Karnataka High Court
Jayanna vs Lusamma And Ors on 10 March, 2026
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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IN THE HIGH COURT OF KARNATAKA
R
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF MARCH, 2026
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO.200178 OF 2023 (DEC)
BETWEEN:
JAYANNA
S/O LATE ANANDAPPA @ DODDA ANANDAPPA
@ ANANTHUDU
AGED ABOUT 79 YEARS
OCCUPATION: BUSINESS
R/AT GOLMARKET AREA
RAICHUR - 584 101.
...APPELLANT
(BY SRI. JIDAGE KAILASH C., ADVOCATE)
AND:
1. SMT. LUSAMMA
W/O SANNA ANANDAPPA
Digitally AGED ABOUT 74 YEARS
signed by OCCUPATION:HOMEMAKER
SUMA B N
Location: 2. RAJAPPA
HIGH
COURT OF S/O SANNA ANANDAPPA
KARNATAKA AGED ABOUT 49 YEARS
OCCUPATION :POLICE CONSTABLE
3. A JAYAPPA
S/O SANNA ANANDAPPA
AGED ABOUT 34 YEARS
OCCUPATION
ALL RESIDENT OF ASHAPUR VILLAGE
TALUK AND DISTRICT RAICHUR-584 104.
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4. VIJAYAKUMAR
S/O LATE ANANDAPPA
@ DODDA ANANDAPPA @ ANANTHUDU
AGED ABOUT 64 YEARS
OCCUPATION: RAILWAY EMPLOYEE
R/AT RAICHUR-584 101.
5. VINODKUMAR
S/O SHANTAPPA
AGED ABOUT 30 YEARS
OCCUPATION WORKING IN
RANGAMANDIR, RAICHUR
R/AT HOUSE NO.96, ASHAPUR VILLAGE
POST NELHAL, VIA KALMAL, RAICHUR-584 104.
6. MOSAPPA
S/O DHANRAJ
AGED ABOUT 28 YEARS
OCCUPATION PRIVATE SERVICE
R/AT HOUSE NO.99, ASHAPUR VILLAGE
POST NELHAL, VIA KALMAL, RAICHUR-584 104.
...RESPONDENTS
(BY SRI. AMEET KUMAR DESHPANDE SENIOR COUNSEL FOR
SRI. GANESH V. DESHPANDE, ADVOCATE FOR R1 TO R3;
SRI. SYED JAVEED UL HAQ., ADVOCATE FOR R4;
ORDER DATED 27.07.2023 R-5 AND R-6 ARE DELETED)
THIS RSA IS FILED U/S. 100 R/W O.42 RULE 1 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 28.02.2023
PASSED IN R.A. NO.76/2019 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE AT RAICHUR, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 17.09.2019 AND 27.09.2019 PASSED IN O.S.
NO.263/2005 ON THE FILE OF THE II ADDL. SENIOR CIVIL
JUDGE AND JMFC AT RAICHUR.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 15.12.2025, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
CAV JUDGMENT
This regular second appeal is by defendant No.1 in
O.S.No.263/2005, aggrieved by the judgment and decree
dated 17.09.2019, passed therein on the file of II
Additional Senior Civil Judge and JMFC, Raichur,
(hereinafter referred to as `trial Court’ for short) which is
confirmed by the Judgment and Decree dated 28.02.2023
passed in R.A.No.76/2019 on the file of II Additional
District and Sessions Judge, Raichur (hereinafter referred
to as `appellate Court’).
2. The above suit in O.S.No.263/2005 is filed by
plaintiffs namely Smt.Lusamma and her sons- Sri. Rajappa
and Sri.A.Jayappa, contending interalia
2.1 That one Sri.Hanumaiah had three sons namely
Anandappa, Ananthadu and Devadas. Anandappa is the
husband and father of the plaintiffs respectively.
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Ananthudu is the father of defendant Nos.1 and 2, and
Devadas is defendant No.3.
2.2 Anandappa was in possession and cultivation of
inam land bearing Sy.No.1358 measuring 13 acres 12
guntas and land in Sy.No.1366 measuring 5 acres 4
guntas both situated within the limits of Raichur Arlibenchi
as a tenant under the Inamdar namely Raghavendrachari.
The said lands are referred to as suit schedule properties.
2.3 That on the commencement of Hyderabad Inam
Abolition Act, 1955, said Anandappa being the tenant of
suit schedule properties filed an application for grant of
occupancy rights in terms of the provisions of said Act.
The competent authority granted the occupancy rights by
order dated 02.01.1962 passed under Section 10 of the
said Hyderabad Inam Abolition Act, 1955. Thus, he was in
possession and enjoyment of the suit schedule properties
prior to and subsequent to the grant without any
interference from anyone whomsoever.
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2.4 That Smt.Easteramma, wife of Ananthudu and
mother of defendants 1 and 2- had filed a suit for
permanent injunction during her lifetime against
Anandappa and Devadas in O.S.No.138/1995 on the file of
Additional Civil Judge (Junior Division), Raichur. Said
Smt.Easteramma died during the pendency of the said
suit. Defendants 1 and 2 were brought on record as her
legal representatives.
2.5 Anandappa had also filed a suit for permanent
injunction against said Smt.Easteramma and Devadas in
O.S.No.170/1996 on the file of Additional Civil Judge
(Junior Division), Raichur.
2.6 By a common judgment and decree dated
30.06.2005, suit in O.S.No.138/1995 filed by
Smt.Easteramma was decreed while suit in
O.S.No.170/1996 filed by Anandappa was dismissed. That
on the strength of the said decree of permanent injunction
passed in O.S.No.138/1995, defendants 1 and 2
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dispossessed the plaintiffs from suit schedule properties on
13.08.2005.
2.7 That the said common judgment and decree
dated 30.06.2005 was erroneous as it had given finding
that the name of the father of defendants 1 and 2 was
Dodda Anandappa, instead of Ananthudu. That the said
Ananthudu had not cultivated the suit schedule properties
at any point of time as he was in railway service. Plaintiffs
being the wife and children of Anandappa, the grantee of
land are the owners, entitled to remain in possession of
suit schedule properties.
2.8 Alternatively it is pleaded that in the event of the
Court coming to the conclusion that the suit schedule
properties are joint family properties of the parties to the
suit, plaintiffs in the alternate seeks for relief of partition
of their share in the suit schedule properties.
Contending as above sought for following relief:
(a) a decree is and be passed declaring the
plaintiffs as owners of the suit lands bearing
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Sy.No.1358 measuring 13 acres 12 guntas and
Sy.No.1366 measuring 5 acres 4 guntas L.R.9.49
both situated in the limits of Raichur(Arlibenchi)
and the plaintiffs are to be put in possession of the
suit lands by evicting the defendants 1 and 2.
3. Written statement was filed by defendant No.1
contending:
3.1 That the name of husband of the plaintiff No.1
and name of the father of plaintiffs 2 and 3 respectively is
wrongfully and willfully described by the plaintiffs as
“Anandappa” instead of “Sanna Anandappa”. So also they
have wrongly described the name of the father of
defendants 1 and 2 only as “Ananthudu” though he was
also called and identified as “Anandappa” @ “Dodda
Anandappa”.
3.2 Filing of the suits in O.S.No.138/1995 and
O.S.No.170/1996 as stated in the plaint and passing of
common Judgment and decree dated 30.06.2005 is
admitted. Defendant No.3-Devadas was one of the
defendants in the said suits in O.S.No.138/1995 and
O.S.No.170/1996. Since he supported the case of plaintiffs
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therein he has been deliberately impleaded as defendant
No.3 in the present suit as well.
3.3 That plaintiffs not having preferred any appeal
against the said common judgment and decree dated
30.06.2005 passed in the aforesaid suits, the same has
become final and binding. The issue regarding title,
ownership and possession of suit schedule properties
raised in the present suit was thus directly and
substantially the same in the said former suits and hence
the present suit was barred by constructive resjudicata.
3.4 The suit was also barred in view of provisions of
Order II Rule 2 of CPC. Plaintiffs not having claimed relief
of declaration in the earlier suit in O.S.No.170/1996 were
precluded from instituting the further proceedings. Relief
of declaration is also barred by limitation.
3.5 It is further contended that the plaintiffs have
falsely described the name of the husband of plaintiff No.1
as well as the father of plaintiffs 2 and 3 as “Anandappa”
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to confuse and also to claim the suit schedule properties.
In fact Anandappa also known as Dodda Anandappa also
known as Ananthudu was the name of father of
defendants 1 and 2 who was the absolute owner in
possession of the suit schedule properties and his name
was also reflected in the record of rights. The name of the
husband of plaintiff No.1 and father of plaintiffs 2 and 3
was factually “Sanna Anandappa”. Plaintiffs have therefore
with malafide intention wrongly shown his name as
“Anandappa”.
3.6 That after service of summons in
O.S.No.138/1995, husband of the plaintiff No.1 as well as
father of plaintiffs 2 and 3 appeared and identified himself
as “Sanna Anandappa”. However subsequently said person
changed his version by describing himself as “Anandappa”
so as to claim the suit schedule properties standing in the
name of Anandappa i.e., father of defendants 1 and 2.
Material pleadings and other documents in O.S.138/1995
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and O.S.No.170/1996 are relevant for proper and fair
adjudication of the suit.
3.7 Father of defendants 1 and 2 was the eldest
among the three sons of Hanumaiah and therefore he was
called as Anandappa also as Dodda Anandappa and
Ananthudu. He was the tenant in respect of the suit
schedule properties under Inamdar by name
Raghavendracharya. The Special Deputy Commissioner,
Gulbarga Division had granted tenancy in his name and he
paid the premium and also revenue in respect of suit
schedule properties. His name was accordingly mutated in
the record of rights.
3.8 Father of plaintiffs 2 and 3, although his name
was “Sanna Anandappa” filed the suit in O.S.No.170/1996
under the wrong name of “Anandappa”. The allegation of
defendants 1 and 2 dispossessing the plaintiffs on
13.08.2005 on the basis of decree of permanent injunction
passed in O.S.No.138/1995 is false. Infact, after the
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demise of their father defendants 1 and 2, are now the
owners in possession of the suit schedule properties.
4. Defendant No.2 filed his separate written
statement reiterating and supplementing the averments
made in the written statement filed by defendant No.1.
5. Necessary to note that defendant No.3-Devadas,
the third son of Hanumaiah had filed a suit in
O.S.No.13/2007 for partition and separate possession of
the suit schedule properties contending that he and his
two deceased brothers were cultivating the suit schedule
properties. The grant of occupancy rights in favour of
Dodda Anandappa was on the consent given by all of
them. After the grant, the suit schedule properties were
jointly cultivated by them to the extent of their shares.
That there was a partition entered into between the three
brothers in the year 1990 each being entitled for 1/3rd
share in the suit properties. Hence, sought for partition.
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Written statement has been filed in the said suit by
the defendants therein denying the claim made by
defendant No.3.
6. Based on the above pleadings, trial Court framed
following issues in O.S.No.263/2005:
“(i) Whether the plaintiffs prove that, they are the
owners of the suit properties?
(ii) Whether the plaintiffs are get to possess the suit
properties?
(iii) Whether the plaintiffs prove that, there is cause of
action for the suit?
(iv) Whether the suit is barred by res-judicata?
(v) Whether the plaintiffs are entitled to get decree?
(vi) What order or decree?
Additional issue:
1. Whether the defendant No.1 and 2 prove that, their
father’s name is Ananthadu and not Anandappa?”
And in O.S.No.13/2007:
“1.Whether the plaintiff prove that he has got share in the
suit schedule properties. If so, what his share?
2. Whether the plaintiff prove that the suit schedule
properties granted in favour of father of defendant No.5
for and on behalf of the joint family?
3. Whether the suit is barred by resjudicata?”
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7. Plaintiff No.2 examined himself as PW-1 and one
witness Neetiraj as PW2 and produced 27 documents
marked as Exhibits P1 to P27. Defendant examined
himself as defendant No.1 and two witnesses N.Anand as
PW2 and Devadas-defendant No.3 as PW3 and produced
62 documents marked as Exhibits D1 to D62.
8. On appreciation of oral and documentary
evidence, trial Court answered issues in O.S.No.263/2005
i.e., issue Nos.1 to 3, 5 in the affirmative and additional
issue in the negative and issue No.4 as decided by the
Principal District and Sessions Judge, Raichur in
R.A.No.126/2009 and 127/2009 dated 27.01.2014 and
answered issues in O.S.No.13/2007 i.e., issue Nos.1 and 2
in the negative and issue No.3 as decided by the Principal
District and Sessions Judge, Raichur in R.A.No.126/2009
and 127/2009 dated 27.01.2014. Consequently, by its
judgment and decree dated 17.09.2019 trial Court decreed
the suit in O.S.No.263/2005 and dismissed the suit in
O.S.No.13/2007.
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9. Being aggrieved by the Judgment and decree
dated 17.09.2019 passed in O.S.No.263/2005 defendants
1 and 2 preferred R.A.No.76/2019. The first appellate
Court by its judgment and decree dated 28.02.2023
dismissed the regular appeal confirming the Judgment and
decree passed by the trial Court in O.S.No.263/2005.
10. Being aggrieved by the Judgment and decree
dated 28.02.2023 in R.A.No.76/2019, defendant No.1 in
O.S.No.263/2005 has preferred this second appeal.
11. This Court admitted the appeal for consideration
of the following substantial questions of law:
“(i) Whether the conclusions arrived at by the trial
Court and First appellate Court are contrary to the
oral and documentary evidence placed on record
and as such perverse?
(ii) Whether the suit is barred by constructive res
judicata in view of the Judgment and decree in
O.S.No.138/1995 and 170/1996?
(iii) Whether the suit is barred under Order II Rule 2
of C.P.C?”
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SUBMISSIONS:
12. Learned counsel for defendants/appellants
submitted that the trial Court erred in readjudicating the
issue regarding the confusion of names which was tried
and determined in the earlier round of suits in
O.S.138/1995 and O.S.No.170/1996 as such the present
suit is barred by limitation. That neither the issues have
been framed properly nor proper reasonings are given by
the trial Court to the issues framed. That the trial Court
has answered the issue relating to resjudicata as decided
by Prl. District and Sessions Judge, Raichur in
R.A.No.126/2009 and 127/2009 which is erroneous. That
the trial Court and first appellate Court have not adverted
to the issue of limitation and provisions of Order II Rule 2
CPC. That the documentary evidence in the nature of
orders passed in the previous revenue proceedings and the
writ proceedings indicate that Sanna Anandappa was the
younger brother of Anandappa @ Dodda Anandappa which
proceedings have attained finality and the trial Court
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without adverting to said material evidence has granted
relief in favour of the plaintiffs contrary to the reasons and
conclusions arrived at in the earlier proceedings which has
attained finality. Hence, seeks for allowing of the appeal.
13. Learned counsel for respondents 1 to 3 justifying
the Judgment and decree passed by the trial Court
submitted that in the earlier proceedings there was no
issue which was substantially similar to the one involved in
the present case, therefore the findings in the earlier
proceedings cannot operate as resjudicata. That the
finding and conclusion arrived at by first appellate Court
declaring the plaintiffs to be absolute owners of suit
schedule properties is based on oral and documentary
evidence. That the concurrent finding of facts by the trial
Court and first appellate Court cannot be interfered with
under Section 100 CPC. In any event, he submitted that in
the event of this Court coming to the conclusion of suit
properties being joint family properties, alternate relief of
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partition and separate possession be granted as pleaded
and sought for at paragraph 11 of the plaint.
14. Heard and perused the records.
Re: Substantial Question of law No.1:
15. It appears that earlier by a common judgment
and decree dated 18.11.2009, the aforesaid suits in
O.S.No.263/2005 and O.S.No.13/2007 came to be
dismissed by the trial Court on the preliminary issue of
resjudicata, holding that dispute raised in the suits was
directly and substantially the same in the earlier suits in
O.S.No.138/1995 and O.S.No.170/1996. As against which
regular appeals in R.A.No.126/2009 and R.A.No.127/2009
came to be filed before the Principal District and Sessions
Judge at Raichur.
16. In the said appeals the Principal District and
Sessions Judge at Raichur, relying upon the judgment of
the Apex Court in the case of Sulochana Amma Vs
Narayanan Nair reported in AIR 1994 SC 152,
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Aananimuthu Thevar (dead) by Lrs. Vs Alagammal
and others reported in AIR 2005 SCW 3516, adverted
to the issue of resjudicata and has held that where the
complicated question of fact and law relating to title exists,
the Court shall direct the parties to file comprehensive suit
for declaration instead of deciding the matter in their suit
for bare injunction. It has further observed that it is
necessary to consider whether or not in the previous suits,
title was directly and substantially in issue. If the only
issue involved in the previous suit was regarding lawful
possession and the same was decided in the previous
suits, the question of resjudicata would not arise in the
subsequent suits. On this premise, the first appellate Court
has come to the conclusion that since in the earlier
judgment and decree dated 30.06.2005 passed in
O.S.No.138/1995 and O.S.No.170/1996 there was no
issue with regard to the title, the finding arrived at by the
trial Court in dismissing the present suits on the issue of
resjudicata was erroneous and accordingly by order dated
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27.01.2014 allowed the said appeals, set aside the
common judgment and decree and remanded the matter
for fresh disposal by recording findings on all other issues.
17. It is upon such remand, the suits were taken for
fresh consideration. It is under these circumstances, the
trial Court and the first appellate court have re-adjudicated
the entire matter including the issue with regard to the so
called confusion of names of Dodda Anandappa and Sanna
Anandappa. However the trial Court and the first appellate
Court have not adverted to Issue No.4 and Issue No.3
framed in the said suits regarding whether the suits were
barred by resjudicata. The trial Court and the first
appellate Court have found that the said issues have
already been decided by the first appellate Court in
R.A.No.126/2009 and R.A.No.127/2009 by order dated
27.01.2014, as such have not adverted to the same.
18. In the process of re-adjudicating the matter, the
trial Court and the first appellate Court have completely
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reversed the findings and conclusions that were arrived at
in the earlier Judgment and decree passed in the suits in
O.S.No.138/1995 and O.S.No.170/1996.
19. In the judgment and decree dated 30.06.2005
passed in O.S.No.138/1995 and O.S.No.170/1996, the
trial Court at paragraphs 15 to 21 has come to the definite
conclusion that Dodda Anandappa and Sanna Anandappa
are two different persons and the suit schedule properties
was indeed granted in favour of Dodda Anandappa and the
trial Court also come to the conclusion of Dodda
Anandappa and his legal heirs being in possession of the
property granted the decree of permanent injunction
restraining Lusamma and Rajappa and Jayappa, the legal
heirs of Sanna Anandappa from interfering with the same.
20. Contrary to the above findings and conclusion
trial Court and the first appellate Court in the present suit
in O.S.No.263/2005 has again taken up the issue with
regard to the confusion between the names of ‘Dodda
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Anandappa’ and ‘Sanna Anandappa’ and have come to a
conclusion that Anandappa is the name actually belonging
to the husband and father respectively of the plaintiffs.
That the name of father of defendants was Ananthudu.
And there were no names as ‘Dodda Anandappa’ and
‘Sanna Anandappa’ ever existed. That the suit schedule
properties was indeed granted in the name of Anandappa,
the husband and father respectively of the plaintiffs.
Accordingly accepted their case and decreed the suit as
sought for. This reasoning has been accepted by the first
appellate Court and has concurred with the same which
has resulted in the present appeal.
21. Learned counsel for the defendant
No.1/appellant vehemently submitted that the conclusion
arrived at by the trial Court concurred and confirmed by
the first appellate Court in the impugned Judgment and
decree are not in consonance with the documentary and
oral evidence.
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22. It is settled position of law that an appeal under
Section 100 CPC can be entertained by the High Court only
on substantial question of law. However, if the findings of
the subordinate Courts on facts are contrary to the
evidence available on record, such findings would amount
to perversity and can be set aside by the High Court in
appeal under Section 100 CPC. Apex Court in the case of
Bondar Singh and others Vs Nihal Singh and others
reported (2003) 4 SCC 161 at paragraph 4 has held as
under:
“4. Before we proceed further it is necessary to
notice a preliminary argument raised by the learned
counsel for the appellants. It was contended that the
question of possession is a question of fact and the
High Court while exercising power under Section
100 of the Code of Civil Procedure, had no
jurisdiction to upset the findings on this question
recorded by the lower appellate Court. An appeal
under Section 100 C.P.C. can be entertained by the
High Court only on a substantial question of law.
There can be no quarrel with this legal proposition.
The scope of powers of High Court under Section
100 C.P.C is a matter of settled law. The learned
counsel for the appellant cited several judgments in
support of his contention. We do not consider it
necessary to discuss these decisions because so far
as the question of powers of High Courts
under Section 100 C.P.C. is concerned, it needs no
discussion. If the findings of the subordinate courts
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on facts are contrary to evidence on record and are
perverse, such finding can be set aside by the High
Court in appeal under Section 100 C.P.C. A High
Court cannot shut its eyes to perverse findings of the
courts below. In the present case the findings of fact
arrived at by the lower appellate court were contrary
to evidence on record and, therefore, perverse and
the High Court was fully justified in setting aside the
same resulting in the appeal being allowed and suit
being decreed.”
23. This Court in the light of there being two
completely contradictory findings given by the trial Court
i.e., findings in O.S.No.138/1995 and O.S.No.170/1996
and in the present suits in O.S.No.263/2005 and
O.S.No.13/2007, on the issue regarding confusion in the
names of “Anandappa”, “Dodda Anandappa” and “Sanna
Anandappa”, is constrained to reappreciate the oral and
documentary evidence led in by the parties. While in the
earlier suits in O.S.No.138/1995 and O.S.No.170/1996,
the trial Courts have held “Anandappa” was known as
“Dodda Anandappa” who was the husband and father of
plaintiffs in O.S.No.138/1995 (father of defendants 1 and 2
in the present suit) and he was grantee of the suit land.
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In the subsequent suit the trial Court and first appellate
Court have held that there is no person called either as
“Dodda Anandappa” or “Sanna Anandappa”. It is only
Anandappa, the husband and father of the plaintiffs who
was also grantee and owner of the land.
24. The substantial questions of law No.1 is therefore
required to be addressed by reappreciating the oral and
documentary evidence placed on record.
25. The undisputed document-Exhibit P6 which is
also marked as Ex.D23 is the order dated 02.01.1962
passed by the Special Deputy Commissioner for Inam
Abolition, Arlibenchi, Gulbarga Division under Section 10 of
the Hyderabad Inam Abolition Act, 1955. Perusal of which
would indicate that one Sri.Anandappa, S/o Hanumayya of
Arlibenchi had applied for registration of occupancy rights
of Khairathi dry inam in respect of suit schedule properties
being land bearing Sy.No.1358 measuring 13 acres 12
guntas and Sy.No.1366 measuring 5 acres 4 guntas both
situated at Arlibenchi Taluk, Raichur, claiming to be
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tenant/purchaser of the said lands. The suit properties
originally belonged to one Inamdar Raghavendrachari, son
of Venkappachari. The Special Tahsildar Inam Abolition,
Raichur after conducting detailed enquiry in terms of the
provisions of Section 8(1) of the said Act, 1955 has
recommended for registration of occupancy rights on said
Anandappa as non-protected tenant. The said document
also indicate that Inamdar had given his consent in favour
of the applicant-Anandappa and had stated that he had
received a sum of Rs.4,000/- prior to the date of vesting.
As such the Special Deputy Commissioner conferred the
occupancy rights in the name of said Anandappa.
26. Ex.P16 which is also marked Ex.D24 is the
endorsement dated 02.08.1962 issued by the Special
Deputy Commissioner Inam Abolition, Gulbarga Division,
confirming occupancy rights in the name of said
Anandappa S/o Hanumayya.
27. Exhibit-D21 is a statement on oath made by
Raghavendrachari, son of Venkatappachari, confirming
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receipt of Rs.4,000/- from Anandappa towards the sale
consideration of his inam lands under Khairathi grant in
respect of suit schedule properties.
28. Exhibit D22 is a statement on oath made by
Anandappa son of Hanumayya shown as Christian doing
agriculture occupation, having paid Rs.4,000/- towards the
sale consideration to said Inamdar.
29. Exhibit D28 is the copy of extract of the pahani
pertaining to the aforesaid lands. Column No. 16 of the
said document indicate name of Anandappa S/o
Hanumayya having purchased the said land.
30. Exhibit D29 to D35 are the RTC Extract for the
years 1964 to 1994-95 in respect of land in Sy.No.1358
measuring 13 acres 12 guntas in which name of
Anandappa is shown.
31. Similar is documents Exhibits D36 to D43
pertaining to land in Sy.No.1366 in which name of
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Anandappa son of Hanumayya is shown to have purchased
the land.
32. The aforesaid documents indicate grant of
occupancy right in the name of Anandappa son of
Hanumayya. Thus, till the year 1994 there appears to have
been no dispute with regard to the said aspect of the
matter.
33. Exhibit D55 is the order dated 23.02.1991 passed
by the Executive Shirasthedar, Office of Tahsildar, Raichur
in RRT No.90-91:260. The said document indicate the
applicant therein being one “Sanna Anandappa” and
objectors being ‘Anandappa’, S/o Hanumayya and
Jayanna, S/o Anandappa. Perusal of the said document
indicate that ‘Sanna Anandappa’ had filed objections for
mutating the name of ‘Dodda Anandappa’ in respect of suit
schedule properties. It is contended that suit schedule
properties belonged to ‘Anandappa’, ‘Sanna Anandappa’
and ‘Devadas’. All three being sons of Hanumayya and
they having jointly purchased the same and the
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khatha/patta having been made in the name of ‘Dodda
Anandappa’ for the sake of convenience. Taking into
consideration the said contention raised by ‘Sanna
Anandappa’, the Executive Shirasthedar has passed the
order in exercise of power under Section 129(4) of the
Land Revenue Act and Rules 43 and 67 of the Land
Revenue Rules, directing registration of the khatha in
respect of land bearing Sy.No.1358 measuring 13 acres 12
guntas in the names of (1) Dodda Anandappa to an extent
of 4 acres 17 guntas (2) Sanna Anandappa to an extent
of 4 acres 17 guntas and (3) Devadas to an extent of 4
acres 18 guntas. And as regards land in Sy.No.1366,
measuring 5 acres 04 guntas he directed the same to be
registered jointly in the name of the said three persons to
prevent violation of provisions of the Fragmentation Act.
34. As against the aforesaid order at Exhibit D55,
Anandappa had preferred an appeal before the Assistant
Commissioner, Raichur. By order dated 23.03.1993
produced at Ex.D46, the appeal was allowed by the
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Assistant Commissioner in exercise of power under Section
136(2) of the Land Revenue Act, 1964 and set aside the
order passed by the Executive Shirasthedar dated
23.02.1991 and had directed the respondents namely
Sanna Anandappa and Devadas therein to establish their
rights before the Civil Court.
35. As against the aforesaid order, Sanna
Anandappa had approached this Court by filing a writ
petition in W.P.No.18352/1993. The said writ petition
came to be dismissed by order dated 06.07.1993 as per
Exhibit D47, wherein this Court accepting the reason
assigned by the Assistant Commissioner directing the
parties to approach the Civil Court, found the writ petition
did not merit consideration. Accordingly dismissed the writ
petition.
36. Thereafter, it appears, Dodda Anandappa’s wife
Smt.Easteramma and her two sons had filed a suit in
O.S.No.138/1995 against Sanna Anandappa and Devadas,
seeking relief of injunction. Similarly, Sanna Anandappa
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also had filed a suit in O.S.No.170/1996 before the
Additional Civil Judge, Junior Division, Raichur. By a
common judgment and decree dated 30.06.2005 produced
at Ex.P3, suit filed by Easteramma and her sons Jayanna
and Vijaykumar came to be decreed while the suit filed by
Sanna Anandappa in O.S.No.170/1996 came to be
dismissed.
37. Necessary to note that though in the suit in
O.S.No.170/1996 name of the plaintiff is shown as
Anandappa who is admittedly the husband and father
respectively of plaintiffs in the present suit. In
O.S.No.138/1995, he had filed his vakalath as per Exhibit
D51, describing himself as Sanna Anandappa and has
affixed his signature in Kannada as Sanna Anandappa. His
brother Devadas had also engaged the very same
advocate and he has also joined execution of very same
vakalath -Ex.D51.
38. An application in IA No.III under Section 151 of
CPC was also filed by Sanna Anandappa and Devadas
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produced Exhibit D52 describing himself as Sanna
Anandappa. Affidavit accompanying said application also
signed by the said person on 26.06.1995. The said
application was filed seeking permission to file
vakalathnama in which he has described himself as Sanna
Anandappa. Third defendant has also filed an affidavit in
the said suit in O.S.No.138/1995.
39. It appears said Sanna Anandappa has passed
away on 08.01.2000 thereupon his wife Lusamma and
sons Rajappa and Jayappa have made an application under
Order XXII Rule 2 to Rule 4 read with Section 151 CPC in
M.A.No.4/1998. The said application along with affidavit
filed therein is produced at Exhibit D56. The said affidavit
is sworn to by Rajappa. At paragraph 2, he has described
his father’s name as Sanna Anandappa.
40. Till these documents there appears to be no
dispute with regard to names and identity of Anandappa,
Sanna Anandappa and Devadas, all the sons of
Hanumayya.
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41. It appears dispute with regard to the identity
and confusion in the names of Anandappa and Sanna
Anandappa became serious after the demise of Sanna
Anandappa.
42. Though the said suit in O.S.No.138/1995 filed
by Easteramma was one for bare injunction, since the legal
heirs of Sanna Anandappa had disputed the very identity
of names of Sanna Anandappa and Anandappa, the trial
Court therein in its Judgment dated 30.06.2005 passed in
O.S.No.138/1995 connected with O.S.No.170/1996, the
issue raised by the defendants with regard to the so-called
confusion of names of Dodda Anandappa and Sanna
Anandappa has been adverted to in detail with reference to
the very vakalath and applications filed by Sanna
Anandappa and his children. As could be seen from the
contents of paragraphs 15 to 21 of the said judgment, the
trial Court after appreciating the evidence placed on record
has come to the conclusion that Dodda Anandappa and
Sanna Anandappa are two different persons. That
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Anandappa was also known as Dodda Anandappa and
Ananthudu. Further referring to the oral and documentary
evidence led in by the plaintiffs therein, the trial Court
therein has come to the conclusion that the suit schedule
properties were indeed granted in the name of Anandappa
as he had paid a sum of Rs.4,000/- to the original
inamdar. It has thus come to the conclusion of Dodda
Anandappa being in possession of the suit schedule
properties thereby granted the relief of permanent
injunction in favour of his wife Easteramma since deceased
by his legal representatives Jayanna, the appellant herein
and his brother Vijaykumar, as sought for. The suit filed by
Sanna Anandappa later represented by his wife and
children came to be dismissed. This judgment and decree
has attained finality.
43. In the present suit in O.S.No.263/2005 which is
now filed by Lusamma, Rajappa and Jayappa, the wife and
sons of Sanna Anandappa, seeking comprehensive relief of
declaration and possession alleging that they were
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dispossessed by Jayanna and Vijaykumar, sons of
Ananthudu on the strength of Judgment and decree dated
30.06.2005 passed in O.S.No.138/1995, they are yet
again disputing and reagitating the confusion in the names
of Anandappa, Dodda Anandappa @ Ananthudu.
44. As already noted and analyzed, Ex.P6 also
marked as Ex.D23 revealing that the suit schedule
properties was granted in the name of Anandappa, S/o
Hanumayya. His name has been consistently reflected in
the revenue records produced at Ex.D29 to D35 in respect
of the suit schedule properties.
45. Ex.D55 is the order by the Executive
Shirasthedar at the instance of Sanna Anandappa who
objected for registration of khatha of suit schedule
properties exclusively in the name of Dodda Anandappa.
Jayanna, appellant herein is also arrayed as respondent
No.2 while Dodda Anandappa has been arrayed as
respondent No.1 in the said proceedings. The Executive
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Shirasthedar accepting the objections raised by Sanna
Anandappa by order dated 23.02.1991 directed
registration of khatha jointly in the name of Dodda
Anandappa, Sanna Anandappa and Devadas. This order
has been challenged by Dodda Anandappa by filing appeal
before the Assistant Commissioner which was allowed by
order dated 23.03.1993 as per Ex.D46. Sanna Anandappa
assailed the said order by filing writ petition in
W.P.No.18352/1993 which was dismissed by order dated
06.07.1993 as per Ex.D47.
46. The trial Court though at page No.20 of its
Judgment (end of paragraph 17) has though taken note
of these exhibits has not discussed anything whatsoever.
Similarly the first appellate Court has also not
discussed/adverted to the said documents.
47. Had the first appellate Court and trial Court
appreciated the said documentary evidence placed on
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record perhaps the conclusion arrived at by them would
have been otherwise.
48. As regards documents produced by the
defendants at Ex.D51, D52, D53, D54, D56, being the
vakalath, applications and affidavits filed by Sanna
Anandappa in suit in O.S.No.138/1995 describing himself
as Sanna Anandappa, the trial Court at paragraph 20 of its
Judgment has merely glossed over the same and has
made a cryptic observation that the said documents being
part of suit in O.S.No.138/1995 filed by mother of
Vijaykumar and Jayanna will not come to their aid.
Similar is the observation by the first appellate Court.
49. Documents at Exhibits P6, D23 and D28-D43 are
the documents evidencing grant of suit schedule
properties in the name of Anandappa, s/o Hanamayya.
The said Anandappa is also known as Dodda Anandappa
which is evident by the proceedings at Exhibits D55, D46
and D47.
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50. The trial Court and first appellate Court have
essentially lost sight of the fact that the documents at
Exhibits D55, D46 and D47 being the revenue proceedings
established unequivocal admission on the part of Sanna
Anandappa, the husband and father of the plaintiffs
respectively that the suit schedule properties were indeed
granted in the name of Dodda Anandappa, the father of
appellant/defendants.
51. This fact of grant is also supported by the
pleadings and evidence of Devadas the defendant No.3 in
the suit who is the youngest brother of Dodda Anandappa
and Sanna Anandappa who is also seeking for 1/3rd share
in the suit schedule properties.
52. The aforesaid documents read along with
documents Ex.D51 to D56 would unequivocally establish
that the name of husband and father of the plaintiffs was
indeed Sanna Anandappa and not Anandappa as sought to
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be contended and erroneously accepted by the trial Court
and first appellate Court.
53. Necessary at this juncture to note that the very
admission of PW1 during his cross-examination, wherein
PW1 has admitted as under:
“ನನ ಾತನ ೆಸರು ಹನುಮಯ ಅವ ೆ ಾಲು ಜನ ಗಂಡ ಮಕ ದು
ಅವರು ಎಂದ ೆ ಅನಂತಡು, !ನ ಣ#, ಆನಂದಪ& ಮತು’ (ೇವ(ಾಸ,
ಅನಂತಡು ೆ ಆನಂದಪ& ಮತು’ (ೊಡ+ ಆನಂದಪ& ಅಂ ಾ ಕ ೆಯು,’ದರು
ಎಂದ ೆ ಸ ಯಲ-. ನನ ತಂ(ೆ ೆಸರು .ಾ/ಬಣ#1ದು ಅವ ೆ ಸಣ#
ಆನಂದಪ& ಅಂ ಾ ಕ ೆಯು,’ದರು ಎಂದ ೆ ಸ ಯಲ-. ನನ ತಂ(ೆ 3:8-1-
2000ರಂದು ,ೕ 5ೊಂ6ರು ಾ’ ೆ. (ೊಡ+ ಆನಂದಪ& ಮತು’ !ನ ಣ#
ಯ7ಾಗ ,ೕ 5ೊಂ6(ಾ ೆ ಎಂದು ೆನ8ಲ-. 91: ಜಡ+, ಾಯಚೂರು
ಾ <ಾಲಯದ=- ಪ>,7ಾ3ಯರು ಓಎಸ ನಂ: 138/1995 @ಾ6ದರು
ಾವA ಓಎಸ ನಂ: 170/1996 @ಾ6(ೆವA. ಸದ ಎರಡು (ಾ7ೆಗಳE
ಪ>ಸು’ತ (ಾ7ಾ ಆ9′ FೕGೆ @ಾಡGಾHತು’ ಎಂದ ೆ ಸ . ಸದ ಎರಡು
(ಾ7ೆಗಳನು IಾಶKತ LಭಂದN SÁ ೆ ಕು ತು ಸ=-9ದು ಅವAಗಳ=- ಓಎಸ
ನಂ:138/1995 rQæ ಆ/ತು ಓಎಸ ನಂ:170/1996 6ಸO¸ï ಆ/ತು
ಎಂದ ೆ ಸ . (ಾ7ಾ ಅ9’ಗಳE ಮೂಲ ಇ ಾಮ ಜOೕನುಗಳE ಎಂದ ೆ
ಸ . ಸದ ಇ ಾಮ SÁ ೕಜ ಆH ಸದ (ಾ7ಾ ಆ9’ಗಳE (ೊಡ+
ಆನಂದಪ& ಅ=<ಾಸ ಆನಂದಪ&ನ ೆಸ ೆ ಾ>ಂಟ ಆದವA ಎಂದ ೆ
ಸ ಯಲ-….. ………ಓಎR ನಂ:138/1995 ೇದರ L8-41 ರ=- ಸಣ#
ಆನಂದಪ& ಅಂ ಾ ೇ ನಮು39 ಎಂ.ಎ. ನಂ:4/1998 ಾS(ೇ7ೆ
ಎಂದ ೆ ವSೕಲರು ತಪA& ಬ ೆ3ರಬಹುದು ಆದ ೆ ಸದ ಅ8ೕಲು ಾ ೆ
ಾSದ. ಓಎಸ ನಂ.138/1995 ೇದರ L8. 37 ಮತು’ L8 38 ರ=- ನಮT
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ತಂ(ೆ ಸಣ# ಆನಂದಪ& ಅಂ ಾ ೇ U ಸV @ಾ6ರು ಾ’ ೆ ಎಂದ ೆ ಸ .
ಸದ ಸVಯನು ಅದರ=- L8 38(ಎ) ಗುರು,ಸGಾH(ೆ ಎಂದ ೆ ಸ .
ಓಎಸ ನಂ:138/1995 ೇದರ ವ5ಾಲತ’ (L8 36) ರ=- ನಮT ತಂ(ೆ ಸಣ#
ಆನಂದಪ& ಅಂ ಾ ೇ U ಸV @ಾ6ರು ಾ’ ೆ ಎಂದ ೆ ಸ . ಸದ
ಸVಯನು ಅದರ=- L8 36(W) ಅಂ ಾ ಗುರು,ಸGಾH(ೆ ಎಂದ ೆ ಸ .
ತಹ9ೕGಾರವರ ಆ(ೇಶದ 1ರುದX ಪ>,7ಾ3ಯರು ಎ.9. ರವರ ಮುಂ(ೆ
FೕಲTನ1 ಸ=-9ದರು. ಅ=- ತಹ9ೕGಾರವರ ಆ(ೇಶದವನುನ
ವYಾ ೊ 9 91: ಾ <ಾಲಯ5ೆ ೋH ಎಂದು ಆ(ೇZ9ದರು.
ಸದ ಎ.9. ರವರ ಆ(ೇಶದ ಪ>5ಾರ ಸದ ಪಹ[ ಪ,>5ೆಗಳ=- ೆಸರು
ಆನಂದಪ& ಅ=<ಾಸ (ೊಡ+ ಆನಂದಪ& ಅಂ ಾ (ಾಖGಾHತು’ ಎಂದ ೆ
ಸ ಯಲ-. ಸದ ಆ(ೇಶದ 1ರುದX ಾವA @ಾನ ಉಚ^ ಾ <ಾಲಯ5ೆ
ಟ ಸ=-9(ೆವA ಎಂದ ೆ ಅವ ೇ ಸ=-9ದರು ಅನು ಾ’ ೆ. ಓಎR
ನಂ:138/1995 ೇದರ L8 32 ರ=- ನಮT ತಂ(ೆ ಟ ಸ=-9ದರು
ಅದರ=-ಯು ಕೂಡ ಸಣ# ಆನಂದಪ& ಅಂ ಾ ೇ ನಮು39 ಟ
ಾSದರು ಎಂದ ೆ ಸ . ಸದ ಟನ=- ಎದುರು(ಾರರ ೆಸರು (ೊಡ+
ಆನಂದಪ& ಅಂ ಾ ನಮೂ39(ೇ7ೆ ಎಂದ ೆ ಸ . ಓಎಸ
ನಂ:138/1995 ೇದರ L8-34 ರ=- ನಮT ತಂ(ೆ ೆಸರು ಸಣ# ಆನಂದಪ&
ತಂ(ೆ ಹನುಮ<ಾ ಅಂ ಾ ೋ 9(ಾ ೆ ಎಂದ ೆ ಅದು ತಪA&
ೋ 9(ಾ ೆ ಅಂ ಾ ೇಳE ಾ’ ೆ. ಓಎಸ ನಂ: 138/1995 ೇದರ L8
33 ರ=- ಪ>ಸ,7ಾ3ಯ ತಂ(ೆ ೆಸರು ಆನಂದಪ& ಮತು’ (ೊಡ+
ಆನಂದಪ& ಅಂ ಾ ೋ 9ರು ಾ’ ೆ ಎಂದ ೆ ಅದರ ಬ ೆ_ ನನ ೆ ೊ,’ಲ-.
ಎ.9. ರವರ ಆ(ೇಶದ ಪ>5ಾರ ಓಎಸ ನಂ.138/1995 ೇದರ L8 31 ರ=-
ನಮT ತಂ(ೆ ೆಸರು ಸಣ# ಆನಂದಪ& ತಂ(ೆ ಹನುಮ<ಾ ಅಂ ಾ
ೋ 9(ಾ ೆ ಎಂದ ೆ ಸ .
Deposition recorded on 29.07.2016
ನಮT ತಂ(ೆಯ ೆಸರು ಯ7ಾಗಲು ಸಣ# ಆನಂದಪ& ಅಂ ಾ ಇ(ೆ ಎಂದ ೆ
ಸ ಯಲ-, ಎಂ.ಎ.ನಂ:4/1998ರ=- ಾನು ಸ=-9ದ ಪ>@ಾಣ ಪತ>ದ=-
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ನನ ತಂ(ೆ ೆಸರು ಸಣ# ಆನಂದಪ& ಅಂ ಾ ಇ(ೆ ಎಂದ ೆ ೌದು ಅದು
ತaಾ&H(ೆ ಎಂದು ೇಳE ಾ’ ೆ. ಸ7ೆN ನಂ:52 ಯ7ಾಗ ಖ ೕ39(ಾ ೆ
ಎಂದು ೊ,’ಲ-. ಅದನು ನಮT ತಂ(ೆ ಮತು’ (ೊಡ+ಪ& ಖ ೕ39(ಾ ೆ
ಅದರ=- ಸಣ# ಆನಂದಪ& ಅಂ ಾ ನಮೂದು ಇ(ೆ ಎಂದ ೆ ಅದು ತaಾ&H
ನಮೂ(ಾHರುತ'(ೆ. ಅದ5ೆ ಸಂಬಂb9ದಂ ೆ ಪಹ[ ಪ,>5ೆಗಳ=-ಯೂ
ಕೂಡಸಣ# ಆನಂದಪ& ಅಂ ಾ ನಮೂದು ಇ(ೆ ಎಂದ ೆ ಅದು ತaಾ&H
ನಮೂ(ಾHರುತ'(ೆ. ನಮTದು ಇ ೊ ಂದು ಜOೕನು1ದು ಅದರ ಸ7ೆN
ನಂಬರ ನನ ೆ ೊ,’ಲ-. ಅದರ ಸ7ೆN ನಂ:51 ಎಂದ ೆ ಸ . ಅದರ ಪಹ[
ಪ,>5ೆಯ=- ಆನಂದಪ&, ಕುರುಬರ .ಾಬಣ#, (ೇವ(ಾಸ ಮತು’ ನರಸ@ಾT
ಇವರು ಜಂc @ಾ=ೕಕರು ಅಂ ಾ ನಮೂ(ಾH(ೆ ಎಂದ ೆ ಸ ಆದ ೆ
ಅದು ಸಣ# ಆನಂದಪ&L ೆ ಸಂಬಂb9ದಲ-. ನನ ತಂ(ೆ ೆ ಸಣ# ಆನಂದಪ&,
.ಾಬಣ#, 7ಾಯಣ# CAvÀ®Æ ಕ ೆಯು,’ದರು ಎಂದ ೆ ಸ ಯಲ-.
54. Thus from the above deposition of PW1 it is
clear that he has admitted that name of his father shown
and described as “Sanna Anandappa” in the suits in
O.S.No.138/1995 and O.S.No.170/1996 as well as in the
writ petition, though he has tried to give evasive answer.
55. The other evidence produced by the defendants
are with regard to Dodda Anandappa having two
daughters by name Hemalatha and Saroja which is
confirmed by evidence of PW2. Ex.D11 is the SSLC
certificate belonging to Hemalatha wherein her father’s
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name is shown as Anandappa. Ex.D14 is the transfer
certificate of A.Vijaya who is defendant No.2. Ex.D15 is
the order providing appointment of A.Vijaya on
compassionate ground wherein his father’s name is shown
as Anandappa @ Ananthudu. Ex.D18, D19 and D20 are
the notices issued by the Special Tahsildar Inam Abolition
under Hyderbad Inams Abolition Act addressed to
Anandappa. Ex.D57 is the Railway Defence Savings
Provident Fund Declaration submitted by Anandappa
showing his wife Easteramma, who is the original plaintiff
in O.S.No.138/1995.
56. From the records it also appears both the trial
Court and the first appellate Court were persuaded to hold
that there existed no person called as Dodda Anandappa,
inasmuch as Anandappa who is also known as Ananthudu
was rendering services in Railway department as such he
could not have cultivated the suit schedule properties
being agricultural lands. This appears to have swayed in
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the mind of the first appellate Court as found at paragraph
No.40 of its Judgment.
57. The aforesaid finding cannot be sustained for
the reasons that even the husband and father of the
plaintiffs, who according to the defendants was Sanna
Anandappa and according to plaintiffs was Anandappa was
also a railway employee. Therefore if Dodda Anandappa
could not have been considered as cultivating the suit
schedule properties being a railway employee, same
analogy should apply to husband and father of plaintiffs as
he was also a railway employee. This is also emanating
from evidence of PW2 and the evidence led in by the
defendant No.3-Devadas who is the brother of Dodda
Anandappa and Sanna Anandappa.
58. Thus from the aforesaid deposition and material
evidence placed on record, it becomes clear that Dodda
Anandappa and Sanna Anandappa are two different and
distinct persons and the reasoning and conclusion arrived
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at by the trial Court and the first appellate Court is
therefore cannot be sustained as the same suffers from
non appreciation of oral and documentary evidence and is
thus led to perverse finding and conclusion.
Substantial question of law No.1 is answered
accordingly.
Re: Substantial question of law No.2:
59. The question that arises is “whether the trial
Court on remand by the first appellate Court could have
re-adjudicated the matter giving completely contrary
reasoning setting at naught the earlier judgment and
decree passed in O.S.No.138/1995 and O.S.No.170/1996
by Court of competent jurisdiction.
60. Section 11 of CPC dealing with resjudicata reads
as under:
11. Res judicata.–No Court shall try any suit or
issue in which the matter directly and
substantially in issue has been directly and
substantially in issue in a former suit between
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the same parties, or between parties under
whom they or any of them claim, litigating
under the same title, in a Court competent to
try such subsequent suit or the suit in which
such issue has been subsequently raised, and
has been heard and finally decided by such
Court.
Explanation I.–The expression “former suit”
shall denote a suit which has been decided
prior to a suit in question whether or not it was
instituted prior thereto.
Explanation II.–For the purposes of this
section, the competence of a Court shall be
determined irrespective of any provisions as to
a right of appeal from the decision of such
Court.
Explanation III.–The matter above referred to
must in the former suit have been alleged by
one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.–Any matter which might and
ought to have been made ground of defence or
attack in such former suit shall be deemed to
have been a matter directly and substantially in
issue in such suit.
Explanation V.–Any relief claimed in the plaint,
which is not expressly granted by the decree,
shall for the purposes of this section, be
deemed to have been refused.
Explanation VI.–Where persons litigate bona
fide in respect of a public right or of a private
right claimed in common for themselves and
others, all persons interested in such right
shall, for the purposes of this section, be
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deemed to claim under the persons so litigating
.1[Explanation VII.–The provisions of this
section shall apply to a proceeding for the
execution of a decree and references in this
section to any suit, issue or former suit shall be
construed as references, respectively, to a
proceeding for the execution of the decree,
question arising in such proceeding and a
former proceeding for the execution of that
decree.
Explanation VIII. –An issue heard and finally
decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate
as resjudicata in a subsequent suit,
notwithstanding that such Court of limited
jurisdiction was not competent to try such
subsequent suit or the suit in which such issue
has been subsequently raised.”
61. The Apex Court in the case of Sulochana
Amma v. Narayanan Nair reported in AIR 1994 SC
152, dealing with applicability of resjudicata on the issues
that were concluded in a injunction suit has held “a suit for
injunction when title is in issue for the purpose of granting
injunction, the issue directly and substantially arises in the
suit between the parties. When the same issue is put in
issue in a lateral suit based on the title between the same
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parties or their privies in the subsequent suit, the decree
in the injunction suit equally operates as a resjudicata.”
62. In the case of Sajjadanashin Syed
MD.B.E.EDR.(d) by Lrs Vs Musa Dadabhai Ummer
and others reported in (2000) 3 SCC 350 the Apex
Court has provided distinction between the matters
directly in issue and matters collaterally and incidentally in
issue wherein at paragraphs 15, 16 and 20 has held as
under:
15. Difficulty in this area of law has been felt in
various jurisdictions and therefore some tests
have been evolved. Halsbury says (Vol. 16,
para 1538) (4th Edn.) that while the general
principle is clear,
“difficulty arises in the application of the rule,
in determining in each case what was the point
decided and what was the matter incidentally
cognizable, and the opinion of Judges seems to
have undergone some fluctuations”.
(emphasis supplied)
16. Spencer Bower and Turner on The Doctrine
of Res Judicata (2nd Edn., 1969, p. 181) refer
to the English and Australian experience and
quote Dixon, J. of the Australian High Court
in Blair v. Curran [(1939) 62 CLR 464, 553
(Aus HC)] CLR at p. 553 to say:
“The difficulty in the actual application of these
conceptions is to distinguish the matters
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fundamental or cardinal to the prior decision on
judgment, or necessarily involved in it as its
legal justification or foundation, from matters
which, even though actually raised and
decided as being in the circumstances of the
case the determining considerations, yet are
not in point of law the essential foundation of a
groundwork of the judgment.”
The authors say that in order to understand
this essential distinction, one has always to
inquire with unrelenting severity — is the
determination upon which it is sought to find
an estoppel so fundamental to the substantive
decision that the latter cannot stand without
the former. Nothing less than this will do. It is
suggested by Dixon, J. that even where this
inquiry is answered satisfactorily, there is still
another test to pass: viz. whether the
determination is the “immediate foundation” of
the decision as opposed to merely “a
proposition collateral or subsidiary only, i.e. not
more than part of the reasoning supporting the
conclusion”. It is well settled, say the above
authors, “that a mere step in reasoning is
insufficient. What is required is no less than the
determination of law, or fact or both, fundamental to
the substantive decision”.
20. To put it briefly, if in an earlier suit for
injunction, there is an incidental finding on the
title, the same will not be binding in a later suit
or proceedings where title is directly in
question. Unless it is established that it was
necessary in the earlier suit to decide the
question of title for granting or refusing the
injunction and that the relief for injunction was
found or based on the finding of title.”
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63. Thus, if an issue was necessary to be decided
for adjudicating on principal issue and was decided, it
would have to be treated as “directly and substantially” in
issue.
64. In the former suits, the issue with regard to
confusion of names of “Anandappa” known as “Dodda
Anandappa” also known as “Ananthudu” as well as “Sanna
Anandappa” has been adverted to and concluded which
was necessary and a principal issue even for grant of
permanent injunction wherein issue regarding title was
incidentally addressed.
65. In the Judgment and order dated 27.01.2014
passed in R.A.No.126/2009 and R.A.No.127/2009, it is
seen that while remanding the matter the first appellate
Court is persuaded by the fact that in the earlier suit for
bare injunction, the Court could not have granted the
injunction and ought to have referred the parties to seek
remedy by way of comprehensive suit for declaration of
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title instead of deciding the issue on the title in a suit for
mere injunction. The Court has further observed that the
same goes to show that even if there was an issue
regarding the title in a suit for injunction it cannot be
decided in such a suit. This observation and conclusion has
been arrived at by the first appellate Court on the earlier
round of appeals referring to the judgment of the Apex
Court in the case of Anathula Sudhakar Vs Buchi
Reddy(dead) by LRs and others reported in (2008) 4
SCC 594.
66. One of the contentions urged is that in the
earlier suit there was no issue framed with regard to the
identity or the claim of Sanna Anandappa and Dodda
Anandappa. Relevant at this juncture to refer to Judgment
of the Apex Court in the case of Rajkishore Baral Vs
Commissioner of Endowment and others reported in
2005 SAR Civil 2008, wherein it is held that non framing
of an issue would not be a bar for the Courts to adjudicate
the matter particularly when the parties have gone ahead
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and pleaded and led evidence and the same has been
concurred conclusively by a Court of competent
jurisdiction.
67. Thus, the trial Court and the first appellate
Court, in the facts and circumstances of the case ought
not to have re-adverted to the issue particularly with
regard to the identity of “Dodda Anandappa” and “Sanna
Anandappa” when in the earlier round of litigation based
on the material placed by the parties and admitted by
them the Court had come to the conclusion of “Dodda
Anandappa” and “Sanna Anandappa” being different and
distinct persons.
Substantial Question of law No.2 is answered
accordingly.
Re: Substantial Question of Law No.3:
68. Order II Rule 2 CPC reads as under:
2. Suit to include the whole claim– (1) Every suit
shall include the whole of the claim which the
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plaintiff is entitled to make in respect of the cause
of action; but a plaintiff may relinquish any portion
of his claim in order to bring the suit within the
jurisdiction of any Court.
(2) Relinquishment of part of claim–Where a
plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim he shall not
afterwards sue in respect of the portion so omitted
or relinquished.
(3) Omission to sue for one of several reliefs–A
person entitled to more than one relief in respect of
the same cause of action may sue for all or any of
such reliefs; but if he omits, except with the leave
of the Court, to sue for all such reliefs, he shall not
afterwards sue for any relief so omitted.
69. Since provision of Order II, Rule 2 bars
remedy, therefore must be strictly construed (Gurinderpal
Vs. Jagmittar Singh (2004) 11 SCC 219). Necessary to
note that, upon the appeal filed by Dodda Anandappa
before the Assistant Commissioner against the order dated
23.02.1991 of Executive Shirasthedar (Ex-D55) by order
dated 23.03.1993 (Ex-D46), Assistant Commissioner had
directed Sanna Annadappa and Devadas to have their
rights established before the Civil Court. This order is
confirmed by this Court by its order dated 06.07.1993 (Ex-
D47) passed in WP. No.18352/1993 filed by Sanna
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Anandappa. No action was taken by Sanna Anandappa
thereafter.
70. Suit is O.S.No.138/1995 was filed for bare
injunction by the wife and sons of Dodda Anandappa. Suit
in O.S.No.170/1996 was filed subsequently by Sanna
Anandappa himself though showing him to be Anandappa.
Since, in the previously instituted suit exclusive claim over
the suit schedule properties were made by the plaintiffs,
the subsequent suit for injunction without seeking any
leave of the Court for further relief had been filed by
Anandappa. Therefore, present suit for declaration of title
without seeking leave in the earlier suit could not have
been filed more particularly when there was already an
order as per Ex.D46 and D47 requiring him to establish his
right before the Civil Court.
Substantial question of law No.3 is answered
accordingly.
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Moulding of relief:
71. While answering substantial question of law
No.1 this Court has held the Judgment and decree passed
by the trial Court and the First Appellate Court suffers
from perversity. Having said that what is necessary to
note is that in the proceedings before the Executive
Shirasthedar initiated by Sanna Anandappa, he himself
has claimed that the lands in question was joint family
properties of the children of Hanumayya each being
entitled for equal share therein.
72. As noted above initially Executive Shirasthedar in
his order passed in the proceedings as per Ex-D55 had
indeed divided suit schedule properties in favour of
Anandappa, Sanna Anandappa and Devdas into three
portions each being entitled for 4 acres 17 guntas in
Sy.No.1358 and land in Sy.No.1366 was made jointly in
the names of said three persons. This order was
challenged by Dodda Anadappa which was allowed as per
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Ex-D46. Sanna Anandappa had unsuccessfully filed writ
petition in WP.No.18352/1993 which was dismissed.
Clearly even according to Sanna Anandappa he was
1
entitled only to /3rd share in the suit schedule
properties.
73. In the plaint in O.S.N0.263/2005 at paragraph
No.11 the plaintiffs had themselves claimed that if the
Court comes to the conclusion that the suit schedule
properties was joint family properties, they be granted
equal share in the suit schedule properties.
74. Also necessary to note that Hanumayya was an
agriculturist who was the father of Anandappa, Sanna
Anandappa and Devadas. Sanna Anandappa and Devadas
in their proceedings have contended that they also
contributed for the purpose of payment of sale
consideration. Records also emanate both Dodda
Anandappa and Sanna Anandappa were working in the
Railway department. Since the family is an agricultural
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family and Hanumayya was also an agriculturist, it is not
clear whether Dodda Anandappa was in exclusive control,
possession and cultivation of suit schedule properties in
his own name or the grant and the payment of a sum of
Rs.4,000/- was made by himself or on behalf of the family.
75. In the fitness of things, and in the light of the
relationship between the parties, this Court deems it
appropriate that the relief as sought for by the parties be
moulded.
76. The Apex Court in the case of J.Ganapatha
and others Vs N.Selvarajalou Chetty Trust Rep. by its
Trustees and others reported in 2025 SCC online 633
at paragraph 20 has held as under:
“20. The concept of moulding of relief refers to
the ability of a court to modify or shape a relief
sought by a party in a legal proceeding based
on the circumstances of the case and the facts
established after a full-fledged trial. The
principle enables the court to grant appropriate
remedies even if the relief requested in the
pleading is not exact or could not be considered
by the court or changed circumstances have
rendered the relief obsolete. The court aims
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that justice is served while taking into account
the evolving nature of a case. The above road
map is pursued by a court based on the notion
of flexibility in relief, equitable jurisdiction, and
is tempered by judicial discretion. When
moulding the relief, the court considers the
issues and circumstances established during
the full-fledged trial, looks at shortening the
litigation, and then in its perspective, renders
complete justice to the issue at hand. The
converse of the above is that the moulded
relief should not take the aggrieved party by
surprise or cause prejudice. The relief is
moulded as an exception and not as a matter
of course.”
77. From the pleadings, deposition and the
documentary evidence of the parties, it becomes clear that
the suit schedule properties were granted in the name of
Anandappa son of Hanumayya, who was also known and
referred to as Dodda Anandappa. Documentary evidence
which emerged at an undisputed point in time, at the
instance of husband and father of the plaintiffs, namely
Sanna Anandappa, in the nature of objections filed for
registration of khatha exclusively in the name of Dodda
Anandappa and seeking partition of the property as seen
at Exhibit D55, indicate that the parties were clear that the
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said property was granted for and on behalf of the family
consisting of three sons of Hanumayya. Paragraph 11 of
the plaint filed by the plaintiffs would further fortify this
true and original position of the case though subsequent to
demise of Sanna Anandappa, the case has taken a
different course of action. This view of this Court is also
fortified by the very partition suit filed by Devadas, which
was though dismissed and not appealed against. In the
fitness of things and in the interest of justice based on the
material evidence placed on record, this Court is of the
view that the judgment and decree passed by the trial
Court is required to be modified, holding that each branch
of Anandappa also known as Dodda Anandappa, Sanna
Anandappa and Devadas will be entitled to 1/3rd share in
the suit schedule properties.
78. It is noticed from the cause title of the appeal
that Devadas, the third son of Hanumayya is stated to
have passed away in the year 2019 leaving behind his two
sons by name Shanthappa and Dhanraj who also stated to
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have passed away. Their legal representatives namely
Vinod Kumar, S/o Shanthappa and Mosappa, S/o Dhanraj
though had been arrayed as respondents 5 and 6 by order
dated 27.07.2023 upon the submission made by learned
counsel for appellants, they have been deleted from the
array of parties. In the light of this Court inclining to
mould the relief by partitioning the suit schedule
properties among the three branches of Hanumayya’s sons
namely Anandappa, also known as Dodda Anandappa,
Sanna Anandappa and Devadas the earlier order dated
27.07.2023 is recalled and names Vinod Kumar and
Mosappa have been restored as respondents 5 and 6.
79. Also to note that daughters of Dodda
Anandappa namely Hemalatha and Saroja have not been
made parties. Since the suit is pending from the year
2005 parties shall furnish the details of legal heirs of
respective branches in Final Decree proceedings who will
be entitled for their share out of 1/3rd share allotted to
each of the branches.
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80. Accordingly following:
ORDER
(a) Appeal is partly allowed.
(b) The judgment and decree dated 17.09.2019
passed in O.S.No.263/2005 declaring the plaintiffs to
be the exclusive owners of the suit schedule
properties is set aside.
(c) Suit in O.S.No.263/2005 is partly decreed. The
relief is moulded by partitioning the suit schedule
properties into three equal shares. 1/3rd share to
rd
the branch of Sanna Anandappa, 1/3 share to the
rd
branch of Dodda Anandappa and 1/3 share to thebranch of Devadas, all being the
children/grandchildren of Hanumayya.
Draw decree Accordingly.
Sd/-
(M.G.S.KAMAL)
JUDGE
SBN/List No.: 1 Sl No.:3
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