IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25^TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 503 OF 2013 (DEC/INJ)

BETWEEN:

1. SRI SANNAPALAIAH @ PALAIAH S/O PALAIAH, AGED ABOUT 89 YEARS, AGRICULTURISTS, R/AT HIREHALLY VILLAGE, CHALLAKERE TALUK Digitally

2. SRI R P OBAIAH signed by SUNITHA K S S/O PALAIAH Location:

AGED ABOUT 54 YEARS, HIGH COURT OF AGRICULTURISTS, KARNATAKA R/AT HIREHALLY VILLAGE, CHALLAKERE TALUK

3. SRI R P THIPPESWAMY S/O PALAIAH, AGED ABOUT 44 YEARS, AGRICULTURISTS, R/AT HIREHALLY VILLAGE, CHALLAKERE TALUK …APPELLANTS (BY SRI. V. LAXMI NARAYAN, SR. COUNSEL FOR SRI. Y. H. VIJAY KUMAR, ADVOCATE)

AND:

SRI OBAIAH S/O MUCHOBAIAH, AGED ABOUT 59 YEARS, AGRICULTURIST, R/AT HIREHALLI VILLAGE, CHALLAKERE TALUK - 577 522 …RESPONDENT (BY SRI. S NAGARAJA, ADVOCATE)

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 26.11.2012 PASSED IN R.A.NO.20/2011 ON THE FILE OF ADDITIONAL DISTRICT JUDGE, FAST TRACK COURT, CHITRADURGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 1.2.2011 PASSED IN OS.NO.14/2009 ON THE FILE OF SENIOR CIVIL JUDGE, CHALLAKERE.

THIS APPEAL, COMING ON FOR FURTHER DICTATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE ASHOK S.KINAGI

ORAL JUDGMENT

1. The appellants have filed a Memo for withdrawal of the suit with a liberty to revive the Final Decree Proceedings in FDP No.27 of 1995 as the said FDP was closed without passing the final decree, where the 1^st appellant's brother had filed a partition suit against the appellants in O.S. No.302 of 1970. The said suit was decreed and a Final Decree Proceedings in FDP No.27 of 1995 was filed. However, the said Final Decree Proceedings was closed on 17.10.1998, without passing the final decree.

2. The appellants filed a suit in O.S. No.14 of 2009 for declaration of title and permanent injunction.

3. Till the final decree is drawn, and a partition is effected by metes and bounds, the suit for declaration of title and permanent injunction is not maintainable.

4. The learned counsel for the appellants filed a memo seeking leave of the Court to withdraw the suit with a liberty to revive the final decree proceedings on merits, keeping open all the contentions including the validity of the Will, alleged to have been executed by one Soncha Boraiah i.e. the brother of Appellant No.1 in favour of the defendant/respondent.

5. Admittedly, the preliminary decree was drawn in O.S.

No.302 of 1970 and subsequently, the final decree proceedings was filed in FDP No.27 of 1995. The FDP Court without passing a final decree, has closed the final decree proceedings on 17.10.1998.

6. In view of the proposition laid down by this Court in the case of Basappa & Others v/s Kamala Kom. Shivaputra Ligade & Others, in Civil Revision Petition No.100080 of 2018, decided on 24^th February 2020, wherein this Court, considering the various decisions of the Hon'ble Apex Court, has held as follows:

"9. The points that arise for consideration are :

i) Whether Order II Rule 2 of the Code of Civil Procedure, 1908 is applicable to the Final Decree Petition?

ii) Whether trial Court can pass more than one final decree ?

Re. Point No.1 :

10. That, Order II Rule 2 of CPC reads as under :

2. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the 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