the appellant/objector. In paragraph 45 taken note that aggrieved by the same, son of obstructer filed an appeal and the same was also dismissed. All these factors were taken note of. In paragraph 47, comes to the conclusion that considering the oral
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR and documentary evidence on record and facts and circumstances of the case, it is clear that applicant has failed to prove his independent right, title and interest over the petition schedule property. He has also failed to prove that he is in possession of portion of the suit schedule property. It is also held that the obstructer has not made out any ground to allow the application and dismissed the same. Being aggrieved by the judgment of the Trial Court, , an appeal is filed in R.A.No.5033/2021.
11. The First Appellate Court, having considered the grounds urged in the appeal memo, formulated the points that whether the Trial Court has erred in holding that applicant has not made out sufficient grounds to allow the application and whether it requires interference. The First Appellate Court also having reassessed the material on record, taken note of observation made by the learned Trial Judge at relevant paragraphs 30 to 32 and reproduced the relevant paragraphs 22 and 27 of the judgment in O.S.No.514/2010 and thereby concluded that suit for declaration of title and injunction filed by the present objector namely, Mallaiah came to be dismissed
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR holding that he has failed to establish the title as well as possession over the suit schedule property. The appellate court also taken note of the very conduct and approaches of these objectors that they are found to have made all best possible efforts to circumvent the decree under execution and to render it nugatory for the last more than 6 years on record and also taken note of discussion made in O.S.No.514/2010 in paragraph 18 and discussed that the finding given in R.A.No.5103/2019, but however rest of the appreciation with regard to the non-existence of any independent right of objector over any portion of the suit property and his failure to prove title in view of dismissal of suit in O.S.No.514/2010 is found to have been properly considered and rightly answered in the negative. It is held that even on appreciation of both oral and documentary evidence since similar material was also placed before the Court which has been filed for the relief of declaration and comes to the conclusion that Trial Court has not committed any error or illegality while appreciating the material on record and dismiss the appeal confirming the judgment of the Trial Court. Being aggrieved by the concurrent finding of
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR both the Courts, the present second appeal is filed before this court.
12. The main contention of the counsel appearing for the appellate before this Court is that both the Courts were not right in accepting the contentions of JDr as there is a prior partition among the Eranna and Badanna and suit property fell to the share of Eranna without there being any acceptable legal evidence. The counsel would vehemently contend that when there was already a judgment at decree in O.S.No.49/2005 by the objector claiming his legitimate share and when half share was granted, the Trial Court ought not to have rejected the claim of the appellant. Thus, Courts below erred in reaching to the conclusion that there is partition among Badanna and Eranna based on sale deed produced by the DHr at Ex.D44 which is no way concerned to the joint family and same being granted in favour of Badanna being his self-acquired property devolved upon the objector upon his demise which he alienated. The counsel also vehemently contend that the Trial Court and also the First Appellate Court committed an error in reaching to the conclusion that O.S.No.49/2005 and also
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR O.S.No.514/2010 claiming of half share over the property is a collusive suit and collusive application and these observations are very erroneous and fails to take note of the judgment and decree. The defendant in O.S.No.49/2005 though denied earlier that plaintiff was not having any share over the property but conceded the right and share of the objector and hence, the decree was passed. Hence, this Court has to admit the appeal and frame substantial question of law.
13. Per contra, the counsel appearing for the respondent/plaintiff in O.S.No.36/2005 and DHr in Ex.No.125/2010, brought to notice of this Court the detailed discussion made by the Executing Court in paragraphs 30 to 37 and detailed discussions made with regard to the claim made by the objector as well as the reasoning given by the executing court particularly in paragraphs 45 and 47 taken note of contention of the parties and adjudicated the issue. The counsel also vehemently contend that son claims the Will in respect of half share of the property of Eranna and his application was dismissed and appeal was also dismissed and even RSA also dismissed thus, son was unsuccessful based on the Will. The
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR counsel appearing for respondent also vehemently contend that the executing court as well as the appellate court considered the material available on record, particularly claim made by the objector. Even when the suit is filed in O.S.No.514/2010 by the very same appellant and same also came to be dismissed. The observation was made that already there was a partition between the Eranna and his brother and same was taken note of in paragraph 22 of the judgment wherein considered the document Ex.P38 to P44 and definite finding was given that property was exclusively belongs to the Eranna and after the death of Eranna, wife had executed the sale agreement and there was a decree in favour of the decree holder. Both Courts have taken note that collusive suits are filed in O.S.No.49/2005 on 10.03.2005 and the same was compromised on 01.12.2005 within a span of 7 months. The counsel also would contend that when the appeal was filed in R.A.No.257/2007, the same was also dismissed for non-prosecution. The counsel also submits that FDP No.9/2005 also disposed of on 06.08.2011 when the memo was filed stating that matter is compromised, but no any demarcation of the property. Hence it is very clear that even in the suit filed by the objector in O.S.No.514/2010 also the said
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR Doddakka who had executed a sale agreement has conceded the claim. All these factors were taken note of by the Trial Court as well as the First Appellate Court. Hence, no ground is made out to admit this appeal.
14. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record and also the grounds which have been urged in the application filed under Order 21 Rule 97 of CPC wherein enquiry was conducted by the Executing Court and considered the evidence of witnesses of both sides i.e., evidence of PW1 to PW4 as well the evidence of Obstructers and also the decree holder and considered documents which have been relied upon. Having considered the material on record, it discloses that very claim made by the appellant is that property is an ancestral property and there was no any division in the family. Hence, filed suit in O.S.No.49/2005. The records disclose that suit for partition was filed on 10.03.2005 and suit for specific performance filed in O.S.No.36/2005 was filed on the very next day i.e., on 11.03.2005 and no dispute that before filing of the suit in
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR O.S.No.49/2005, there was a sale agreement in favour of the DHr that is on 12.03.2004.
15. It is also important to note that the total extent of property in the sale agreement is 2 acres 3 guntas. It is important to note that suit is filed O.S.No.49/2005 claiming half share that is 1 acre 1½ guntas and also O.S.No.36/2005 was decreed on 19.04.2010 after contest. It is also important to note that the son of the appellant had also filed an application for adjudicating his claim to the extent of half share based on the Will and he was unsuccessful before the Executing Court as well as First Appellate Court and even before this Court and with regard to the claim of the son of this appellant is also has attained its penalty. It is also important to note that this appellant is claiming half share in respect of the very property of the subject matter of the sale agreement to the extent of 2 acres 3 guntas. Both the Courts have taken note of the fact that even there was a decree based on the memo filed before the Trial Court on 01.12.2005, present appellant also filed R.A.No.257/2007 and the same was dismissed for non- prosecution and the same is not pursued. But counsel
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR appearing to the appellant would vehemently contend that in view of FDP No.9/2005 was disposed of on 06.08.2011 reporting that there was a settlement, the same was not pursued. But the fact is that though there was a preliminary decree in terms of the compromise in O.S.No.49/2005 dated 01.12.2005 and also subsequently, FDP No.9/2005 is filed, the same also disposed and not adjudicated the same on merits both the suit as well as FDP proceedings. It has to be noted that Court has to take note of the conduct of the executant of the agreement dated 12.03.2004, though filed the written statement in O.S.No.49/2005 disputing that the present appellant is not having any right over the property and the same is an exclusive property, but files a memo conceding the claim of the plaintiff in O.S.No.49/2005 later on and also in the FDP proceedings parties have come up before the Court and there was a settlement among them and there was no any demarcation of property to the extent that 1 acre 1½ guntas as claimed by the objector and the same is disposed of only by consent.
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR
16. It has to be noted that there was a sale agreement dated 12.03.2004 and the suit filed by the appellant is subsequently in the year 2005 that is on 10.03.2005. It has to be noted that the son also filed a suit in O.S.No.303/2010 subsequent to the disposal of the present suit in O.S.No.36/2005 and also sought for declaration. Both the objector as well as the plaintiff in the suit was unsuccessful and this present appellant also by filing an application for adjudication of his claim. The Trial Court taken note of the material on record in paragraphs 30 to 35 and detailed order was passed considering the factual aspects as well as question of law with regard to the claim made by both the father and son as objector as well as filing of independent suit by both of them. A discussion was made that in the Will deed, the properties were described with boundaries, if there was no partition, how the properties were mentioned with specific boundaries as properties of share of husband of JDr and further taken note that if assuming that properties narrated in the schedule of the Will were fallen to the share of husband of JDr, then why the obstructer had again filed a suit in O.S.No.49/2005 against the JDr for partition.
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17. Having considered the material on record particularly when there was a obstructer and his son have produced the certified copy of the registered sale deed dated 25.01.1958, wherein the suit property was purchased in the name of obstructer, but the records reveal that thereafter the revenue records of the suit property were changed in the name of husband of JDr. This fact also presupposes that there was a partition and in the said partition, the suit property fell to the share of husband of JDr and the same is also observed in paragraph 35. The obstructer and his son have also produced the Will dated 28.02.1998 and said to be executed by husband of JDr bequeathing the properties. When there were documents which presupposes with regard to the earlier partition is concerned and detailed material was taken note of by the Trial Court as well as the Appellate Court holding that subsequent to the sale agreement even the obstructer as well as the defendant i.e., Doddakka though denied the right but subsequently conceded the claim of the appellant and also the son of the appellant even with regard to the Will is concerned and hence, it is nothing but a collusive attempt made by the appellant and also the son and the same was taken note of by
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR both the Courts. When detailed discussion was made and elaborate order has been passed by the executing court and even though the order passed by the appellate court is precise but not gone into in detail with regard to the same and the First Appellate Court taken note of attempt made by both father and son in filing a suit and also effort made by them and taken note of overall the conduct and approaches of objectors that they are bound to have made all possible efforts to circumvent the decree under execution and to render it nugatory for the last more than 6 years and the same has been observed in paragraph 17. In paragraph 18 also taken note of the claim made by the son as well as appeal filed by him and also the suit filed in O.S.No.514/2010. Thus, it is nothing but a setup of a claim and the same is a collusion between the original executant of the sale agreement dated 12.03.2004 i.e., Doddakka and the son and appellant both made all their efforts to defeat the claim of the decree holder. When such finding is given on facts as well as question of law, question of invoking Section 100 of CPC does not arise. I do not find any error on the part of both the Trial Court and Appellate Court and not found any perversity in the finding of both the Courts when
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NC: 2025:KHC:50150 RSA No. 1496 of 2022 HC-KAR detailed and elaborate discussion was made with regard to the claim made by the appellant. Hence, I do not find ground to admit the appeal and to frame substantial question of law.
18. In view of the discussions made above, I pass the following:
ORDER The second appeal is dismissed.
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(H.P.SANDESH) JUDGE SN