Karnataka High Court
Smt Muniyamma vs Smt Gantalamma on 6 October, 2023
Bench: H.P.Sandesh
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NC: 2023:KHC:36290
RSA No. 105 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.105 OF 2017 (DEC/INJ)
BETWEEN:
SMT. MUNIYAMMA
W/O VENKATAMUNIYAPPA,
AGED ABOUT 58 YEARS,
REPRESENTED BY HER HUSBAND
AND SPA HOLDER
VENKATAMUNIYAPPA
S/O LATE GANGAPPA,
AGED ABOUT 62 YEARS,
R/AT DEVAGANAHALLI,
KASABA HOBLI,
BANGARPET TALUK 563115
KOLAR DIST.
Digitally signed
by SHARANYA T ...APPELLANT
Location: HIGH (BY SRI AKESH B R, ADVOCATE)
COURT OF
KARNATAKA AND:
SMT. GANTALAMMA
W/O LATE MUNIYAPPA,
AGED ABOUT 77 YEARS,
R/AT DEVAGANAHALLI,
KASABA HOBLI,
BANGARPET TLAUK - 563115,
KOLAR DISTRICT.
...RESPONDENT
(BY SRI VIJAYA KRISHNA BHAT M, ADVOCATE)
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NC: 2023:KHC:36290
RSA No. 105 of 2017
THIS RSA IS FILED UNDER SEC.100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 29.09.2016
PASSED IN R.A. NO.67/2016 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND PLR., JMFC., KGF AND ETC.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is listed for admission. Heard the
learned counsel appearing for the respective parties.
2. The factual matrix of the case of the plaintiff
that originally the suit schedule property belongs to
Gangaiah to the extent of 2 acres 4 guntas and his sons
have sold the said property in favour of D Muniswamy on
24.09.1972 and the said Muniswamy, in turn, had sold the
property in favour of Muniyamma on 22.08.1986 in favour
of the plaintiff. The defendant also filed a suit in
O.S.No.99/2006 for the relief of declaration and injunction
against the plaintiff to the extent of 13 guntas and the
same was decreed. The plaintiff has filed an appeal
against the judgment and decree passed in
O.S.No.99/2006 in R.A.No.38/2008 and the same was also
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RSA No. 105 of 2017
dismissed on 19.06.2010. Being aggrieved by the said
judgment and decree, second appeal was filed in
R.S.A.No.2538/2010 and the same was also got dismissed
on 19.03.2011 and the judgment and decree passed in
O.S.No.99/2006 has attained it finality.
3. The counsel for the appellant would vehemently
contend that the total extent in Sy.No.47/3 is 2 acres 4
guntas and title flows from 1972 to till date in favour of
the plaintiff but the Trial Court has committed an error in
dismissing the entire suit in coming to the conclusion that
res-judicata applies since earlier suit is disposed of, hence,
the very approach of the Trial Court is erroneous and the
Trial Court ought not to have dismissed the suit in its
entirety. The counsel further contend that the First
Appellate Court also confirmed the finding of the Trial
Court without looking to the material on record and hence,
the present appeal is filed before this Court. The main
contention of the counsel for the appellant that both the
Courts have committed an error in dismissing the suit and
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fails to take note of the fact that the extent which has
been sought by the plaintiff and earlier suit was only to
the extent of 13 guntas of land, whereas the claim of the
appellant herein pertains to 2 acres 4 guntas including 5
guntas of karab land. The earlier suit was also for
separate boundaries and the same was for declaration and
permanent injunction. Hence, both the Courts have
committed an error in dismissing the suit.
4. Per contra, the learned counsel appearing for
the respondent would vehemently contend that earlier suit
has been decreed declaring that the respondent is the
absolute owner in possession of the suit schedule property
and throughout, the appellant herein has suffered the
judgment and decree passed against him. The judgment
passed in O.S.No.99/2006 has attained its finality and now
he cannot reopen the same. Both the Courts have rightly
comes to the conclusion that res-judicata applies. The
counsel for the respondent also submits that in paragraph
5 of the plaint, the appellant herein specifically pleaded
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that schedule in the earlier suit in O.S.No.99/2006 is also
part and parcel of the 2 acres 4 guntas in which they are
claiming the relief of declaration and hence, now she
cannot agitate the matter in the present appeal.
5. Having heard the learned counsel appearing for
the respective parties and also on perusal of the material
on record it is not in dispute that the appellant is claiming
the relief to the extent of 2 acres 4 guntas in respect of
the very same survey number against which, the
respondent already filed the suit for the relief of
declaration and injunction in O.S.No.99/2006 and decree
has been granted against this appellant to the extent of 13
guntas and the same is confirmed by the First Appellate
Court as well as Second Appellate Court i.e., this Court
and the fact that the judgment and decree of the Trial
Court has attained its finality and the same is also not in
dispute. No doubt, the appellant has filed the suit for the
relief of declaration to the extent of 2 acres 4 guntas.
Once, the decree to the extent of 13 guntas was granted
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in favour of the respondent herein in respect of the very
same survey number and the same has been attained its
finality, the appellant herein again cannot agitate the
same. Hence, I do not find any error committed by the
Trial Court and the First Appellate Court in coming to the
conclusion that res-judicata applies.
6. But both the Courts have lost its sight to the
very claim of the appellant to the extent of 2 acres 4
guntas and the respondent also not claiming any right in
respect of the remaining extent i.e., 1 acre 31 guntas and
2 acre 4 guntas is not the subject matter of the suit in
O.S.No.99/2006. When such being the case, both the
Courts ought to have taken said fact into consideration
and res-judicata is applies only to the extent of 13 guntas
and decree to the extent of 13 guntas is already passed
against the appellant herein hence, the Trial Court ought
to have considered the same but the Trial Court comes to
the conclusion that the suit is barred under res-judicata. I
have already pointed that to the entire extent res-judicata
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will not apply and only to the extent of 13 guntas, the res-
judicata is applies. It is also the claim of the plaintiff that
to the total extent of 2 acres 4 guntas, he relies upon the
title from 1972 to till date. When such being the case, Trial
Court also taken note of the title placed in the earlier suit
by the respondent from 1963 onwards and based on that,
a decree has been passed to the extent of 13 guntas in
favour of the respondent. When the respondent is not
claiming any right in respect of remaining extent of the
land, the Trial Court and the First Appellate Court ought to
have granted the relief as sought in the suit in
O.S.No.3/2012 to the remaining extent. Hence, the
judgment and decree of the Trial Court is requires to be
modified to the remaining extent of the land when the
defendant/respondent is not claiming any right over the
said extent i.e., 1 acre 31 guntas including karab land
wherein he has claimed only to the extent of 13 guntas
and the same has been already attained its finality.
Hence, the judgment and decree of the Trial Court
requires to be modified and hence, this second appeal is
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allowed to the extent of 1 acre 31 guntas declaring that
the appellant/plaintiff is the owner to the said extent in
terms of the sale deed dated 22.08.1986 and the
respondent also restrained from interfering with regard to
the extent of 1 acre 31 guntas and at the same time, the
appellant is also directed not to interfere with the
possession of the respondent to the extent of 13 guntas
which already declared as the respondent is the owner and
he is in possession of the same. With this observations,
the second appeal is disposed of.
Sd/-
JUDGE
SN
