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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 12TH DAY OF NOVEMBER 2014

BEFORE

THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY

REGULAR SECOND APPEAL NO.1704 OF 2011

BETWEEN

SRI M D HONNAPPA S/L LATE KARIAPPA,

SINCE DECEASED BY LRs

1(a). SMT.SHIVAMMA

W/O LATE M.D.HONNAPPA,

ABOUT 60 YEARS,

R/O MUDIGERE PALYA,

GOTTIGERE VILLAGE,

HURHRIDURGA HOBLI,

KUNIGAL TALUK,

TUMKUR DISTRICT – 572126.

1(b). SMT.M.H.RUKMINI

W/O T.R.CHANDRA

AND ALSO D/O LATE M.D.HONNAPPA

AGED ABOUT 42 YEARS,

R/O NO.271, KEMPEGOWDA LAYOUT,

1(c). M.H.SHIVASHANKAR

S/O LATE M.D.HONNAPPA,

AGED ABOUT 40 YEARS,

R/O MUDIGERE PALY,

GOTTIGERE VILLAGE,

HURHRIDURGA HOBLI,

KUNIGAL TALUK,

TUMKUR DISTRICT – 572126.

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1(d). M.H.NAGARATHNAMMA

W/O T.A.NAGARAJ,

AND ALSO D/O LATE M.D.HONNAPPA,

AGED ABOUT 38 YEARS,

R/O. K.H.B. COLONY,

NEAR PAPANNA HOUSE,

KUNIGAL, KUNIGAL TALUK,

TUMKUR DISTRICT.

1(e). M.H.VANAJAKSHI

W/O LINGARAJU,

AGED ABOUT 36 YEARS,

R/O MUDIGEREPALYA,

GOTTIGERE VILLAGE,

HUTHRIDURGA HOBLI,

KUNIGAL TALUK,

TUMKUR DISTRICT.

1(f). M.H.MANJULA

W/O SURESH GOWDA

AND ALSO D/O LATE M.D.HONNAPPA

AGED ABOUT 34 YEARS,

R/O MUDIGEREPALYA,

GOTTIGERE VILLAGE,

HUTHRIDURGA HOBLI,

KUNIGAL TALUK,

TUMKUR DISTRICT.

.. APPELLANTS

(BY SRI.B.M.KRISHNABHAT, ADVOCATE)

AND

1. SMT.HONNAMMA

W/O LATE GANGANNA GOWDA,

AGED ABOUT 80 YEARS,

HUTHRIDURGA HOBLI,

KALLANAYAKANAHALLI VILLAGE,

PO YELIUR, KUNIGAL TALUK,

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TUMKUR DISTRICT-572 126

2. SRI B.G.RANGASWAMY

S/O LATE GANGANNA GOWDA,

AGED ABOUT 47 YEARS,

KALLANAYAKANAHALLI,

P.O.YELIUR VILLAGE,

HUTHRIDURGA HOBLI,

KUNIGAL

3. K.H.CHANDRAPPA

S/O HONNAIAH URF THAMMAYYA,

AGED ABOUT 49 YEARS,

R/O KALLANAYAKANAHALLI VILLAGE,

PO YELIUR, HUTHRIDURGA HOBLI,

KUNIGAL TALUK,

TUMKUR DISTRICT-572 126.

4. SRI JAGADEESH

S/O M.C.NANJUNDAIAH,

AGED ABOUT 38 YEARS,

R/O GOTTIGERE VILLAGE,

MUDIGERE PALYA,

PO BIDANAGERE,

HUTHRIDURGA HOBLI,

KUNIGAL TALUK,

TUMKUR DSITRICT-572126.

... RESPONDENTS

(BY SRI Y.K.NARAYANA SHARMA, ADV. FOR R1 & R2

SRI R.B.SADASIVAPPA, ADV. FOR R4 )

THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE

JUDGEMENT AND DECREE DATED 20.6.2011 PASSED IN

R.A.NO.39/2009 ON THE FILE OF THE II ADDL. DISTRICT &

SESSIONS JUDGE, TUMKUR, DISMISSING THE APPEAL FILED

AGAINST THE JUDGEMENT AND DECREE DATED: 3.4.2009

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PASSED IN O.S.NO.23/2004 ON THE FILE OF THE CIVIL JUDGE

(SR.DN) KUNIGAL.

THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

ORDERS AND TODAY COMING BEFORE THE COURT FOR

PRONOUNCEMENT, THE COURT DELIVERED THE FOLLOWING:

JUDGEMENT

The L.Rs. of defendant No.1 in O Survey No.23/2004

have filed this appeal against the concurrent judgment and

decree passed by the courts below for partition and separate

possession in favour of first plaintiff.

2. The facts leading to this appeal are, respondents

1and 2 are the plaintiffs filed suit for declaration and

injunction in O S No.163/1981 on the ground that father of

the defendant No.1 by name Kariyappa, executed a registered

sale deed in favour of mother of the plaintiff by name

Honnamma. Father of the first defendant died on 1.11.1980

and the original purchaser Smt.Honnamma died in the year

1987. The sole L.R. of the purchaser, the plaintiff No.1 filed

suit for declaration and injunction. The said suit came to be

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dismissed on 28.1.1984. Thereafter the plaintiff filed the

present suit O S No.23/2004 for partition of his undivided

interest of the joint family and the said suit came to be

decreed on 3.4.2009.

3. The first defendant-appellant filed R.A. No.39/2009

challenging the judgment and decree of the trial court and the

first appellate court dismissed the appeal on 20.6.2011 by

confirming the judgment and decree of the trial court. Hence

this appeal.

4. This Court by the order dated 24.1.2012 framed the

following substantial question of law:

“Whether the courts below ere justified in placing

reliance upon the reasons and findings and

conclusions arrived at in judgment and decree

dated 28.1.2004 in O S No.163/1991 on the file of

the Principal Civil Judge (Jr.Dn.) at Kunigal to

allow O S No.23/2004 between the parties despite

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the observations of this Court in R S A

No.1462/2008 D D 12.3.2010 instituted by the

present appellant calling in question the judgment

and decree in R A No.28/2006 arising out of the

judgment and decree dated 28.1.2004 in O S

No.163/1991?”

5. During the life time of father of the first defendant

Kariyanna, he sold the suit property to the plaintiff’s mother

late Smt.Hombamma w/o Nanjappa for a lawful consideration

of Rs.4,000/- under a registered sale deed dated 19.5.1980.

The plaintiff was put in possession and since then she has

been in possession and cultivation of the said property.

6. It is contended by the appellant, the suit filed by the

plaintiff in O S No.163/1991 which came to be dismissed is a

bar to the plaintiff to file the subsequent suit. Hence the

judgment and decree passed in suit O S No.23/2004 is

barred by Order 2 Rule 2 of CPC. Both the courts have

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committed an error in not dismissing the suit on the said

ground.

7. Dismissal of the earlier suit was challenged by the

first defendant in R A No.28/2006 on the file of Civil Judge

(Sr.Dn.) at Kunigal and the said appeal was dismissed

confirming the judgment and decree of the trial court.

Dismissal of the regular appeal was challenged before this

Court in R S A No.1462/2008 and this court by the judgment

dated 12.3.2010 disposed of the matter with an observation

that “apprehension of the appellant as to first appellate court

which is now seized of the appeal against the judgment and

decree of the Trial Court in a suit for partition and separate

possession would be influenced by the findings in the

judgment and decree of the trial court passed earlier is ill-

founded”.

8. Respondent – plaintiff has contended that father of

the first defendant had executed registered sale deed on

19.5.1980 in respect of land measuring 1 Acre 5 guntas in

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Sy.No.57/2 and plaintiff was put in possession since then.

The first defendant at the instance of his wife tried to interfere

with the property. Hence he had filed suit in O S

No.163/1991 for declaration and injunction. The said suit

came to be dismissed with an observation that since the

plaintiff was in joint possession, he has to file a suit for

partition. Hence he filed this present suit.

9. For the cause of action, the plaintiff has stated

dismissal of the suit in O S No.163/1991 and also

interference by the defendant. The defendant filed written

statement and he has denied the averments made by the

plaintiff. Despite of his general denial, he has stated that in

view of dismissal of the suit in O S No.163/1991 filed

between the same parties and dismissal of the said suit is res

judicata in respect of the subsequent suit, since the relief and

also parties and subject matter are one and the same.

10. It is further contended that the suit property in

respect of which his father succeeded as a legal heir, they are

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in possession of the property. There was no family necessity

to dispose of the suit property to the plaintiff. The alleged

sale deed dated 19.5.1980 is not a genuine document and it

is concocted and forged document by the plaintiff’s mother

either by misrepresentation or by coercion or with undue

influence. But the said deed was not executed by the father

of the defendant at any point of time and there was no legal

necessity for executing the same and no consideration was

passed under the said sale deed. It is further stated that even

assuming that the sale deed is genuine one but because the

purchaser could not have physical possession of the suit

property and since the plaintiff or her mother not pursued her

remedy for the purpose of physical possession for a longer

period, the first defendant is entitled for the benefit of adverse

possession since he has perfected his title by adverse

possession. The suit is also suffered by inordinate and

unexplained delay of 24 years from the date of cause of

action.

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11. In support of suit claim, PW-1 & 2 were examined

and documents Ex.P1 to P15 were marked. On behalf of

defendants, DW-1 and DW-2 have been examined and

documents Ex.D1 to D27 have been marked. The suit came to

be decreed by holding that the plaintiff is entitled for suit Item

No.1(a) by way of partition and separate possession of the

same as the share of deceased Kariyappa is within the

schedule property on the basis of the registered sale deed

dated 19.5.1980.

12. The appellant preferred R A No.39/2009 and the

same also came to be dismissed on 20.6.2011.

13. It is contended by the learned counsel for the

appellant that it is observed by this court in R S A

No.1462/2008 that trial court shall not get influenced by the

judgment in the earlier suit. Despite the same, the learned

Judge referred the judgment. Hence the impugned judgment

is liable to be set aside.

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14. It is contended, the present suit is filed after a delay

of 24 years from the date of sale deed in the year 1980 and

this delay has not been examined by the courts below.

Unless the delay is examined and satisfied, court would not

get any jurisdiction. The learned counsel referred Article 65-

C of the Limitation Act and also referred judgment in AIR

1966 SC 470 (Manikyala Rao v. M Narasimhaswami).

15. Per contra, the learned counsel for the respondent –

plaintiff submitted to dismiss this appeal. The concurrent

judgment and decree cannot be interfered by this Court

unless there is a substantial question of law. It is submitted

to reject the contention as to res judicata for the reason that

the appellant has not taken such a plea either in the suit,

regular appeal and also in the instant regular second appeal

and substantial question of law also not framed in this

regard. In the circumstances, there was no occasion for the

trial court or the first appellate court or to this court to

consider Order 2 Rule 2 PC. The father of the defendant has

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sold specific property with a schedule and it is stated in it

that his share has been sold which is the basis to file the

earlier suit for declaration and injunction. Since the trial

court dismissed the suit with an observation that the plaintiff

is in joint possession, he has to file suit for partition, then

making that as a cause of action, the present suit is filed. On

the basis of recital in the sale agreement, it is the specific

property with demarcation as to the share of Kariyanna,

father of the defendant has been sold. In the circumstances,

Order 2 Rule 2 CPC is not applicable and there is no delay

also. In order to take specific ground under Order 2 Rule 2

CPC, the defendant has to produce the earlier proceedings

and the same has to be marked. He should adduce evidence

in support of his claim. But he has not done either of the

same. There is neither plea, materials, nor issue is framed.

In the absence of all these things, ground of Order 2 Rule 2

CPC is not available to the appellant.

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16. The sale deed executed by father of the defendant

No.1 has not been in dispute. Though he has contended in

the written statement that his father executed the sale deed

by coercion, fraud and misrepresentation and in another

breath he says, the father has not executed the sale deed,

which itself demonstrates that there is sale deed executed by

father of the defendant No.1. When such being the case, the

registered sale deed should have been challenged. At no

point of time, the same has been challenged. Hence the

learned counsel submits to dismiss this appeal.

17. In support of his submission with regard to Order 2

Rule 2 CPC, the learned counsel referred decision in

Siddaramappav v. Raja Setty (AIR 1970 SC 1069) Para – 5

and AIR 2005 SC 2097 (N V Srinivasamurthy v. Nanjamma)

Para-10 and AIR 2014 SC 731 (State Bank of India v. Grasure

Pharmaceuticals) Para-12, AIR 1964 SC 1810(1) Para-6 & 7

(Gurbux Singh v. Bhooralal).

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18. In order to apply the provisions of Order 2 Rule 2

CPC, there shall be issue between the same parties and the

cause of action should be one and the same. Here in this

case, the cause of action in the earlier suit, it was for

interference in the peaceful possession by mother of the

defendant and himself and in the subsequent suit it is for

partition. Hence Order 2 Rule 2 CPC is not applicable. To

support, he has referred (2008) AIR SCW 3324

(DaduDayaluMahasabha,Jaipur(Trust) v. Mahant Ram Niwas

& Anr.), AIR 1979 All. 47 (Deep Chand & others v. Deputy

Director of Consolidation & another), AIR 2006 Bombay 174

(Govind Anant Goltekar & Ors. v. Dasharath Deoba Goltekar),

AIR 2011 SC 9 Para-9 (Alka Gupta v. Narender Kumar

Gupta), AIR 1999 SCW 4731 (Rikabdas A. Oswal v.

M/s.Deepak Jewellers & Others), 2005 AIR SCW 3311 (Dilip

Singh v. Mehar Singh Rathee & others), AIR 2004 SC 1761(1)

(Kunjan Nair Sivaraman Nair v. Narayanan Nair& others), AIR

2005 SC 2392(1) Para-27 (Swamy Atmananda & others v. Sri

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Ramakrishna Tapovanam & others) and AIR 2007 SC 989 (S

Nazeer Ahmed v. State Bank of Mysore & Ors.).

19. Before proceeding to consider the substantial

question of law framed by this Court, the submissions made

by the appellant – defendant has to be examined one by one.

20. When suit is filed for partition on the basis of the

sale deed said to have been executed by the defendant’s

father in the year 1980, the defendant has taken multi

defences, namely, at one breath he says the sale deed has

been executed by misrepresentation, coercion and fraud.

Independently, if it is to be understood that there is a sale

deed executed by his father, but not out of free will. If that is

the case, it is for the party to adduce evidence on a

subsequent ground, father has not at all executed the sale

deed. That again goes to show that there is no sale deed

executed by his father. On third breath he states that even

assuming that sale deed is executed by his father, plaintiff

has not taken any legal action to take possession which

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presumes that the defendants are in possession for the last

24 years, thereby they have perfected their title by virtue of

principles of adverse possession. These three stands taken by

the defendant, if they are examined, it would not give any

weightage to consider the case of the defendant No.1. Either

his case should have been denial or admitting the plaint. But

in the instant case, he has taken different stands one after

the other without there being any proper pleadings. The

contradictory submissions made in respect of the sale deed, it

goes against the defendant. The maxim Allegatio contra

factum non est admittenda, that means, one making

contradictory submissions is not to be heard. This maxim is

clearly applicable for the reasons stated above. The

contradictory submissions made by the defendant in respect

of execution of sale deed by his father. The person who

defends his case or put-forth his case, there shall be specific

and definite pleadings. Skippy or successive or alternative

grounds if it is taken, then it gives lot of scope for

contradictions and ambiguity. The Latin maxim, Ambiguitas

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contra stipulatorem est, that means an ambiguity is most

strictly construed against the party using it. In view of the

said legal maxims and in the light of the facts narrated by the

defendant himself, it is contradictory and goes against the

defendant himself. In the circumstances, I hold both the

courts have rightly dismissed the claim of the defendant No.1.

21. In support of Order 2 Rule 2 CPC, in order to apply

the provisions of Section 11, Rule 2 is the qualification which

reads thus:

“When suit shall include whole of the claim which

the plaintiff is entitled to make in respect of the

cause of action”.

22. On a plain reading of the said provision which goes

to show that a suit has to be filed which includes whole of the

claim in respect of his cause of action. Section 11 of CPC in

respect of the principles of res judicata provides, “any suit or

issue in which the matter directly and substantially in issue

has been directly or substantially in issue in former suit

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between the same parties”. In the instant case, may be both

the parties are one and the same and also the subject matter,

but the issues involved in the present suit or in the

subsequent suit are not one and the same. The earlier suit

was filed on the basis of the sale deed wherein father of the

defendant No.1 has specifically stated that his share of the

property he is selling and he has given specific boundaries.

The wordings employed therein has been understood by the

plaintiff since he is entitled to understand accordingly that

share of the defendant’s father has been sold to him and

rightly he has filed suit for declaration and injunction. The

wordings employed in the sale deed has been understood by

the trial court and an observation has been made that the

plaintiff and the defendant are in joint possession since there

was no partition. The observation made by the court which

gave cause of action to the plaintiff to file the present suit for

partition. It has to be observed that in the earlier suit, the

issue was for declaration and injunction but in the present

suit, it is for partition and separate possession. When these

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issues itself are different, question of Order 2 Rule 2 is not

applicable.

23. The appellant has admitted that he had not taken

the plea, no evidence and documents have been marked. No

substantial question of law also raised before this Court, even

then the jurisdiction aspect has to be examined by this Court.

24. In order to claim the benefit of adverse possession,

the appellant has relied upon judgment reported in AIR 1966

SC 470(1) Para-18 (Manikyala Rao v. M Narasimhaswami),

wherein it has been held, it is well settled that the purchaser

does not acquire any interest in the property sold and he

cannot claim to be put in possession of any definite piece of

family property. The purchaser acquires only an equity to

stand in the alienor’s shoes and workout his right by means

of partition. This judgment is not applicable in the case on

hand for the reason that as per the sale deed and also

pleadings, it is the specific contention of the plaintiff that

father of the defendant No.1 has executed a sale deed in

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respect of his share of property with a boundary mark and he

was put in possession and it is observed by the trial court as

well as the first appellate court that defendant’s father has

sold a specific property of his share that itself goes to show

that it was not a case of joint possession.

25. The contention of the appellant in taking a ground

of Order 2 Rule 2 CPC has been rejected by both the courts

below. The defendant has not established by taking specific

plea, leading evidence and marking documents and even has

not raised substantial question of law before this Court and

hence it is not open for him to make such a submission. In

order to apply the provisions of Order 2 Rule 2 CPC the

ingredients therein have not been fulfilled. A specific

observation made by both the courts that the issues involved

in the earlier suit and in the present suit are altogether

different. In the earlier suit what was sought was declaration

and injunction on the ground that the father of the first

defendant has sold a specific share of his property with

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boundary. The trial court observed that the plaintiff is in

joint possession, he could file a suit for partition. Then he

filed the present suit. The Hon’ble Supreme Court in AIR

1970 SC 1059 at Para-7 held that the requirement of Order 2

Rule 2 CPC is that when suit should include the whole of the

claim which the plaintiff is entitled to make in respect of a

cause of action. The cause of action means, the cause of

action for which the suit was brought. It cannot be said that

the cause of action on which the present suit was brought is

the same as that in the previous suit. The cause of action

which gives occasion, forms foundation of the suit. Even

though the cause of action enables the person to ask for a

larger and wider relief, then limiting his claim, he cannot

afterwards seek to recover the balance by independent

proceedings. In Para-8 of the judgment it is stated thus:

“The cause of action mentioned in the earlier suit,

assuming the same afforded a basis for a valid

claim, did not enable the plaintiff to ask for any

relief other than those he prayed for in that suit, in

that suit he could not have claimed the relief which

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he seeks in this suit. Hence the trial court and the

HIgh Court were not right in holding that the

plaintiff’s suit is barred by Order2 Rule 2 CPC.”

26. In AIR 1964 SC 1810 Para-6 it is held as follows:

“(1) that the second suit was in respect of the same

cause of action as that on which the previous suit

was based; (2) that in respect of that cause of action

the plaintiff was entitled to more than one relief; (3)

That being thus entitled to more than one relief the

plaintiff, without leave obtained from the court

omitted to sue for the relief for which the second suit

had been filed. From this analysis, it would be seen

that the defendant would have to establish primary

and to start with, the precise cause of action upon

which the previous suit was filed, for unless there is

identity between the cause of action on which the

earlier suit was filed and that on which the claim in

the later suit is based, there would be no scope for

application of the bar. No doubt, a relief which is

sought in a claim could ordinarily be traceable to a

particular cause of action. But this might, by no

means, be the universal rule. As the plea is

technical bar, it has to be established satisfactorily

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and cannot be presumed merely on the basis of

inferential reason. It is for this reason that we

consider that a plea of bar under Or. 2 R. 2, Civil

Procedure Code can be established only if the

defendant files in evidence the pleadings in the

previous suit and thereby proves to the court the

identity of the cause of action in the two suits. It is

common ground that the pleadings in C.S.28 of

1950 were not filed by the appellant in the present

suit as evidence in support of this plea under Order

2 Rule 2, CPC.”

27. It is also beneficial in this regard to refer portion of

Para-12 in 2005 AIR SCW 3311 which is as follows:

“The plea that the suit was barred under O.23, R.1, C.P.C, was not taken in the written statement and

no issue was framed to that effect. This plea was raised for the first time before the first appellate Court which was negatived. Plea that the suit was barred under O.23, R.1, C.P.C. was not taken before the High Court. Under the circumstances the appellant cannot be permitted to take this plea

before us. Contention of the learned counsel for the appellant that the suit filed by respondent No.1 was barred under O.2, R.2, C.P.C. is not sustainable on two counts. Firstly, the plea of applicability of O.2, R.2, C.P.C and the subsequent suit being barred was not taken by the appellant in his written

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statement filed in response to the notice of the suit nor any issue was framed on the point. 28. This is what is stated in Para-21 of AIR 2004 SC

1761(1):

“ The Courts below were, therefore, justified in holding that Order II, Rule 2 of the Code had no

application to the facts of the case. Consequently, the decree passed in favour of the plaintiffs for recovery of possession shall stand affirmed and the appeal to that extent shall stand dismissed”.

29. The appellant-defendant has taken contradictory

contentions as to execution of sale deed in favour of the

plaintiff. The said contention is rightly rejected by both the

courts since sale deed executed by the defendant’s father is a

registered one.

30., In Para-12 in AIR 2006 Bom. 174 it is stated as

follows:

“The plaintiff had discharged the burden of proving

his case by the production of the said 3 documents.

Defendant’s contention is that the plaintiff had to

prove that the sellers of the plaintiff had title. In

myview this was not necessary at all. A registered

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Sale Deed carries a presumption of genuineness and

the burden that it is not genuine is on the person

who alleges it is not (Sec AIR 1979 Allahabad 47).

All that the defendant was able to demonstrate was

that the suit property could not have land

registration No.17401 but that does not mean that

Graciano and his brother Santana and his wife had

no title to the property Goulan sold by Deed dated

11-3-1974. Once the plaintiff had produced the Sale

Deed in support of his title it was for the defendant

to show that the defendant had better or prior title to

the same then the one acquired by the plaintiff

virtue of the said Sale Deed.

31. In Para-5 in AIR 1979 All. 47 it is stated as follows:

“..A sale deed executed before the Sub-Registrar

carries a presumption of genuineness and the

burden to prove that it was Benami is on the person

who alleges it.”

32. In the light of these two judgments, it has been held

that the registered sale deed as long as the same has not been

challenged and struck down by the courts of law, the

presumption goes in favour of the person in whose favour the

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document is executed. The defendant has not taken any

steps to challenge the registered sale deed.

33. It has been referred by the trial court that the

remaining part of the property of the father was sold by the

first defendant by claiming he is L.R. of his father during his

life time. It is well established provision that no person can

claim heirship during the life time.

34. Section 100 of CPC which enables a person to prefer

Second appeal before this court only on the ground of

substantial question of law. The disputed facts and re-

evaluation of evidence on record is not permissible. The

substantial question of law raised by the appellant only in

respect of Order 2 Rule 2 CPC and secondly the present suit

was instituted based on the observation made in the earlier

suit. Wherever there is direction to the court below not to get

influenced, it has to be understood that the observations

made cannot influence but not the ratio in it. In the earlier

order of the trial court what has been held on the basis of

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evidence marking the documents and the pleadings has been

referred that itself cannot be construed as an influence in

passing the subsequent judgment. In the circumstances, the

substantial question of law raised is answered accordingly

and against the appellant.

Appeal stands dismissed.

Sd/-

JUDGE

AKD