M H Indudara Vs K M Andanda

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 9.1.2013 PASSED IN R.A.NO.103/2011 ON THE FILE OF DISTRICT JUDGE, MADIKERI, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD 1.10.2011 PASSED IN OS.NO.105/2006 ON THE FILE OF SENIOR CIVIL JUDGE, MADIKERI.

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THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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NC: 2025:KHC:33620 RSA No. 771 of 2013

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HC-KAR

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ORAL JUDGMENT

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Heard learned Senior counsel appearing for the appellant.

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This appeal arising from the concurrent finding in a suit for declaration and injunction in respect of property bearing survey No.425/164B measuring 3 acres in Karike Village, Madikeri Taluk. Later, the plaint is amended and one more property bearing survey No.425/1 measuring 8 acres in Karike village, Madikeri Taluk is also included and described as 'B' schedule property. In respect of B schedule property the plaintiff claimed injunction. Admittedly, the suit B schedule property is Paisary land.

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The plaintiff has sought for declaration that he is the absolute owner, and in possession and enjoyment of the A schedule property bearing Sy.No.425/164B measuring 3 acres Kula No.358 at Karike Village, Madikere Taluk, Kodagu District based on registered partition deed dated 21.10.1982.

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NC: 2025:KHC:33620 RSA No. 771 of 2013

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HC-KAR

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The plaintiff claims that there was a partition in

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the family under the partition deed dated 21.10.1982 and in the said partition, family properties were partitioned and some of the properties were allotted to his share.

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The plaintiff has also averred that he had filed a suit in O.S.No.93 of 2006 for relief of injunction in respect of A schedule property and same was withdrawn by the plaintiff, as the plaintiff intended to seek declaratory relief in respect of the same property. Hence, the present suit is filed, seeking relief of declaration and injunction.

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The defendants 1 to 4 contested the suit. The registered partition deed dated 21.10.1982 is admitted. Later, defendant No.5 who got impleaded on his application to come on record, filed written statement and also contested the suit in respect of 'B' schedule property. Defendant No.5 made a claim that he has filed form No.53

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seeking regularization of his possession and the plaintiff is not entitled to any relief in respect of 'B' schedule property.

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NC: 2025:KHC:33620 RSA No. 771 of 2013

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HC-KAR

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The trial Court framed four issues.

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Issue No.1 is relating to ownership of the

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plaintiff over the ‘A’ schedule property. Thereafter, additional issue was framed on 30.11.2010 which is based

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on the defense raised by defendant No.5 who was later impleaded. The said issue reads as under;

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“Whether the defendant No.5 proves that he is possession of paisary land of 5.00 acres in Sy.No.425/1 which is situated towards north of the suit schedule property?”

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Issue No.1 relating to the ownership of the plaintiff is answered in the affirmative.

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An additional issue is answered in the negative holding that defendant No.5 did not establish his possession over 5 acres of land in Sy.No.425/1. Consequently, the suit is decreed declaring that the plaintiff is the owner of ‘A’ schedule property and injunction is granted against defendants in respect of all the properties.

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Aggrieved by the aforementioned judgment and decree, defendant No.5 filed an appeal in RA

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5 - NC: 2025:KHC:33620 RSA No. 771 of 2013

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HC-KAR

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No.103/2011. The said appeal is also dismissed, confirming the judgment and decree passed by the trial Court. Hence, the present second appeal by defendant No.5.

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This appeal was admitted on 22.11.2013 to answer the following substantial question of law;

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“Whether the Courts below are justified in preempting or scuttling the Akrama Sakram scheme referred to in Ex.D29 which has been pending for some time at the instance of 5^th defendant/appellant while no such application is filed by plaintiff at all in respect of ‘B’ schedule property?”

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On 04.07.2024 additional substantial question of law is framed as under:

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(a) Whether the withdrawal of the suit in O.S.No.93/2006 filed by the plaintiff unconditionally without seeking any leave of liberty would operate firstly as a res-judicata and secondly as a Bar under Order II Rule 2 of the CPC?

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As far as first substantial question of law is concerned, learned Senior Counsel Sri.S.P.Shankar., appearing for the appellant would submit that during the

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NC: 2025:KHC:33620 RSA No. 771 of 2013

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HC-KAR

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pendency of this appeal, the application filed by the appellant seeking regularisation of encroachment over the suit B schedule property is rejected. The submission is made in the light of the endorsement dated 07.03.2014 issued by Tahsildar, Madikere. Said endorsement would reveal that the application under Form No.53 filed by M.H. Indudar, defendant No.5, seeking regularization of his alleged encroachment is rejected. This being the position, first substantial question of law does not arise for consideration.

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As far as second substantial question of law is concerned, it is noticed that the defendants have not raised a plea that the second suit is hit by Order II Rule 2 of the Code of Civil procedure. In addition to that, it is also noticed that earlier suit in OS No.93 of 2006 was one for injunction. Second suit filed by the plaintiff is one for declaration and injunction.

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Whether the second suit is hit by Order II Rule 2 of the Code of Civil Procedure could have been considered provided defendant No.5 had raised a

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NC: 2025:KHC:33620 RSA No. 771 of 2013

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HC-KAR

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contention that the cause of action to file earlier suit and action to second suit are one and the same, and the plaintiff in OS No.93 of 2006 had the occasion and the reason to seek the relief as sought in the present suit.

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There is nothing on record to hold that 'B' schedule property was also the subject matter of the earlier suit and defendant No.5 was party to the earlier suit. Since no such plea is raised in written statement, and as defendant No.5 has not produced the copy of the plaint in OS No.93 of 2006, it is not possible for this Court to hold that second suit seeking declaration of title and injunction is hit by Order II Rule 2 of the Code of Civil Procedure.

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Under these circumstances, the second substantial question of law doesn't rise for consideration for want of pleading as well as the want of evidence.

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Hence, the appeal is dismissed . No order as to cost.

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Sd/(ANANT RAMANATH HEGDE) JUDGE

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SR/List No.: 1 Sl No.: 30

M H Indudara v. K M Andanda

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M H Indudara v. K M Andanda

Case brief

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