Karnataka High Court
Abdul Khadarsab Goresab Arekatti vs Puttappa Channaveerappa Hullatti on 10 March, 2026
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NC: 2026:KHC-D:3796
RSA No. 459 of 2008
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 10TH DAY OF MARCH 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 459 OF 2008 (INJ)
BETWEEN:
1. ABDUL KHADARSAB GORESAB AREKATTI,
SINCE DEAD BY HIS LR'S.
1.A) SMT. FATIMABHAI
W/O. ABDULKHADARSAB AREKATTI,
AGE: 65 YEARS, OCC: HOUSEHOLD,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.B) HUSHENMIYA
S/O. ABDULKHADARSAB AREKATTI,
AGE: 48 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
Digitally signed
by GIRIJA A.
BYAHATTI
Location: HIGH
COURT OF 1.C) SMT. NOORJANBI
KARNATAKA,
DHARWAD
BENCH
W/O. BASHEER AHAMED MULLA,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.D) MOHAMMAD SHARIF
S/O. ABDULKHADARSAB AREKATTI,
AGE: 43 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
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NC: 2026:KHC-D:3796
RSA No. 459 of 2008
HC-KAR
1.E) SMT. FARIDHABI
W/O. ABDUL WAHAB WALIKAR,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O AGASANAHALLI VILLAGE,
TQ: BYADI, DIST: HAVERI.
1.F) NURAHAMMED
S/O. ABDULKHADARSAB AREKATTI,
AGE: 39 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.G) MAHABUBALI
S/O. ABDUL KHADARSAB AREKATTI,
AGE: 39 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.H) HAZARATALI
S/O. ABDULKHADARSAB AREKATTI,
AGE: 35 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.I) SMT. JAMALBI
W/O. HABIBULLA TALAGERI,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O. MOTEBENNUR VILLAGE,
TQ: BYADI, DIST: HAVERI.
1.J) JAFARSHARIF
S/O. ABDUL KHADARSAB AREKATTI,
AGE: 31 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
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NC: 2026:KHC-D:3796
RSA No. 459 of 2008
HC-KAR
1.K) ALLABHAKSH
S/O. ABDULKHADARSAB AREKATTI,
AGE: 29 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.L) JAMALSAB
S/O. ABDULKHADARSAB AREKATTI,
AGE: 27 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.M) ASIF ALI
S/O. ABDULKHADARSAB AREKATTI,
AGE: 23 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2. GOUSUSAB GORESAB AREKATTI,
56 YEARS, R/O. RANEBENNUR,
DIST: HAVERI -581 115.
...APPELLANTS
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND:
PUTTAPPA CHANNAVEERAPPA HULLATTI,
SINCE DEAD BY LR'S-
1. KOTRAVVA, 64 YEARS,
W/O. PUTTAPPA HULLATTI,
R/O. RANEBENNUR,
DIST: HAVERI-581 115.
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2. ANNAPURNA, 54 YEARS,
W/O. MUKESHAPPA KATTI,
R/O. CHITRADURGA-577 501.
3. NAGARATNA, 52 YEARS,
W/O. SHEKHAR BENTUR,
R/O. GADAG-582 101.
4. RAJU, 45 YEARS,
S/O. PUTTAPPA HULLATTI,
R/O. RANEBENNUR,
DIST: HAVERI-581 115.
5. RUDRESH, 35 YEARS,
S/O. PUTTAPPA HULLATTI,
R/O. RANEBENNUR,
DIST: HAVERI-581 115.
6. SHIVALINGAYYA RUDRAYYA KAYALADAMATH,
MAJOR (CORRECT AGE IS NOT KNOWN)
KUMBAR ONI, R/O. RANEBENNUR,
DIST: HAVERI-581 115.
...RESPONDENTS
(BY SRI. G.K. HIREGOUDAR, ADVOCATE FOR R1-R5;
SRI. GIRISH A. YADAWAD, ADVOCATE FOR
SRI. PRUTHVIRAJ P. HITTALAMANI, ADVOCATE FOR R4;
NOTICE TO R6 IS DISPENSED WITH V/O DATED 04/12/12)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.39 OF
1999 DATED 23.01.2008 PASSED BY THE ADDITIONAL CIVIL
JUDGE (SR.DN) AT RANEBENNUR AND RESTORE THE JUDGMENT
AND DECREE IN O.S.224 OF 1993 DATED 03.02.1999 PASSED
BY THE PRL. CIVIL JUDGE (JR.DN) AT RANEBENNUR BY
ALLOWING THIS RSA WITH COSTS, IN THE INTEREST OF
JUSTICE.
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NC: 2026:KHC-D:3796
RSA No. 459 of 2008
HC-KAR
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.03.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT
DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
CAV JUDGMENT
1. This is the appeal filed by defendants/appellants under Section 100 of the Code of Civil Procedure, challenging the judgment and decree dated 23.01.2008 passed in R.A.No.39/1999 on the file of the Additional Senior Civil Judge (Sr.Dn.), Ranebennur (hereinafter referred to as 'the First Appellate Court', for short) and praying for confirmation of the judgment and decree dated 03.02.1999 passed in O.S.No.224/1993 on the file of the Principal Civil Judge (Jr.Dn.) and I Additional JMFC, Ranebennur (hereinafter referred to as 'the Trial Court', for short).
2. The parties would be referred with their rankings as they were before the trial Court, for the sake of convenience and clarity.
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR
3. The brief facts of the case are;
3.1. The plaintiff has filed the suit before the Trial Court claiming for the relief of permanent injunction restraining the defendants from trespassing or encroaching upon the suit Schedule ABCD properties and to restrain them from putting up any chappar or permanent structure at points GHI and J as shown in the rough sketch annexed to the plaint; for court costs and for other appropriate reliefs. 3.2. The case of plaintiff before Trial Court in nutshell is that plaintiff is the owner in possession and enjoyment of property bearing Re-survey No.792/5B, totally measuring 26½ guntas, which he purchased under two separate registered sale deeds dated 10.03.1975 and 15.10.1975. After the purchase, he converted the land for non- agricultural purpose and formed six residential plots, out of which, he sold four residential plots -7- NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR bearing Nos.3 to 6 and retained two plots, namely Plot Nos.1 and 2, which are shown with letters ABCD in rough sketch annexed to the plaint. He contended that, after such purchase, his name was entered in the revenue records in respect of the said properties. He has described the said ABCD property as 'A' Schedule in the suit, and described CDEF property as 'B' Schedule in the rough sketch annexed to the plaint.
3.3. According to the plaintiff, the property shown adjacent to it in the sketch belongs to the defendants. The defendants are trying to trespass and encroach upon the suit 'A' Schedule property illegally and are attempting to put up chappar at the points shown as GHI in the hand sketch, and are also attempting to put up a permanent structure at point J as shown in the -8- NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR rough sketch annexed to the plaint. Hence, he prayed for appropriate reliefs. 3.4. Defendant No.1 filed his written statement, which is being adopted by Defendant No.2. In the written statement, Defendants No.1 and 2 have taken contention that the rough sketch produced along with the plaint is incorrect. The defendants produced a rough sketch along with the written statement.
3.5. In that rough sketch, the properties shown with letter EFGH and ABCD are in the possession of Defendants No.1 and 2, and in between EFGH and ABCD, there are some other properties which are in the possession of third parties who are not parties to the suit.
3.6. It is contended that, there exists a pathway between the properties of Defendants No.1 and 2 and property of the plaintiff. In the sketch produced by them, the property of the plaintiff is -9- NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR shown as OPQRST. They have also explained in the written statement how the property shown as EBCH came to the family of the defendants. 3.7. The defendants have further taken a specific contention in the written statement that the plaintiff had earlier filed O.S.No.30/1979 in respect of the entire extent of 26½ guntas in R.S.No.702/5B against these defendants and others, and the said suit was dismissed on 19.01.1988. Against the said dismissal, the plaintiff preferred RA No.21/1988, which was also dismissed and the judgment attained finality. Hence, according to the defendants, the present suit is barred by the principles of res judicata.
3.8. Based on the above pleadings, the Trial Court has framed the following issues:
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR
1. Whether suit is hit by principles of res-
judicata in view of judgment in O.S. No.30/1979?
2. Whether plaintiff prove that, he was in possession of the suit property, as on the date of suit?
3. Whether plaintiff prove that, defendants are trying to make construction illegally by encroaching the suit 'A' property at points 'GHI' & 'J' as shown in the hand sketch?
4. Whether plaintiff entitled for the relief sought?
5. What order or decree?
3.9. After recording the evidence of both sides and hearing the arguments, the Trial Court dismissed the suit of plaintiff holding that he failed to establish his lawful possession and enjoyment over the suit property as on the date of filing of the suit.
3.10. Aggrieved by the said judgment and decree, the plaintiff preferred R.A.No.39/1999. The said appeal was allowed holding that the plaintiff is
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR entitled for the relief of permanent injunction as prayed in the plaint.
3.11. Aggrieved by the judgment and decree passed in R.A. No.39/1999, the present appeal is filed by Defendants No.1 and 2.
4. After hearing both sides, at the time of admission of the appeal, the following substantial questions of law were framed on 05.08.2008:
i. Whether the present suit (O.S.No.224/1990) is barred on the principles of res-judicata in view of the dismissal of the previous suit in O.S.No.30/1979 between the same parties and whether the Lower Appellate Court was justified in reversing the decree of the trial court on the question of res-judicata?
ii. Whether the Lower Appellate Court was right in decreeing that he has failed to prove the lawful possession of the suit property as on the date of suit and in the face of the admission of the plaintiff that defendants 1 & 2 were in possession of the said property?
5. Re: Point No.(i):
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR 5.1. Before Trial Court, plaintiff has filed O.S.No.224/1993 seeking the relief of permanent injunction restraining the defendants from encroaching upon or trespassing over the suit 'A' schedule property. The plaintiff has described the suit 'A' schedule property as Plot No.1 situated in R.S.No.792/5B measuring 39+43/2 × 108 feet and Plot No.2 situated in the same survey number measuring 43 × 108 feet, which are shown in the hand sketch annexed to the plaint by the letters ABCD. Either in the plaint or in the rough sketch, the plaintiff has not mentioned the boundaries of the said property. 5.2. The defendants have produced the certified copy of the judgment passed in the earlier suit, namely, O.S.No.30/1979, as per Ex.D.2 and copy of the plaint in the said suit as per Ex.D.1. These two documents reveal that the present plaintiff had filed a suit for the relief of permanent
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR injunction against present defendants No.1 and 2 and others in respect of R.S.No.792/5B totally measuring 26½ guntas with the following boundaries:
Towards East - land of Nurandevarmath; Towards West- land of Maritammappa Harapanahalli; Towards North - land of Mallappa Mallavalli; And towards South - Ranebennur-Medleri Road. 5.3. In the present suit, the plaintiff has contended that the said 26½ guntas was purchased by him under two separate registered sale deeds of the year 1975, one in respect of 19½ guntas and another in respect of the remaining 7 guntas, from the erstwhile owners, and thus, he was in possession of the said property and thereafter he got it converted into non-agricultural land, formed residential plots, sold four plots bearing Nos. 3 to 6, and retained Plot Nos. 1 and 2.
However, as discussed earlier, he has not shown the boundaries of these two plots.
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR 5.4. The above facts alleged by him reveal that these two plots are part and parcel of the property purchased by him under the above two registered sale deeds.
5.5. A perusal of the certified copy of the judgment passed in O.S.No.30/1979 reveals that the Court had already held that the plaintiff failed to prove his possession over the said property measuring 26½ guntas and thereby dismissed the suit. 5.6. Against the judgment and decree passed in O.S.No.30/1979, the plaintiff had filed R.A.No.21/1988, which also came to be dismissed for default. Thus, the said finding has attained finality.
5.7. Admittedly, the present suit schedule property was part and parcel of the suit schedule property involved in the earlier suit O.S.No.30/1979. When the plaintiff failed to establish his peaceful possession over the suit 'A' schedule property in
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR the earlier suit, he cannot establish that he is in possession of the said property after disposal of the said suit. There is no pleading that after disposal of the earlier suit the plaintiff subsequently acquired possession of the suit schedule property and that thereafter the alleged interference by the defendants arose. 5.8. If really the plaintiff was the owner of the property, it was incumbent upon him to file a suit for declaration declaring his title over the suit 'A' schedule property and pray for consequential relief of possession. However, instead of doing so, the plaintiff has filed another suit for the same relief of permanent injunction. Considering these aspects, the Trial Court has rightly dismissed the suit of the plaintiff. 5.9. The First Appellate Court in its judgment held that the plaintiff had already converted his property for non-agricultural purpose and
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR thereby established his possession over the suit 'A' schedule property. However, admittedly, the plaintiff has not produced any iota of material to show that he has converted his property into non-agricultural purpose. Hence, the said finding recorded by the First Appellate Court is apparently erroneous.
5.10. Furthermore, the First Appellate Court has observed that there is a prima facie case and balance of convenience in favour of the plaintiff, which are not the criteria for granting the relief of permanent injunction in a judgment. Those are the criteria only for deciding interim applications for grant or refusal of temporary injunction.
5.11. Thus, the First Appellate Court has failed to apply the settled principles of law and has wrongly come to the conclusion that the plaintiff has established his possession over the suit 'A'
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR schedule property and decreed the suit, which is erroneous and requires interference. 5.12. When the earlier suit for permanent injunction was dismissed and when the plaintiff has not produced any material to show that after dismissal of the said suit he acquired possession of the suit 'A' schedule property, then definitely dismissal of the earlier suit operates as res judicata for him to file a fresh suit. Accordingly, first part of point No.(i) is answered in the Affirmative and II part of point No.(i) in Negative.
6. Re: Point No.(ii):
6.1. As discussed above, the First Appellate Court was not justified in decreeing the suit when the plaintiff had failed to establish his lawful possession over the suit 'A' schedule property as on the date of the suit.
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NC: 2026:KHC-D:3796 RSA No. 459 of 2008 HC-KAR 6.2. Accordingly, point No.(ii) is answered in the Negative.
7. In view of the findings on point Nos.(i) and (ii) above, I pass the following:
ORDER i. The appeal filed under Section 100 of the Code of Civil Procedure is allowed. ii. The judgment and decree dated 23.01.2008 passed in R.A.No.39/1999 on the file of the Additional Senior Civil Judge (Sr.Dn.), Ranebennur, is set aside.
iii. The judgment and decree dated 03.02.1999 passed in O.S.No.224/1993 on the file of the Principal Civil Judge (Jr.Dn.), Ranebennur, dismissing the suit is hereby confirmed.
Sd/-
(GEETHA K.B.) JUDGE gab CT-MCK List No.: 1 Sl No.: 50