Karnataka High Court
Sri Mallaiah vs Smt Doddakka on 2 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:50151
RSA No. 810 of 2024
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.810 OF 2024 (DEC/INJ)
BETWEEN:
SRI. MALLAIAH
S/O LATE BADANNA
AGED ABOUT 69 YEARS
R/AT HOSAKERE GOLLARAHATTI
MEDIGESHI HOBLI
MADHUGIRI TALUK - 572133
...APPELLANT
(BY SRI. SHIVAKUMAR V, ADVOCATE)
AND:
1. SMT. DODDAKKA
Digitally signed
by DEVIKA M W/O LATE ERANNA
Location: HIGH AGED ABOUT 73 YEARS
COURT OF
KARNATAKA 2. SRI ERANNA
S/O ERAMALLAIAH
DEAD BY LRS
2(A) SMT. JAMAPAKKA
W/O LATE ERANNA
AGED ABOUT 82 YEARS
2(B) SMT. MALLAKKA
D/O LATE ERANNA
AGED ABOUT 62 YEARS
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NC: 2025:KHC:50151
RSA No. 810 of 2024
HC-KAR
2(C) SMT. ERAMMA
D/O LATE ERANNA
AGED ABOUT 57 YEARS
2(D) SMT. SANNAMMA
D/O LATE ERANNA
AGED ABOUT 55 YEARS
2(E) SRI NAGARAJU
S/O LATE ERANNA
AGED ABOUT 52 YEARS
2(F) SMT. MALLAKKA
D/O LATE ERANNA
AGED ABOUT 50 YEARS
2(G) SMT. CHIKKEERAMMA
D/O LATE ERANNA
AGED ABOUT 48 YEARS
2(H) SRI NAGABUSHANA
S/O LATE ERANNA
AGED ABOUT 46 YEARS
2(I) SMT. MANGALAMMA
D/O LATE ERANNA
AGED ABOUT 43 YEARS
2(J) SRI SAKRAPPA
S/O LATE ERANNA
AGED ABOUT 41 YEARS
RESPONDENT NO.2(G)
R/AT MALLEKAV GOLLARAHATTI
C.N. DURGA HOBLI
KORATAGERE TALUK
RESPONDENT NOS.1, 2(A), (C), (D),
(E), (F), (H), (I), (J) ARE
R/AT HOSAKERE GOLLARAHATTI &
R2(B) R/O KATAGANAHATTI
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NC: 2025:KHC:50151
RSA No. 810 of 2024
HC-KAR
KASABA HOBLI
MADHUGIRI TALUK - 572 133
3 SRI CHITHAPPA @ CHITHAIAH
S/O LATE SANNACHITHAPPA
AGED ABOUT 45 YEARS
R/AT HOSAKERE GOLLARAHATTI
MEDIGESHI HOBLI
MADHUGIRI TALUK-572133
PRESENTLY R/AT
DODDAHATTI VILLAGE
KASABA HOBLI
PAVAGADA TALUK
TUMAKURU DISTRICT-561202
...RESPONDENTS
(BY SRI CHETAN CHANDRASHEKAR, ADVOCATE FOR
SRI KASHYAP N. NAIK, ADVOCATE FOR R2(A TO J);
VIDE ORDER DATED 10.11.2025,
NOTICE TO R1 & R3 HELD SUFFICIENT)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 02.03.2024 PASSED IN
R.A. NO.07/2019 ON THE FILE OF PRL. SENIOR CIVIL JUDGE
AND JMFC, 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:50151
RSA No. 810 of 2024
HC-KAR
ORAL JUDGMENT
This second appeal is 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 the plaintiff before the Trial Court in O.S.No.514/2010 seeking the relief of declaration and permanent injunction is that scheduled property is land bearing Sy.No.110/11 totally measuring 2 acres 3 guntas out of which, 1 acre 1½ guntas is situated at Hosakote Village and also contend that plaintiff's father and late Eranna were brothers and land bearing Sy.No.110/11 totally measuring 2 acres 3 guntas was ancestral and joint on the property of them. After the death of Eranna, plaintiff filed a suit against defendant No.1 in O.S.No.49/2005 and there was a decree and also FDP proceedings was also initiated. Defendant No.2 being the close relative of defendant No.1 has taken a sale agreement from defendant No.1 in respect of the entire land to the extent of 2 acres 3 guntas and filed the suit for the relief of specific performance and thereafter also filed an execution petition. -5-
NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR Defendant No.1 is not the exclusive owner of the entire land. The decree if any obtained by defendant No.2 in respect of the entire land is in respect of Sy.No.110/11 measuring 2 acres 3 guntas does not bind on the share of the plaintiff as declared in O.S.No.49/2005. Plaintiff is the owner of the suit schedule property by virtue of the decree passed in O.S.No.49/2005. After taking decree, FDP No.9/2005 is pending. Defendant No.2 has obtained a decree against defendant No.1 in O.S.No.36/2005 in respect of the suit schedule property. hence, decree passed in O.S.No.36/2005 does not bind the share of the plaintiff and defendant No.1 had no right to sell the suit schedule property including the share of the plaintiff. Hence, the suit is filed for the declaration to declare that he is the owner and also the decree obtained by defendant No.2 not binding.
4. In pursuance of the suit summons, defendants appeared and filed written statement denying the entire averments of the plaint and contend that defendant No.1 was the exclusive owner of the property on account of death of Eranna who is her husband and subsequent to the death the -6- NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR defendant No.1 had executed a sale agreement. Since Katha was standing in the name of the said Doddakka, she did not execute the sale deed and hence, filed a suit in O.S.No.36/2005 and the Trial Court having considered the material on record granted the relief of specific performance on 19.04.2010. It is also contended that defendant No.2 came to know about the filing of a suit in O.S.No.49/2005 only with an intention to defeat the rights of this defendants and such decree is obtained by fraud and collusion with defendant No.1. Hence, the plaintiff cannot be declared as the owner of the property and also there cannot be any decree holding that the judgment and decree passed in O.S.No.36/2005 is not binding.
5. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence. The Trial Court having considered both oral and documentary evidence placed on record, answered Issue No.1 as negative in coming to the conclusion that plaintiff is not the absolute owner and possession and enjoyment of the suit schedule property by virtue of the decree in O.S.No.49/2005. On the other hand, the Trial Court comes to the conclusion that -7- NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR defendant No.2 has proved that he has obtained the decree in O.S.No.49/2005 fraudulently and in collusion with defendant No.1. While coming to such a conclusion, the Trial Court held that the judgment and decree obtained by the plaintiff is nothing but a collusive decree and further comes to the conclusion that in O.S.No.49/2005, there was no any division between the properties and admitted about the compromise in the case and also FDP was filed and the same was also not adjudicated on merits. It came to be dismissed in view of the memo filed by defendant No.1 which can be evidenced at Ex.P15 and the said dismissal of FDP also can be evidenced at Ex.P6. Both the documents have been produced by the plaintiff himself. It also taken note that in both O.S.No.49/2005 as well as FDP No.9/2005, half share is not demarcated and not separated. Further made an observation in paragraph 14 that though formal written statement was filed earlier, but defendant No.1 conceded the claim of plaintiff and defendant No.1 actually suppressed the aspect of pendency of O.S.No.36/2005 which was a earlier suit than O.S.No.49/2005 and even inspite of there was a suit was pending for the relief of specific performance entered into a compromise with the -8- NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR plaintiff. It is also noted that defendant No.1 is in possession and enjoyment of the suit schedule property and the same is elicited during the course of cross-examination of plaintiff and that itself goes to show that there was no any demarcation of property taken place till this date between him and defendant No.1. Hence, claiming of half share does not arise.
6. The Trial court taken note of the evidence of witnesses PW3 and PW4 so also PW2 in paragraphs 16, 17 and 18 and also comes to the conclusion that plaintiff admitted that defendant No.1 have not got divided the property and they are residing together in the joint family. Hence, as per the say of these witnesses, his evidence also does not support the case of the plaintiff in order to show that he is in possession and enjoyment of the suit schedule property as per the decree passed in O.S.No.49/2005. It is also taken note of evidence of DW1, wherein he categorically stated that plaintiff has no right over the suit schedule property of Eranna and admitted that he has not been made as a party in O.S.No.36/2005. However, considering the material available on record, comes to the conclusion that defendant No.1 has remained ex parte and she -9- NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR is very well aware about the decree passed in O.S.No.49/2005. But purposely, she has not appeared in the case and instigated the plaintiff to file the suit. Further, an observation is made that only for the sake of contesting the suit in O.S.No.49/2005, she has filed a written statement but not contested the same and later, compromised the suit. Having taken note of conduct of the parties, Trial Court comes to the conclusion that plaintiff has not proved the case that decree is obtained but the said decree was obtained by fraud and the Trial Court while answering Issue No.3 comes to the conclusion that if the version of the plaintiff is to be believed, then why the plaintiff has not produced any documents pertaining to decree which was obtained by defendant No.2 against defendant No.1 in O.S.No.36/2005. Except mere say of the plaintiff, no oral and documentary evidence to prove the same. As per Ex.D13, O.S.No.36/2005 came to be decreed on 19.04.2010 and this suit came to be filed only on 09.12.2010 i.e., subsequently disposal of the suit in O.S.No.36/2005. It is also taken a note of the fact that only with an intention to file the present suit, said cause of action is created by the plaintiff. Hence, dismissed the suit. Being aggrieved by the said judgment and decree of the
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR Trial Court, an appeal was preferred before the First Appellate Court in R.A.No.7/2019.
7. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the points that whether the Trial Court has erred in appreciating the evidence on record in a proper perspective and whether judgment and decree requires interference. The First Appellate Court taking into note of the case of plaintiff, in paragraphs 17 and 18 discussed the documents which have been relied upon and also taken note of effort made by both the appellant and also his son. In paragraph 19, taken note of filing of the suit in O.S.No.49/2005 and also filing of the FDP wherein both the parties have filed a memo stating that matter is settled out of Court. Accordingly petition came to be dismissed as settled out of Court on 06.08.2011 and both the parties have signed the order sheet. In paragraph 20, taken note of with regard to the conduct of the parties are concerned. Even the First Appellate Court also having considered the material on record. in paragraph 21, comes to the conclusion that Trial Court has taken note of material available on record since the plaintiff has
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR claimed right over the suit schedule property based on the compromise decree passed in O.S.No.49/2005 wherein the said suit, present defendant No.1 has filed a written statement which is marked as Ex.D28 wherein she has specifically contended that her husband has allotted share in the ancestral and joint property properties. The very pleading of defendant No.1 is very clear that there was already a partition and the same was taken note of. In paragraph 22, in detail discussion was made that defendant No.1 has contended that in the written statement of previous suit, there was partition about 40 years back and 7 properties were allotted to her husband's share and she has also specifically mentioned the survey numbers. Defendant No.2 has also taken similar contention in this suit stating that there was prior partition between plaintiff and Eraiah and particularly taken note of documents of RTC and MR extracts at Ex.D37 and D38 which pertaining to Sy.No.102 and the same goes to show that after the death of Badaiah, plaintiff had filed an application for change of katha stating that he is the only son of Badaiah and accordingly, katha of the said Sy.No.102 has been mutated in his name. The Trial Court also taken note of Ex.D39 to D45 while appreciating
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR the material on record stating that there was earlier partition between both of them and no detailed discussion was made by the Trial Court with regard to these documents is concerned. But elaborately First Appellate Court as a original Court taken a note of all the documents by exercising its power under Order XLI Rule 31 of CPC and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.
8. The learned counsel appearing for the appellant would vehemently contend that that both the Courts are not justified in reaching to the conclusion that in view of withdrawal of FDP there is no partition of the property by metes and bounds and also there cannot be any declaration without any demarcation. The counsel would vehemently contend that both the Courts have erroneously concluded that O.S.No.49/2005 was not by contest and both Trial Court as well as the FDP Court proceeded only based on the say of defendant No.1 i.e., Doddakka, who filed the written statement but subsequently not contested the same and there was a settlement between the family members and hence, compromise decree was
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR passed. The counsel also vehemently contend that both Courts are not justified in reaching to the conclusion that suit property is absolute property of Eranna. When the same was acquired by grandfather of plaintiff whose name is also Mallaiah son of Kuribadappa - Ex.P17 sale deed dated 20.01.1958 which inherited by his sons Badanna and Eranna being joint family property and no document placed by defendant to show that there was partition among them. The counsel also vehemently contend that both the Courts have erroneously proceeded in coming to the conclusion that the decree is a collusive decree and F.D.P. proceeding has not attained its finality when the documents clearly indicate that defendant Doddakka conceded the claim of Mallaiah when the matter is stood for arguments, accordingly suit was decreed. Thereafter F.D.P. was initiated by her and the same was settled wherein dispute indicates amicable settlement and half share was given to the plaintiff. All these factors were not taken note of. Hence, this Court has to admit the appeal and frame substantial question of law.
9. Per contra, the counsel appearing for the respondents would vehemently contend that Trial Court as well
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR as the First Appellate Court taken the note of the conduct of the appellant herein and so also an attempt made by the son based on the Will wherein he claims that he is a owner to the half share of the property of Eranna. The counsel also vehemently contend that both the Courts taken a note of under the circumstances in which the present suit is filed and O.S.No.514/2010 is filed subsequent to the judgment and decree passed in specific performance suit filed by the respondent in O.S.No.36/2005 that too in a month of December there was a decree even 7 to 8 months earlier to that. The counsel would vehemently contend that the appellant not disputes the fact that there was an agreement prior to the filing of O.S.No.49/2005 and also unsuccessful when the appeal was filed in O.S.No.257/2007. The counsel would would vehemently contend that the Trial Court as well as the First Appellate Court taken note of the material available on record in detail.
10. The counsel appearing to the respondents in this arguments would vehemently contend that even though Trial Court has not discussed in detail with regard to the prior partition is concerned but the First Appellate Court particularly
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR taking note of documents in paragraph 22 comes to the conclusion that the document Ex.P38 to P45 clearly discloses that there was a earlier partition. This document clearly goes to show that immediately after the death of the Badanna, the plaintiff got changed the katha of the property which stood in his father's name and also alienated it. Ex.D44 is the RTC pertaining to Sy.No.112/P4 which stands in the name of the plaintiff. Ex.D45 is the MR extract which goes to show that the said property has been granted to the plaintiff vide M.R.LND.RUCR-192/91-92 and mutation came to be accepted vide M.R.No.2/2000-01. These documents clearly goes to show that said property was granted to the plaintiff in his independent capacity and he is enjoying the same. Hence, it discloses that earlier there was a partition and even also an attempt was made by the son also discussed in the appeal. Filing a suit in O.S.No.303/2010 and he was unsuccessful and plaintiff is claiming his absolute ownership over his half share in the property shown in O.S.No.49/2005 and based on the preliminary decree, partition suit was decreed on 01.12.2015 and no final decree has passed so far. But only a memo was filed. All these factors were taken note stating that there was
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR no any allotting of half share to the plaintiff through metes and bounds. Under such circumstances, plaintiff's title over the suit property cannot be decreed and the same is observed in paragraph 29. hence, it is not a case to admit and frame substantial question of law.
11. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record, it discloses that the plaintiff claims that there was a decree in O.S.No.49/2005 and also there was a proceedings in FDP and the same was not attained its finality but memo was filed stating that parties have compromised the same. Based on the same, declaration is sought and also sought for the relief that decree passed in O.S.No.36/2005 does not bind the share of the plaintiff. Both the Trial Court and the First Appellate Court taken note of the fact that earlier there was a sale agreement dated 12.03.2004 and the appellant also not disputes the sale agreement and also a decree in favour of the respondent. The decree was passed on 19.04.2010 and present suit is filed in December 2010. Apart from that, the material also clearly discloses that the suit was filed in O.S.No.49/2005
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR stating that there was no earlier partition between both the brothers, but the material placed before the Court clearly discloses that there was prior partition between the plaintiff and Eraiah and the same has been taken note of by the First Appellate Court in paragraph 22 holding that the documents of Ex.D37 to D45 clearly discloses that very similar defence was taken by defendant No.1 in the written statement and defendant No.2 also taken similar contention in the suit stating that there was prior partition between the plaintiff and Eraiah and relied upon the sale deed, RTC and M.R extract. Ex.D37 and D38 are the RTC and M.R. extract pertaining to Sy.No.102 which goes to show that after the death of Badaiah, Plaintiff had filed application for change of katha stating that he is the only son of Badaiah. Accordingly, katha of said Sy.No.102 has been mutated in his name. Ex.D39 is the certified copy of the sale deed dated 19.07.1999 which goes to show that plaintiff along with his minor children have sold the said property to one Ajjaiah son of late Halaiah and now as per Ex.D40 and D41, the mutation is accepted in favour of Ajjaiah and katha is forthcoming in his name. These documents clearly show that immediately after the death of Badanna, plaintiff got change
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR the katha of the properties which stood in his father's name and also alienated it. Ex.D44 is the RTC pertaining to Sy.No.112/P4 which stands in the name of plaintiff. Ex.D45 is the MR extract which goes to show that said property has been granted to the plaintiff. All these factors were taken note of by the Trial Court. Though the Trial Court not discussed with regard to the earlier petition is concerned but held that if those documents are already standing in the name of the plaintiff after the death of his father, what made him to file a suit in O.S.No.49/2005 seeking for the relief of partition. No explanation on the part of the appellant.
12. The property belongs to the father of the plaintiff viz., Badaiah was transferred in his name and also sold the property along with the son. When such material available on record, it is clear that there is a collusion between the plaintiff and also defendant No.1 in O.S.No.49/2005 filing a suit for the partition. The specific defence was taken by defendant No.1 with regard to the earlier partition and the property exclusively belongs to the property of her husband, but later on, she conceded in O.S.No.49/2005 within a span of 7 months from
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR earlier suit was decreed by compromising the same on 01.12.2005 and in FDP also there was no any demarcation of the property showing that which property gone to the share of the appellant herein. When there was no demarcation, the question of identifying the property also does not arise. Even, the material also discloses that with regard to remaining half of the portion also son claims the right over the property based on the Will. The same also taken note of by the Courts and the son was also unsuccessful in claiming the half share of the property based on the Will. All these materials clearly disclose that repeated attempt was made by the appellant filing an application for adjudication of his claim and also filing of a suit for the declaration to declare that decree passed in favour of the respondent is not binding on him. All these factors were taken note of by the Trial Court as well as the First Appellate Court. Almost all the Courts, even in objector's application and in the suit, come to the conclusion that only with an intention to defeat the claim of the respondent who got the sale agreement on 12.03.2004 prior to the filing of O.S.No.49/2005 and all other proceedings either by the plaintiff or by his son making the claim in respect of the very same half portions of
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NC: 2025:KHC:50151 RSA No. 810 of 2024 HC-KAR the properties and failed in all the Courts. When material on record are rightly considered by the Trial Court as well as the First Appellate Court with regard to the question of fact and question of law, there is no perversity in the finding of both Courts. Hence, there are no grounds to admit the appeal and to frame substantial question of law invoking Section 100 of CPC.
13. 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