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Karnataka High Court
Abdul Khadarsab Goresab Arekatti vs Puttappa Channaveerappa Hullatti on 10 March, 2026
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NC: 2026:KHC-D:3796
RSA No. 459 of 2008
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 10TH DAY OF MARCH 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
REGULAR SECOND APPEAL NO. 459 OF 2008 (INJ)
BETWEEN:
1. ABDUL KHADARSAB GORESAB AREKATTI,
SINCE DEAD BY HIS LR'S.
1.A) SMT. FATIMABHAI
W/O. ABDULKHADARSAB AREKATTI,
AGE: 65 YEARS, OCC: HOUSEHOLD,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.B) HUSHENMIYA
S/O. ABDULKHADARSAB AREKATTI,
AGE: 48 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
Digitally signed
by GIRIJA A.
BYAHATTI
Location: HIGH
COURT OF 1.C) SMT. NOORJANBI
KARNATAKA,
DHARWAD
BENCH
W/O. BASHEER AHAMED MULLA,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.D) MOHAMMAD SHARIF
S/O. ABDULKHADARSAB AREKATTI,
AGE: 43 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
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RSA No. 459 of 2008
HC-KAR
1.E) SMT. FARIDHABI
W/O. ABDUL WAHAB WALIKAR,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O AGASANAHALLI VILLAGE,
TQ: BYADI, DIST: HAVERI.
1.F) NURAHAMMED
S/O. ABDULKHADARSAB AREKATTI,
AGE: 39 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.G) MAHABUBALI
S/O. ABDUL KHADARSAB AREKATTI,
AGE: 39 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.H) HAZARATALI
S/O. ABDULKHADARSAB AREKATTI,
AGE: 35 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.I) SMT. JAMALBI
W/O. HABIBULLA TALAGERI,
AGE: 33 YEARS, OCC: HOUSEHOLD,
R/O. MOTEBENNUR VILLAGE,
TQ: BYADI, DIST: HAVERI.
1.J) JAFARSHARIF
S/O. ABDUL KHADARSAB AREKATTI,
AGE: 31 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
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RSA No. 459 of 2008
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1.K) ALLABHAKSH
S/O. ABDULKHADARSAB AREKATTI,
AGE: 29 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.L) JAMALSAB
S/O. ABDULKHADARSAB AREKATTI,
AGE: 27 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
1.M) ASIF ALI
S/O. ABDULKHADARSAB AREKATTI,
AGE: 23 YEARS, OCC: MASON,
R/O. CHOUDESHWAEI BADAWANE,
MEDLERI ROAD, RANEBENNUR,
TQ: RANEBENNUR, DIST: HAVERI.
2. GOUSUSAB GORESAB AREKATTI,
56 YEARS, R/O. RANEBENNUR,
DIST: HAVERI -581 115.
...APPELLANTS
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND:
PUTTAPPA CHANNAVEERAPPA HULLATTI,
SINCE DEAD BY LR'S-
1. KOTRAVVA, 64 YEARS,
W/O. PUTTAPPA HULLATTI,
R/O. RANEBENNUR,
DIST: HAVERI-581 115.
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RSA No. 459 of 2008
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2. ANNAPURNA, 54 YEARS,
W/O. MUKESHAPPA KATTI,
R/O. CHITRADURGA-577 501.
3. NAGARATNA, 52 YEARS,
W/O. SHEKHAR BENTUR,
R/O. GADAG-582 101.
4. RAJU, 45 YEARS,
S/O. PUTTAPPA HULLATTI,
R/O. RANEBENNUR,
DIST: HAVERI-581 115.
5. RUDRESH, 35 YEARS,
S/O. PUTTAPPA HULLATTI,
R/O. RANEBENNUR,
DIST: HAVERI-581 115.
6. SHIVALINGAYYA RUDRAYYA KAYALADAMATH,
MAJOR (CORRECT AGE IS NOT KNOWN)
KUMBAR ONI, R/O. RANEBENNUR,
DIST: HAVERI-581 115.
...RESPONDENTS
(BY SRI. G.K. HIREGOUDAR, ADVOCATE FOR R1-R5;
SRI. GIRISH A. YADAWAD, ADVOCATE FOR
SRI. PRUTHVIRAJ P. HITTALAMANI, ADVOCATE FOR R4;
NOTICE TO R6 IS DISPENSED WITH V/O DATED 04/12/12)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE IN R.A.NO.39 OF
1999 DATED 23.01.2008 PASSED BY THE ADDITIONAL CIVIL
JUDGE (SR.DN) AT RANEBENNUR AND RESTORE THE JUDGMENT
AND DECREE IN O.S.224 OF 1993 DATED 03.02.1999 PASSED
BY THE PRL. CIVIL JUDGE (JR.DN) AT RANEBENNUR BY
ALLOWING THIS RSA WITH COSTS, IN THE INTEREST OF
JUSTICE.
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RSA No. 459 of 2008
HC-KAR
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 06.03.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THIS COURT
DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
CAV JUDGMENT
1. This is the appeal filed by defendants/appellants under
Section 100 of the Code of Civil Procedure, challenging
the judgment and decree dated 23.01.2008 passed in
R.A.No.39/1999 on the file of the Additional Senior Civil
Judge (Sr.Dn.), Ranebennur (hereinafter referred to as
'the First Appellate Court', for short) and praying for
confirmation of the judgment and decree dated
03.02.1999 passed in O.S.No.224/1993 on the file of
the Principal Civil Judge (Jr.Dn.) and I Additional JMFC,
Ranebennur (hereinafter referred to as 'the Trial Court',
for short).
2. The parties would be referred with their rankings as
they were before the trial Court, for the sake of
convenience and clarity.
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3. The brief facts of the case are;
3.1. The plaintiff has filed the suit before the Trial
Court claiming for the relief of permanent
injunction restraining the defendants from
trespassing or encroaching upon the suit
Schedule ABCD properties and to restrain them
from putting up any chappar or permanent
structure at points GHI and J as shown in the
rough sketch annexed to the plaint; for court
costs and for other appropriate reliefs.
3.2. The case of plaintiff before Trial Court in nutshell
is that plaintiff is the owner in possession and
enjoyment of property bearing Re-survey
No.792/5B, totally measuring 26½ guntas, which
he purchased under two separate registered sale
deeds dated 10.03.1975 and 15.10.1975. After
the purchase, he converted the land for non-
agricultural purpose and formed six residential
plots, out of which, he sold four residential plots
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bearing Nos.3 to 6 and retained two plots,
namely Plot Nos.1 and 2, which are shown with
letters ABCD in rough sketch annexed to the
plaint. He contended that, after such purchase,
his name was entered in the revenue records in
respect of the said properties. He has described
the said ABCD property as 'A' Schedule in the
suit, and described CDEF property as 'B'
Schedule in the rough sketch annexed to the
plaint.
3.3. According to the plaintiff, the property shown
adjacent to it in the sketch belongs to the
defendants. The defendants are trying to
trespass and encroach upon the suit 'A' Schedule
property illegally and are attempting to put up
chappar at the points shown as GHI in the hand
sketch, and are also attempting to put up a
permanent structure at point J as shown in the
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rough sketch annexed to the plaint. Hence, he
prayed for appropriate reliefs.
3.4. Defendant No.1 filed his written statement,
which is being adopted by Defendant No.2. In
the written statement, Defendants No.1 and 2
have taken contention that the rough sketch
produced along with the plaint is incorrect. The
defendants produced a rough sketch along with
the written statement.
3.5. In that rough sketch, the properties shown with
letter EFGH and ABCD are in the possession of
Defendants No.1 and 2, and in between EFGH
and ABCD, there are some other properties
which are in the possession of third parties who
are not parties to the suit.
3.6. It is contended that, there exists a pathway
between the properties of Defendants No.1 and 2
and property of the plaintiff. In the sketch
produced by them, the property of the plaintiff is
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shown as OPQRST. They have also explained in
the written statement how the property shown
as EBCH came to the family of the defendants.
3.7. The defendants have further taken a specific
contention in the written statement that the
plaintiff had earlier filed O.S.No.30/1979 in
respect of the entire extent of 26½ guntas in
R.S.No.702/5B against these defendants and
others, and the said suit was dismissed on
19.01.1988. Against the said dismissal, the
plaintiff preferred RA No.21/1988, which was
also dismissed and the judgment attained
finality. Hence, according to the defendants, the
present suit is barred by the principles of res
judicata.
3.8. Based on the above pleadings, the Trial Court
has framed the following issues:
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1. Whether suit is hit by principles of res-
judicata in view of judgment in O.S.
No.30/1979?
2. Whether plaintiff prove that, he was in
possession of the suit property, as on the
date of suit?
3. Whether plaintiff prove that, defendants are
trying to make construction illegally by
encroaching the suit 'A' property at points
'GHI' & 'J' as shown in the hand sketch?
4. Whether plaintiff entitled for the relief sought?
5. What order or decree?
3.9. After recording the evidence of both sides and
hearing the arguments, the Trial Court dismissed
the suit of plaintiff holding that he failed to
establish his lawful possession and enjoyment
over the suit property as on the date of filing of
the suit.
3.10. Aggrieved by the said judgment and decree, the
plaintiff preferred R.A.No.39/1999. The said
appeal was allowed holding that the plaintiff is
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entitled for the relief of permanent injunction as
prayed in the plaint.
3.11. Aggrieved by the judgment and decree passed in
R.A. No.39/1999, the present appeal is filed by
Defendants No.1 and 2.
4. After hearing both sides, at the time of admission of the
appeal, the following substantial questions of law were
framed on 05.08.2008:
i. Whether the present suit
(O.S.No.224/1990) is barred on the principles of
res-judicata in view of the dismissal of the
previous suit in O.S.No.30/1979 between the
same parties and whether the Lower Appellate
Court was justified in reversing the decree of the
trial court on the question of res-judicata?
ii. Whether the Lower Appellate Court was
right in decreeing that he has failed to prove the
lawful possession of the suit property as on the
date of suit and in the face of the admission of
the plaintiff that defendants 1 & 2 were in
possession of the said property?
5. Re: Point No.(i):
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5.1. Before Trial Court, plaintiff has filed
O.S.No.224/1993 seeking the relief of permanent
injunction restraining the defendants from
encroaching upon or trespassing over the suit 'A'
schedule property. The plaintiff has described the
suit 'A' schedule property as Plot No.1 situated in
R.S.No.792/5B measuring 39+43/2 × 108 feet
and Plot No.2 situated in the same survey
number measuring 43 × 108 feet, which are
shown in the hand sketch annexed to the plaint
by the letters ABCD. Either in the plaint or in the
rough sketch, the plaintiff has not mentioned the
boundaries of the said property.
5.2. The defendants have produced the certified copy
of the judgment passed in the earlier suit,
namely, O.S.No.30/1979, as per Ex.D.2 and copy
of the plaint in the said suit as per Ex.D.1. These
two documents reveal that the present plaintiff
had filed a suit for the relief of permanent
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injunction against present defendants No.1 and 2
and others in respect of R.S.No.792/5B totally
measuring 26½ guntas with the following
boundaries:
Towards East - land of Nurandevarmath;
Towards West- land of Maritammappa Harapanahalli;
Towards North - land of Mallappa Mallavalli;
And towards South - Ranebennur-Medleri Road.
5.3. In the present suit, the plaintiff has contended
that the said 26½ guntas was purchased by him
under two separate registered sale deeds of the
year 1975, one in respect of 19½ guntas and
another in respect of the remaining 7 guntas,
from the erstwhile owners, and thus, he was in
possession of the said property and thereafter he
got it converted into non-agricultural land,
formed residential plots, sold four plots bearing
Nos. 3 to 6, and retained Plot Nos. 1 and 2.
However, as discussed earlier, he has not shown
the boundaries of these two plots.
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5.4. The above facts alleged by him reveal that these
two plots are part and parcel of the property
purchased by him under the above two
registered sale deeds.
5.5. A perusal of the certified copy of the judgment
passed in O.S.No.30/1979 reveals that the Court
had already held that the plaintiff failed to prove
his possession over the said property measuring
26½ guntas and thereby dismissed the suit.
5.6. Against the judgment and decree passed in
O.S.No.30/1979, the plaintiff had filed
R.A.No.21/1988, which also came to be
dismissed for default. Thus, the said finding has
attained finality.
5.7. Admittedly, the present suit schedule property
was part and parcel of the suit schedule property
involved in the earlier suit O.S.No.30/1979.
When the plaintiff failed to establish his peaceful
possession over the suit 'A' schedule property in
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the earlier suit, he cannot establish that he is in
possession of the said property after disposal of
the said suit. There is no pleading that after
disposal of the earlier suit the plaintiff
subsequently acquired possession of the suit
schedule property and that thereafter the alleged
interference by the defendants arose.
5.8. If really the plaintiff was the owner of the
property, it was incumbent upon him to file a suit
for declaration declaring his title over the suit 'A'
schedule property and pray for consequential
relief of possession. However, instead of doing
so, the plaintiff has filed another suit for the
same relief of permanent injunction. Considering
these aspects, the Trial Court has rightly
dismissed the suit of the plaintiff.
5.9. The First Appellate Court in its judgment held
that the plaintiff had already converted his
property for non-agricultural purpose and
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thereby established his possession over the suit
'A' schedule property. However, admittedly, the
plaintiff has not produced any iota of material to
show that he has converted his property into
non-agricultural purpose. Hence, the said
finding recorded by the First Appellate Court is
apparently erroneous.
5.10. Furthermore, the First Appellate Court has
observed that there is a prima facie case and
balance of convenience in favour of the plaintiff,
which are not the criteria for granting the relief
of permanent injunction in a judgment. Those
are the criteria only for deciding interim
applications for grant or refusal of temporary
injunction.
5.11. Thus, the First Appellate Court has failed to apply
the settled principles of law and has wrongly
come to the conclusion that the plaintiff has
established his possession over the suit 'A'
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schedule property and decreed the suit, which is
erroneous and requires interference.
5.12. When the earlier suit for permanent injunction
was dismissed and when the plaintiff has not
produced any material to show that after
dismissal of the said suit he acquired possession
of the suit 'A' schedule property, then definitely
dismissal of the earlier suit operates as res
judicata for him to file a fresh suit. Accordingly,
first part of point No.(i) is answered in the
Affirmative and II part of point No.(i) in
Negative.
6. Re: Point No.(ii):
6.1. As discussed above, the First Appellate Court
was not justified in decreeing the suit when the
plaintiff had failed to establish his lawful
possession over the suit 'A' schedule property as
on the date of the suit.
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6.2. Accordingly, point No.(ii) is answered in the
Negative.
7. In view of the findings on point Nos.(i) and (ii) above, I
pass the following:
ORDER
i. The appeal filed under Section 100 of the
Code of Civil Procedure is allowed.
ii. The judgment and decree dated 23.01.2008
passed in R.A.No.39/1999 on the file of the
Additional Senior Civil Judge (Sr.Dn.),
Ranebennur, is set aside.
iii. The judgment and decree dated 03.02.1999
passed in O.S.No.224/1993 on the file of the
Principal Civil Judge (Jr.Dn.), Ranebennur,
dismissing the suit is hereby confirmed.
Sd/-
(GEETHA K.B.)
JUDGE
gab
CT-MCK
List No.: 1 Sl No.: 50
