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)
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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.
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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.
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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.
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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
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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.
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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
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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
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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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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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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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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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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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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
1
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
2
(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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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
3
(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 of4
(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 the5
(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 qua6
2019 SCC 3056
– 35 –
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C/W RSA No. 100064 of 2020non 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
– 36 –
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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 of7
(2020) 4 SCC 649
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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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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.
– 40 –
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RSA No. 100065 of 2020
C/W RSA No. 100064 of 2020It 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
law as required under section 100 of Cr.P.C.
30. After the conclusion of proceedings, Sri. G. I.
Gachchinamath, learned counsel appearing for appellant
Nos.1 and 2, on instructions, submitted that the appellants
were residing in the first floor of the suit schedule property
for more than four decades, he further submitted that, the
appellants herein shall file an affidavit with an undertaking
that they shall vacate the suit schedule property within
two months from today, subject to preferring an appeal
before the Hon’ble Supreme Court.
31. Learned counsel appearing for the respondent,
Sri. Arun L. Neelopant, opposed the said submission made
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by the learned counsel appearing for the appellants,
however, taking into consideration the hardship that may
be caused to the appellants, I find force in the submission
made by the appellants taking into consideration the age
of the appellant No.1 as 65 years, two months time is
granted to stay in the suit schedule property, in terms of
the undertaking that may be filed by the appellants.
32. In view of disposal of appeals, pending
interlocutory applications, if any, do not survive for
consideration and are disposed off accordingly.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM / CT:ANB
List No.: 1 Sl No.: 19
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