Karnataka High Court

Smt.P.G.Gouri W/O. Dr.Laxman Mullatti vs Dr.Laxman S/O Channappa Mullatti on 25 February, 2025

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                                                        NC: 2025:KHC-D:3801
                                                    RSA No. 100065 of 2020
                                                C/W RSA No. 100064 of 2020



                         IN THE HIGH COURT OF KARNATAKA,
                                 DHARWAD BENCH

                     DATED THIS THE 25TH DAY OF FEBRUARY, 2025
                                      BEFORE

                       THE HON'BLE MR. JUSTICE E.S.INDIRESH

              REGULAR SECOND APPEAL NO. 100065 OF 2020 (DEC/INJ-)
                                    C/W
                  REGULAR SECOND APPEAL NO. 100064 OF 2020

             IN RSA NO.100065/2020
             BETWEEN:
             1. SMT.P.G.GOURI,
                 W/O. DR.LAXMAN MULLATTI
                 AGED ABOUT: 64 YEARS,
                 OCC: RETIRED TEACHER,
                 R/O: AARATI BUILDING,
                 UNIVERSITY ROAD,
                 SAPTAPUR LAST CROSS,
                 DHARWAD - 580001.

             2.   PALLAVI
                  D/O.LAXMAN MULLATTI,
                  AGED ABOUT: 39 YEARS,
                  OCC:ADVOCATE,
                  R/O: AARATI BUILDING,
                  UNIVERSITY ROAD,
Digitally
signed by         SAPTAPUR LAST CROSS,
VN                DHARWAD - 580001.
BADIGER
Location:
High         3.   SHIVAKUMAR
Court of          S/O. LAXMAN MULLATTI,
Karnataka,
Dharwad           AGED ABOUT: 38 YEARS,
Bench             OCC: ADVOCATE,
                  R/O: AARATI BUILDING,
                  UNIVERSITY ROAD,
                  SAPTAPUR LAST ROAD,
                  DHARWAD - 580001.
                                                               ...APPELLANTS

             (BY SRI. G. I. GACHCHINAMATH, ADVOCATE FOR R1 & A2;
             SRI. SHIVAKUMAR S/O. LAXMAN MULLATTI - PARTY IN PERSON (A3)
                             -2-
                                          NC: 2025:KHC-D:3801
                                      RSA No. 100065 of 2020
                                  C/W RSA No. 100064 of 2020



AND:

1.   DR.LAXMAN
     S/O. CHANNAPPA MULLATTI,
     AGED ABOUT: 90 YEARS,
     OCC: RETD. PROFESSOR,
     R/O: AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.
     (NOW DECEASED)

2.   SANGAMESH S/O. BASAVARAJ DODAMANI,
     AGED ABOUT: 50 YEARS,
     OCC: ENGINEER,
     R/O: IV MAIN, VII CROSS,
     CHANNABASAVESHWAR NAGAR,
     SAPTAPUR, DHARWAD,
     NOW R/O: GAVI SHARANYA,
     AADI SHAKTI COLONY,
     NEAWR BEST PU COLLEGE,
     SAPTAPUR, DHARWAD.

3.   SMT.VINUTA CALLING HERSELF AS
     W/O LAXMAN MULLATTI,
     AGED ABOUT 55 YEARS,
     OCC: ADVOCATE,
     R/O: AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.

4.   MAHADEV
     S/O. BHIMAPPA HEGGANNAVAR,
     AGED ABOUT 60 YEARS,
     OCC: SERVICE,
     R/O. GURUDATTA APARTMENTS,
     'A' WING, PLOT NO.22,
     5TH FLOOR NEAR R.S. ROAD,
     YAMMIKERI, DHARWAD,
     NOW RESIDING AT
     ARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.
                              -3-
                                           NC: 2025:KHC-D:3801
                                       RSA No. 100065 of 2020
                                   C/W RSA No. 100064 of 2020



5.   SMT. HEMALATHA,
     D/O. PUNDALIK AMMINABHAVI,
     AGED ABOUT 50 YEARS,
     OCC: NOT KNOWN,
     R/O. GURUDATTA APARTMENTS,
     'A' WING PLOT NO. 22,
     5TH FLOOR, NEAR R.S. ROAD,
     YAMMEKERI, DHARWAD
     NOW RESIDING AT
     AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.
                                                ...RESPONDENTS

(BY SRI. ARUN L. NEELOPANT, ADVOCATE FOR R3;
    SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV. FOR R4 & R5)


      THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO CALL FOR
RECORDS AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
DATED 12.12.2019 MADE IN R.A.NO.199/2018 PASSED BY THE IV
ADDITIONAL DISTRICT & SESSIONS JUDGE, DHARWAD AND THE
IMPUGNED JUDGMENT AND DECREE DATED 20.10.2018 MADE IN
O.S.NO.160/2004 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM, DHARWAD AND FURTHER DECREE THE COUNTER CLAIM
MADE BY THE DEFENDANTS NO.2 AND 3.


IN RSA NO.100064/2020
BETWEEN:

1.   SMT.P.G.GOURI,
     W/O. DR.LAXMAN MULLATTI
     AGED ABOUT: 64 YEARS,
     OCC: RETIRED TEACHER,
     R/O: AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.
                              -4-
                                           NC: 2025:KHC-D:3801
                                       RSA No. 100065 of 2020
                                   C/W RSA No. 100064 of 2020



2.   PALLAVI
     D/O.LAXMAN MULLATTI,
     AGED ABOUT: 39 YEARS,
     OCC:ADVOCATE,
     R/O: AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.

3.   SHIVAKUMAR
     S/O. LAXMAN MULLATTI,
     AGED ABOUT: 38 YEARS,
     OCC: ADVOCATE,
     R/O: AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST ROAD,
     DHARWAD - 580001.
                                                  ...APPELLANTS

(BY SRI. G. I. GACHCHINAMATH, ADVOCATE FOR R1 & A2;
SRI. SHIVAKUMAR S/O. LAXMAN MULLATTI - PARTY IN PERSON (A3)

AND:

1.   DR.LAXMAN
     S/O. CHANNAPPA MULLATTI,
     AGED ABOUT: 90 YEARS,
     OCC: RETD. PROFESSOR,
     R/O: AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.
     (NOW DECEASED)

2.   SANGAMESH
     S/O. BASAVARAJ DODAMANI,
     AGED ABOUT: 50 YEARS,
     OCC: ENGINEER,
     R/O: IV MAIN, VII CROSS,
     CHANNABASAVESHWAR NAGAR,
     SAPTAPUR, DHARWAD,
     NOW R/O: GAVI SHARANYA,
     AADI SHAKTI COLONY,
     NEAWR BEST PU COLLEGE,
     SAPTAPUR, DHARWAD.
                              -5-
                                           NC: 2025:KHC-D:3801
                                       RSA No. 100065 of 2020
                                   C/W RSA No. 100064 of 2020



3.   SMT.VINUTA CALLING HERSELF AS
     W/O LAXMAN MULLATTI,
     AGED ABOUT 55 YEARS,
     OCC: ADVOCATE,
     R/O: AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.

4.   MAHADEV
     S/O. BHIMAPPA HEGGANNAVAR,
     AGED ABOUT 60 YEARS,
     OCC: SERVICE,
     R/O. GURUDATTA APARTMENTS,
     'A' WING, PLOT NO.22,
     5TH FLOOR, NEAR R.S. ROAD,
     YAMMIKERI, DHARWAD,
     NOW RESIDING AT
     ARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.

5.   SMT. HEMALATHA,
     D/O. PUNDALIK AMMINABHAVI,
     AGED ABOUT 50 YEARS,
     OCC: NOT KNOWN,
     R/O. GURUDATTA APARTMENTS,
     'A' WING PLOT NO. 22,
     5TH FLOOR, NEAR R.S. ROAD,
     YAMMEKERI, DHARWAD
     NOW RESIDING AT
     AARATI BUILDING,
     UNIVERSITY ROAD,
     SAPTAPUR LAST CROSS,
     DHARWAD - 580001.
                                                ...RESPONDENTS

(BY SRI. ARUN L. NEELOPANT, ADVOCATE FOR R3;
    SRI. MALLIKARJUNSWAMY B. HIREMATH, ADV. FOR R4 & R5)


      THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO CALL FOR
RECORDS AND SET ASIDE THE IMPUGNED JUDGMENT AND DECREE
DATED 12.12.2019 MADE IN R.A.NO.200/2018 PASSED BY THE IV
                                 -6-
                                                NC: 2025:KHC-D:3801
                                          RSA No. 100065 of 2020
                                      C/W RSA No. 100064 of 2020



ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD AND THE
IMPUGNED JUDGMENT AND DECREE DATED 20.10.2018 MADE IN
O.S.NO.315/2005 PASSED BY THE PRINCIPAL SENIOR CIVIL JUDGE
AND CJM., DHARWAD AND FURTHER DECREE THE COUNTER CLAIM
MADE BY THE DEFENDANTS NO.2 AND 3.


     THESE APPEALS COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:


CORAM:     THE HON'BLE MR. JUSTICE E.S.INDIRESH

                         ORAL ORDER

These appeals are filed by the defendants in OS

No.160/2004 and OS No.315/2005, challenging the

judgment and decree dated 12.12.2019 in RA

No.199/2018 and RA No.200/2018 on the file of IV

Additional District and Sessions Judge, Dharwad (for short,

hereinafter referred to as 'First Appellate Court'),

dismissing the appeals and confirming the judgment and

decree dated 20.10.2018 in OS No.160/2004 and OS

No.315/2005 on the file of Principal Senior Civil Judge and

CJM, Dharwad (for short, hereinafter referred to as 'Trial

Court'), decreeing the suit of the plaintiff.

NC: 2025:KHC-D:3801

2. For the sake of convenience, the parties are

referred to as per their ranking before the Trial Court.

Facts in RSA No.100065/2020:

3. It is the case of the plaintiff - Dr. Laxman

Channappa Mullatti, that the schedule property situate in

Plot No.45/1A1A1A1A1A/1+B+1B measuring 04 guntas

10 annas, consisting of three out houses having RCC

building at Saptapur, Dharwad has been purchased by the

plaintiff for valuable consideration through his own

earnings. It is also stated in the plaint that, the said RCC

building had a first floor and the first floor is not the

subject matter of the suit. It is stated in the plaint that,

the plaintiff was working as Lecturer in Philosophy from

1957-1967 at Karnataka University, Dharwad and

thereafter, he has promoted as Reader in the University

and thereafter secured further promotion as Professor and

HOD of the Department of Philosophy during 1982-1992

and attained superannuation during 1992. It is further

stated in the plaint that, the plaintiff had purchased plot

NC: 2025:KHC-D:3801

No.17 of Saptapur as per Registered Sale Deed dated

11.09.1963 for sale consideration of Rs.1,000/- and

thereafter, the plaintiff constructed ground floor and

veranda during 1967 and constructed first floor during

1975. It is stated in the plaint that, he had availed loan

from the Karnataka University, Dharwad and also from Life

Insurance Corporation for the purpose of construction

made in suit schedule property. It is stated that, the

plaintiff was residing at first floor.

3.1. It is further stated in the plaint that, the

plaintiff married one Smt. Leela Mullatti during 1959 and

on account of family rift the marriage between them was

dissolved by the Competent Court. It is also stated that,

the plaintiff came in contact with the defendant No.1 and

accordingly, the plaintiff had living relationship with the

defendant No.1 since 1984 and permitted the defendant

No.1 to live in a portion of the first floor of the suit

schedule property. In their companionship two children

were born namely defendant Nos.2 and 3, however it is

NC: 2025:KHC-D:3801

stated in the plaint that, there was no marriage between

the plaintiff and defendant No.1 and contended that the

defendant No.1 is not a legally wedded wife of the plaintiff

but, acknowledged the children namely defendant Nos.2

and 3 as his children. It is also stated in the plaint that,

there was misunderstanding between the plaintiff and the

defendant No.1 and has stated that, the defendant No.1

made a claim to grab the schedule property from the

plaintiff and in this regard the plaintiff has filed civil and

criminal cases against the defendant No.1 before the

Competent Courts. Thereafter, the plaintiff married Smt.

Vinuta on 02.06.1993 and the marriage was consummated

and in their wedlock a child was born. It is stated in the

plaint that, the plaintiff is residing with Smt. Vinuta in the

ground floor and leading marital life. It is also alleged in

the plaint that, the defendant No.1 taking undue

advantage of residing in the first floor which had been

given by the plaintiff to the defendant No.1 and as such

interfering with the peaceful enjoyment of the suit

schedule property and also claiming title insofar as the

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NC: 2025:KHC-D:3801

portion of the property is concerned, and as such the

plaintiff presented the suit.

3.2. It is stated in the plaint that, the defendant

Nos.1 to 3 have no semblance of right, title or interest

over the suit schedule property and in this regard the

plaintiff has filed OS No.17/1994 against the defendants

before the Civil Court, seeking relief of injunction

restraining the defendant No.1 herein not to interfere with

the marital life of the plaintiff and the said suit, came to be

dismissed as withdrawn.

3.3. It is also stated in the plaint that, the defendant

Nos.2 and 3 have filed Miscellaneous Petition against the

plaintiff seeking maintenance and the plaintiff is obeying

the order passed by the Competent Court in Miscellaneous

Petition. It is also stated in the plaint that, the plaintiff has

filed OS No.109/1995 against the defendant No.1 seeking

relief of possession of the schedule property and the

defendant No.1 has filed written statement. It is also

stated that, the plaintiff has withdrew the said suit stating

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NC: 2025:KHC-D:3801

that there were some negotiations between the parties

and as such, the plaintiff allowed the defendants to reside

in the portion of the ground floor of the schedule property.

3.4. It is also stated that, the defendant No.1

arrested in a criminal case having possession of brown

sugar. It is also stated in the plaint that, the defendants

herein are causing harassment to the plaintiff and his wife

Smt. Vinuta and as such the plaintiff has filed OS

No.160/2004 seeking relief of declaration with

consequential relief of permanent injunction restraining

the defendants from interfering with the suit schedule

properties.

4. On service of notice, the defendants entered

appearance and filed detailed written statement denying

the averments made in the plaint. It is the specific case of

the defendants that, the defendant No.1 is the legally

wedded wife of the plaintiff and in their wedlock two

children were born and further stated that, the plaintiff has

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NC: 2025:KHC-D:3801

withdrawn OS No.109/1995 without seeking leave to file

fresh suit and therefore, sought for dismissal of the suit.

5. Defendant Nos. 2 and 3 have filed separate

written statement and taken up counter claim against the

plaintiff. It is the case of the defendant Nos.2 and 3 that,

the suit properties are the joint family properties of

plaintiff and defendants and further stated that, the

defendant No.1 had contributed towards construction of

the building in the suit schedule property and therefore,

sought for 1/5th share each in the suit schedule property.

6. Insofar as, the counter claim filed by the

defendant Nos.2 and 3 is concerned, the defendant No.4

has filed written statement alleging that, the defendant

No.4 has purchased the portion of the suit schedule

property from Smt. Vinuta for valuable consideration as a

bonafide purchaser.

7. The Trial Court based on pleadings on record

formulated issues for its consideration. In order to

establish their case, plaintiff was examined as PW1 and

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has produced 58 documents and same were marked as

Ex.P.1 to P.58. Defendant No.3 was examined as DW1 and

produced 45 documents and same were marked as

Ex.D.1 to D.45.

8. The Trial Court after considering the material on

record by its judgment and decree dated 20.10.2018

decreed the suit in part holding that the plaintiff is the

owner of the suit schedule property and restrained the

defendants from interfering with peaceful possession and

enjoyment of the suit schedule properties. The counter

claim filed by the defendant Nos.2 and 3 came to be

dismissed. Feeling aggrieved by the same, the defendants

had preferred RA No.199/2018 before the First Appellate

Court and same was resisted by the respondents therein.

The First Appellate Court after considering the material on

record by its judgment and decree dated 12.12.2019

dismissed the appeals, consequently, confirmed the

judgment and decree passed in OS No.160/2004. Feeling

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NC: 2025:KHC-D:3801

aggrieved by the same, the defendants have preferred

RSA No.100065/2020.

Facts in RSA No.100064/2020:

9. The plaintiff has filed OS No.315/2005 seeking

relief of declaration with consequential relief of possession

of the suit schedule property. The facts urged in OS

No.160/2004 are on similar lines with the facts in the

present suit. It is the specific case of the plaintiff that, he

was disgusted with the behavior of defendant No.1 and

has married Smt. Vinuta on 02.06.1993 and residing with

Smt. Vinuta. It is also stated in the plaint that, the

defendant No.1 is illegally interfered with the rights of the

plaintiff in respect of the suit schedule property and as

such the plaintiff has tried to vacate the first floor of the

property in question, however, the defendants have not

handed over the possession and as such the plaintiff filed

OS No.17/1994.

10. On service of notice, the defendants entered

appearance and filed written statement denying the

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NC: 2025:KHC-D:3801

averments made in the plaint and have disputed the fact

that the suit schedule property was purchased and

construction put up by the plaintiff alone as false and

stated that, the defendant No.1 has contributed her

earnings for the purpose of construction of the building in

the suit schedule property and accordingly, sought for

dismissal of the suit.

10.1. It is also stated by the defendant Nos.2

and 3 that they have preferred counter claim in OS

No.160/2004 seeking relief of partition and accordingly,

sought for dismissal of the suit.

11. The aforementioned two suits were clubbed

together and common evidence was recorded in OS

No.160/2004. The Trial Court after considering the

material on record by common judgment and decree dated

20.10.2018, decreed the suit and feeling aggrieved by the

same, the defendants have preferred RA No.200/2018

before the First Appellate Court and same was resisted by

the respondents herein. The First Appellate Court by

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judgment and decree dated 12.12.2019, dismissed the

appeal, consequently, confirmed the judgment and decree

in OS No.315/2005. Feeling aggrieved by the same, the

defendant Nos.1 to 3 have preferred RSA

No.100064/2020.

12. I have heard Sri. G. I. Gachchinamath, learned

counsel appearing for the appellant Nos.1 and 2, Sri.

Shivakumar - appellant No.3, appearing in-person, Sri.

Arun L. Neelopant, learned counsel appearing for

respondent No.3 and Sri. Mallikarjunswamy B. Hiremath,

learned counsel appearing for respondent Nos.4 and 5.

13. Sri. Shivakumar - appellant No.3 argued by

referring to the facts narrated in the plaint and pleaded

that, the plaintiff had married Smt. Leela and the said

marriage was dissolved by the Competent Court and

thereafter, the plaintiff had contact with defendant No.1

and through their relationship defendant Nos.2 and 3 were

born. It is also stated that, the plaintiff married Vinuta,

being a third wife and was living with her. It is also argued

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that, the plaintiff had filed OS No.17/1994 seeking relief of

injunction restraining the defendant No.1 herein not to

interfere with the marital life of the plaintiff and the said

suit came to be withdrawn without leave to file fresh suit.

13.1. It is also argued by Sri. Shivakumar-

appellant No.3 that, the plaintiff has filed OS No.109/1995

against the defendants seeking relief of injunction in

respect of the suit schedule property and the said suit

came to be dismissed as withdrawn and in the said suit

also, no leave was granted by the Civil Court, to prefer

now suit, hence, it is the principal submission of

Shivakumar- appellant No.3 that, the suit in OS

No.160/2004 and OS No.315/2005 attracts provision

contained under Order 23 Rule 1 of CPC as well as Order 2

Rule 2 of CPC and therefore, it is argued that the suits

itself are not maintainable before the Trial Court.

13.2. In this regard, he refers to the judgment

of Hon'ble Supreme Court in the case of Moreshar

Yadaorao Mahajan Vs. Vyankatesh Sitaram Bhedi

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(D) Thr. Lrs. and Others1 and argued that, not only the

suit is barred under Order 2 Rule 2 of CPC but, also the

necessary parties have not been brought on record and

accordingly, sought for interference of this Court.

13.3. It is also argued by Sri. Shivakumar -

appellant No.3 that, IA Nos.11 and 18 were allowed by the

Trial Court and the third wife of the plaintiff - Smt. Vinuta

was ordered to be impleaded in the suit as per order dated

22.10.2009, however, without impleading the said

proposed defendant, suit came to be decreed and

therefore, sought for interference of this Court.

13.4. It is also argued by Sri. Shivakumar -

appellant No.3 that, even if the defendant Nos.2 and 3 be

considered as illegitimate children born in wedlock of the

plaintiff with the defendant No.1 and as such the

defendant Nos.2 and 3 are entitled for share as per the

judgment of the Hon'ble Supreme Court in the case of

Revanasiddappa and Another Vs. Mallikarjun and

2022 LiveLaw (SC) 802

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Other2 and accordingly sought for interference of this

Court.

13.5. Nextly, it is contended by Sri. Shivakumar

- appellant No.3 that, the entire averments made in the

plaint are false and accordingly submitted, that the

defendant No.1 has contributed for construction of building

in the suit schedule property and that apart, the land

belonging to the plaintiff was acquired by the competent

Land Acquisition Officer for the purpose of Hippergi

Project, Athani, and the plaintiff was awarded with

compensation and on account of receiving compensation,

construction as well as the suit property was purchased

and therefore, it is argued that the suit schedule property

is not the self acquired property of the plaintiff and

accordingly, sought for interference of this Court.

14. Sri. G. I. Gachchinamath, learned counsel

appearing for the appellant Nos.1 and 2 argued on similar

lines with Sri. Shivakumar - appellant No.3 and further

(2023) 10 SCC 1

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contended that, the suit schedule property is not self

acquired property of the plaintiff and the contribution has

been made by the defendant No.1, being working as

Teacher at the relevant point of time and accordingly,

sought for interference of this Court stating that both the

Courts below have committed error in misconstruing the

documents on record and therefore, sought for

interference of this Court.

15. Per contra, Sri. Arun L. Neelopant, learned

counsel for respondent No.3 contended that, the

respondent No.3 - Smt. Vinuta is legally wedded wife of

the plaintiff and their marriage was solemnized on

02.06.1993 and in their wedlock a child is born.

15.1. Referring to the arguments advanced by

the appellants regarding applicability of Order 2 Rule 2 of

CPC and under Order 23 Rule 1 of CPC, it is argued that,

the said argument has been advanced by the appellant for

the first time before this Court and no such plea was

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raised before both the Courts below and accordingly,

sought for dismissal of the appeals.

15.2. Sri. Arun L. Neelopant, learned counsel

for the respondent No.3 referred to Ex.P.37 and argued

that, the first floor of the construction was completed and

thereafter, the plaintiff had contact with the defendant

No.1 and therefore, countered the submission of the

appellants. He also invited the attention of the Court to the

finding recorded by the First Appellate Court at paragraph

No.35 and argued that, the suit schedule property is the

self acquired property of the plaintiff and on his demise

the defendant No.3 is entitled for the same and further, he

submitted by referring to the Gift Deed dated 14.11.2018

executed by the plaintiff in favour of Smt. Vinuta

(respondent No.3 herein) and submitted that, the plaintiff

died on 02.10.2021 and accordingly, sought for dismissal

of the appeals.

15.3. It is also argued by the learned counsel

appearing for respondent No.3 that, though the Trial Court

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has dismissed the counter claim filed by defendant Nos.2

and 3, however, same has reached finality as there was no

appeal against the said dismissal of the counter claim.

16. Sri. Mallikarjunswamy B. Hiremath, learned

counsel appearing for respondent Nos.4 and 5 argued

that, the respondent Nos.4 and 5 have purchased the suit

schedule property as per Registered Sale Deed dated

14.02.2022 from respondent No.3 (Smt. Vinuta) and

accordingly submitted that, the respondent Nos.4 and 5

are in possession of suit schedule property and

accordingly, sought for dismissal of the appeals.

17. In the light of the submissions made by the

learned counsel appearing for the parties, as well as the

appellant No.3 as party-in-person, it is not in dispute that

the plaintiff was working as Lecturer of philosophy at

Karnataka University, Dharwad from 1957 onwards till

attains superannuation during 1992. It is also forthcoming

from the finding recorded by both the Courts below that,

the plaintiff was working as a Reader and thereafter,

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promoted to the post of Professor and HOD of Department

of Philosophy during 1982-1992. It is also not in dispute

that, the plaintiff married one Smt. Leela Mullatti during

1959 and the said marriage was dissolved by the

Competent Court, on the ground of incompatibility during

1990. It is also not in dispute that, the plaintiff has

contracted relationship with defendant No. 1 and put the

defendant No.1 in possession of part of first floor of the

suit schedule property. It is the contention of the plaintiff

that, he has not married the defendant No.1 however,

acknowledged the birth of children through the defendant

No.1 as his children (defendant Nos.2 and 3). It is also to

be noted that, the plaintiff has filed OS No.17/1994

against the defendants herein seeking relief of injunction

that, the defendants be restrained from interfering with

the marital life of the plaintiff No.1 herein with Smt. Vinuta

(respondent No.3 herein), who has been arraigned as

plaintiff No.1 in the said suit. The said suit, on contest,

came to be dismissed by judgment and decree dated

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01.08.1996 by the Trial Court. It is also not in dispute

that, the issue No.1 in OS No.17/1994, reads as under;

i) Whether the plaintiff proves that plaintiff No.1 is the legally wedded wife of plaintiff No.2 and their marriage took place on 02.06.1993?

18. Though dismissed the suit rejecting the plaint of

perpetual injunction however, affirmed the issue No.1 and

therefore, it could be concluded that the plaintiff in OS

No.160/2004 and OS No.315/2005 had married Smt.

Vinuta (respondent No.3 herein), as per Ex.P.28. It is also

forthcoming from the finding recorded by the Trial Court

that OS No.109/1995, filed by the plaintiff which came to

be dismissed as withdrawn and the memo filed by the

plaintiff in the said suit was marked as Ex.P.2, which reads

as under:

"Herein the plaintiff submits that the following memo.

That the plaintiff is not interested in prosecuting the matter. Hence, the same may be dismissed as not pressed and half of the Court Fee

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may be refunded in the interest of justice and equity. "

Dharwad Dated:31.08.1998 plaintiffs"

19. Ex.P.3 is the order sheet in OS No.109/1995

and therefore, taking into consideration the

aforementioned aspect makes it clear that, OS

No.109/1995 was filed by the plaintiff seeking relief of

injunction and therefore, the withdrawal of the said suit

does not affect the right of the plaintiff to claim

declaratory with consequential relief in OS No.160/2004

and OS No.315/2005 as the cause of action is different.

Though the subject matter in the suit are identical

however, the reliefs claimed by the plaintiff is totally

different and the title was not under cloud in OS

No.109/1995 and therefore, arguments advanced relating

to applicability of Order 2 Rule 2 of CPC and Order 23

Rule 1 of CPC is not applicable to the case on hand.

20. In this regard, it is apt to follow the declaration

of law made by the Hon'ble Supreme Court in the case of

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Alka Gupta Vs. Narender Kumar Gupta3, wherein it is

held that bar of second suit is impermissible on a different

and distinct cause of action. It is also held that, the only

question for relevancy is whether relief claimed in both

suits arose from same cause of action and the conduct of

plaintiff is not relevant in determining applicability of said

bar. The condition precedent for applicability of Order 2

Rule 2 of CPC is that, unless plea of such bar raised by the

parties and issue is framed thereon, held court cannot

dismissed the suit as so barred. In the backdrop of these

aspects, I have given my anxious consideration to the

impugned judgment and decree passed by the courts

below, wherein the defendants / appellants herein have

not raised the said plea before the Courts below and in

this regard, I find force in the submission made by the

learned counsel appearing for the respondent No.3.

21. Insofar as, the contention raised by the

defendants / appellants herein with regard to IA Nos.11

(2010) 10 SCC 141

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and 18, this Court in WP No.60875/2010 C/w. WP

No.62170/2009 disposed on 21.03.2014 with regard

arraigning the parties as co-defendants and at paragraph

Nos.6 and 7, which reads as under:

22. Having noticed the observation made by this

Court referred to above, the submission of the

defendants/appellants cannot be accepted at this length of

time as the defendants never urged the said plea before

the Trial Court or before the First Appellate Court and

therefore, the judgment in Moreshar (supra) referred to

by the appellant No.3 in the present case as the plaintiff

has filed suit seeking relief of declaration with

consequential relief against the defendants, who had

interfered with the possession and questioned the title of

the plaintiff, so also, the defendant Nos.2 and 3 have filed

counter claim seeking relief of partition, which ultimately

rejected by the Trial Court by its judgment and decree

dated 20.10.2018 which had reached finality as the

defendants / appellants have not questioned the rejection

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of counter claim by the Trial Court. Therefore, contention

raised by the appellants herein cannot be considered to

arrive at a conclusion that the defendants are also entitled

for share in the suit schedule property.

23. It is also forthcoming from the finding recorded

by both the Courts below that the plaintiff had executed

Gift Deed dated 14.11.2018 in favour of Smt. Vinuta

(respondent No.3 herein) and same was admitted by the

appellants herein, which is produced by the appellants

herein in IA No.1/2022. It is also not in dispute that, the

suit schedule property has been purchased by the

respondent Nos.4 and 5 from the respondent No.3 as per

Registered Sale Deed dated 14.02.2022 for valuable

consideration. The plaintiff died on 02.10.2022 and as

such, on the date of death of plaintiff, the property was

gifted by the plaintiff to the respondent No.3 herein as per

the Gift Deed dated 14.11.2018. It is also forthcoming

from the finding recorded by both the courts below that as

the plaintiff came in contact with defendant No.1 during

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1984 and by the said period, the property was already

purchased by the plaintiff during 1963 and the

construction of the building was completed as per the

completion report as per Ex.P.37 dated 16.09.1975 issued

by Hubballi-Dharwad Municipal Corporation. In that view

of the matter, as the first floor was constructed by 1975

and second floor was constructed that, too, before the

contact of the plaintiff with the defendant No.1, I do n ot

find substance in the arguments of the appellants. It is

also pertaining to mention here that, the defendants have

not established that the earnings of defendant No.1 was

utilized for the purpose of construction of building in suit

schedule property and further it is evident from Ex.P.40

issued by Hubballi-Dharwad Municipal Corporation dated

13.06.1984 and therefore, the arguments advanced by the

learned counsel appearing for the appellant and party-in-

person / appellant No.3 herein cannot be accepted to

interfere with the well reasoned judgment and decree

passed by both the Courts below and therefore, I do not

find any perversity in the judgment passed by the both the

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Courts below and this Court is relucted to interfere with

the findings recorded by both the Courts below.

24. That apart, it is also useful to refer to the

judgment of the Hon'ble Supreme Court in the case of

LAXMIDEVAMMA AND OTHERS v. RANGANATH AND

OTHERS4, whereunder at paragraph Nos.13 and 16 of

the judgment, it is observed as under:

"13. Based upon oral and documentary evidences, the courts below have recorded concurrent findings that the plaintiffs are the owners of 'A' schedule property. While so, the High Court ignoring the material evidence, erred in interfering with the concurrent findings of fact. ...

14 and 15. xxx xxx xxx

16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of

(2015) 4 SCC 264

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evidence. While so, the High Court proceeded to observe 100 that the first plaintiff has earmarked the 'A' schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained."

25. In the case of THULASIDHARA AND

ANOTHER v. NARAYANAPPA AND OTHERS5, at

paragraph Nos.7.2 and 7.3 of the judgment, the Hon'ble

Supreme Court has observed thus:

"7.2 As observed and held by this Court in the case of Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999)3 SCC 722, in the Second Appeal under Section 100 of the

(2019) 6 SCC 409

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CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous being:

(i) Contrary to the mandatory provisions of the applicable law;

OR

(ii) Contrary to the law as pronounced by the Apex Court;

OR

(iii) Based on inadmissible evidence or no evidence.

It is further observed by this Court in the aforesaid decision that if First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. It is further observed that the Trial Court could have decided differently is not a question of law justifying interference in Second Appeal.

7.3. When a substantial question of law can be said to have arisen, has been dealt with and considered by this Court in the case of Ishwar Dass Jain v. Sohan Lal,

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(2000) 1 SCC 434. In the aforesaid decision, this Court has specifically observed and held:

10. Under Section 100 CPC, after the 1976 Amendment, it is essential for the High Court to formulate a substantial question of law and it is not permissible to reverse the judgment of the first appellate court without doing so.

11. There are two situations in which interference with findings of fact is permissible. The first one is when material or relevant evidence is not considered which, if considered, would have led to an opposite conclusion.

12. The second situation in which interference with findings of fact is permissible is where a finding has been arrived at by the appellate court by placing reliance on inadmissible evidence which if it was omitted, an opposite conclusion was possible.

13. In either of the above situations, a substantial question of law can arise."

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26. The Hon'ble Supreme Court in the case of S.

SUBRAMANIAN v S RAMASAMY ETC.6, at paragraph

Nos.8.1, 8.2 and 8.5 of the judgment, has observed thus:

"8.1. ...As per catena of decisions of this Court, while deciding the second appeal under Section 100 of the CPC, the High Court is not required to re-appreciate the entire evidence on record and to come to its own conclusion and the High Court cannot set aside the findings of facts recorded by both the Courts below when the findings recorded by both the Courts below were on appreciation of evidence. That is exactly what is done by the High Court in the present case while deciding the second appeals, which is not permissible under the law.

8.2. Even otherwise, it is required to be noted that as per catena of decisions of this Court and even as provided under Section 100 of the CPC, the Second Appeal would be maintainable only on substantial question of law. The Second Appeal does not lie on question of facts or of law. The existence of 'a substantial question of law' is a sine qua

2019 SCC 3056

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non for the exercise of the jurisdiction under Section 100 of the CPC. As observed and held by this Court in the case of Kondiba Dagadu Kadam, in a second appeal under 103 Section 100 of the CPC, the High Court cannot substitute its own opinion for that of the First Appellate Court, unless it finds that the conclusions drawn by the lower Court were erroneous....

8.3. and 8.4. xxx xxx xxx 8.5. As observed hereinabove, while passing the impugned Judgment and Order, the High Court has reappreciated the entire evidence on record as if the High Court was deciding the first appeal. By the impugned Judgment and Order, while exercising the powers under Section 100 of the CPC and on re appreciation of entire evidence on record, the High Court has set aside the findings of facts recorded by both the Courts below on blending of the suit properties with the joint family properties. The same is wholly impermissible. So far as the facts are concerned, the First Appellate Court is the final court and unless and until the findings of facts recorded by the Courts below are found to be manifestly perverse and/or contrary to the evidence on record, the High

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Court would not be justified in setting aside the findings of facts recorded by the Courts below which were on appreciation of evidence on record. It is not permissible for the High Court to re appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of Code of Civil Procedure. High Court to re- appreciate the entire evidence on record and come to its own finding when the findings recorded by the Courts below, more particularly, the First Appellate Court are on appreciation of evidence. Therefore, the procedure adopted by the High Court while deciding the Second Appeals, is beyond the scope and ambit of exercise of its powers under Section 100 of the CPC."

27. It is also settled principle of law that even if two

inferences are possible in a given set of circumstances, the

finding recorded by the lower appellate court is binding on

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the high Court. In this connection, it is relevant to deduce

the observation made by the Hon'ble Supreme Court in the

case of DODDANARAYANA REDDY (DEAD) BY LRs

AND OTHERS v. C. JAYARAMA REDDY (DEAD) BY LRs

AND OTHERS7, wherein at paragraph Nos.25 and 26 of

the judgment the Hon'ble Supreme Court has observed

thus:

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E- Ismail Madris-Un-Niswan, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second 105 appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of

(2020) 4 SCC 649

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NC: 2025:KHC-D:3801

fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :

"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view

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NC: 2025:KHC-D:3801

taken by the first appellate court was based on no material."

15. Again in Secy., Taliparamba Education Society v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held:

"The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors., this Court held that from a given set of circumstances if two inferences are possible then the one drawn by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court.

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It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal.

        Adopting     any     other        approach      is   not
        permissible.       The     High      Court       cannot

substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

28. In the light of the discussion made above, and

in view of the law declared by the Hon'ble Supreme Court

as stated above, in my considered view, the impugned

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judgment and decree passed by the courts below require

to be confirmed by dismissing the appeal.

29. In the result, appellants have not made out a

case to interfere with the judgment and decree passed by

both the Courts below, accordingly, both the appeals are

dismissed at the stage of admission as the appellants

have not made out a case to frame substantial question of