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2024. KHC-D:9388 RSA No.123 of 2008 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE8H DAY OF JULY, 2024 R BEFORE THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR SECOND APPEAL No.123 OF2008BETWEEN:
1. SMT. HUSENBI W/O GAFARSAB BADAGI ( DIED ON2404-2017, HER LRS ARE A2 TO A4 ALREADY ON RECORD) NOTED AS PER ORDE DATED2901.2024.
2. SMT. SHEREPONABI W/O USUFSAB MULLA, (DIED ON0611.2016) HER LRS ARE BROUGHT ON RECORD AS PER ORDER
DATED2901.2024. 2A. SHABINA W/O KHALEEL AHMED, AGE:
45. YEARS, OCC: HOUSEWIFE, R/O GANDHINGAR, HARIHAR, DIST: DAVANGERE. 2B. NAZIMA W/O ALLAHUDDIN, AGE:
35. YEARS, OCC: HOUSEWIFE, R/O NEAR SRIKANTH THEATRE, HARIHAR, DIST: DAVANGERE2. NAGINA W/O ABU SALIYA, AGE:
30. YEARS, OCC: HOUSEWIFE, R/O HARLAPUR, TQ. HARIHAR, DIST: DAVANGERE2. MUBINA W/O SIKHBUTHALLA AGE:
28. YEARS, OCC: HOUSEWIFE, R/O GANDHINAGAR, HARIHAR, DIST: DAVANGERE.-. 2 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 3. SMT. SHAKILABI W/O SATTARBEG AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O HOLEHARLAPURA, POST: GUTTUR, TQ: HARIHAR, DIST: DAVANAGERE-577001. (DIED ON1405-2019) HER LRS ARE BROUGHT ON RECORD AS PER ORDER
DATED2901-2024. 3A. ABDUL SATTAR BEG S/O HANIF BEG AGE:
66. YEARS, OCC: RETIRED EMPLOYEE R/O OLD HARLAPUR, TQ. HARIHAR, DIST: DAVANAGERE. 3B. IRFAN BEG S/O ABDUL SATTAR AGE:
31. YEARS, OCC: BUSINESS, R/O OLD HARLAPUR, TQ. HARIHAR, DIST: DAVANAGERE. 3C. IFTHIKAR BEG S/O ABDUL SATTAR AGE:
29. YEARS, OCC: BUSINESS, R/O OLD HARLAPUR, TQ. HARIHAR, DIST: DAVANAGERE. 3D. YASMEEN TAJ W/O J.K.SAMEER AHMED AGE:
27. YEARS, OCC: HOUSEWIFE R/O NEAR HALSWAMIMATH, HARAPANAHALLI, DIST: VIJAYAPUR. 3E. RAHATUNISSA W/O MUBUSHIR AGE:
26. YEARS, OCC: HOUSEWIFE, R/O MILLAT COLONY, DIST: DAVANAGERE.
4. SMT. ASHABI W/O MOHAMMED OLEKAR AGE: MAJOR, OCC: HOUSEHOLD WORK, R/AT BENAKANAKONDA, TQ: RANEBENNUR, DIST: HAVERI-581115. …APPELLANTS (BY SRI N.P. VIVEKMEHTA, ADVOCATE FOR LR’S OF A2; AND A3(A TO E)) - 3 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 AND:
1. SMT. SHAIKLABI W/O NOORAHAMMED BADAGI AGE: MAJOR, OCC: HOUSE HOLD WORK, R/AT KONANATAMBAGI, TQ: RANEBENNUR, DIST: HAVERI-581115 2. SMT. ASAMABI W/O NASHAR BETUR AGE: MAJOR, OCC: HOUSEHOLD WORK, R/AT DAVANAGERE.
3. SHAIDA S/O NOORAHAMMED BADAGI AGE: MAJOR, OCC: HOUSEHOLD WORK, R/O KONANATAMBAGI, TQ: RANEBENNUR, DIST: HAVERI-581115. (RESPONDENTS1TO3ARE LRS OF DECEASED PLAINTIFF NO.1 NOORAHAMMED KHAN S/O AMEERKHAN BADAGI) …RESPONDENTS (BY SRI S.N.BANAKAR, ADVOCATE FOR R1 TO R3. SRI K. SHIVAJI RAO FOR R1 TO R3) THIS RSA IS FILED U/S100OF CPC, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE OF THE CIVIL JUDGE (SR.DN.), RANEBENNUR, DATED0611.2007 PASSED IN R.A.NO.62/2003 AND RESTORE THE JUDGMENT
AND DECREE OF THE CIVIL JUDGE (JR.DN.) AND II ADDITIONAL JMFC, RANEBENNUR DATED0507.2003 PASSED IN O.S.NO.33/2005 AND971994. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING: - 4 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 JUDGMENT
The present second appeal is filed by the defendant under Section 100 of Code of Civil Procedure, 19081 challenging the judgment and decree dated 06.11.2007 passed in RA.No.62/2003 by the Additional Civil Judge (Sr.Dn.), Ranebennur2 and the judgment and decree dated 05.07.2003 passed in O.S No.33/1995 by the Additional Civil Judge (Jr.Dn.) & II Additional JMFC, Ranebennur3.
2. The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.
3. The relevant facts necessary for consideration of the present appeal are that one Gafarsab Badagi was admittedly the owner of the property measuring 3 acres 3 guntas of land in survey No.21/2, situated in Konanatambagi village, Ranebennur taluk, Haveri District4. The wife of the said Gafarsab Badagi, filed a suit in O.S No.97/94, seeking for a declaration, that consequent to the death of her husband, she is the absolute owner of the suit property and to restrain the 1 Hereinafter referred to as ‘CPC’ 2 Hereinafter referred to as the ‘first appellate Court’ 3 Hereinafter referred to as the ‘Trial Court’ 4 Hereinafter referred to as the ‘suit property’ - 5 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 defendants from interfering with her possession of the suit property.
4. One Noorahamadsab Badagi5, filed a suit in O.S No.33/95, against the wife and children of the deceased Gafarsab Badagi for specific performance of the agreement of sale dated 10.02.1992. It is the case of the agreement holder that the deceased Dafarsab Badagi as well as his wife and children entered into an agreement of sale deed dated 10.02.1992, seeking to sell the suit property for a total sale consideration of ₹30,500/-.
5. The Trial Court framed the following issues in the suit for declaration and injunction i.e., in O.S No.97/946: i. “Whether the plaintiff proves that she is the owner of suit property RS-No.21/2C of Konantambigi village in Ranebennur Taluka?. ii. Whether the plaintiff proves she is in actual possession and enjoyment of suit land as on the date of suit?. iii. Whether the defendant proves that he is in actual possession of the suit land since from 10.2.92 under the agreement of sale-deed executed by plaintiff in his-favour?. 5 Hereinafter referred to as the ‘agreement holder’ 6 Hereinafter referred to as ‘suit for declaration and injunction’ - 6 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 iv. Whether the Court fee-paid on the plaint is correct?. v. Whether the plaintiff is entitled for injunction?. vi. What order or decree?.
6. The Trial Court had framed the following issues in the suit for specific performance. i. “Whether the plaintiff proves that she is the owner of suit property RS-No.21/2C of Konantambigi village in Ranebennur Taluka?. ii. Whether the plaintiff proves that she is in actual possession and enjoyment of suit land as on the date of suit?. iii. Whether the defendant proves that he is in actual possession of the suit land since from 10.2.92, under the agreement of sale-deed executed by plaintiff in his-favour?. iv. Whether the Court fee paid on the plaint is correct?. v. Whether the plaintiff is entitled for injunction?. vi. What order or decree?.
7. Vide order dated 08.09.1997, passed orders on I.A No.III, the Trial Court clubbed both the suits and recorded common evidence in O.S No.33/957. 7 Hereinafter referred to as the ‘suit for specific performance’ - 7 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 8. The Trial Court by its judgment and decree dated 05.07.2003, decreed the suit for declaration and dismissed the suit for specific performance and passed the following order: “The suit of the plaintiff is decree in OS- No.97/94. Further it is declared that they are the owners of the suit schedule property. The entries made in the revenue records, is not binding upon them, and it is further ordered that the defendants are restrained from interfering with the peaceful possession and enjoyment of the suit schedule property of the plaintiff. No order as to costs. Draw the decree accordingly. In OS-No.33/95: ORDER
The suit of the plaintiff is dismissed. No order as to costs. Draw the decree accordingly. Keep the original Judgment in OS No.33/95 and copy of the Judgment in OS No.97/94.
9. Being aggrieved, the agreement holder preferred R.A No.62/2003, challenging the judgment and decree passed in O.S No.33/95 i.e., the suit for specific performance. The owners entered appearance in the said appeal and contested the same. The First Appellate Court by its judgment dated 06.11.2007, allowed the appeal and passed the following order: - 8 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 “ The appeal filed by the appellants U/o 41 R.1 & 2 of CPC1908is hereby allowed. The judgement & decree passed by the Addl.Civil Judge (JR.DN) Ranebennur in O.S No.33/95 dtd.5/7/03 is hereby set aside, which is clubbed with O.S No.97/94. Consequently O.S No.97/94 suit is dismissed. The defendants are directed to execute the registered sale deed in respect of suit schedule property within a period of 2 months from the date of this order. The alternative relief of refund of earnest money of Rs.30,500/- is dismissed. Draw the decree accordingly. Send back LCR’s along with copy of this judgement to the lower court.
10. Being aggrieved, the present second appeal is filed by the owners.
11. Heard submissions of learned counsel Sri.N.P.Vivek Mehta for the appellants and learned counsel Sri.S.N.Banakar for respondents.
12. This Court framed the following substantial questions of law: i. Vide order dated 14.02.2008, the following substantial question of law was framed: “Whether the Lower Appellate Court was justified in holding that the suit agreement is duly executed - 9 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 by misreading the documentary evidence produced in support of the same?.” ii. Vide order dated 30.11.2022 the following substantial question of law was framed: “Whether the Appellate Court is justified in disturbing the judgment and Decree of the Trial Court in so far as decreeing of suit in O.S No.97/1994 which was not challenged in the appeal?.
13. Learned counsel for the appellant contends that the agreement holder had preferred a single appeal in R.A No.62/2003, before the First Appellate Court, challenging the judgment and decree passed in O.S No.33/95 i.e., the suit for specific performance and that no appeal was filed challenging the judgment and decree granted in O.S No.97/94. That the First Appellate Court without an appeal, has set aside the judgment and decree passed in O.S No.97/94 and dismissed the said suit. Hence, he submits that on the sole ground, the present appeal is liable to be allowed.
14. Per contra, learned counsel for the respondents justifies the judgment and decree passed by the First Appellate Court.-. 10 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 15. The submissions of the learned counsels have been considered and the material on record has been perused including the records of the Trial Court and the First Appellate Court.
16. The primary contention urged on behalf of the appellant is that the agreement holder had preferred a single appeal in R.A No.62/2003 and that no appeal has been filed challenging the judgment and decree in O.S No.97/94 and hence the finding of the First Appellate Court is required to be set aside.
17. It is forthcoming that the substantial question of law framed by this Court on 30.11.2022, covers the said aspect of the matter and if the same is answered in the negative, the question of considering the substantial question of law framed by this Court on 14.02.2008 does not arise.
18. In order to consider the said contention, it is noticed that admittedly the agreement holder had preferred O.S No.33/95 and the owner of the property had preferred O.S No.97/94. The Trial Court had framed issues in both the suits and thereafter, the Trial Court by its order dated 08.09.97, had - 11 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 ordered that the suits to be clubbed and common evidence was recorded in the suit for specific performance i.e, O.S No.33/95.
19. The Trial Court has recorded its findings, consequent to which, it has decreed the suit in O.S No.97/94 and declared that the plaintiffs in the said suits are the owners of the suit property, that the entries made in the revenue records are not binding on them, as also restrained the defendants in the said suit from interfering with the plaintiffs peaceful possession and enjoyment of the suit property. Further, the Trial Court has dismissed the suit for specific performance.
20. It is forthcoming that R.A No.62/2023 has been filed challenging the judgment and decree passed in O.S No.33/95. It is further forthcoming from the record that no appeal has been filed challenging the decree of the Trial Court passed in O.S No.97/94.
21. Learned counsel for the appellants relies on the judgment of the Hon’ble Supreme Court in the case of Premier Tyres Limited Vs. Kerala State Transport Corporation8, wherein it has been held as follows:
8. AIR1993SC1202- 12 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 “4. Although none of these decisions were concerned with a situation where no appeal was filed against the decision in connected suit but it appears that where an appeal arising out of connected suits is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non filing of appeal against a judgment or decree is that it become final. This finality can be taken away only in accordance with law. Same consequences follows when a judgment or decree in a connected suit is not appealed from.” (emphasis supplied) 22. In this context, it is also relevant to note the following judgments: i. The Hon’ble Supreme Court in the case of Harbans Singh and Others vs. Sant Hari Singh and Others9 has held as follows: “12. Appellant herein does not claim any right, title and interest in his individual capacity. He was the Vice-President of the Managing Committee. Thus, for all intent and purport, he was also a plaintiff in Civil Suit No.367-T/1996. The judgment and decree passed in the suit filed by Sant Hari Singh might not have been binding upon the appellant herein had he claimed any right or interest over the said property in his individual 9AIR2009SC1819- 13 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 capacity and not as a member of the Managing Committee. Indisputably, the Managing Committee did not file any Second Appeal against the judgment and decree passed against it. The said judgment and decree, therefore, attained finality.
13. Both the suits, as noticed hereinbefore, were consolidated. They were heard together. The disputes between the parties to both the suits were common. The issues raised therein also were common. The Managing Committee filed a suit for declaration that it was in management and control of the said Gurudwara Sahib and was entitled thereto as also a declaration that the respondent was not a Mohtmim of the said Gurudwara and, thus, not entitled to manage its affairs. As the said decree had attained finality, it is binding on the appellants also. Appellants, therefore, in law, were required to prefer another Second Appeal against the judgment and decree passed in the said suit. The principle of res judicata in the aforementioned fact situation, in our opinion, has rightly been applied by the High Court.” (emphasis supplied) i(a). It is relevant to note that in the case of Harbans Singh9, the Hon’ble Supreme Court has also noticed its judgment in the case of Premier Tyres Limited8 as also the Constitution Bench judgment in the case of Badri - 14 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 Narayan Singh vs. Kamdeo Prasad10 as well as the judgment in the case of Union of India vs. V. Pundarikakshudu and Sons and Another.11 ii. A Division Bench of Himachal Pradesh High Court in the case of Ramesh Chand and Others vs. Om Raj and Others12 while considering a reference made to it as to whether a common appeal questioning the correctness of the judgment and decree passed in a suit as well as a counter claim was legally maintainable, after a detailed consideration of various judgments has held as follows: “42. The principles deducible from the afore- discussed law can be summarized as follows: (i) When two suits are consolidated and tried together with common issues framed and common evidence led by the parties, resulting in a common judgment and decree, the same can be subjected to challenge by way of a single appeal at the instance of the aggrieved party; (ii) Where a single appeal is filed questioning the judgment and decree passed in two suits, which were consolidated and decided by a common judgment, 10 AIR1962SC33811 2003 AIR SCW457312 MANU/HP/1047/2022 - 15 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 decision of such single appeal, by a common judgment, reversing or modifying the claim in one suit out of the two, can be challenged by the aggrieved party also, in a single appeal. (iii) When two suits though not consolidated but are decided by a common judgment, resulting into preparation of two separate decrees, the aggrieved party would be required to challenge both of them by filing separate appeals; (iv) When both the suit and the counter claim are decreed by a common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by separate appeals; (v) In a case where two separate appeals are required to be filed against judgment of the suit and the counter claim and if appeal is filed only against one and not against the other, non filing of appeal against such judgment and decree would attach finality thereto and would attract not only the principle of resjudicata but also waiver and estoppal and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing appeal; (vi) When however, two appeals are filed against a common judgment passed by the trial Court, both by the plaintiff and the defendant, and are disposed of by the first appellate Court by modifying/reversing/affirming judgment of the trial Court, the aggrieved party, would be required to - 16 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 challenge both by two separate appeals, in absence of which, non-filing of appeal against one shall attract bar of the principles of res-judicata against another. (vii) Where more than one appeals are required to be filed or are filed and one or more of them are dismissed for default, delay or any other similar reason, any such situation would attract res judicata and such dismissal would satisfy the requirement of appeal being heard and finally decided on merits “in a former suit” for the purpose of attracting principles of res judicata.” (emphasis supplied) iii. A Co-ordinate Bench of this Court in the case of Karnataka State Agro Corn Products Limited vs. M/s Kerala Agro Seeds13 noticing various judgments, including the judgment of the Hon’ble Supreme Court in the case of Harbans Singh9 and Premier Tyres Limited8 has held as follows: “38. The Hon ble Apex Court at Para No.16 of the said judgment held that there may be situations where an order can get the status of a decree. A Court may draw up a formal decree or may not, but if by virtue of the order of the Court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree. As is evincible, in the case on hand, the counter- 13 Judgment passed in RFA No.554/2012 dated 02.12.2019 - 17 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 claim which is in the nature of a cross-suit has been dismissed. Nothing else survives for the defendants who had filed the counter- claim. Therefore, we have no hesitation in holding that the order passed by the learned trial Judge has the status of a decree and the challenge to the same has to be made before the appropriate forum where appeal could lay by paying the requisite fee. It could not have been unsettled by the High Court in exercise of the power under Article 227 of the Constitution of India. The order passed by the High Court is indefensible.
39. ………..
40. Accordingly, in view of the detailed discussion made hereinabove as well as law laid down by Hon'ble Apex Court, this Court sees no force in the contention put forth on behalf of the counsel representing the defendants that in the absence of specific decree drawn by learned Trial Court at the time of dismissal of their counter claim, defendants could not file separate appeal.
41. It is further observed that the learned First Appellate Court has erred in entertaining the composite appeal filed on behalf of the defendants specifically laying challenge to the Judgment passed by the learned Trial Court, wherein suit of the plaintiffs was partly decreed and the counter claim filed by the defendants was dismissed, there is no need to look into the other substantial question of law as the same have become redundant in view of the findings.-. 18 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 42. Having considered the principles laid down in the judgment of the Himachal Pradesh High Court and also the judgment of the Apex Court in Rajni Rani vs. Khairati Lal and the contentions taken by the appellant's counsel so also the respondent's counsel, it is made clear that once the Court has adjudicated the issue involved between the parties i,e., the suit claim for recovery and also the counter claim of the defendant and the same has been considered on merits and the rights of the parties have been adjudicated, it amounts to a decree.” (emphasis supplied) 23. In view of the settled position of law as noticed above, the respondent No.1, who was the plaintiff in O.S No.33/95 i.e., the suit for specific performance, not having filed any appeal against the decree passed in the suit for declaration and injunction, i.e., O.S No.97/94, the findings recorded in the said suit would operate as res judicata in the suit for specific performance.
24. Hence, the First Appellate Court erred in entertaining the appeal of the agreement holder and setting aside the judgment and decree passed by the Trial Court in the absence of the agreement holder challenging the judgment and decree passed in O.S No.97/94.-. 19 - NC:
2024. KHC-D:9388 RSA No.123 of 2008 25. In view of the aforementioned, the substantial question of law dated 30.11.2022 is answered in the ‘negative’.
26. Hence, the following: ORDER
i. The above appeal is allowed. ii. The judgment and decree dated 06.11.2007, passed in RA.No.62/2003 by the Additional Civil Judge (Sr.Dn.), Ranebennur, is set aside. Sd/- JUDGE PMP List No.:
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