Karnataka High Court
Sri. S V Somashekar vs Sri. Siddaramaiah on 26 March, 2025
Author: K.Natarajan
Bench: K.Natarajan
1 RFA NO.1246/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO.1246 OF 2019(DEC/INJ)
BETWEEN:
SRI. S. V. SOMASHEKAR
S/O LATE VENKATAPPA,
AGED ABOUT 66 YEARS,
R/AT SHIVAPURA VILLAGE,
PEENYA POST,
BENGALURU-560058.
...APPELLANT
(BY SRI. RAJESWARA P. N. ADVOCATE)
AND
1. SRI. SIDDARAMAIAH
S/O LATE MUNICHIKKAIAH,
AGED ABOUT 66 YEARS,
R/AT SUNKADAKATTE VILLAGE,
MAGADI ROAD, BENGALURU-560091.
2. SRI B.S.MARISWAMAPPA
S/O LATE SHANKARAPPA,
AGED ABOUT 61 YEARS,
3. SRI B.S.NEELAKANTA
S/O LATE SHANKARAPPA,
AGED ABOUT 59 YEARS,
RESPONDENT NO.2 AND 3 ARE
R/AT NO.36/1, OBAIAH LANE,
AKKIPET, BENGALURU-560053
ABDUL KAREEM SAB
SINCE DEAD BY LRS.
2 RFA NO.1246/2019
4. M.D.SAMIULLA,
S/O LATE ABDUL KAREEM SAB,
AGED ABOUT 63 YEARS,
5. M.D ZABIULLA
S/O LATE ABDUL KAREEM SAB,
AGED ABOUT 56 YEARS,
6. M.D.RASIULLA
S/O LATE ABDUL KAREEM SAB,
AGED ABOUT 49 YEARS,
7. MUJEEBA
D/O LATE ABDUL KAREEM SAB,
AGED ABOUT 61 YEARS,
8. SHAHEEN TAJ
D/O LATE ABDUL KAREEM SAB,
AGED ABOUT 59 YEARS,
9. SAYEDUNNISSA
D/O LATE ABDUL KAREEM SAB,
AGED ABOUT 51 YEARS,
10 . NASREEN TAJ
D/O LATE ABDUL KAREEM SAB,
AGED ABOUT 51 YEARS,
1(A) TO 1(G) ALL ARE
R/AT NO.2, II CROSS, 4TH MAIN,
M.K.COMPUND, A.D.HALLI,
BENGALURU-560079
11 . SRI SHYAMSUNDAR
S/O H.NARAYANA RAO,
AGED ABOUT 68 YEARS,
R/AT NO.39/125, VIJAYANAGAR,
BENGALURU-560040
12 . MOHAMMED RAFFEQ
S/O AZEEM SAB,
AGED ABOUT YEARS,
R/AT NO.7-32,12TH MAIN,
3RD BLOCK, RAJAJINAGAR,
3 RFA NO.1246/2019
BENGALURU-560010
13 . SMT. NIKITH PARVEEN
W/O KHAJA MOHIDDIN ABID,
AGED ABOUT 55 YEARS,
R/AT SABJAN STORES, B.H.ROAD,
BHADRAVATHI, SHIMOGA DISTRICT.
14 . DR. MOHAMOOD ALTAF HUSSAIN
S/O HUSSAIN PEERAN,
AGED ABOUT 65 YEARS,
R/AT NO.732, 12TH MAIN,
3RD BLOCK, RAJAJINAGAR,
BENGALURU-560010
15 . SRI MONOHAR RAMACHANDRA MAHALE
S/O RAMACHANDRA V. MAHALE,
AGED ABOUT 65 YEARS,
R/AT NO.4/8, 1ST FLOOR, 1ST CROSS,
OKALIPURAM, BENGALURU- 560021
..RESPONDENTS
(BY SRI.M. R. RAJAGOPAL, SR. COUNSEL FOR
SRI. ABHINAY Y. T., ADVOCATE FOR R2;
SRI. C. SHANKAR REDDY, ADVOCATE FOR R1(ABSENT)
SRI. K. SHIVAJI RAO, ADVOCATE FOR R3;
SRI. H. R. SHRIDHARAMURTHY, ADVOCATE
FOR R5, R6, R8 AND R9;
SRI. TAJUDDIN, ADVOCATE FOR R13;
R4, R7, R10, R15 ARE SERVED;
V/O DATED 24.06.2024 NOTICE TO
R11, R12 R14 ARE H/S;
SRI. K. VIJAYAKUMAR, ADVOCATE FOR
PROPOSED R16, R17
AND R18 AND ALSO FOR R2;
FOR PROPOSED R19 SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SEC.96
OF CPC., 1908 PRAYING TO (I) CALL FOR RECORDS IN
O.S.NO.4166/2004 ON THE FILE OF THE HON'BLE VII
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
4 RFA NO.1246/2019
CITY (CCH-19); (II) SET ASIDE THE JUDGMENT AND DECREE
DATED 23.02.2019 PASSED BY THE HON'BLE VII ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY (CCH-19)
IN O.S.NO.4166/2004.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 12.02.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 12.02.2025
PRONOUNCED ON: 26.03.2025
CAV JUDGMENT
This appeal is filed by the appellant/plaintiff under section
96 of CPC for setting aside the judgment and decree passed by
the VII Additional City Civil and Sessions Judge Bangalore in
OS No.4166/2004 for having dismissed the suit of the plaintiff
dated 23.02.2019.
2. Heard the arguments of learned counsel for the
appellant and learned senior counsel for the respondent No.2
and other respondents.
3. The ranks of the parties before the trial court are
retained for the sake convenience.
5 RFA NO.1246/2019
4. The case of the plaintiff before the trial court is that
the plaintiff filed a suit for relief of declaration;
(i) That the act of defendant No.1 in claiming any share
in Survey No.73 of Srigandhadakaval, Sunkadakatte village,
Magadi Road, Yashwanthapura Hobli, Bangalore North Taluk
under, sale deed dated 18.01.1963, the decree passed in
O.S.No.542/1970 and orders passed in FDP No.39/1982 and
also dismissed the suit in OS.No.5244/1988 are ‘non est’ in law
and does not confer any right on the defendant Nos.2 and 3 or
their predecessor.
(ii) For declaration that the decree passed in OS
No.553/1989 and in OS.No.1466/1992 and related appeals in
RFA Nos.79 and 80 of 2002, are not binding on the plaintiff or
affecting their interest in any manner in respect of property
guidelines of survey No.73, Srigandhadakaval, Sunkadakatte
village, Magadi Road, Yashwanthapura Hobli, Bangalore North
Taluk, measuring 8 acres 3 guntas situated in middle of the old
survey No.73 fallen to the share of Munichikkaiah and
consequential relief of injunction.
5. The contention of the plaintiff is that the dry land
bearing survey No.73, Srigandhadakaval village, totally
6 RFA NO.1246/2019
measures 35 acres and 20 guntas belongs to three persons
namely (1) Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and
(3) Munishami S/o Ramaiah. These persons have divided the
lands and middle portion which was fallen to the share of
Munishami S/o Ramaiah measuring 14 acres. Munishami’s son
Munichikkaiah inherited the said property and Munishami who
is son of Ramaiah portioned the said property somewhere in
the year 1960. Ramaiah and his brother Kempanna had
partitioned their ancestral property in the year 1904-1909. The
said Kempanna had a son by name Chikkaveerappa. His wife
Poojamma succeeded to the ancestral properties of
Chikkaveerappa. After the death of Chikkaveerappa who died
issueless, his wife Poojamma sold her share in the joint family
properties to her own brother Pillappa, who in turn sold the
same to one B.M.Shankarappa under a registered sale deed
dated 18.01.1963. The said B.M.Shankarappa is none other
than the father of defendants No.2 and 3 herein.
6. It is further contended that the said B.M.Shankarappa
filed a suit for partition of his 1/6th share purchased by him out
of 35 acres 20 guntas from Pillappa in O.S.No.542/1970.
Munichikkaiah i.e., father of defendant No.1 filed a suit in
O.S.No.5244/1988 for declaration that the sale deed dated
7 RFA NO.1246/2019
03.06.1953 executed by Poojamma in favour of her brother
Pillappa is a sham document and thereby the decree passed in
O.S.No.542/1970 based on the said sale deed is null and void
and also sought for permanent injunction. .
7. It is further contented that in pursuance to the
judgment and decree in OS No.542/1972 for having decreed
the suit and filed FDP No.30/1982 and further RFA No.79 and
80 of 2002 were preferred by Siddaramaiah and the plaintiffs
herein. The preliminary decree passed on 10.10.1977 has now
become 26 years old and incapable of being executed and the
whole process is barred by time. It is also contended that
proceedings initiated by B.M.Shankarappa has become
infructuous and is barred by time. After the death of
Munichikkaiah, his son Siddaramaiah, the defendant No.1,
herein was interested in putting the suit schedule property to
urban use and in a process to involve others financially also. In
that exercise, executed joint power of attorney in favour of
plaintiffs No.1 and 2 under General Power of Attorney dated
08.10.1992 with an understanding that plaintiffs should invest
money and develop the property and agreements to sell the
entire lands to plaintiff Nos.1 and 2 executed on 05.04.1983,
04.12.1987 and 12.09.1992. The plaintiffs in pursuance of
8 RFA NO.1246/2019
same acquired vested right in the suit schedule property and
also with firm understanding with Siddaramaiah, the defendant
No.1 herein.
8. It is further contended that plaintiff Nos.1 and 2 had
formed a layout in respect of this entire suit schedule property
and various sites have been sold to various purchasers either
under sale deeds or under irrevocable power of attorney to a
large number of people and 150 sites have been formed in the
suit schedule property. This is in full knowledge of defendant
No.1 and also the other defendants herein. There is existence
of houses, industries put up by the concerned purchasers with
electricity and water connection in respect of sites formed in
suit schedule property. Pillappa, the brother of Poojamma
never derived any right to the property and thereby never
transferred any right to father of defendants No.2 and 3,
B.M.Shankarappa. The said B.M.Shankarappa also not in
possession of any portion of the property in Survey No.73 and
further, O.S.No.5244/1988 had been filed by father of
defendant No.1, Munichikkaiah challenging the entire
proceedings in O.S.No.542/1970. Considering that the
property is slipping from their hands, defendant No.2 filed a
suit in O.S.No.553/1989 against defendant No.1 and also
9 RFA NO.1246/2019
plaintiff Nos.1 and 2 herein in O.S.No.1466/1992. Prior to that,
the very defendant Nos.2 and 3 filed a suit for injunction
against plaintiff Nos.1 and 2 herein and one Krishnappa in
respect of unascertainable property. The plaintiffs Nos.1 and 2
have also filed O.S.No.2327/2003 for enforcement of
agreement to sell in their favour executed by defendant No.1,
the large number of persons having similar rights to various
sites, houses, buildings, existing over suit schedule property,
since the plaintiffs being numerous and the cause of action
being common, it is impracticable to file separate suit by each
site holders and thereby plaintiffs have filed the suit commonly
in a representative capacity involving the provisions on that
behalf under the CPC., and prayed that plaintiff Nos.1 and 2
allowed them to represent and their interest commonly in this
common clause / representative suit, which also avoids
multiplicity of suit in different Courts and possibility of
divergent and conflicting findings.
9. It is further contended that the defendants Nos.2 and
3 brain washed defendant No.1 and managed to see that
defendant No.1 withdraw RFA.No.79 and 80 of 2002
abandoning O.S.No.5244/1988 and same does not bind the
plaintiffs and their rights vested in them. The plaintiffs
10 RFA NO.1246/2019
continues to be in possession of the suit schedule property, as
per the High Court order dated 03.09.2009 passed in
RFA.No.79 and 80/2002 had dismissed the appeals and not
brought in any change of status or possession and thereby the
said order has not affected the plaintiffs possession. The cause
of action for this suit arose when defendant No.1 had
withdrawn the suit in O.S.No.5244/1988 and from the date of
orders passed in RFA.No.80/2002 on 27.08.2003 thereby,
plaintiffs constrained to file this suit for the relief of declaration
to declare the Judgment and Decree stated above has not
been binding on the plaintiffs and their interest. Hence, prayed
for decreeing the suit.
10. In pursuant to the summons issued by the trial
court, the defendant No.1 appeared through counsel. Also
defendant Nos.2 and 3, also appeared through their counsel.
The defendant No.1 filed written statement, accepting that the
suit filed by the plaintiff is hit by the principles of Resjudicata
and plaintiffs have obtained his signatures on blank papers
towards loan transaction and made use of the same as
agreements of sale and power of attorney. Later, having come
to know that the plaintiffs have misused the signatures taken
on blank papers, he has cancelled the power of attorney and
11 RFA NO.1246/2019
also agreement of sale. Therefore, the said agreement of sale
does not confer any right, title, interest or possession over the
suit schedule property to the plaintiffs. It is further contended
that Deputy Commissioner’s Order in pursuant of Judgment and
Decree passed in O.S.No.542/1970, neither he, nor his father
could have executed any documents and the documents
produced are all created to deprive the interest of defendants
Nos.2 and 3, in respect of their property purchased by their
father B.M.Shankarappa under registered sale deed. Hence,
prayed for dismissing the suit.
11. Further, defendants Nos.2 and 3 being children of
B.M Shankarappa filed common written statement asserting
that, the decree obtained in O.S.No.542/1970 filed by their
father has become final and conclusive and final decree drawn
and registered. They are in possession of 5 acres 36 & 2/3
guntas of land in suit survey No.73 as per the division affected
by Deputy Commissioner and they were put in possession of
the same. The father of defendant No.1, filed
O.S.No.5244/1988 challenging the said Judgment and Decree
passed in O.S 542/1970 as null and void was withdrawn.
Thereby, the decree passed in favour of B.M.Shankarappa
cannot be re-opened. The plaintiffs are permanently restrained
12 RFA NO.1246/2019
by virtue of decree passed in O.S.No.553/1989 and
O.S.No.1466/1992. The Judgment and decree passed in the
above two suits have become final and conclusive by virtue of
Judgment passed by the High Court of Karnataka in RFA Nos.79
and 80 of 2002. It is further contended that the suit filed by
the plaintiff is barred by law of Limitation. Neither
Munichikkaiah nor his son Siddaramaiah i.e., defendant No.1,
could have executed any document in favour of the plaintiffs in
pursuance of conclusion of the proceedings in
O.S.No.542/1970. The reliefs sought by the plaintiff are
hopelessly barred by law. These defendants are in possession
of 5 acres 36 & 2/3 guntas in suit survey No.73 and hence
prayed for dismissal of the suit.
12. Based upon the rival contentions, the trial court
framed the following issues, additional issues as under;-
1. Whether the plaintiffs prove that the
decree dated:10.10.1977 regarding partition in
O.S. No.542/1970 on the file of the Learned
2nd Addl.Munsiff, Bangalore or order
dated:21.1.1988 passed in FDP No.39/1982 on
the file of the Learned City Civil Judge,
Bangalore, regarding partition were obtained
by playing fraud / mis-representation and
thereby it is non est in law?
2. Whether the plaintiffs prove that the
dismissal of O.S. No.No.5244/88 on the file of
the learned City Civil Judge, Bangalore, is not
13 RFA NO.1246/2019
in accordance with law and thereby it is non
est?
3. Whether the plaintiffs further prove
that the judgment and decree dated:
30.11.2001 passed in O.S. No.553/1989 and
O.S. No.1466/92 on the file of the Learned City
Civil Judge, Bangalore, are obtained by playing
fraud / misrepresentation and thereby they are
not binding on the plaintiffs?
4. Whether the plaintiffs further prove
that the out come of RFA.No.79/2002 and RFA
No.80/2002 on the file of the Hon’ble High
Court of Karnataka would not bind on the
plaintiffs nor affect their interest in the
schedule land in any manner?
5. Whether the plaintiffs further prove
that they are having right, title and interest
and possession over the suit schedule property
as averred in the plaint?
6. Whether the suit is well within time?
7. Whether the suit value and court fees
paid on the plaint by the plaintiffs are not
proper?
8. Whether the plaintiffs have no cause of
action for filing the suit, as contended in para
Nos.27 and 28 of the written statement of
defendant Nos.2 and 3?
9. Whether the plaintiffs are entitled for
the relief claimed in the suit?
10. What order or decree?
ADDL.ISSUES DT:29.5.2012
1. Whether the 1st defendant proves that
this court has no pecuniary as well as territorial
jurisdiction to entertain the suit?
2. Whether the suit is barred by time?
ADDL.ISSUE DT:19.12.2018
1. Whether suit is hit by the principles of
Res-judicata?
14 RFA NO.1246/2019
13. In order to prove the case of the plaintiff, the
plaintiff No.2 was examined as PW1 and got marked 34
documents and on behalf of defendant Nos.2 and 3, the
defendant No.3 was examined as DW2 and got marked 26
documents out of which Ex.D1 to D3 were not marked during
the cross examination of PW1 and remaining documents were
marked by DW1 in his evidence. After closing both side
evidences, hearing the arguments, the trial court answered
issue Nos.1 to 6 in negative, issue No.7 in affirmative and issue
Nos.8 and 9 in negative. Additional issue No.1 in negative and
additional issue No.2 in affirmative and one more additional
issue in affirmative and finally dismissed the suit of the
plaintiff. Being aggrieved by the same, plaintiffs have filed this
appeal before this court.
14. The counsel for the appellant contented that the trial
court committed error in dismissing the suit and has not
properly appreciated the documents on record. The trial court
also committed error of law in answering the issues against the
plaintiff. It has also overlooked the prayer ‘F’ incorporated by
the plaintiffs as per the order dated 01.02.2009. The
judgement without framing the relevant issues is erroneous.
The trial court not considered the documents and depositions
15 RFA NO.1246/2019
and relevant evidences and arrived at wrong conclusions.
Hence, required for interference by this court. Learned counsel
further contended that the trial court has failed to appreciate
the fact that the FDP proceedings initiated on earlier occasions
were not taken to the logical conclusions. In fact, there is no
demarcation of boundaries by metes and bounds that the
withdrawal of FDP No.39/1982 and withdrawal of the appeal
before the KAT, the decree dated 10.10.1977 in
O.S.No.542/1970 remained a paper decree. In the absence of
demarcation, the boundaries metes and bounds, the defendant
has no right, title or interest over the property. A fraud has
been played by the defendants respondents in getting the
revenue entries by showing the demarcation by metes and
bounds. The trial court also failed to appreciate that the
Poojamma had no right, title, interest over the property as she
was female member prior to 1956 when Hindu Succession Act
came into force, she has no right in the co-parcener of the
property. Therefore, the sale deed dated 3.6.1953 did not
confer any right to the purchasers from Poojamma. The trial
court, not looked into the primary records and there was no
partition earlier, is not correct.
16 RFA NO.1246/2019
15. It is further contended that while answering issue
No.3, the trial court failed to appreciate the proceedings in
O.S.No.542/1970 and FDP No.39/1982 and in O.S No.553/1989
and also in O.S.No.1466/1992. Thus the fraud is played before
the court. The claim of the right though Poojamma is traceable
from the decree dated 10.10.1977 in OS.No.542/1970, there
was no final decree. Therefore, the consequential proceedings
in O.S.No.553/1989 or O.S.No.1466/1992 or RFA No.79 and
80 of 2002 have no bearing on the rights of the appellant. The
trial court has committed error that it is not the case of the
appellant that they have sold the land acquired through power
of attorney and agreement. They only stated that they formed
layout and sites were sold to various persons. Therefore, the
suit should not have been dismissed. In the absence of the
final decree proceedings and the rights of the parties, the
defendants were not at all entitled to interfere with the rights of
the appellant. The trial court committed error in answering an
additional issue No.2, as the suit is barred by time. The cause
of action arose recently when defendant No.1 withdraw
O.S.No.5244/1988 and from RFA.No.80/2002 on 27.8.2003.
The suit was filed in 2004 well within the time. He further
contended that the additional issue No.6 and additional issue
No.2 were answered without referring to any articles of the
17 RFA NO.1246/2019
schedule to the Limitation Act. Answering issue No.1 framed
on 19.12.2018, the suit is barred by principles of res-judicata.
On the basis of the decree, at Ex.D12 in OS No.553/1989 and
O.S.No.1466/1992 has no barring on the plaintiff. The suit is
not barred by the principles of resjudicata. It is further
contended that the trial court has not taken into consideration,
the decree passed in O.S.No.2327/2003 produced in Ex.P26
and a permanent injunctions obtained against Siddaramaiah.
Neelakanta who wanted to implead himself has suffered order
of rejection for impleading. The matter was taken before the
High Court in WP.No.4013/2008, the application was rejected.
Therefore, the question of considering the judgement and
decree passed by the court resulted in traversty of the justice.
16. The trial court ignored the evidence on record and
submission made by the advocate and not applied his mind,
while passing the judgement. Also contended that the orders
in FDP No.30/1982 has been passed directing the Deputy
Commissioner to divide the property. The order of the Deputy
Commissioner has been challenged in appeal No.23/1995 which
was allowed. The KAT set aside the order of Deputy
Commissioner and remitted the matter back. Later, as on the
date of remark, the order passed by the KAT in FDP
18 RFA NO.1246/2019
No.30/1982 was already been withdrawn on 6.1.1985 itself.
The Deputy Commissioner did not pass any fresh order for
division of property by metes and bounds of 5 acres and 36 &
2/3 guntas and no fresh divisions were done in FDP
No.96/2003. The order dated 21.01.1988 passed by the
Deputy Commissioner by suppressing the fact that the final
decree passed in FDP 96/2003 dated 25.8.2004 is non est,
non-existent order of the Deputy Commissioner and no reliance
can be placed upon the same. The trial court also was wrong in
holding that the inter parties judgements do not operate the
res-judicata. The earlier decision proceeded on the assumption
that Poojamma succeeded the property, where she could not
have succeeded the property as a female member. Hence,
prayed for allowing the appeal.
17. Learned counsel also contended that the properties
were already formed layout and sold to various persons and all
the persons cannot join together and file separate suits in order
to protect the interest of the purchasers, the plaintiff filed the
suit in the representative capacity and the same was not
properly appreciated by the trial court. Hence, prayed for
allowing the appeal. Learned counsel also shown a
genealogical tree of the parties. In support of his contention,
19 RFA NO.1246/2019
the learned counsel for the appellant relied upon the judgement
as under,
1. (2010) 10 SCC 677 in the case of Ritesh Tewari and
Another Vs. State of Uttar Pradesh & others.
2. (2011) 14 SCC 770 in case of State of Punjab Vs.
Davinder Pal Singh Bhullar and others.
3. (2024) 3 SCC 563 in the case of Manoj Kumar Vs.
Union of India & others).
4. (1963) 2 Mys LJ 346 in the case of Muppanna
Halappa Vs. Channappa Halappa and Another.
5. (2007) 4 SCC 221 in the case of A.V.Papayya Sastry
and others Vs. Govt of A.P. & others.
6. (2012) 11 SCC 574 in case of Badami (Deceased) by
her Legal representatives Vs. Bhali.
7. (2019) SCC online KAR 3837 in the case of
N.Krishna Reddy (Since Deceased) by Lrs & another
Vs. C.K.Varkey & others).
8. (2011) 5 SCC 142 in case of Chairman-Cum-
Managing Director, Coal India Limited and others
Vs. Ananta Saha and others.
9. (2011) 3 SCC 436 in the case of State of Orissa and
another Vs. Mamata Mohanty.
20 RFA NO.1246/2019
10. (1994) 1 SCC 1 in the case of
S.P.Chengalvaraya Naidu (Dead) by Lrs. Vs.
Jagannath (Dead) by Lrs. and others.
11. (2006) 7 SCC 416 in the case of Hamza Haji Vs.
State of Kerala and another.
12. RSA No.5422/2009, passed by this Hon’ble Court
at Dharwad Bench in case of Halagatti Shivappa @
Shivanand Vs. Ningappa & Another.
18. Per contra, learned senior counsel appearing for the
respondent No.2, has supported the judgement and decree
passed by the trial court and contended that the relief sought
by the plaintiff for declaration to set aside the decree passed in
O.S.No.542/1970 in the partition suit dated 10.10.1977 is to
set aside and not binding and also judgement and decree
passed in O.S.No.553/1989 and O.S.No.1466/1992 in relation
to RFA No.79 and 80 by 2002 are not binding on the plaintiff
and further restraining the defendant from interfering with the
schedule property, even though the appeals filed by the
appellants in RFA No. 79 and 80 of 2002 approached the
Hon’ble Supreme Court and the SLP also was dismissed. Such
being the case, the question of setting aside the said judgment
which attained the finality does not arises. Learned senior
counsel further contended that there is specific contention of
21 RFA NO.1246/2019
the parties that the land in survey No.73 is measuring 35 acres
20 guntas, belonging to three persons namely (1) Muniswamy
S/o. Byriga, (2) Era S/o Doddaiah and (3) Munishami S/o
Ramaiah and the property was divided into 3 portions and
according to the plaintiff, the middle portion measuring 14
acres was fallen to the share of Munishami S/o Ramaiah which
was inherited by his son Munichikkaiah and partitioned in 1960.
The sale deed of Poojamma in favour of Shankarappa who is
the father of defendant No.2 and 3 filed the suit for partition in
O.S.No.542/1970 for partition of the half share in 1/3rd share of
35 acres 20 guntas. The said suit was decreed for 1/6th
share i.e, 5 acres 36 &2/3 guntas. The same was attained
finality in the FDP proceedings. Learned senior counsel also
contended that the very suit of the plaintiff claiming as
“representative” is not maintainable, as it is not filed in
accordance with the procedure as per Order 1 Rule 8 of CPC.
There is no permission obtained from the Civil Court for filing
the representative suit. The basic principle is not followed,
there is no notice issued in public through paper publication,
calling for any objections or calling any other person to join in
the suit as plaintiff. Therefore, the contention of the appellant
counsel that the suit filed as “representative capacity”
cannot be acceptable.
22 RFA NO.1246/2019
19. The learned counsel further contended that the PW1
admitted the relationship of the defendants in his cross
examination that Munishami is having two children
Siddaramaiah and Kempanna, the son of Siddaramaiah’s son is
Ramaiah. The property measuring 35 acres 20 guntas
belonging to three children, the same is equally divided and it
comes to 11 acres each. Poojamma sold the undivided share of
her husband on 03.06.1953 to her brother Pillappa under
Ex.P4. The said sale deed is not questioned which is 30 years
old document, a presumption available in favour of the
defendant, but the plaintiffs have challenged the subsequent
sale deed dated 18.1.1963, after 10 years of the first sale
deeds and only 2nd sale deed has been challenged. Ex.P4 is not
questioned. Ex.P5 has been questioned in the suit, the half of
1/3rd share of Poojamma has been fallen to the share of
Chikkaveerappa which was admitted by PW1. The admitted
fact need not be true. The sale deed of Poojamma of the year
1953 is within the knowledge of Munichikkaiah. Ex.P8 was
decreed in O.S.No.542/1970. The 1/6th share has been
purchased by the Shankarappa from Pillappa and he has filed
the suit for partition of 1/6th share, out of 35 acres 20 guntas.
Aaccordingly, this partition suit was decreed. The sale deed of
Poojamma of the year 1953 is within the knowledge of plaintiff
23 RFA NO.1246/2019in the said suit. The relationship of Poojamaa with her husband
is not denied and not challenged by the plaintiff. The family
tree has been confirmed, the relationship is agreed and it was
adjudicated in OS No.542/1970. The 1/6th share of 35 acres 20
guntas comes to 5 acres 37 guntas. After the decree in OS
No.542/1970, FDP has been filed by metes and bounds.
Learned senior counsel further contended that Siddaramaiah
filed an application for impleading himself and filed an
application under Order 1 rule 10 of CPC as per Ex. p14 which
came to be allowed. He was permitted to participate in the
proceedings. After passing and withdrawing in the FDP,
Munichikkaiah filed a suit in OS No.5244/1988 which was
dismissed on 18.3.2003 and it is further contended that the
agreement of sale in favour of the plaintiff on measuring 4
acres 20 guntas and in favour of Somashekar is 2 acres, totally
6 acres 20 guntas of land, but the suit filed by the plaintiff for 8
acres 3 guntas of land. The boundaries in the agreement and
plaint schedule are different from each other . One more
agreement was executed as per Ex.P19. The plaintiff was
having knowledge about filing of the suit in 1992 itself. The suit
for specific performance and obtained decree for 6 acres 20
guntas, where the suit filed which is under challenge is 8 acres.
The property claimed by the plaintiff is different from the suit
24 RFA NO.1246/2019land. The Ex.P12 is the decree which was challenged before the
High Court in RFA No.79 and 89 of 2002 which came to be
dismissed, the SLP was also dismissed. The decree in OS
No.553/1989 and 1466/1992 has been attained finally. The
said judgement was delivered by full fledged trial and now it is
prayed by plaintiff for setting aside the said judgement and is
not binding on him is utterly barred by law. The suit could
have been filed within 3 years as per section 53 of Limitation
Act. Hence, prayed for dismissing the appeal.
20. Learned senior counsel also further contended as per
the Order of the FDP court, the DC has demarked the property
by sending the order to the ADLR. The ADLR independently
divided the property, the order of the DC for bifurcating by the
ADLR has not been challenged. Only the DC order has been set
aside. Merely the DC order is set aside, the proceedings under
section 144 of CPC attaining final stage and subsequently the
order was obtained for registering the same in the stamp
paper. Hence, prayed for dismissing the appeal. In support of
his contention, the learned senior counsel for respondent No.2
relied upon the judgement as under;
1. (1996) 7 SCC 767 in the case of MD. Noorul Hoda Vs.
Bibi Raifunnisa and others.
25 RFA NO.1246/2019
2. (2009) 6 SCC 160 in the case of Abdul Rahim and
others Vs. SK. Abdul Zabar and others.
3. AIR 1957 Madhya Bharat 173 in the case of Ganga
Vishnu Vs. Nathulal and others.
4. 2015 SCC Online DEL 7350 in the case of Jhang
biradari housing residents society Vs. Bharat Bhushan
sachdeva and others,
21. In support of his contention, the learned counsel for
respondent No.16 relied upon the judgement as under;
1. (2000) 6 SCC 359 in the case of Kunhayammed &
others Vs. State of Kerala and another.
2. (2024) 1 SCR 11 in the case of Mary Pushpam Vs.
Telvi Curusumary & Ors,
3. (2024) 2 SCR 326 in the case of Vasantha (dead)
Thr. Lr Vs. Rajalakshmi @ Rajam (Dead) Thr. Lrs.
22. Having heard the arguments, perused the records,
the point that arises for my consideration are;
1) Whether the suit of the plaintiff in the present form
claiming as representative suit as per Order I Rule 8 of
CPC is maintainable ?
26 RFA NO.1246/2019
2) Whether the plaintiff proves that dismissal of suit in
OS No. 5244/1988 is non est in the eye of law?
3) Whether the plaintiff proves the decree in OS
No.553/1989, 1466/1992 obtained by fraud and hence
the Judgement in RFA No. 79 and 80 of 2002 are not
binding on the plaintiff?
4) Whether the plaintiff proves that they are having right
over the schedule property?
5) Whether the suit is barred by limitation?
6) Whether the suit is hit by the principles of res
judicata?
7) Whether the judgement of the trial court calls for any
interference?
8) Whether the suit of the plaintiff in this form claiming
to be representative suit is not maintainable as
contended by the respondent counsel?
9) Whether the judgement of the trial court calls for
interference?
23. Having heard the arguments and perused records
and evidence adduced by the parties before the Trial Court On
perusal of records, it reveals that father of defendant Nos.2 and
3, namely Shankarappa had purchased the property measuring
5 acres 36 2/3 guntas in the year 1963 from one Pillappa and
the said Pillappa said to be purchased the property from one
27 RFA NO.1246/2019Poojamma in the year 1953, who claimed that the said
property was fallen to her from the share of her husband. It is
also claimed that originally, the land in Sy. No.73 of Srigandada
Kavalu measuring 35 acres 20 guntas was jointly purchased by
(1) Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and (3)
Munishami S/o Ramaiah. As per their share, 1/3rd each was
entitled by all three persons. Defendant Nos.2 and 3 claim
equal share from 35 acres 20 guntas, which comes to 11 acres
plus odd guntas and shared by all three persons equally which
was undivided share. The middle portion of the property fallen
to the share of Munishami, son of Ramaiah. The plaintiffs
claim that Munishami, son of Ramaiah got 14 acres of land,
whereas Muni Swamy, son of Byriga got 11 acres of land and
on the southern portion son of Doddaiah got 10 acres on the
northern side acres of land. Out of middle portion of 14 acres
of land fallen to the share of Muni Swami, about 5 acres and 36
guntas have been sold to 3rd person one A.V. Subramanyam
and remaining 8 acres was within the possession of the family
of Muni Swamy. The said portion was devolved to his son
Munichikkaiah, the father of respondent No.1-Siddaramaiah
and two agreements of sale were entered into by plaintiffs and
thereby, layout was formed and sold properties to third parties,
whereas the claim of defendant Nos.2 and 3 is that the
28 RFA NO.1246/2019property of 35 acres 20 guntas was originally, belonged to (1)
Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and (3)
Munishami S/o Ramaiah and they had not equally divided the
property. The undivided share of 1/3rd each was entitled by
Munishami S/o Ramaiah and that was equally divided by his
two sons, Siddaramaiah and Kempanna, about 5 acres 36
guntas each. The father of defendant No.1 i.e., Munichikkaiah
(son of Siddarama) was entitled for 5 acres 36 guntas and
Kempanna was entitled for 5 acres 36 guntas. The said
Kempanna had a son by name Chikkaveerappa, whose wife
namely Poojamma succeeded to the ancestral properties of
Chikkaveerappa. The said Poojamma had no issues and hence,
she sold the property to her brother Pillappa in the year 1953.
After 10 years, i.e. on 18.01.1963, the said Pillappa sold the
property to Shankarappa, the father of defendant Nos.2 and 3.
Since the original property was not divided, Shankarappa, the
father of defendant Nos.2 and 3 filed a suit in O.S.
No.542/1970 against Byrappa, Nanjappa, Munnichikkiah, who
is the father of defendant No.1, Srinivasan and A.V.
Subramanyam, the purchaser of the property from
Munichikkaiah. The suit was contested and it was decreed by
the civil Court on 10.10.1977 granting decree of 1/6th share to
Shankarappa from undivided share of 5 acres 36 guntas in
29 RFA NO.1246/2019
survey No.73, thereby, Shankarappa, the father of defendant
Nos.2 and 3, got 5 acres 362/3 guntas of the land. The said
judgment was said to be attained finality. Subsequently, in the
findings of the civil Court, defendant No.5-A.V. Subramanyam
sold 14 acres of land to Munnichikkiah. In fact, the said 14
acres of land was already sold by Munichikkaiah to
Subramanyam. It is seen from the synopsis produced by the
learned counsel for the appellant that in fact, Munichikkaiah
once again sold 1/6th share i.e. 5 acres 37 guntas of land to one
Kambaiah on 26.03.1980. The learned Counsel for respondent
Nos.2 and 3 has contended that Munichikkaiah (son of
Muniswamappa and grandson of Siddaramaiah) is entitled for 5
acres 36 guntas out of 12 acres of land fallen to the share of
their ancestor Munishami, son of Ramaiah and remaining 1/6th
share i.e. half share was fallen to Chikkaveerappa (son of
Kempanna and grand son of Munishami) was entitled for 5
acres 36 guntas and the same was derived by his wife
Poojamma. There is no dispute in respect of other two shares,
1/3rd share fallen to the family of Muni Swami, son of Byriga
and Ira son of Doddaiah. The dispute is between the children of
Sidramanna and Kempanna, who are sons of Munishami son of
Ramaiah. According to respondent Nos.2 and 3, out of 1/3rd
1
share in the original property, /6th share is fallen to
30 RFA NO.1246/2019
Siddaramanna and 1/6th share to Kemapanna. Therefore, 5
acres 36 guntas of land goes to Kempanna, the 2nd son of
Munishami, and his son Chikkaveerappa and thereafter to
Chikkaveerappa’s wife Poojamma. This share was notionally
divided into 1/3rd share and Munishamy, son of Ramaiah gets
11 acres plus guntas and it cannot be said that he is entitled
for 14 acres of land who has taken middle portion of the
Sy.No.73. There is no contract or agreement between three
original owners i.e. Muni Swami son of Byriga, Era son of
Doddaiah and Munishami son of Ramaiah. When there is no
previous agreement for sharing the property by all of them as
per the ratio stated by the learned counsel for the appellant
cannot be acceptable, since there is no previous contract or
agreement for sharing the ratio of 10 acres 14 acres and 12
acres respectively. Therefore, the question of contending that
14 acres of land fallen to the share Munishami, son of Ramaiah,
cannot be acceptable.
24. The civil court in O.S. No.542/1970 has considered
all these aspects namely 1/3rd share to all three shareholders
or owners. Out of 1/3rd share which is fallen to the share of
Siddaramanna and Kempanna, Kempanna’s family gets 1/6th
share and Siddaramanna’s family gets 1/6th share. Considering
the facts, the trial court has rightly decreed the suit by granting
31 RFA NO.1246/2019
1
/6th share to Shankarappa, the purchaser, who filed suit in
O.S. No.542/1970 for partition and separate possession. The
said decree passed on 10.10.1977 has attained finality.
Therefore, the contention of the learned counsel for the
appellant that the decree passed in the said suit is not binding
on the plaintiffs or the plaintiff’s vendors cannot be acceptable.
The equation claimed by the learned counsel for the plaintiffs is
unacceptable as it is not equal share for three owners. On the
other hand, the learned Senior counsel for respondents has
rightly contended that 1/6th share has fallen to the share of
Kempanna and his son Chikkaveerappa and thereafter, his wife
Poojamma got the property by way of inheritance. The
contention of the learned counsel for respondents that a wife or
daughter is not entitled for any share, etc., cannot be
acceptable since the property was fallen to the share of
husband of Poojamma and she got property through her
husband and she has already sold the 1/6th share of undivided
share in the property to her brother Pillappa in the year 1953
itself. The sale deed executed by Poojamma in favour of
Pillappa has not been challenged by the plaintiffs or vendors of
the plaintiffs’ in title. But the plaintiff’s have challenged only
the sale deed of Pillappa in favour of Shankarappa executed in
the year 1963.
32 RFA NO.1246/2019
25. When the sale deed of the year 1953 is not disputed,
where Poojamma got her share through her husband and sold
her husband’s share to her brother in 1953, and after 10 years,
the said property was sold by Pillappa to Shankarappa, who
obtained decree in the suit in O.S. No.542/1970 filed against
Muni chikkaiah, father of defendant No.1 and who is the vendor
of the plaintiff, and the said decree has attained finality. It is
the further case of the parties that after obtaining decree on
10.10.1977, the said Munichikkaiah said to be once again
purchased 14 acres of land from A.V. Subrahmanyam in 1978,
but Munichikkaiah having noted the fact of the judgment and
knowing well that he is entitled only for 1/6th share out of 5
acres of 36 guntas of land, sold the same by sale deed dated
26.03.1980 to Kambaiah.
26. Therefore, once the suit was decided in 1977 and it
is clear findings in the judgment passed by the trial Court that
1
Munichikkaiah’s father entitled for /6th share and
Shankarappa’s vendor Pillappa who purchased from Poojamma
got 1/6th share (i.e. from 5 acres 36 guntas), thereby, the said
Munichikkaiah, father of defendant No.1, sold the property of
his 1/6th share on 26.03.1980 to Kambaiah, thereby, there is no
retention of any land by Munichikkaiah. As contended by the
learned counsel for the appellant-plaintiff only the share fallen
33 RFA NO.1246/2019
to Munichikkaiah has already been sold to Kambaiah and
thereby, there is no property retained or having possession of
another 5 acres 36 guntas by the plaintiff. Since another 1/6th
share was fallen to Poojamma, wife of Chikkaveerappa, who is
son of Kempanna, knowingly, the said Munichikkaiah, father of
defendant No.1, entered into two agreements of sale on
05.04.1983 and 04.04.1987 one with Abdul Karim (plaintiff
No.1) for selling 4 acres 20 guntas of land and the second
agreement with S.V. Somashekhar (Plaintiff No.2) for selling 2
acres of land, totally 6 acres 20 guntas of land. Whereas, the
suit was filed by the plaintiffs for specific performance of
contract and obtained decree. The GPA was said to be
executed by Munichikkaiah for 8 acres 3 guntas of land in
favour of the plaintiffs.
27. Apart from that, as I have already held, it is a clear
admitted case of the parties that three persons were the
owners of 35 acres 20 guntas of land and it should be equally
divided, which comes to 11 acres and odd guntas. Without any
documents, the contentions of the appellant is that 14 acres of
land falls to the share of Munishami son of Ramaiah, 10 acres
20 guntas falls to the northern portion of Irappa and 11 acres
of land towards Southern portion of the land of Muni Swami,
son of Byriga cannot be acceptable. If it is equally divided, it
34 RFA NO.1246/2019
comes to 11 acres 32 guntas. The said 11 acres 32 guntas
divided by 2, comes to 5 acres 36 and odd guntas. Hence,
Munichikkaiah sold his 1/6th share of 5 acres of 36 guntas to one
Subramanyam and he has not retained any property of his
grandfather and remaining 1/6th share gone to Kempanna and
Irappa’s family where Poojamma was his legal heir who sold
the property in the year 1953 to her brother Pillappa and the
said Pillappa sold the said property on 18.01.1963 to
Shankarappa, the father of defendant Nos.2 and 3. The trial
court in O.S. No.542/1970 has rightly decreed the suit by
granting 1/6th share by metes and bounds. Of course, an FDP
came to be filed by the plaintiff-Shankarappa in FDP
No.30/1982 as per Ex.D2 and the civil Court directed the
Commissioner to divide the property. Accordingly, the said
Commissioner divided the property by referring the matter to
ADLR and the ADLR submitted report by dividing the property.
Of course, the order of the Deputy Commissioner has been set
aside by the KAT but the division of the property of 1/6th share
made by the ADLR will be in tact. In the meanwhile, the FDP
No.30/1982 has been withdrawn 06.01.1995 with liberty to
reopen the same. Even in the FDP, without issuing notice for
demarcation, it was set aside, but the actual demarcation was
already done by ADLR. Even prior to that, in the year 1978,
35 RFA NO.1246/2019
A.V. Subramanya sold the property to Munichikkaiah. On
1
26.03.1980, the said Munichikkaiah sold /6th share to one
Kambaiah. Therefore, it is a clear case that 1/6th share remains
with the family of Kempanna and to his son Chikkaveerappa.
Thereafter, in the year 1953, Poojamma wife of sold the
property to Pillappa and in the year 1963, the said Pillappa sold
the same to Shankarappa, the father of defendant Nos.2 and 3.
Therefore, the contention that the decree obtained by father of
defendant Nos.2 and 3 in O.S. No.542/1970, is said to be a
fraud or misrepresentation committed before the Court is not
acceptable.
28. That apart, once there is no property of
Munichikkaiah for retaining either 8 acres of land or getting 14
acres from his grand father cannot be acceptable. Such being
the case, the purchaser Shankarappa has rightly filed the suit
and obtained decree for division of 1/6th undivided share from
Poojamma, through her husband and father-in-law Kempanna.
Therefore, it cannot be said that the judgment obtained by the
Shankarappa is by fraud or misrepresentation in order to say
that it is to be set aside and it has already attained finality.
Accordingly, answered point No.1.
36 RFA NO.1246/2019
29. As regards to another contention of the appellant
that though father of respondent No.1 filed suit in O.S.
No.5244/1988 challenging the very same decree in O.S.
No.542/1970, but after the death of Munichikkaiah, his son
Siddaramaiah (respondent No.1) entered as legal
representative and thereafter, the said suit was dismissed for
non-prosecution as it was not contested by the said
Siddaramaiah. The said suit was dismissed on 23.06.1995.
Thereafter, there was no representation or reopened the case.
Subsequently, the present appellant has filed O.S.
No.4166/2004 taking same contention, almost after 9 years of
dismissal of the suit filed by father of defendant No.1
challenging the decree and also the sale deed of Pillappa of the
year 1963. It is rightly contended by the learned counsel for
respondents that the sale deed by Poojamma in the year 1953
executed in favour of Pillappa has not been challenged. Only
the sale deed of Pillappa executed in favour of Shankarappa in
the year 1963 has been challenged by Siddaramaiah and his
father Munichikkaiah. But the vendor of the plaintiffs was
already having knowledge about the sale deed of the year
1953, but ignoring the said sale deed, the plaintiff has
challenged only the sale deed of the year 1963. The sale deed
of the year 1953 is more than 30 years old document and
37 RFA NO.1246/2019
presumption is available in law as it is genuine. Therefore, the
appellant has not at all challenged the earlier sale deed of the
year 1953, but challenged only the sale deed of the year 1963,
which is subsequent sale deed. Without cancelling the earlier
sale deed, the question of challenging the 1963 sale deed, does
not arise. Therefore, the contention of the appellant that the
order passed in O.S. No. 5244/1988 is non-est in the eye of
law, cannot be acceptable as the vendor of the plaintiffs has
already lost his right in the earlier suit. Therefore, once again
the appellant cannot challenge the same sale deed after the
lapse of almost 30 to 40 years, knowing fully, the defendant
got dismissed the suit. Accordingly, I answer point No.2.
30. Another contention raised by the learned counsel for
the appellant is that O.S. No.553/1989 and O.S. No.1466/1992
has been decreed by the Civil Court and the same was
challenged before this Court by filing R.F.A. No.79/2002 and
R.F.A. No.80/2002, which came to be dismissed and an SLP
was also filed before the Hon’ble Supreme Court challenging
the judgment passed in both O.S. No.553/1989 and O.S.
No.1466/1992 and the same was dismissed and it has obtained
finality. Therefore, the contention of the plaintiffs is that the
decree obtained by Shankarappa, the father of defendant Nos.2
and 3 by fraud and misrepresentation and the judgment of the
38 RFA NO.1246/2019
High Court of Karnataka in the first appeal and the order
passed in SLP by the Hon’ble Supreme Court cannot be said
that it is not binding on the plaintiffs. On the other hand, the
judgment passed against them has been binding on them as it
has attained finality. The principle of merger applies in this
case. Therefore, the question of setting aside the judgment
passed in O.S. No.553/1989 and O.S. No.1466/1992, does not
arise.
31. Another contention raised by the learned counsel for
the appellant is that the plaintiffs have obtained a decree in a
suit for specific performance of contract for 6.20 acres of land.
As I have already held above, though they have obtained
decree for specific performance, but there is no existence of
land retained by Munichikkaiah for entering into an agreement
of sale with both the plaintiffs. Though the agreement of sale
was for 4 acres that 20 guntas and 2 acres of land, but the GPA
executed on 08.10.1982 was for 8 acres of land. Therefore,
the question of claiming right over 8 acres 3 guntas of land,
cannot be acceptable. The plaintiffs do not have any right over
8 acres of land and there is no availability of land or any land
retained by Munichikkaiah for alienation. Munichikkaiah
1
already sold his /6th share of land sold to Kambaiah on
26.03.1980. Therefore, by way of agreement of sale,
39 RFA NO.1246/2019
Munichikkaiah, the father of defendant No.1, entered into
agreement of sale with the plaintiffs and thereafter, he has filed
a suit in O.S No.5244/1988 for declaration. The first defendant
and his vendor have not prosecuted the matter and therefore,
the suit was dismissed. Subsequently, the plaintiffs B.S.
Mariswamappa and B.S. Neelakanta filed a suit and obtained
decree which attained finality. Thereafter, the decree was
obtained by Abdul Kareem Sab and S.V. Somashekar in O.S.
No.2327/2003 against Siddaramaiah (defendant No.1) son of
Munichikkaiah and the said Siddaramaiah himself withdrawn
the appeals before the High Court on 27.08.2003. Therefore,
the relief claimed by the appellant-plaintiff in this case cannot
be granted in his favour as there is no property derived by the
vendors of the plaintiff and there is no property for selling the
same to the plaintiffs. Such being the case, the question of
relief of injunction and declaration cannot be acceptable. The
plaintiffs cleverly filed the present suit for setting aside the
judgments in O.S. No.553/1989 and O.S. No.1466/1992, even
though it has attained finality. Therefore, the plaintiffs are not
in possession of the property and cannot declared as owners of
the property. Even otherwise, they are only the agreement
holders and they do not have any right over the property for
filing the suit when the original owners Siddaramaiah and
40 RFA NO.1246/2019
Munichikkaiah were not chosen to set aside the sale deed.
Therefore, I am of the view that the plaintiffs failed to prove
that they were having right over the suit schedule property as
claimed in the suit. Accordingly, I answer the point.
32. As regards limitation, admittedly, the suit was filed
by the plaintiffs in the year 2004 for setting aside the judgment
and decree in O.S. No.542/1970. Subsequently, the said suit
was also dismissed. As I have already held above, Poojamma
sold 5 acres 36 guntas of undivided share to Pillappa in the
year 1953 itself. The sale deed executed by Poojamma in
favour of Pillappa has not been challenged till date. The sale
deed executed by Pillappa in favour of Shankarappa has been
challenged by Siddaramaiah in O.S. No.5244/1988. Even if it
is considered that the suit was filed in 1988, but the sale deed
of the year 1963 has been challenged in 1988. There was
reference available about the purchase of the property by
Shankarappa from Pillappa and the said Pillappa purchased the
property from Poojamma in 1953 itself. Such being the case,
even the suit of the defendant No.1 is dismissed for non
prosecution on 23.06.1985, but the suit of the plaintiff was of
the year 2004. There is inordinate delay in filing the suit for
cancellation of sale deed. Even if issue No.2 before trial court
41 RFA NO.1246/2019
is considered after 21 years of sale deed, Sidramaiah
withdrawn the suit and the present suit was filed in the year
2004. Therefore, the suit would have been filed within three
years as per Articles 58 and 59 of the Limitation Act. The suit
was filed after lapse of more than 40 years. Even if it is
considered that the suit is of the year 1988, it is more than 20
years. Therefore, the suit is barred by limitation for
challenging the sale deed. Accordingly, I answered point No.5.
33. Point No.8: As regards the contention raised by the
learned senior counsel for the respondents that the suit in the
present form claimed to be a representative suit is not
maintainable as it is not in the form of Order I Rule 8 of CPC.
On perusal of the prayer made by the appellant the suit was
filed by the plaintiff for setting aside the decree in O.S.
No.542/1970 as not binding and also the decree obtained by
respondent in O.S. No.553/1989 and O.S.No.1466/1992
judgment RFA is also not binding even though it had attained
finality. The suit filed by plaintiff is not in the form of Order I
Rule 8 of CPC as representative suit. Even if it is representative
suit, it ought to be mentioned in the cause title of the suit and
also filed an application showing the names of all authorized
plaintiffs and also calling for any other third party to come and
42 RFA NO.1246/2019
join with the plaintiffs by issuing paper publication, but the suit
is filed only by two persons, who claimed to be agreement
holders from Munichikkaiah, the father of defendant No.1,
under agreement of sale. They said to be formed lay out and
sold to various persons. First of all, when the plaintiffs
themselves do not have any right, title or interest over the
schedule property that too under the agreement of sale, no
right will be transferred to them. Though they have obtained
decree, but it cannot be executable as the respondents-
defendants already obtained decree prior to agreement by the
plaintiffs. Therefore, plaintiffs No.1 and 2 filed a suit as normal
suit for declaration and it cannot be said that the suit is a
representative suit filed under Order I Rule 8 of CPC.
34. In this regard, learned counsel for the respondents
has relied upon the judgments of the Madhya Pradesh High
Court in the case of Ganga Vishnu, cited supra, wherein the
High Court of Madhya Pradesh, at para No.2 of the judgment,
has held as under:
2. The sole point for determination in this case is whether a
representative suit under O. 1, R. 8 can be instituted on behalf
of an unincorporated Association for the recovery of a money
Claim. Order 1, Rule 8 (1) is as follows:
“Where there are numerous persons having the
same interest in one suit, one or more of such
43 RFA NO.1246/2019persons may, with the permission of the Court,
sue or be sued, or may defend, in such suit, on
behalf of or for the benefit of all persons so
interested. But the Court shall in such case
give, at the plaintiff’s expense, notice of the
institution of the suit to all such persons either
by personal service or, where from the number
of persons or any other cause such service is
not reasonably practicable, by public
advertisement as the Court in each case may
direct.” This rule embodies an exception to the
general principle that all persons interested in a
suit ought to be joined as parties to it so that
the matters involved may be finally adjudicated
upon and fresh litigations over the same
matters may be avoided. The rule is enacted to
avoid inconvenience and delay in the hearing of
a suit where the parties are numerous but have
the same interest in the suit. As was observed
by Rangnekar, J., in Gurushiddappa
Gurubasappa v. Gurushiddappa Chenavirappa,
AIR 1937 Bom 238 (A)”
“persons may be joined in a suit either on
account of something personal, as for instance
having either sold or bought goods, or like
officers of corporation as possessing certain
knowledge, or because they are the owners or
guardians of certain interests which the suit will
affect. Upon the first ground they must be
joined in their own person.
Upon the other grounds the proceedings can go with equal
prospect of justice if the interests concerned are effectually and
virtually protected. The absent parties in such cases appear by
their representative or representatives; their interests. are
protected or claims enforced.”
44 RFA NO.1246/2019
The essential condition for the applicability of O. 1. R. 8 is that
the parties must be numerous and there must be community of
interest between them, that is to say, they must be persons
having the same interest in the suit. If these conditions are
satisfied, then there can be no ground for refusing leave to a
person to sue in a representative capacity whatever may be the
nature of the claim.
Here the plaintiff Ganga Vishnu is not seeking to enforce a
personal claim against the defendants. He is suing in his
capacity as Secretary of the Cloth Dealers Association, which is
an unregistered body. It is clear from the allegations in the
plaint that the money claim which the plaintiff is seeking to
enforce against the defendants is one in which all the members
of the Association have a common interest. I am, therefore,
unable to see why the plaintiff cannot sue for the recovery of
the amount as Secretary of the Association and on behalf of the
other members of the Association.
In view of the above principles, the present suit is not
maintainable.
35. The learned counsel for the respondent No.2 has also
relied upon the judgment of the Hon’ble Supreme Court in the
case of MD. Noorul Hoda, cited supra, wherein it is stated that
the suit for declaration is to be filed within three years from
the date of knowledge of the sale deed as per Article 59 of the
Limitation Act. In another judgment, in the case of Abdul
Rahim, cited supra, the Hon’ble Supreme Court has held that
for cancellation of gift deed or instrument, the limitation
prescribed is three years from the date of document or from
45 RFA NO.1246/2019
the date of knowledge. The Delhi High Court has also taken
similar view in the case of Jhang biradari housing residents
society, cited supra. Therefore, the suit in the present form is
not maintainable. Hence, I answer the point accordingly.
36. Learned senior counsel for the respondent has
contended that the boundaries mentioned in the suit property
in the suit filed by the plaintiff for specific contract, wherein
they claimed to be the agreement holder and obtained the
decree. Whereas, the schedule shown in the plaint in
O.S.No.4166/2004 is altogether different. The agreement of
sale was for 6 acres 20 guntas, whereas suit filed by the
plaintiff, is for 8 acres and 3 guntas of land. It is Further
contended that the property of the respondent was 5 acres 36
& 2/3 guntas, and reassessed as Sy.No.73/2. The said
schedule was already confirmed by the civil court in the earlier
two suits filed by the respondents and obtained the decree and
was attained finality before the Hon’ble Supreme Court.
Therefore, it is contended that the judgment of Hon’ble
Supreme Court, as well as the High court has been merged
with the judgment of the Hon’ble Supreme Court in S.L.P.
Therefore, the said judgment cannot be set aside by the Civil
Court. Therefore, it is contended that the Civil Court has
46 RFA NO.1246/2019
rightly dismissed the suit of the plaintiff. Learned senior
counsel also relied upon the judgment reported in (2000) 6
SCC 359 in case of Kunhayammed & others Vs. State of
Kerala and another, where it is held as under;
“The doctrine of merger is neither a
doctrine of constitutional law nor a doctrine
statutorily recognised. It is a common law
doctrine founded on principles of propriety
in the hierarchy of justice delivery system.
The logic underlying the doctrine of
merger is that there cannot be more than
one decree or operative orders governing
the same subject-matter at a given point of
time. When a decree or order passed by an
inferior court, tribunal or authority is
subjected to a remedy available under the
law before a superior forum then, though
the decree or order under challenge
continues to be effective and binding,
nevertheless its finality is put in jeopardy.
Once the superior court has disposed of the
lis before it either way – whether the decree
or order under appeal is set aside or
modified or simply confirmed, it is the
decree or order of the superior court,
tribunal or authority which is the final,
binding and operative decree or order
wherein merges the decree or order passed
by the court, tribunal or the authority
below. However, the doctrine is not of
universal or unlimited application. The
nature of jurisdiction exercised by the
superior forum and the b content or
subject-matter of challenge laid or which
could have been laid shall have to be kept
in view.”
47 RFA NO.1246/2019
37. In view of the judgment of Hon’ble Supreme Court,
once the judgment of the Civil Court has been confirmed by the
High Court in the appeal in RFA No.79 and 80 of 2002 and also
upheld by the Hon’ble Supreme Court, by dismissing the appeal
filed by the appellant as withdrawn, the question of setting
aside the said judgment, does not arise. The same view has
been followed by the Hon’ble Apex Court in recent judgment
reported in (2024) 1 S.C.R 11 in the case of Mary Pushpam
Vs. Telvi Curusumary & Ors (in Civil appeal No.9941/2016
dated 03.01.2024)
38. Therefore, once the suit between the parties has
attained finality in respect of schedule property, claimed by the
plaintiffs in earlier suits, though it is suit for bare injunction as
claimed by the respondent in the earlier suits, but it was
contested and upheld by the Hon’ble Supreme Court in the
SLP.No.8838/2010 and SLP No.8839/2010 dated 8.7.2010, as
the appeals were withdrawn by the very same plaintiffs before
the Hon’ble Supreme Court, thereby the judgments have
attained finality.
39. The appellants also filed suit for specific performance
and obtained decree, but it cannot be executable as there is no
proper boundaries and measurement of the property and if the
48 RFA NO.1246/2019
contention of the appellant that property was not bifurcated as
per the order of the Deputy Commissioner and ADLR divided
the property or demarcated the property, the question of
claiming 8 acres of land does not arise. Therefore, once the
dispute of the properties has attained finality and the 2nd round
litigation, definitely applies the principles of re-judicata.
Therefore, once again the appellants are not entitled for any
relief claimed.
40. As regards to the possession and enjoyment of the
schedule property, the plaintiff claimed 8 acres 3 guntas of land
issued in middle portion of old survey no.73, east by land 5
acres and 37 guntas in mid portion of Munichikkaiah, sold to
Kambaiah by Siddaramaiah. South by land of children of
Muniswamy S/o. Bairig. West by land of Honnamma wife of
Krishnappa (formerly land of Kariyamma and his successors).
North by Varadaraj and Srinivas’ land purchased from Patel
Channappa – Era son of Doddaiah. On perusal of the same, as
already held in the previous paragraphs of this judgment,
there is no previous agreement or contract between the parties
to divide 35 acres and 20 guntas of land by 10 acres, 14 acres
and 12 acres as contended by the plaintiff, on the other hand,
the respondent has categorically contended that it has to be
49 RFA NO.1246/2019
equally divided by all the 3 owners of the land. If the same is
equally divided, it comes to 11 acres and 36 guntas of land
each and if the same is equally divided between two brothers
i.e, Siddaramaiah and Kempanna, it comes to 5 acres 36 & 2/3
guntas. Once the very Munichikkaiah sold 5 acres 37 guntas to
one Kambaiah, it is clear case that his share of property has
been sold by him and there is no retaining of any land. The
remaining 5 acres 36 & 2/3 guntas were fallen to the share of
Kempanna. Later it was fallen to his son Era Kempanna and
after his death, Poojamma desired the property. The said
Poojamma sold the property in 1953 itself to one Pillappa.
Subsequently, the said Pillappa already sold the said land 5
acres 36 & 2/3 guntas on 8.1.1963 to one B.M. Shankarappa,
the father of the respondent Nos.2 and 3 herein (defendant
Nos.2 and 3). Such being the case, the question of retaining
any property does not arise. The earlier suit in
O.S.No.542/1970 for partition suit filed by the above said B.M.
Shankarappa has been decreed for 1/6th share, it equally
comes to 5 acres and 36 guntas. Thereby, the same was in
possession of the respondent/defendant Nos.2 and 3 and
thereafter it was alienated to other respondents. The plaintiff’s
vendor’s vendor Munichikkaiah do not have any right, title and
interest to sell the property to the plaintiff under the agreement
50 RFA NO.1246/2019
of sale, even the very defendant No.1 has filed the written
statement in the suit by denying the agreement of sale and
decree obtained by the plaintiff for 6 acres, whereas suit was
filed for 8 acres and it is contended, it is already formed layout
and sold to various persons. Such being the case, the plaintiff
failed to prove that they are in the lawful possession and
enjoyment of the schedule property as on the date of filing of
the suit. As already stated above, the plaintiffs have failed to
prove that they are having right over the schedule property, as
on the date of filing of the suit and the suit filed under Order 1
Rule 8 of CPC in this form is not maintainable. Therefore, I
answered the point No.4 against the appellant/plaintiff.
41. Though the appellant counsel has contended that the
FDP filed by the respondents (are committed fraud etc., and) is
not binding on the plaintiff, (once the suit was decreed and
property in the FDP has been demarcated though the order of
Deputy Commissioner has been set aside, but the demarcation
was unaltered and if it is considered that the demarcation is not
valid, the question of selling their property by the appellant’s
vendor Munichikkaiah and other two owners Muniswamy S/o.
Byriga, Era S/o Doddaiah cannot be identified for alienating the
property by them to the 3rd persons.
51 RFA NO.1246/2019
Therefore, the parties have acted upon on the demarcation
made by the ADLR despite, the order of DC. Subsequently, the
FDP filed by the respondents for getting the decree in the
stamp paper, the same was allowed by the Court. The said
FDP order has not been challenged by the plaintiff by filing any
appeal. Therefore, the order passed in FDP No.96/2003 has
attained finality and hence it cannot reopened. The final decree
order at Ex.D14 and the same was registered as per Ex.D16
and the same had attained finality.
42. In view of the discussion above, when this property
has been purchased by 3 independent owners and they are not
the brothers and as they are already bifurcated and are living
separately, such being the case, Ex.P1 relied by appellant
counsel is not useful to him, as this property has been
purchased and thereafter when there is no bifurcation, as per
the very case of the appellant, in the trial court, regarding
equally dividing to 3 persons or as stated by them by diving 10
acres 14 acres and 12 acres. Such being the case, whether
they are living separately or not, partition took place, cannot be
acceptable when there is no document to prove the contention
when there is a partition between the family and bifurcation of
the land, the question of considering Ex.P1, does not arises.
52 RFA NO.1246/2019
43. The family tree prepared by the plaintiff showing the
Siddarama as a propositors Ramaiah, Kempanna and
Chikkaveerappa are 3 children and Ramaiah’s son Munishami
were all not useful to the case, since the property is not
ancestral property and it has not came from common ancestor.
44. Learned senior counsel for the respondent has rightly
contended that the property has been purchased by (1)
Muniswamy S/o. Byriga, (2) Era S/o Doddaiah and (3)
Munishami S/o Ramaiah. This Kempanna and Ramaiah are the
children of Muniswamy (Son of Rama) and this
Chikkaveerappa (defendant No.1) is son of Kempanna and
Dodda Muniswamy and ChikkaMuniswamy are the son of
Ramaiah and Munichikkaiah and Siddaramaiah are the sons of
Dodda Muniswamy. Chikkaveerappa died issue less and hence
Poojamma his wife got 1/3rd share out of half share of her
husband. Later, it was sold to Pillappa in the year 1953 i.e., on
03.06.1953. Later, said Pillappa sold the property to
B.M.Shankarappa on 18.1.1963 and the said Shankarappa filed
the suit. Therefore, the family structure produced by the
respondent/defendant is clearly clinches the issue that the
property is devolved i.e., middle property belongs to
Muniswamy son of Rama. Even otherwise Kemapanna and
53 RFA NO.1246/2019
Ramaiah resided separately, and therefore the question of
sharing the property or bifurcating the property does not arise.
Since in Sy.No.73, there is no partition and it was decided only
in the O.S.No.542/1970. The vendors of the plaintiff contested
the matter in the said suit by challenging the said decree in the
earlier suit and it was dismissed and even otherwise, the
plaintiffs have no right over the schedule property and there is
no sale deed in favour and there is no property retained by the
vendors, out of the 1/6th share, which was already sold one
Kambaiah. Therefore, the contention of the appellant counsel
cannot be acceptable.
45. Considering the entire evidence on record, the trial
court rightly dismissed the suit. Hence, the contention of the
appellant counsel that Poojamma does not derive any right
over the property as she was got the right prior to
commencement of Hindu Law etc were all considered in the
earlier suits filed by the plaintiff and the respondents in
O.S.No.553/1989 and 1466/1992 and the appeals also came be
dismissed in RFA no.79 and 80 of 2002 which was upheld by
the Hon’ble Supreme Court and in O.S.No.542/1970.
Therefore, the same contention cannot be once again agitated
by the plaintiff in the present suit and it was already contested
54 RFA NO.1246/2019
with the earlier suit. Therefore, the trial court considering the
entire evidence on record, rightly came to the conclusion that
the plaintiff is not entitled for the declaration and injunction
sought by him in the suit and rightly dismissed the suit of the
plaintiff.
46. The judgment of the trial court based upon the oral
as well as the documentary evidence does not call of
interference.
Accordingly the appeal filed the appellant is hereby
dismissed.
Sd/-
(K.NATARAJAN)
JUDGE
AKV/CS
List No.: 19 Sl No.: 1
CT:SI
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