[Cites 3, Cited by 0]
Karnataka High Court
Sri. Mallaiah vs Smt. Jampakka on 2 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1496 of 2022
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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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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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RSA No. 1496 of 2022
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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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RSA No. 1496 of 2022
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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
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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
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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.
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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
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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
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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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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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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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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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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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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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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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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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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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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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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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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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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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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.
Sd/-
(H.P.SANDESH)
JUDGE
SN
