Karnataka High Court
Smt Aaisha W/O Abdul Wahab vs Smt Halimabi on 27 April, 2026
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NC: 2026:KHC-D:6239
RSA No. 5616 of 2009
HC-KAR
IN THE HIGH COURT OF KARNATAKA, AT DHARWAD
DATED THIS THE 27TH DAY OF APRIL 2026
BEFORE
THE HON'BLE MRS JUSTICE GEETHA K.B.
R
REGULAR SECOND APPEAL NO. 5616 OF 2009 (DEC/INJ-)
BETWEEN:
1. SMT. AAISHA
W/O. ABDUL WAHAB RAHIMSABNAVAR,
AGE: 60 YEARS, OCC: HOUSEHOLD
WORKS,
R/O: BARA IMAM GALLI, DHARWAD.
2. SRI. RIYAZAHAMED
S/O. ABDUL WAHAB RAHIMSABNAVAR,
AGE: 52 YEARS, OCC: PRIVATE SERVICE,
R/O: BARA IMAM GALLI, DHARWAD.
3. SRI. IRSHAD AHAMED
S/O. ABDUL WAHAB RAHIMSABNAVAR,
AGE: 48 YEARS, OCC: PRIVATE SERVICE,
R/O: BARA IMAM GALLI, DHARWAD.
Digitally
signed by
SAROJA
4. MR. AYAZAHAMED
HANGARAKI
SAROJA Location:
HANGARAKI HIGH
S/O. ABDUL WAHAB RAHIMSABNAVAR,
COURT OF
KARNATAKA,
DHARWAD
BENCH
AGE: 33 YEARS, OCC: BUSINESS,
R/O: BARA IMAM GALLI, DHARWAD.
...APPELLANTS
(BY SRI. A.A. KALEBUDDE, ADVOCATE)
AND:
1. SMT. HALIMABI
W/O. JAMALUDDIN RAHIMSABNAVAR,
AGE: 70 YEARS, OCC: HOUSEHOLD WORK,
R/O. KELAGERI, DHARWAD.
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RSA No. 5616 of 2009
HC-KAR
2. SRI. JAHIRUDDIN
S/O. JAMALUDDIN RAHIMSABNAVAR,
AGE: 60 YEARS, OCC: NIL
(SINCE UNSOUND OF MIND
REP. BY GUARDIAN PLAINTIFF NO.7
APPELLANT NO.7) R/O. KELAGERI,
DHARWAD.
AMENDED AS PER ORDER DATED
04.03.2026
SINCE DECEASED
REPRESENTED BY HIS LRS
HIS LRS ARE ALREADY ON RECORD AS
RESPONDENT NO.3 TO 11
3. SRI. AHAMED ALI
S/O. JAMALUDDIN RAHIMSABNAVAR
@ RAHIMANSHA,
AGE: 55 YEARS, OCC: ADVOCATE,
R/O. KELAGERI, DHARWAD.
(NIRMAL NAGAR, DHARWAD)
4. SRI. BAHAUDDIN
S/O. JAMALUDDIN RAHIMSABNAVAR,
AGE: 53 YEARS, OCC: SERVICE,
R/O. KELAGERI, DHARWAD.
5. SRI. ZAIUDDIN
S/O. JAMALUDDIN RAHIMSABNAVAR,
AGE: 50 YEARS, OCC: NIL
(SINCE UNSOUND OF MIND
REPRESENTED BY GUARDIAN
PLAINTIFF NO.7 APPELLANT NO.7),
R/O. KELAGERI, DHARWAD.
6. SRI. BASHEER AHAMED,
S/O. JAMALUDDIN RAHIMSABNAVAR,
AGE: 48 YEARS, OCC: SERVICE,
R/O: KELAGERI, DHARWAD.
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RSA No. 5616 of 2009
HC-KAR
7. SRI. KHALIDAHAMED
S/O. JAMALUDDIN RAHIMSABNAVAR,
AGE: 46 YEARS, OCC: SERVICE,
R/O: KELAGERI, DHARWAD.
8. SMT. RABIYA
W/O. MAKTUM HUSSAIN SOUDAGAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. LINE BAZAAR, DHARWAD.
9. SMT. QUMARUNNISSA
W/O. MEHAMOOD LANGOTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. MUNAVALLI, TQ: SAUNDATTI.
10. SMT. FAREEDABEGUM
W/O. MOHD. GOUSE KITTUR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. AKHANGALLI, DHARWAD.
11. SMT. ZAHEEDABEGUM
W/O. IQBAL RISALADAR,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. NEAR REGAL TALKIES,
CONTRACTOR BUILDING, DHARWAD.
...RESPONDENTS
(BY SRI. AHAMED ALI RAHIM SHAH, ADVOCATE FOR R1 AND
C/R2-R11; SRI. R.K. KULKARNI, ADVOCATE FOR R3 & R6;
SRI. M.R. MULLA, ADVOCATE FOR R7 AND R8;
SRI. ANWAR BASHA, ADVOCATE FOR R3 AND R7;
SRI. ASHOK S. KARAMADI, ALONG WITH
SRI. AHMED ALI RAHIM SHAH, ADVOCATES FOR R6 AND R7;
SRI. M.B. HIREMATH, ADVOCATE FOR R4, R5, R6 AND R7;
R3-R11 ARE LRS OF DECEASED R2)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING
TO SET ASIDE THE JUDGMENT AND DECREE DATED 09/10/2009
MADE IN R.A.NO.53/2007 FILED BY PLAINTIFFS/APPELLANTS ON
THE FILE OF PRINCIPAL DISTRICT JUDGE, DHARWAD BY
ALLOWING THE APPEAL AND CONFIRM THE JUDGMENT IN
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RSA No. 5616 of 2009
HC-KAR
DECREE DATED 09-08-2007 PASSED BY PRINCIPAL CIVIL JUDGE
(SR.DN DHARWAD), BY ALLOWING THIS APPEAL BY
CONFIRMING THE JUDGMENT AND DECREE PASSED BY THE
TRIAL COURT IN O.S.NO.193/1993 WITH COST IN THE
INTERESTS OF JUSTICE AND EQUITY AND ETC.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 08.04.2026 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, DELIVERED THE
FOLLOWING:
CORAM: THE HON'BLE MRS JUSTICE GEETHA K.B.
ORAL JUDGMENT
This is the appeal filed under Section 100 of the Code of Civil Procedure, 1908 (in short CPC) by the appellants/defendants No.1 to 4 praying for setting aside the judgment and decree dated 09.10.2009 passed in R.A.No.53/2007 on the file of Principal District Judge, Dharwad (for short, 'First Appellate Court') and to confirm the judgment and decree dated 09.08.2007 passed in O.S.No.193/1993 on the file of Principal Senior Civil Judge and Chief Judicial Magistrate, Dharwad (for short, 'Trial Court'); for court costs and for such other reliefs. -5-
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2. Parties would be referred with their ranks, as they were before the Trial Court for the sake of convenience and clarity.
3. Plaintiffs have filed the suit before the Trial Court praying for the relief of declaration that plaintiffs No.1 to 11 are absolute owners of suit 'A' schedule property; consequential relief of possession; for mesne profits; for court costs and for such other reliefs.
4. Case of plaintiffs before Trial Court in nutshell is that one Jamaluddin Saab Kaus Mudeen Saab Rahiman Saab Anwar was the absolute owner in exclusive possession of suit schedule 'A' property bearing CTS No.205 measuring 54 Square Yards consisting of a house situated at Bara Imam Galli, Dharwad having purchased the same under the registered sale deed dated 19.03.1951 for valuable consideration of ₹200/- from one A.M. Yaragatti and later constructed the house in said property. Said Jamaluddin died on 06.12.1990 leaving behind his wife-plaintiff No.1, -6- NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR children-plaintiffs No.2 to 11. Plaintiffs are the only legal heirs of deceased Jamaluddin who inherited the suit schedule property. Jamaluddin had a younger brother called Abdul Wahab. Being elder brother, Jamaluddin brought Abdul Wahab from Ranebennur to Dharwad for his education, helped him in getting appointment in Government Service. Thereafter, both brothers resided in suit schedule property jointly till 1959-60. Many times there were quarrels between both brothers and litigations in the year 1956-57. After disposal of litigations, both brothers have completely pulled it down, compromised each other and amenable and kept good relationship till their death, because they were the only two brothers residing at Dharwad. Jamaluddin being elder brother and kind hearted person used to consider the matter of his younger brother gratuitously. Jamaluddin's father-in-law-Sayumohamed Ali Begum was having sufficient accommodation for his residence. Hence, Jamaluddin joined his father-in-law and residing at Gandhi Chowk, Dharwad. Plaintiff No.1 is the -7- NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR only daughter to her father. Abdul Wahab was not having any house and was likely to transfer to Dharwad in the year 1959-60. Thus, Jamaluddin granted license to Abdul Wahab for some period to reside in the suit schedule 'A' property only out of love and affection as mere licensee on an understanding that he shall pay Municipal taxes, electric and water charges. In the year 1985, children of Jamaluddin became grown up and they required the suit 'A' schedule property for their residence and hence license was terminated and legal notice was issued to Abdul Wahab to vacate the suit schedule 'A' property. Abdul Wahab requested his elder brother some time to vacate. Unfortunately, Abdul Wahab died on 05.01.1989. After his death, defendants No.1 to 4 being legal heirs of Abdul Wahab came in picture. Jamaluddin and plaintiff No.3 with the help of elders negotiated with defendants to vacate the suit schedule property. In the meanwhile, Jamaludhin died on 06.12.1990. Thereafter, plaintiffs requested orally to defendants to vacate suit schedule 'A' property and -8- NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR ultimately they have issued legal notice dated 22.03.1993. Defendants have given untenable reply and defendant No.2 refused to receive the notice. License was automatically revoked on the date of death of Jamaluddin and also on 22.03.1993, when plaintiffs have issued legal notice to defendants. Thus, defendants are in unauthorised occupation of suit schedule property. Hence, they have to pay damages at ₹200/- per month. Hence, the suit for appropriate reliefs.
5. After service of suit summons, defendant No.3 appeared through his counsel and filed written statement, wherein he contended that the suit is false, frivolous, vexatious and not maintainable in law. He denied all the averments made in the plaint. He denied that Jamaluddin was the owner in possession of suit schedule property, etc. But admitted that there was quarrel and dispute and litigations between Jamaluddin and Abdul Wahab in the year 1956-57. The said dispute is not at all closed. He further contended that brothers were not at all in cordial -9- NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR relationship till their last breath and neither the plaintiffs nor the deceased Jamaluddin attended the funeral ceremony of deceased Abdul Wahab. Abdul Wahab has published a public notice in the year 1980 to the effect that suit schedule property is in his actual possession and in possession of defendants No.1 to 4 that he is the owner of suit schedule property and other property which is standing in the name of Jamaluddin and cautioned the public not to participate in alienation of suit schedule property in whatsoever manner with deceased Jamaluddin, etc. The deceased Jamaluddin did not take any action during his lifetime in spite of denial of his rights to suit schedule property and thereby waived his right over schedule property. Deceased Jamaluddin was residing in a rented house in different parts of Dharwad City i.e. at Rasoolpur Galli and other lanes of Dharwad till he resided at Kelageri, Dharwad. They denied that Abdul Wahab was only a licensee under Jamaluddin and all other averments in the plaint. The defendants further took contention that suit
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR schedule 'A' property was purchased by deceased Abdul Wahab while he was in service at Hangal. Jamaluddin was not having job and he was under the shelter of Abdul Wahab and as Abdul Wahab was working in Government Service, which is a transferable one, he is unable to manage the properties and thus it was purchased in the name of deceased Jamaluddin. But possession was always with Abdul Wahab till his last breath as owner and after his death with defendants. The suit schedule 'A' property was declared as slum area by the Slum Clearance Board and thus plaintiffs are barred under Slum Clearance Act to file the suit of present nature. The notice issued on behalf of plaintiffs was suitably replied. The cause of action for the suit arose in the year 1956, when Abdul Wahab has dispossessed Jamaluddin and denied his title and thus the suit is barred by law of limitation. Neither the plaintiffs nor deceased Jamaluddin were in possession of suit schedule 'A' property at any time; thus, the suit is not maintainable in law. There is no cause of action to file the suit. Plaintiff No.3
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR is a legal practitioner since from 1978-79 at Dharwad and fully aware about the true facts and he used his influence and got drafted the plaint only to harass the defendants. It is further contended that the valuation made by plaintiffs is not proper. Actual market value of suit schedule property is more than ₹2,00,000/- and plaintiffs have not paid the court fee properly. Hence, the suit is bad in law. Deceased Abdul Wahab and defendants are enjoying suit schedule property as owner to the knowledge of Jamaluddin and plaintiffs since from 1956 and thus Abdul Wahab and defendants have became owners by law of adverse possession. Hence, prayed for dismissal of suit with compensatory costs of ₹5,000/-.
6. From the above facts, the Trial Court has framed the following issues:
"ISSUES
1. Whether plaintiffs prove that they are the owners of suit property?
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2. Whether the plaintiffs prove that deceased Abdul Wahab was permitted to occupy suit property as a licensee?
3. Whether defendants prove that Addulwahab purchased the suit property in the name of Jamaluddin?
4. Whether the suit is barred under Slum clearance Act?
5. Whether the suit is barred by time?
6. Whether the suit is properly valued and Court fee paid is sufficient?
7. Whether the defendants prove that they became the owners of the suit property by adverse possession?
8. Whether plaintiffs are entitled for possession of suit property?
9. What decree or order?"
7. After recording evidence of both sides and hearing arguments, the Trial Court has dismissed the suit with costs and directed plaintiffs to file fresh valuation slip as per Ex.D.2 and to pay the regular deficit court fee within 15 days from the date of judgment and also directed the office to issue certified copy of judgment and decree to plaintiffs only after filing fresh valuation slip and deficit court fee.
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8. Afterwards, the plaintiffs have filed I.As. before the Trial Court and on 24.08.2007, I.A. filed under Order XLI Rule 5 of CPC was partly allowed in respect of Item No. 'C' of the operative portion of judgment for a period of one month and I.A. filed under Order XX Rule 6-B, CPC was allowed and office was directed to issue certified copies of judgment and decree to the plaintiffs. After receipt of the certified copy of Judgment, the plaintiffs have filed the appeal before first appellate court.
9. It is to be noted here that the decree was not at all drawn by the Trial Court because of non-payment of deficit court fee as per the order passed in the judgment.
10. Said first appeal was allowed and the entire judgment of Trial Court was set aside. Suit of plaintiffs was decreed with costs and plaintiffs No.1 to 11 were declared as absolute owners of suit schedule 'A' property and defendants were directed to vacate the suit schedule 'A'
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR property and to surrender vacant possession to plaintiffs within 3 months from the date of said judgment.
11. Aggrieved by said judgment and decree of first appellate court, defendants/appellants are before this Court.
12. The order sheet speaks that I.A.No.1/2016 filed for rejection of the plaint would be heard along with the main appeal.
13. I.A.No.1/2016 is filed under Order VII Rule 11(d) of CPC praying for rejection of plaint as deficit court fee as per order passed in the judgment of Trial Court in O.S.No.193/1993 is not paid.
14. While admitting the appeal, on 06.01.2010 the following substantial question of law is formulated:
"Whether the finding of the Lower Appellate Court that the suit of the plaintiff is within limitation period is sustainable in law?"
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15. On 07.04.2026, the following additional substantial questions of law are formulated:
1. Whether the first appeal filed only against the judgment without drawing up of decree is maintainable in law?
2. Whether First Appellate Court has not formulated proper points of law which leads to erroneous judgment?
16. Heard arguments of both sides.
17. Learned counsel for appellants/defendants Sri A.A.Kalebudde would submit that the suit is not filed within the period of limitation praying for possession and thus suit is not maintainable in law. Learned counsel for appellants would submit that admittedly in the year 1956, Jamaluddin was dispossessed from suit schedule 'A' property as per his own letter. In the year 1959-60, Abdul Wahab was not intending to get transfer to Dharwad, but he was transferred from Dharwad to other place in that year. Hence, there was no question of deceased Jamaluddin granting license to Abdul Wahab. He was not residing in suit
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR schedule 'A' property as licensee. Ex.D.5 is the Service Register of Abdul Wahab. It shows that he worked in Taluk Office, Navalgund from 01.01.1957 to 21.09.1961 and then transferred to Hangal. The decree itself is not drawn by the Trial Court because of non-payment of deficit court fee by the plaintiffs. The operative portion of judgment and decree only in respect of column 'C' i.e. for issuance of certified copy was stayed; for payment of deficit court fee, there was no stay order. Even there was no stay order in the Appellate Court. The plaintiffs have not sought for extension of time to pay deficit court fee. Thus without formal decree, suit is not at all maintainable in law. Father of plaintiffs i.e. Jamaluddin died on 06.12.1990. Since from 1956 to 1990 Jamaluddin has not filed suit for possession. Hence, the suit is barred by law of limitation as per Article 58 and under Article 65 of the Limitation Act, 1963. Plaintiffs have to prove that they were in possession of suit schedule property within 12 years prior to filing of the suit. However, they did not do so. Even the reply notice as per Ex.P.21 of 1980
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR reveals that plaintiffs are not in possession of suit schedule property. Father of defendants contended that he is the owner of suit schedule 'A' property. Thus, he denied the ownership of plaintiffs' father and hence suit filed in the year 1993 is apparently barred by limitation. The First appellate Court even though had knowledge that deficit court fee was not paid before Trial Court, has ignored said fact and not formulated proper points for consideration, which resulted in erroneous judgment. Even other wise, plaintiffs are not entitled for possession of suit schedule 'A' property because Abdul Wahab has purchased it in the name of Jamaluddin. Hence, prayed for allowing the appeal.
18. Learned counsel for appellants relied on the following judgments:
1. Virupakshappa vs. Sharanappa and Others reported in (2016) 4 Civil Law Journal 865 of Co-ordinate Bench of this Court.
2. Mr.S.Sadiq Pasha vs. Smt.Aktharunnissa and Others reported in (2013) 3 AIR KAR 716. Para No. 27.
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3. Buta Singh (Dead) by LRs. vs. Union of India reported in AIR 1995 SC 1945
4. Banarsi and Others vs. Ram Phal reported in (2003) AIR (SCW) 1494
5. Basappa (Dead) by Lrs. vs. Puttappa (Dead( by LRs. reported in (2001) ARI (SCW) 4762. Headnote C and D.
6. Abdulla Siddiq and Others vs. U.F.M. Uday reported in (2015) ILR (KAR) 5811
7. Vasudev vs. Tukaram Bhimappa Naik reported in (2014) ILR (KAR) 4716
19. Learned counsel for respondents/plaintiffs Sri Mallikarjuna Swamy B. Hiremath would submit that even though the deficit court fee was not paid before Trial Court as per the order passed in the judgment, entire judgment including payment of court fee was questioned by the plaintiffs before First Appellate Court. As it is, First Appellate Court has set aside the entire judgment of Trial Court; there is no question of making payment of deficit court fee by
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR plaintiffs. Even then as a matter of precaution, they have paid the deficit court fee before Trial Court as per the memo dated 12.10.2017, as per the order dated 10.10.2017 of Trial Court and memo is also filed in that regard and it is endorsed in order sheet dated 18.12.2018. Hence, appeal cannot be allowed on that point.
20. Learned counsel for respondents would further submit that as per Order XLI Rule 1 CPC after amendment in the year 2002, even in the absence of decree, appeal can be filed.
21. Learned counsel for respondents would submit that Rule 6-A(2) of CPC made it very clear that when the appeal filed against decree without filing a copy of the decree then the Court shall, for purpose of Order XLI Rule 1, treat the judgment as decree. But as soon as decree is drawn, the judgment shall cease to have the effect of a decree.
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22. In the instant case, as it is, decree itself is not drawn before the Trial Court, thus, the judgment shall be considered as decree and it continued as decree. In this regard, he relied on the following citations:
1. Md.Mohammad Ali (Dead) by LRs. vs. Jagadish Kalita and Others reported in (2004) 1 SCC 271
2. Sir Sobha Singh and Sons Private Limited vs. Shashi Mohan Kapur (Deceased) through LRs. reported in (2020) 20 SCC 798
3. Pradip Kumar Kalita vs. Hiran Prova Kalita reported in (2002) 2 Gauhati Law Reports 164
4. W.B. Essential Commodities Supply Corporation vs. Swadesh Agro Farming and Storage Private Limited and Another reported in (1999) 8 SCC 315
23. Learned counsel for respondents would further submit that Abdul Wahab claims title on him contending that the sale deed in the name of Jamaluddin is as a Benami transaction and actually he is the purchaser of the property. Thus, he claims to be the owner of property based on
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR Benami transaction. Thus, he never admitted the ownership of Jamaluddin. Without admitting the ownership of Jamaluddin, Abdul Wahab or defendants cannot set up the plea of adverse possession. When the plea of adverse possession cannot be set up, then as per Article 65 of the Limitation Act, the period of limitation shall not begin to run because defendants have not at all set up the plea of adverse possession. Considering these aspects, rightly, the First Appellate Court has decreed the suit of plaintiffs.
24. Learned counsel for respondents would further submit that the learned counsel appearing for appellants before the First Appellate Court has not raised the plea in respect of court fee and thus the First Appellate Court is justified in not raising the points for consideration regarding court fee and also limitation. Hence prayed for dismissal of the appeal.
25. Having heard arguments of both sides and verifying the appeal papers along with trial court record, the
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR findings of this court on substantial questions of law are as follows:
REGARDING SUBSTANTIAL QUESTION OF LAW No.1:-
26. Plaintiffs have filed the suit before Trial Court praying for possession of suit schedule property from defendants on the ground that father of plaintiffs has purchased suit schedule 'A' property under registered sale deed dated 19.09.1951 from its erstwhile owner and permitted his younger brother-Abdul Wahab to reside in suit schedule 'A' property. Defendants are legal representatives of Abdul Wahab and they have not acquired any right, title or interest in or over suit schedule 'A' property but they are only licensees under father of plaintiff. License was automatically revoked on the date of death of Jamaluddin and on 22.03.1993 when plaintiffs demanded to vacate the suit schedule 'A' property.
27. The contention of defendants is that Abdul Wahab while he was in service at Hangal has purchased the
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR suit schedule 'A' property. Jamaluddin was jobless and was under the shelter of Abdul Wahab. As Abdul Wahab was in Government service, he has purchased the suit schedule 'A' property in the name of deceased Jamaluddin. Thus, defendants have taken contention that their father was the absolute owner of suit schedule 'A' property and they have also taken contention of Benami transaction. They have not admitted that they are licensees under deceased Jamaluddin. Their contention is that the dispute between brothers arose in the year 1956 and as such the suit filed in the year 1993 is barred by limitation.
28. Defendants' contention is that they and their father-Abdul Wahab are enjoying suit schedule 'A' property as owner to the knowledge of Jamaluddin and plaintiffs since from 1956 and thus Abdul Wahab and defendants became owners of the suit schedule 'A' property by law of adverse possession.
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29. The contention of defendants is that suit is barred by limitation. Plaintiffs have filed suit that their father Jamaluddin was owner of the suit schedule 'A' property. Thus, Article 65 of the Limitation Act, 1963 applies to the facts of the case. According to this Article, the period of limitation to file a suit for possession of immovable property based on title is 12 years when the possession of the defendant becomes adverse to the plaintiff.
30. To prove the plea of adverse possession, defendants have to establish two ingredients. First one is continuous possession for a statutory period of 12 years without any obstruction and second one is animus possidendi i.e., their possession is hostile to the interest of real owner. If defendants have taken the plea of adverse possession, then they have to admit that Jamaluddin was the owner of suit schedule 'A' property. However, as discussed above the defendants have taken contention that it is Abdul Wahab who has purchased the property in the name of Jamaluddin and it is a Benami transaction.
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR However, Benami transactions are prohibited as per the Benami Transactions (Prohibition) Act, 1988. Hence, defendants are precluded from claiming that they are owners of the suit schedule property even though it is purchased in the name of Jamaluddin. When defendants contend that they are owners of the property; further, they cannot claim that they are owners by law of adverse possession also. When once defendants dispute the ownership of original owner Jamaluddin, then the period of limitation would not begin to run against Jamaluddin or plaintiffs to file suit for possession. Only if the possession of defendants becomes adverse to the plaintiff, then the period of limitation begins to run. In the instant case, said period of limitation was not at all begun to run. Hence, the suit cannot be barred by limitation.
31. In this regard, learned counsel for appellants/defendants relied on the citation of Co-ordinate Bench of this Court in Abdulla Siddiq (supra), wherein it is held as follows:
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR "A. Limitation Act, 1963 - Article 58 and Article 65 - Suit for declaration of title and possession - Applicability of limitation-period Where suit seeks declaration of title and consequential relief of possession based on title, the applicable limitation period is 12 years as per Article 65, which begins when the defendant's possession becomes adverse to the plaintiff-Article 58, which prescribes a three- year limitation for obtaining other declarations from when the right to sue first accrues, does not apply to suits primarily seeking possession based on title. (Paras 10, 11, 12, 14) B. Civil Procedure Code, 1908 (CPC) - Order 7 Rule 11(d) - Rejection of plaint - Suit barred by law - An application for rejection of plaint under Order 7 Rule 11(d) on grounds of being time-barred is correctly dismissed if the suit for declaration of title and possession falls under Article 65 of the Limitation Act, providing a 12-year limitation period, making the suit maintainable. (Paras 3, 12, 15) C. Limitation Act, 1963 - Article 65- possession of immovable property - void documents- when possession has been taken based on void documents, a suit for possession can be filed, and such documents can be contended to be a nullity, with the suit being governed by Article 65 of the Limitation Act, providing a 12-year limitation period (para 13)"
32. In the aforesaid citation also, it is held that the relevant Article applicable for a suit filed by plaintiff for declaration of title and consequential relief of possession, is Article 65 of the Limitation Act, 1963. According to it, the period of limitation begins to run when the possession of defendant becomes adverse to the interest of real owner
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR and period of limitation is 12 years. Thus, the suit is maintainable.
33. In this regard, learned counsel for respondents relied on the judgment of Hon'ble Apex Court in Md.Mohammad Ali (supra), wherein it is held as follows:
"20. By reason of Limitation Act, 1963 the legal position as was obtaining under the old Act underwent a change. In a suit governed by Art. 65 of the 1963 Limitation Act, the plaintiff will succeed if he proves his title and it would no longer be necessary for him to prove, unlike in a suit governed by Articles 142 and 144 of the Limitation Act, 1908, that he was in possession within 12 years preceding the filing of the suit. On the contrary, it would be for the defendant so to prove if he wants to defeat the plaintiff's claim to establish his title by adverse possession."
34. In the aforesaid case, their Lordships have discussed in detail the effect of Articles 142 and 144 of old Limitation Act, 1908 with Article 65 of present Limitation Act, 1963 and thus held that plaintiff need not be in possession of suit schedule property within 12 years preceding to file the suit. Presently we are governed by the Limitation Act, 1963 and not by The Limitation Act, 1908. Thus even though plaintiffs or their father was not in
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR possession of suit schedule 'A' property, 12 years prior to filing of the suit, the suit is not barred by law of limitation because as discussed above the possession of defendants whatsoever for a long period is not hostile to the interest of real owner. They never admitted that Jamaluddin as owner of the property. But they have taken contention of Benami ownership and failed to establish it. Hence, the first substantial question of law is answered in AFFIRMATIVE that the suit filed by plaintiff is within the period of limitation.
REGARDING ADDITIONAL SUBSTANTIAL QUESTION OF LAW No.1:-
35. The Trial Court has passed the judgment and decree dated 09.08.2007 by dismissing the suit of plaintiffs with costs and directed plaintiffs to file fresh valuation slip as per Ex.D.2 and to pay the requisite deficit court fee within 15 days from the date of said order and also directed the office to issue certified copy of judgment and decree to
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR plaintiffs only after filing fresh valuation slip and deficit court fee.
36. This order in respect of Clause No.(C) was stayed by the same Court as per order dated 24.08.2007 and directed the office to issue certified copies of judgment and decree to the plaintiffs. Even though such an order is passed, the Trial Court has not at all drawn the decree.
37. The appeal is filed without drawing up of decree before the First Appellate Court only based on the judgment passed by the Trial Court because decree was not at all drawn.
38. In the Appellate Court, an application was filed by the respondents/defendants under Section 11(4) of the Karnataka Court Fees and Suits Valuation Act, 1958 and said application was allowed and the plaintiffs were directed to pay the court fee determined by the Trial Court within 15 days. Afterwards, the plaintiffs have filed the deficit court
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR fee before the First Appellate Court. However, the deficit court fee of Trial Court was not paid.
39. During pendency of this appeal, on 03.03.2014, an order is passed as follows:
"15 days time is granted to file fresh valuation slip and to pay deficit Court fee before the trial Court, i.e., Prl. Civil Judge (Sr. Dn.) and C.J.M. Dharwad. Regular decree shall be drawn by the trial Court in accordance with the judgment dated 09.08.2007 after collection of requisite Court Fee on the basis of valuation slip that will be furnished. Learned counsel for the respondent is at liberty to urge all points inclusive of the one regarding limitation applicable to a decree to be drawn before this Court while addressing arguments on the final hearing."
40. Afterwards, on 05.03.2014, the following order is passed:
"Anyhow the judgment of the trial Court has been set aside in the appeal. But there is also an observation in regard to the payment o fcourt fee on the basis of the valuation made by the Engineer.
Anyhow, that aspect can also be taken into by this Court and it is ultimately found that the appellants are bound to pay the requisite court fee, if he is directed to pay.
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR Hence post the case for arguments on merits along with this aspect of court fee."
41. There is an endorsement dated 18.12.2018 in the order sheet as follows:
"Memo for Payment of deficit Court fee:-
The counsel for Respondent has filed an memo submit that the respondents have paid deficit court fee in OS No.193/93 before the Prl. Senior Civil Judge, Dharwad on 12.10.2017 as per the order dated 10.10.2017 of this Hon'ble court in the reasons stated therein."
42. On careful perusal of the above orders, it is clear that the plaintiffs have paid the deficit court fee before trial court on 12.10.2017. Hence, presently, payment of deficit court fee before trial court is not an issue.
43. Learned counsel for appellants, Sri A.A.Kalebudde has vehemently submitted his arguments that in view of non-drawing up of decree by the Trial Court and non-payment of deficit court fee by the plaintiffs before Trial Court, the appeal itself is not maintainable even before
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR First Appellate Court. Even though the First Appellate Court has made an observation about this non-payment of deficit court fee in its judgment at para No.24 that Ex.D.2 is the valuation certificate issued by K.K. Constructions and based on said document, Trial Court has directed plaintiffs to pay court fee. Though the learned counsel for appellants seriously disputed the said document, but by order dated 09.08.2007 the appellants were directed to pay the court fee on said valuation as there is no contra evidence and accordingly they have paid the court fee on the appeal. But it has not discussed anything about the deficit court fee on the plaint before Trial Court. Hence, decree was not at all drawn as discussed above.
44. In this regard, learned counsel for appellants has brought to the notice of this Court that as per Section 96 of CPC, the appeal can be filed only against decree and not against judgment. In this regard, learned counsel for appellants relied on the following citations.
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR
45. In Virupakshappa (supra), wherein the Co- ordinate Bench of this Court held as follows:
"C. Civil Procedure Code, 1908 (CPC)-Appeals-Against decree, not finding-An appeal or cross-objection lies only against a decree, not against a mere finding on an issue, especially if the final decree is in the party's favour. (Paras 6, 8)
6. In the present case, despite answering issue 1 in favour of the plaintiff by the Trial judge, the suit was dismissed. The defendants by filing written statement sought dismissal of the suit and did not make any counter-claim. No relief sought by the defendants in the suit was negatived by the Trial Court. It is trite that an appeal or a cross-objection can lie against a decree passed by the Court and not against a mere finding on a certain issue or point raised for consideration.
8. In Banarsi v. Ram Phal, (2003) 9 SCC 606 Apex Court has held that unless a person is pre-judicially or adversely affected by the decree he is not entitled to file an appeal and that no appeal lies against a mere finding and that Sections 96 and 100 of CPC provide for an appeal against decree and not against judgment."
46. Learned counsel for appellants also relied on the judgment of Co-ordinate Bench of this Court in Mr.S.Sadiq Pasha (supra), wherein it is held as follows:
"27. Thus, an appeal does not lie against mere 'findings' recorded by a court unless the findings amount to a 'decree' or 'order'. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he cannot question those findings before the appellate court. (See Smt. Ganga Bai Vs. Vijay Kumar and Others,
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR (Emphasis is supplied)
12. In the case of Banarsi and Others Vs. Ram Phal, Apex Court has held as follows:
8. Sections 96 and 100 CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal.
However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. (See Phoolchand and Another Vs. Gopal Lal. Smt. Jatan Kumar Golcha Vs. Golcha Properties (P) Ltd., and Smt. Ganga Bai Vs. Vijay Kumar and Others, No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 CPC provide for an appeal against decree and not against judgment.
(Emphasis is supplied)"
47. In Banarsi and Others (supra), the Hon'ble Apex Court held as follows:
"8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal (See Phoolchand and Anr. v. Gopal Lal,; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P) Ltd.,; Smt. Ganga Bai v. Vijay Kumar and Ors.,. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against judgment."
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR
48. Learned counsel for respondents/plaintiffs vehemently submitted his arguments on this point that after amendment to Order XLI CPC, the parties to the suit can file an appeal only against the judgment. In this regard, reading of Order XLI of CPC is very important. It reads as follows:
"xxxxx (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of rule 1 of Order XLI be treated as the decree.
But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose."
(emphasis supplied)
49. The word 'judgment' in Order XLI Rule 1 of CPC was substituted as per the Substitution Act No.46/1999 with effect from 01.07.2002.
50. Before substitution, Order XLI Rule 1 of CPC reads as follows:
"Order XLI Appeals From original Decrees
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR R. 1 . Form of appeal: What to accompany memorandum-- Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded:
a [Provided that where two or more suits have been tried together and a common judgment has been delivered therefor and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.] (2) Contents of memorandum-- The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative;
and such grounds shall be numbered consecutively.
b [(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.]"
51. Furthermore, reading of Order XX Rule 6-A of CPC at this juncture is relevant. It reads as follows:
"6-A. Preparation of decree. (1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced.
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of Rule 1 of Order 41, be treated as the decree.
But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose."
52. Learned counsel for respondents/plaintiffs also relied on the judgment of Sir Sobha Singh (Supra), wherein the Hon'ble Apex Court held as follows:
"D. Civil Procedure Code, 1908-Or.21 Rr.10, 11 & 2, Or. 20 Rs.6-A and Ss.151 & 152-Execution petition-Not filing the copy of the decree along with the execution application- Order of the High Court directing the appellant to apply under S. 152 for drawing a decree-Legality-Correct provision under which such application needs to filed, clarified
23. The issue in this case is required to be decided in the light of Order 20 Rule 6, Order 20 Rule 6-A, Order 20 Rule 7, Order 21 Rules 11(2) and (3) and Order 23 Rule 3 of the Code. These provisions read as under:
Order 20 Rule 6 "6. Contents of decree.--(1) The decree shall agree with the judgment; it shall contain the number of the suit, the names and description of the parties, their registered addresses, and particulars of the claim, and shall specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid. (3) The court may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter."
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR Order 20 Rule 6-A "6-A. Preparation of decree.--(1) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. (2) An appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the court shall for the purposes of Rule 1 of Order 41, be treated as the decree. But as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose."
XXXXX
24. Order 20 Rule 6 of the Code deals with contents of decree and provides that the decree shall agree with the judgment, it shall contain the number of the suit, the names and descriptions of the parties, their registered addresses and particulars of claim, relief granted or any other determination made in the suit, amount of costs incurred in the suit, and by whom or out of what property and in what proportions, the cost to be paid. Rule 6-A deals with the preparation of decree. It says that every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within fifteen days from the date on which the judgment is pronounced. Order 20 Rule 6-A(2) of the Code says that an appeal may be preferred against the decree without filing a copy of the decree and in such a case the copy made available to the party by the Court shall for the purposes of Order 41 Rule 1 be treated as the decree but as soon as the decree is drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for any other purpose.
25. In our considered opinion, though Order 20 Rule 6-A(2) of the Code deals with the filing of the appeal without enclosing the copy of the decree along with the judgment and further provides the consequence of not drawing up the decree yet, in our opinion, the principle underlined in Rule 6-A(2) can be made applicable also to filing of the execution application under Order 21 Rule 2 of the Code."
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR
53. In Pradip Kumar Kalita, the Full Bench of Gauhati High Court held as follows:
"10. We may refer here to the provision of Order XX Rule 6A CPC. The same is in the following terms:
"6A. Last paragraph of judgment to indicate in precise terms the reliefs granted. (1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment.
(2) Every endeavour shall be made to ensure that the decree is drawn up expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced, but where the decree is not. drawn up within the time aforesaid, the Court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon-
(a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the Judgment shall, for the purposes of rule 1 of Order XLI, be treated as the decree: and
(b) so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall he entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the Judgment, but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect for a decree for the purpose of execution or for any other purpose;
Provided that, where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit."
11. It will be seen from Order XX Rule 6A(1) that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. Sub-rule (2) of Rule 6A of Order XX farther provides that an endeavour is to be made by the court to ensure that the
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR decree is drawn up as expeditiously as possible and in any case within fifteen days from the date on which the judgment is pronounced. The Court under sub-rule (2) can be requested that the decree has not been drawn up under Order XX Rule 6A(2)(a) and the appeal may be preferred against the decree without filing a copy of the decree and in such case the last paragraph of the judgment shall, for the purpose of Rule 1 Order XLI would be treated as decree and till the decree is not drawn last paragraph of the judgment would be treated as decree. From this it is also indicative that the starting point for computing limitation for filing an appeal is the date of the judgment and not the date of decree.
12. In view of our aforesaid discussion, our answer to the question posed in the opening paragraph of this judgment is that the limitation for filing an appeal would start running from the date of the judgment and not the date of the decree. The date of the decree would be deemed to be the date of the judgment. However, if an application is made for obtaining certified copy of the judgment and decree within the period of limitation, the period spent, in drawing up the decree as well as the time spent in obtaining a copy of the decree would be excluded.
54. In Swadesh Agro Farming (supra), the Hon'ble Apex Court held as follows:
"8. To enable a person who would like to execute the decree before it is actually drawn up, Rule 6-A is inserted in the Code by the Amendment Act, 1976 (Act 104 of 1976), which is extracted hereunder:
"6-A. Last paragraph of judgment to indicate in precise terms the reliefs granted.--(1) The last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment.
(2) Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as possible, and, in any case, within fifteen days from the date on which the judgment is pronounced; but where the decree is not drawn
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR up within the time aforesaid, the court shall if requested so to do by a party desirous of appealing against the decree, certify that the decree has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon--
(a) an appeal may be preferred against the decree without filing a copy of the decree and in such a case the last paragraph of the judgment shall, for the purposes of Rule 1 of Order XLI, be treated as the decree; and
(b) so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be the decree for the purpose of execution and the party interested shall be entitled to apply for a copy of that paragraph only without being required to apply for a copy of the whole of the judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose:
Provided that, where an application is made for obtaining a copy of only the last paragraph of the judgment, such copy shall indicate the name and address of all the parties to the suit."
9. Rule 6-A enjoins that the last paragraph of the judgment shall state in precise terms the relief which has been granted by such judgment. It has fixed the outer time-limit of 15 days from the date of the pronouncement of the judgment within which the decree must be drawn up. In the event of the decree not so drawn up, clause (a) of sub-rule (2) of Rule 6-A enables a party to make an appeal under Rule 1 of Order 41 CPC without filing a copy of the decree appealed against and for that purpose the last paragraph of the judgment shall be treated as a decree. For the purpose of execution also, provision is made in clause (b) of the said sub-rule which says that so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to be a decree. Clause (b) has thus enabled the party interested in executing the decree before it is drawn up to apply for a copy of the last paragraph only, without being required to apply for a copy of the whole of the judgment.
It further lays down that the last paragraph of the judgment shall cease to have the effect of the decree for purposes of
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR execution or for any other purposes when the decree has been drawn up."
55. On careful perusal of the principles noted in all the above citations and order XLI Rule 1 of CPC along with Order XX Rule 6-A and Section 96 CPC, initially the appeals could have been filed only against decrees and not against judgments. Subsequently, Order XLI Rule 1 is amended and Order XX Rule 6-A CPC is incorporated and substituted as per Amendment Act, 1999. Before amendment of these provisions, the appeal ought not to have been filed against finding or observation of Court on any point in the suit. But it can be filed only against the decree.
56. Section 2(2) of CPC defines decree. According to it, decree is a formal expression of an adjudication which so far as regards the court expressing it conclusively determines the right of the parties with regard to all or any of the matters in controversy in the suit either preliminary or final.
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR
57. As per Order XX Rule 6-B of CPC, where judgment is pronounced, copies of the judgment shall be made available to the parties immediately after pronouncement of the judgment for preferring an appeal on payment of such charges. As per Order XX Rule 6-A(2) of CPC, an appeal may be preferred against the decree without filing a copy of the decree and in such a case, the copy made available to the party by the court (judgment) shall for the purpose of Order XLI be treated as the decree. But as soon as decree is drawn, the judgment shall cease to have the effect of a decree for the purpose of execution or for any other purpose.
58. Thus, as long as decree is not drawn, judgment is to be treated as decree. But judgment ceases to be decree immediately when decree is drawn. In the instant case, as discussed above till today decree is not at all drawn. Hence, even today the judgment can be treated as decree for the purpose of execution or for any other purpose and this copy of judgment shall be made available
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR to the party for preferring an appeal. Hence, if decree is not drawn by the Trial Court for non-payment of deficit court fee, that cannot be fatal to the case of plaintiffs because that cannot preclude plaintiffs from preferring an appeal. The First Appellate Court has not directed the plaintiffs to pay deficit court fee before trial court. But this Court has directed the respondents/plaintiffs to pay the deficit court fee by its order dated 03.03.2014. Immediately afterwards as per order dated 05.03.2014, said order was stayed and further ordered that the question of payment of court fee will be considered along with merits. But in the meanwhile, plaintiffs have paid the deficit court fee before trial court as discussed above. Hence, non-payment of deficit court fee by the plaintiffs cannot be a ground for appellants to invoke Order VII Rule 11(b) of CPC.
59. Even after deposit of deficit court fee, the Trial Court has not drawn the decree. It might be because the records are still with this Court. Hence, the first appeal filed only against judgment without drawing up of decree is
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR maintainable in law. Accordingly, the additional substantial question of law No.1 is answered in AFFIRMATIVE. REGARDING ADDITIONAL SUBSTANTIAL QUESTION OF LAW NO.2:
60. Learned counsel for appellants vehemently submitted his arguments that the learned First Appellate Court has not formed proper questions of law which leads to erroneous judgment. Learned counsel for appellants vehemently submitted that even though respondents have raised the plea of non-payment of deficit court-fee, valuation of court-fee is incorrect and point of limitation, the First Appellate Court has not formulated questions on those points.
61. In this regard, formulation of points of law by First Appellate Court needs to be verified. It is found in internal page No.10 of First Appellate Court judgment, which reads as follows:
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR "1) Whether the plaintiffs have proved that late Jamaluddin was the owner of the suit property by virtue of the registered sale deed dated 19.9.1951?
2) Whether the defendants prove that late Abdul Wahab and after his death, the defendants have been in adverse possession of the suit property?
3) Whether the plaintiffs are entitled for the relief of declaration and possession as prayed for in the suit?
4) Whether the impugned judgment and decree suffers from any error or law and facts calling for interference by this Court?"
62. The core questions between parties is whether the deceased Jamaluddin became owner of the suit schedule property by virtue of sale deed dated 19.09.1951, whether defendants could establish the plea of adverse possession and whether plaintiffs are entitled for the reliefs prayed in the suit. These three proper points of law were formulated by the First Appellate Court. As regards payment of court fee is concerned, as discussed above, the First Appellate Court in its judgment has made a note that the appellants were directed to pay deficit court fee by making
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR calculation as per Ex.D.2 and accordingly they have made the calculation as per Ex.D.2 in the first appeal. Thus, appropriate court fee was already paid before the First Appellate Court. Whether appropriate court fee was paid before Trial Court or not was not considered by the First Appellate Court. This might be due to the non-submission of arguments by learned counsel for appellants. However, that itself cannot be a ground to say that the judgment passed by the First Appellate Court is erroneous because as discussed above presently as per the directions of this Court the plaintiffs have paid the deficit court fee.
63. As regards the point of limitation is concerned, it is not an independent question of law in the present case because it is tied with the adverse possession plea raised by defendants. When once the First Appellate Court comes to the conclusion that defendants failed to establish their title by law of adverse possession, there is no question of limitation being run against plaintiffs. Hence, even non- raising the point regarding point of law of limitation also
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR does not lead to the conclusion that the judgment of First Appellate Court as erroneous. Thus, mere not framing proper questions of law by the First Appellate Court by itself has not made the judgment of First Appellate Court erroneous. The First Appellate Court has discussed the factors in length while discussing the point of adverse possession and thus there is no need to frame separate point regarding point of limitation. Hence, the judgment of First Appellate Court is not erroneous one as argued by learned counsel for appellants. Accordingly, this substantial question of law No.2 is answered in NEGATIVE.
64. In view of findings on the aforesaid substantial questions of law, this Court proceeds to pass the following:
ORDER Appeal filed by appellants/defendants under Section 100 of C.P.C. is dismissed by confirming the judgment and decree dated 09.10.2009 passed in R.A.No.53/2007 on the file of Principal District Judge, Dharwad.
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NC: 2026:KHC-D:6239 RSA No. 5616 of 2009 HC-KAR Draw decree accordingly.
Sd/-
(GEETHA K.B.) JUDGE SH CT-MCK List No.: 1 Sl No.: 35