Jayanna v. Lusamma - Property Inheritance Dispute

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Jayanna vs Lusamma And Ors on 10 March, 2026

Author: M.G.S.Kamal

Bench: M.G.S.Kamal

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RSA No. 200178 of 2023

        HC-KAR

                    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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                            RSA No. 200178 of 2023

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1. VIJAYAKUMAR
   S/O LATE ANANDAPPA
   @ DODDA ANANDAPPA @ ANANTHUDU
   AGED ABOUT 64 YEARS
   OCCUPATION: RAILWAY EMPLOYEE
   R/AT RAICHUR-584 101.

2. 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.

3. 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](https://indiankanoon.org/doc/161831507/) 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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RSA No. 200178 of 2023

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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').

1. 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.

1. Defendant No.2 filed his separate written

statement reiterating and supplementing the averments

made in the written statement filed by defendant No.1.

1. 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.

1. 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?

1. 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?

2. Whether the suit is barred by resjudicata?"

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1. 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.

1. 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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1. 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.

1. 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.

1. 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:

1. 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](https://indiankanoon.org/doc/161831507/). 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.

1. 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.

1. Heard and perused the records.

Re: Substantial Question of law No.1:

1. 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.

1. 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](https://indiankanoon.org/doc/1047975/) 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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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1. 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.

1. The substantial questions of law No.1 is therefore

required to be addressed by reappreciating the oral and

documentary evidence placed on record.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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)](https://indiankanoon.org/doc/166884047/) 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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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1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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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1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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:

1. 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.

1. Section 11 of CPC dealing with resjudicata reads

as under:

1. 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](https://indiankanoon.org/doc/1047975/) 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."

1. In the case of Sajjadanashin Syed

MD.B.E.EDR.([d) by Lrs Vs Musa Dadabhai Ummer

and others](https://indiankanoon.org/doc/785915/) 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:

1. 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)

1. 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".

1. 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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1. 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.

1. 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.

1. 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](https://indiankanoon.org/doc/540361/) (dead) by LRs and others reported in (2008) 4

SCC 594.

1. 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](https://indiankanoon.org/doc/1354370/) 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.

1. 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:

1. Order II Rule 2 CPC reads as under:

1. 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.

1. 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.

1. 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:

1. 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.

1. 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

entitled only to /3rd share in the suit schedule

properties.

1. 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.

1. 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.

1. 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.

1. The Apex Court in the case of [J.Ganapatha

and others Vs N.Selvarajalou Chetty Trust Rep.](https://indiankanoon.org/doc/48216615/) 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.

1. 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.

1. 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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1. 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 the

branch 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