[Cites 2, Cited by 0]
Karnataka High Court
Sri Mallaiah vs Smt Doddakka on 2 December, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 810 of 2024
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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.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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RSA No. 810 of 2024
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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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RSA No. 810 of 2024
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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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RSA No. 810 of 2024
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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.
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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
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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
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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
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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
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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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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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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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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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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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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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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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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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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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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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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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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.
Sd/-
(H.P.SANDESH)
JUDGE
SN
