Karnataka High Court
Sri. B.V.Bhavani Shankar vs Smt. B. T. Kanaka on 24 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1243 of 2023
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1243 OF 2023 (POS)
BETWEEN:
1. SRI. B.V.BHAVANI SHANKAR
S/O LATE VASAPPAIAH
AGED ABOUT 90 YEARS
BETOLI VILLAGE AND POST
VIRAJPET TALUK
KODAGU DISTRICT-571218.
...APPELLANT
(BY SRI. H.MALLAN GOUD, ADVOCATE)
AND:
1. SMT. B.T. KANAKA
D/O LATE B.L.THIMMAIAH
AGED ABOUT 68 YEARS
Digitally signed
by DEVIKA M 2. SMT. B.T. INDIRA1
Location: HIGH D/O LATE B.L. THIMMAIAH
COURT OF AGED ABOUT 56 YEARS
KARNATAKA
3. SMT. B.B. SHANTHA
D/O BALACHANDRA
AGED ABOUT 46 YERAS
4. SMT. B.D. PUNDARI
D/O BALACHANDRA
AGED ABOUT 44 YEARS
5. SMT. PREMAMMAYA
D/O BALACHANDRA
AGED ABOUT 40 YEARS
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RSA No. 1243 of 2023
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6. SMT. B.B. RATHNAVATHY
W/O LATE BALACHANDRA
AGED ABOUT 75 YEARS
7. SRI. B.B. VIDYAPRASAD
S/O LATE BALACHANDRA
AGED ABOUT 48 YEARS
8. SRI.B.B. VINAYA
S/O LATE BALACHANDRA
AGED ABOUT 48 YEARS
9. SMT. CHANDRALAXMI NARAYANA
W/O LAKSHMI NARAYANA
AGED ABOUT 71 YEARS
ALL ARE RESIDING
AT BETOLI VILLAGE
VIRAJPET TALUK
KODAGU DISTRICT-571218.
10. SMT. B.T. ANANDI
D/O THIMMAIAH
AGED BOUT 71 YEARS,
RESIDING AT NATARAJA SHRITRAMA
KUDUPAJE, SULLIA TALUK
DAKSHINA KANNADA-574239.
11. SRI. JOSEPH SEBASTIN
S/O DEVASIA
AGED ABOUT 68 YEARS
RESIDING AT BETOLI VILLAGE
VIRAJPET TALUK
KODAGU DISTRICT-571218.
...RESPONDENTS
(BY SRI. DEVAIAH I.S., ADVOCATE FOR R6, R7, R8 AND R11;
R9 AND R10 SERVED)
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RSA No. 1243 of 2023
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THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.06.2023.
PASSED IN R.A.NO.07/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE, VIRAJPET, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 21.02.2019
PASSED IN O.S.NO.70/2008, ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE, VIRAJPET.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. This matter is listed for admission. Heard
counsel for the appellant and also the learned counsel for
the respondents.
2. This second appeal is filed against the
concurrent finding of the Trial Court as well as the First
Appellate Court.
3. The factual matrix of case of the plaintiffs
before the Trial Court in O.S.No.70/2008 that they are
entitled to recover the possession of suit schedule
property in pursuance of judgment passed in
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O.S.No.66/1993 and O.S.No.14/2003 since the Court has
declared that the suit schedule properties are the joint
family properties. The defendant No.1 appeared and filed
the written statement contending that suit itself is not
maintainable and also contend that this Court has no
pecuniary jurisdiction to try the suit and also took the
defense that the suit is bad for non-joinder of necessary
parties and also suit is barred by limitation.
4. The Trial Court having considered the grounds
which have been urged in the suit as well as the
contentions raised by the defendant framed the issues and
allowed the parties to lead evidence. The plaintiff No.1 got
examined himself as P.W.1 and got marked document
Ex.P.1 to Ex.P.28 and also examined one witness as
P.W.2. On the other defendant is examined himself as
D.W.1 and got marked document Ex.D.1 to Ex.D.41. The
Trial Court having considered the material on record and
also considering the judgment passed in O.S.No.66/1993
and O.S.No.14/2003 comes to the conclusion that already
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decision was taken with regard to property is a joint family
properties and plaintiffs are entitled for recovery of the
possession of the scheduled property in pursuance of the
judgment and decree and all other issues which have been
framed in view of the defense taken by the defendants
were answered as negative and partly decreed the suit in
directing the defendant No.1 to hand over the possession
of the suit schedule property to the family of the
B.L.Thimmaiah and Billavara Lingappa without mesne
profits, the same is challenged before the Appellate Court
in R.A.7/2019.
5. The Appellate Court having taken note of the
grounds which have been urged in the appeal and also the
oral and documentary evidence available on record,
formulated the point whether the suit filed by the plaintiff
seeking the relief of possession without seeking the relief
of declaration is maintainable and also whether the
plaintiffs are entitled for the possession of the suit
schedule property and once again point for consideration
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for non-joinder of necessary parties was also considered
and whether it requires interference of finding of the Trial
Court.
6. The First Appellate Court having re-assessed
the material available on record and also considering the
grounds, comes to the conclusion that suit is maintainable
without seeking the relief of declaration and also negatived
the ground which have been raised in the appeal also with
regard to the non-joinder of necessary parties and
confirmed the judgment of the Trial Court and dismissed
the appeal.
7. Being aggrieved by the concurrent finding, the
present second appeal is filed before this court. The main
contention of the counsel appearing for the appellant
would vehemently contend that when the appellants are
claiming right based on the document of Ex.D.19 and
Ex.D.37 and non-examination of those rendered a gross
negligence and also counsel who vehemently contend that
the theory of res judicata doesn't arise in the place as
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there was no issue, adjudication, reasonings and not even
whispered about the existence of document Ex.D.19 and
Ex.D.37.
8. The counsel also vehemently contend that when
the Ex.D.19 and Ex.D.37 was produced, even in the earlier
suit in a common judgment also, the same is marked and
no reasoning was given with regard to the documents of
Ex.D.19 and Ex.D.37. The counsel would vehemently
contend that this Court has to frame a substantive
question of law Whether the Courts below have rightly
arrived at a just decision of the case without looking
discussing and not arraying any reasons through the
registered document of Ex.D.37 produced in
O.S.No.66/1993 and Ex.D.19 in O.S.No.70/2008 of the
sale deed of the year 1982 since the appellant had
purchased the suit schedule property and enjoying the
peaceful possession of the property and without
considering the said document, question of handing over
the possession doesn't arise. The counsel also would
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vehemently contend that granting of possession by both
the Trial Court and affirming the same, only relying upon
the judgment and decree passed in O.S.No.66/1993 and
O.S.No.14/2003 is erroneous and to that effect also frame
a substantive question of law.
9. Per Contra, the counsel appearing for the
respondents would vehemently contend that when the
document was relied upon before the earlier original suit
and the judgment and decree passed in O.S.No.66/1993
and O.S.No.14/2003 attained its finality, question of
re-agitating the same in the present second appeal doesn't
arise and the appellant cannot raise the said issue in the
present appeal in not challenging the earlier judgment and
decree passed in O.S.No.66/1993 and O.S.No.14/2003.
The Trial Court having considered the material on record
and particularly judgment and decree, answered the issue
No.1 as affirmative and comes to the conclusion that
property belongs to the joint family property and when
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such declaration was made in the earlier suit and again
cannot raise the said question.
10. The counsel also vehemently contend that both
the Courts even considered the issue of non-joinder of
necessary parties and also the judgment and decree
passed in O.S.No.70/2008 is very clear to deliver the
possession of the suit schedule property to the family of
B.L.Thimmaiah and Billavara Lingappa and when such
judgment was passed, now again he cannot contend that
the legal representatives of the Billvara Lingappa were not
made as parties and the same has been considered by
both the Courts. Hence, question of admitting and framing
substantive question of law doesn't arise.
11. Having heard the appellant's counsel and also
the counsel appearing for the respondents and also in the
earlier judgment in O.S.No.66/1993 and O.S.No.14/2003,
the suit was decreed declaring that plaintiffs are not bound
by the sale deed bearing No.179/9192 dated 01.07.1991
executed by defendant Nos.2 to 4 in favour of 1st
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defendant which is registered with the Sub-Registrar
Virajpet and also the relief of mandatory injunction and
claim for damages was dismissed and counter claim made
by the defendant was also dismissed in entirety and suit
filed by the O.S.No.14/2003 is decreed in part that relief
of declaration claimed by the plaintiff in respect of his
ownership over the suit 'B' schedule property is also
dismissed and relief of declaration claimed by the plaintiff
that the exchange deed bearing No.547/1988 dated
21.03.1988 and sale deed bearing No.58/1989 dated
29.04.1988 registered with the Sub-Registrar, Virajpet is
also not binding on the plaintiff is hereby allowed and
relief of permanent injunction claimed by the plaintiff in
respect of 'B' schedule property is also allowed and further
ordered that the defendant or his any persons claiming
under the defendants are hereby restrained by way of
permanent injunction not to interfere with the possession
and enjoyment of suit schedule property by the plaintiff.
However, this relief of permanent injunction shall not
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come in the way of the plaintiffs in O.S.No.66/1993 to
enforce their rights against the plaintiffs in
O.S.No.14/2003 in accordance with law. Having
considered this judgment, it is very clear that the liberty is
given to the plaintiffs in O.S.No.66/1993 to enforce their
rights against the plaintiffs in O.S.No.14/2003 in
accordance with law. Hence, it is very clear that suit in
O.S.No.66/1993 is decreed declaring that plaintiffs are not
bound by the sale deeds which has been claimed by the 1st
defendant and also made it clear that liberty is given to
claim the relief and accordingly they filed a separate suit
in O.S.No.70/2008.
12. The Trial Court while considering the relief
sought in O.S.No.70/2008, having considered the
judgment passed in O.S.No.66/1993, which is marked as
Ex.P.17, comes to the conclusion that already declared
that sale deed is not binding and also liberty was given to
file a suit for claiming possession and considering the
same while answering the issue No.1 comes to the
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conclusion that in the absence of declaration, suit is
maintainable since already the judgment and decree was
passed in favour of the plaintiff in O.S.No.70/2008.
13. The First Appellate Court having re-assessed
the material available on record, particularly taking into
note of earlier judgment passed in the common Judgment
of O.S.No.66/1993 and O.S.No.14/2003 comes to the
conclusion that even in the absence of seeking the relief of
declaration, suit is maintainable for seeking the relief of
possession and in the earlier judgment also given the
liberty to file a suit against the plaintiffs in
O.S.No.14/2003. It is also not in dispute that the
judgment and decree passed in the earlier suit in
O.S.No.66/1993 and O.S.No.14/2003 has attained finality
and the same is taken note of and the appellant's counsel
also not disputes the fact that the judgment and decree of
O.S.No.66/1993 and O.S.No.14/2003 has attained its
finality and when such being the case, now he cannot
contend that Ex.P.19 was not considered before the Trial
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Court in O.S.No.66/1993 and even if such document was
not considered the appellant ought to have been
challenged such judgment and decree and keeping quiet
without challenging the same, once again he cannot re-
agitate before this Court contending that the original
earlier sale deed of the year 1982 was not considered and
hence the very contention of the appellant's counsel that
Ex.D.37 and Ex.D.19 are produced in O.S.No.66/1993
and O.S.No.70/2018 and substantive question of law
doesn't arise since when the appellant has suffered a
judgment and decree in the earlier common judgment of
O.S.No.66/1993 and O.S.No.14/2003 and question of re-
agitating the same in the present suit doesn't arise. when
the judgment and decree has attained its finality. Hence,
question of framing substantive question of law as
contended by the counsel appearing for the appellant
doesn't arise. When both the Courts having taken note of
the judgment and decree passed in the earlier common
judgment and the same has attained finality and based on
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the said judgment only they have filed a suit for the relief
of handing over the possession and also in the earlier suit,
Court has declared that the same is the joint family
property and earlier sale deed is not binding and when
such reasoning is given and the same has been considered
by the Trial Court and also the Appellate Court, question of
once again considering the factual finding by framing a
substantive question of law doesn't arise when there was
no any perversity in the finding of the Trial Court as well
as the Appellate Court having considered the material on
record. Hence, I do not find any ground to admit and
frame substantive question of law.
14. In view of the discussions made above, I pass
the following:
ORDER
i) The Second Appeal is dismissed.
ii) The counsel appearing for the
respondent Nos. 1 to 5 who has not
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filed the GPA on behalf of respondent
nos. 1 to 5 is permitted to file the
GPA within 3 days from today.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
