IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JULY, 2017 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY REGULAR FIRST APPEAL No.403 OF 2012 C/W REGULAR FIRST APPEAL NO.741 OF 2012 IN RFA No.403/2012 BETWEEN:
1. B PILLA REDDY @ PAPAIAH S/O LATE BHOJA REDDY PAPAIAH BANASAWADI, KRISHNARAJAPURA HOBLI BANGALORE SOUTH TALUK, SINCE DEAD BY HIS LRS a) SMT K R SHANTHAMMA W./O LATE B PILLA REDDY SINCE DECEASED BY HER LR:
B) SHRI B P BABU REDDY S/O B P RAMACHANDRA REDDY AND GUARDIAN OF LATE B PILLA REDDY AGED ABOUT 41 YEARS BOTH (A) & (B) ARE R/AT NO. 227/1, MARUTHI NILAYA, SUBBAYYA PALYA, BANGALORE – 560 043 C) SMT B P LEELAVATHI D/O LATE PILLA REDDY AGED ABOUT 45 YEARS, R/AT NO 44/4 3RD CROSS, NEW POLICE STATION ROAD, K R PURAM BANGALORE 5600 36 ... APPELLANTS (BY SRI.V B SHIVA KUMAR, ADV.) AND:
1. VENKATASWAMY REDDY SINCE DEAD BY HIS LRS A) SMT.DODDATHAYAMMA W/O LATE VENKATASWAMY REDDY (R1(A) IS DEAD, R1 (B.C & D) ARE LRS OF DECEASED R1(A) B) SHRI NARAYANA REDDY SINCE DECEASED BY LRS B1) SMT.H.G.RATHI DEVI, W/O LATE B.V.NARAYANA REDDY, AGED ABOUT 65 YEARS.
B2) B.N.RAMAREDDY, S/O LATE B.V.NARAYANA REDDY, AGED ABOUT 41 YEARS B3) SMT.B.N.ANUPAMA, D/O LATE B.V.NARAYANA REDDY, AGED ABOUT 39 YEARS B4) B.N.LOKESH REDDY, S/O LATE B.V.NARAYANA REDDY, AGED ABOUT 37 YEARS RESPONDENTS NO. B1 TO B4 ARE R/AT NO.772/2, 10TH MAIN, 100 FEET ROAD, IYENGAR BAKERY, B.V.REDDY GARDEN, NO.9, HBR LAYOUT, BANASAWADI, BANGALORE – 560 043 C) SHRI UMAPATHY D) SHRI SRINIVASA REDDY 1 (B) TO R(D) ARE SONS OF S/O VENKATASWAMY REDDY MAJOR BY AGE R/AT DODDABANASAWADI BANGALORE 560 043 E) SHRI N BABU REDDY S/O LATE G NARAYANA REDDY AGED ABOUT 93 YEARS R/AT NO 1142, 22ND CROSS 30TH MAIN ROAD, BSK II STAGE, BANGALORE 560070 F) SMT LAKSHMAMMA D/O B V VENKATASWAMY REDDY AGED ABOUT 95 YEARS R/AT NO 932, I MAIN I CROSS, MARUTHINAGAR, MADIWALA BANGALORE - 560 068 G) SHRI MADHUSUDAN K S S/O LATE SRINIVAS REDDY GRAND S/O B V VENKATASWAMY REDDY AGED ABOUT 64 YEARS H) SHRI MANOHAR K S S/O LATE SRINIVAS REDDY GRAND S/O B V VENKATASWAMY REDDY AGED ABOUT 62 YEARS 1 (G) TO (H) ARE R/AT NO 55, 2ND CROSS, MARUTHINAGAR MADIWALA, BANGALORE 560068 2. CHIKKA PILLA REDDY @ PILLA REDDY SINCE DEAD BY HIS LRS (A) SHRI MUNISWAMY REDDY S/O LATE CHIKKA PILLA REDDY MAJOR BY AGE (B) SMT GOWRAMMA W/O LATE JAYARAM REDDY AGED ABOUT 85 YEAS (C) SHRI MANJUNATH J S/O LATE JAYARAM REDDY AGED ABOUT 62 YEARS (D) SMT PRABHAVATHI J D/O LATE JAYARAM REDDY AGED ABOUT 60 YEARS (E) SHRI VISWANATH J S/O LATE JAYARAM REDDY AGED ABOUT 57 YEARS 2(A) TO 2(E) ARE R/AT NO 22, 2ND CROSS LAKSHMAMMA LAYOUT, DODDABANASWADI BANGALORE – 560 043 3. PUTTAMMA SINCE DEAD BY HER LR SMT.THIMMALAMMA WHO IS ALSO NO MORE 4. SHRI PAPAIAH REDDY S/O LATE RAMAIAH REDDY MAJOR BY AGE, R/AT DODDANAKKUNDI BANGALORE SOUTH TALUK – 560 036 5. MUNI REDDY S/O LATE CHIKKAMUNISWAMY REDDY MAJOR BY AGE R/AT DODDANAKKUNDI BANGALORE SOUTH TALUK – 560 036 6. SHRI CHIKKATHIMMANAHALLI NANJAPPA S/O LATE HANUMAIAH MAJOR BY AGE R/AT HOSAKOTE TALUK BIDARAHALLI BANGALORE DISTRICT - 560 036 7. SHRI ULSOOR MUNISWAMY BANASWADI KRISHNARAJAPURA HOBLI, BANGALORE SOUTH TALUK – 560 036 8. SHRI.MANJUNATHA S/O PADMANABHAIAH DOOR NO 10, OLD POOR HOUSE ROAD CROSS BANGALORE 560 001 9. SMT MOHINI D PAUL W/O T T PAUL MAJOR BY AGE R/AT NO 442, 11TH CROSS, 8TH MAIN, RMV EXTENSION BANGALORE – 560 023 10. SMT. SHYLA PAI D/O RAMDAS PAI MAJOR BY AGE R/AT NO 44/1 11TH CROSS, 8TH MAIN RMV EXTENSION BANGALORE – 560 11. SMT T SAVITHA PAI W/O SURESH PAI MAJOR BY AGE R/AT NO 85/1 K R ROAD, BANGALORE 560027 12. P.SAVITHA PAI, W/O MURALIMOHAN PAI, R/AT NO.442, 11TH CROSS, 8TH MAIN, R.M.V. EXTENSION, BANGALORE – 560 023 13. SHRI P S JAIN S/O LATE PREMRAJ JAIN MAJOR BY AGE 14. SMT S R JAIN W/O K R JAIN MAJOR BY AGE SL.NOS. 13 AND 14 ARE R/AT NO 181, ANDREW ROAD, BANGALORE 560 027 15. SMT R RATHNAMMA W/O LATE RAMACHANDRA REDDY AGED ABOUT 90 YEARS 16. SMT R VIJAYALAKSHMI W/O SHRI DHANPAL D./O LATE RAMACHANDRA REDDY AGED ABOUT 63 YEARS 17. SHRI R BABU S/O LATE RAMACHANDRA REDDY AGED ABOUT 64 YEARS SL.NOS.15 TO 17 ARE R/AT NO 38/2 I FLOOR 2ND CROSS ANNIPURA MAIN ROAD, SUDAM NAGAR, BANGALORE – 560 027 18. SMT G BHAGYAMMA W/O LATE B V GAJENDRA REDDY AGED ABOUT 78 YEARS 19. SHRI B G VIJAY S/O LATE B V GAJENDRA REDDY AGED ABOUT 65 YEARS 20. SHRI B G VIJAYALAKSHMI D/O LATE B V GAJENDRA REDDY AGED ABOUT 49 YEARS SL.NOS.18 TO 20 ARE R/AT SURVEY NO 34/3, DODDABANASWADI RAMAMURTHYNAGAR MAIN ROAD, BANGALORE - 560 043 21. SMT PAPAMMA W/O S MUNI REDDY AGED ABOUT 46 YEARS R/AT KATHAN NAGAR, NER GURUDWAR, JALAHALLI WEST, BANGALORE - 560 015 ... RESPONDENTS (BY SRI.D.R.SUNDARESH AND SRI.K.SURESH DESAI, ADVS. FOR R1(B); (R1(A) IS DEAD, R1 (B.C & D) ARE LRS OF DECEASED R1(A); SRI.K.SURESH DESAI AND SMT.P.GAYATHRI, ADVS. FOR R1(B) (1 TO 4) SRI.C.R.SUBRAMANYA, ADV. FOR R1(C); SRI.R.NATARAJ AND SRI.LOKESH K.S. ADV. FOR R1(D); SRI.B.S.ARVINDA BABU ADV. FOR R1(E.F.G & H);
VIDE ORDER DATED 17.04.2013, SERVICE OF NOTICE ON R2(A), R11, R12 & R20 IS HELD SUFFICIENT; SRI.G.G.SHASTRI, ADV. FOR R2 (B.C.D & E);
R3 IS DECEASED.
SRI.DEVARAJ, ADV. FOR R5 TO R10, R13 & R14; R4, R15 & R21 ARE SERVED AND UNREPRESENTED.
SRI.S.SUBRAMANYA, ADV. FOR M/S UPASANA ASSOCIATES ADV. FOR R16 AND R17;
S.R.S. LEGAL SOLUTIONS, ADV. FOR R18 & R19 THIS RFA IS FILED U/SEC.96(1) OF CPC, AGAINST THE ORDERS DATED:10.01.2012 PASSED IN O.S.1338/1982 ON THE FILE OF THE XXII-ADDL. CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
IN R.F.A.NO.741/2012 BETWEEN:
1. SMT. GOWRAMMA W/O LATE JAYARAMAREDDY AGED ABOUT 56 YEARS, 2. SRI MANJUNATH J AGED ABOUT 33 YEARS S/O LATE JAYARAMAREDDY 3. SMT PRABHAVATHI J AGED ABOUT 31 YEARS D/O LATE JAYARAMAREDDY 4. SRI VISHWANATH J AGED ABOUT 28 YEARS S/O LATE JAYARAMAREDDY ALL ARE R/AT NO.22, 2ND CROSS, LAKSHMAMMA LAYOUT DODDA BANASWADI BANGALORE – 560 043 5. SMT PAPAMMA AGED ABOUT 47 YEARS W/O S MUNIREDDY R/AT KATHAN NAGAR NEAR GURUDWAR JALAHALLI WEST BANGALORE-560015 ... APPELLANTS (BY SRI.G G SHASTRI, ADV.) AND:
1. B PILLA REDDY @ PAPAIAH S/O LATE BHOJA REDDY PAPAIAH BANASAWADI, KRISHNARAJAPURA HOBLI BANGALORE SOUTH TALUK, SINCE DEAD BY HIS LRS A) SMT K R SHANTHAMMA W./O LATE B PILLA REDDY MAJOR BY AGE, B) SHRI B P BABU REDDY S/O B P RAMACHANDRA REDDY AND GUARDIAN OF LATE B PILLA REDDY MAJOR BY AGE, BOTH (A) & (B) ARE R/AT NO. 227/1, MARUTHI NILAYA, SUBBAYYA PALYA, BANGALORE – 560 043 C) SMT B P LEELAVATHI D/O LATE PILLA REDDY R/AT NO 44/4 3RD CROSS, NEW POLICE STATION ROAD, K R PURAM BANGALORE 5600 36 2. S VENKATASWAMY REDDY SINCE DEAD BY LRS A) SMT DODDATHAYAMMA W/O LATE VENKATASWAMY REDDY MAJOR BY AGE SINCE DEAD B) SHRI NARAYANA REDDY SINCE DECEASED BY LRS B1) SMT.H.G.RATHI DEVI, W/O LATE B.V.NARAYANA REDDY, AGED ABOUT 65 YEARS.
B2) B.N.RAMAREDDY, S/O LATE B.V.NARAYANA REDDY, AGED ABOUT 41 YEARS B3) SMT.B.N.ANUPAMA, D/O LATE B.V.NARAYANA REDDY, AGED ABOUT 39 YEARS B4) B.N.LOKESH REDDY, S/O LATE B.V.NARAYANA REDDY, AGED ABOUT 37 YEARS RESPONDENTS NO. B1 TO B4 ARE R/AT NO.772/2, 10TH MAIN, 100 FEET ROAD, IYENGAR BAKERY, B.V.REDDY GARDEN, NO.9, HBR LAYOUT, BANASAWADI, BANGALORE – 560 043 C) SRI UMAPATHY D) SRI SRINIVASA REDDY MAJOR BY AGE 2(B) TO 2(D) ARE SONS OF VENKATASWAMY REDDY] AND MAJOR BY AGE AND ALL ARE R/AT DODDABANASWADI, BANGALORE-43 E) SRI N BABU REDDY AGED ABOUT 44 YEARS S/O LATE KG NARAYANA REDDY R/AT NO.1142, 22ND CROSS 30TH MAIN ROAD, BSK II STAGE BANGALORE-560070 F) SMT LAKSHMAMMA AGED ABOUT 76 YEARS D/O B V VENKATASWAMY REDDY R/AT NO.932, IST MAIN, IST CROSS MARUTHINAGAR, MADIWALA BANGALORE-560068 G) SRI MADHUSUDHAN K S S/O LATE SRINIVAS REDDY GRAND SON OF B V VENKATASWAMY REDDY AGED ABOUT 35 YEARS, R/AT NO.55, 2ND CROSS, MARUTHINAGAR MADIWALA BANGALORE-560068 H) SRI MANOHAR K S AGED ABOUT 33 YEARS S/O LATE SRINIVAS REDDY GRAND SON OF B V VENKATASWAMY REDDY R/AT NO.55, 2ND CROSS, MARUTHINAGAR MADIWALA, BANGALORE-560068 3. CHIKKA PILLA REDDY @ B PILLA REDDY SINCE DECEASED BY HIS LRS A) SRI MUNISWAMY REDDY, MAJOR BY AGE S/O LATE CHIKKA PILLA REDDY R/AT NO.22, 2ND CROSS, LAKSHMAMMA LAYOUT, DODDA BANASWADI BANGALORE - 560043 4. PUTTAMMA SINCE DEAD BY LR SMT THIMMALAMMA, WHO IS ALSO NO MORE 5. R PAPAIAH REDDY MAJOR IN AGE S/O LATE RAMAIAH REDDY R/AT DODDANAKKUNDI BANGALORE SOUTH TALUK 6. MUNI REDDY MAJOR BY AGE S/O LATE CHIKKAMUNISWAMY REDDY R/AT DODDANAKKUNDI BANGALORE SOUTH TALUK 7. SRI CHIKKATHIMMANAHALLI NANJAPPA @ DODDANNA MAJOR BY AGE S/O LATE HANUMAIAH R/AT HOSKOTE TALUK BIDARAHALLI BANGALORE DISTRICT 8. SRI ULSOOR MUNISWAMY MAJOR BY AGE BANASWADI BANGALORE SOUTH TALUK 9. SRI MANJUNATHA MAJOR BY AGE S/O PADMANABHAIAH D.NO. 10, OLD POOR HOUSE ROAD CROSS BANGALORE-560001 10. SMT MOHINI D PAI MAJOR W/O T.T. PAI R/AT NO.442, 11TH CROSS 8TH MAIN R.M.V. EXTENSION BANGALORE 11. SMT SHYLA PAI MAJOR D/O RAMDAS PAI R/AT NO.442, 11TH CROSS 8TH MAIN, R.M.V. EXTENSION BANGALORE 12. SMT T SAVITHA PAI MAJOR W/O SURESH PAI R/AT NO.85/1, K.R. ROAD BANGALORE-560027 13. P SAVITHA PAI MAJOR W/O MURALIMOHAN PAI R/AT NO.442, 11TH CROSS, 8TH MAIN, R.M.V. EXTENSION BANGALORE 14. SRI P S JAIN MAJOR S/O LATE PREMRAJ JAIN R/AT NO.181, ANDREW ROAD BANGALORE-560027 15. SRI S R JAIN MAJOR W/O K R JAIN R/AT NO.181, ANDREW ROAD BANGALORE-560027 16. SMT R RATHNAMMA W/O LATE SRI RAMACHANDRA REDDY SINCE DEAD BY LRS OF RESPONDENTS 17 & 18 17. SMT R VIJAYALAKSHMI AGED ABOUT 34 YEARS W/O SRI DHANPAL D/O LATE SRI RAMACHANDRA REDDY 18. SRI R BABU AGED ABOUT 35 YEARS S/O LATE SRI RAMACHANDRAREDDY 16 TO 18 ARE R/AT 38/2, IST FLOOR, 2ND CROSS ANNIPURA MAIN ROAD SUDAM NAGAR BANGALORE-560027 19. SMT C BHAGYAMMA AGED ABOUT 49 YEARS W/O LATE B V GAJENDRA REDDY 20. SRI B G VIJAY AGED ABOUT 26 YEARS S/O LATE B V GAJENDRA REDDY 21. SMT B G VIJAYALAKSHMI AGED ABOUT 20 YEARS D/O LATE B V GAJENDRA REDDY 19 TO 21 ARE R/AT SY.NO. 34/3, DODDABANASAWADI RAMAMURTHYNAGAR MAIN ROAD BANGALORE – 43 ... RESPONDENTS (BY SRI.V.B.SHIVAKUMAR, ADV. FOR R1(B &C) (R1(A) IS SERVED, R2(A) IS DECEASED;
R (B TO H) ARE THE LR’S OF DECEASED R2(A) SRI.D.R.SUNDARESH, ADV. FOR R2(B); SRI.K.SURESH AND SMT.P.GAYATHRI, ADVS. FOR R2(B) (1 TO 4) SRI.C.R.SUBRAMANYA, ADV. FOR R2(C); SRI.R.NATARAJ, ADV. FOR R2(D); SRI.B.S.ARVINDA BABU ADV. FOR R2(E.F.G & H); R3(A), R5 R12 & R13 ARE SERVED R4 IS DECEASED; R16 IS DECEASED;
R17 & R18 ARE LRS OF DECEASED R16. R17 & R18 ARE SERVED S.R.S. LEGAL SOLUTIONS, ADV. FOR R19, R20 & R21) THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 10.1.2012 PASSED IN O.S.NO.1338/1982 ON THE FILE OF XXII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THESE APPEALS COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY AFTER HAVING HEARD AND RESERVED FOR JUDGMENT ON 12/06/2017,THE COURT DELIVERED THE FOLLOWING:
JUDGMENT These regular first appeals are directed against the judgment and decree dated 10.1.2012 passed by the XXII Additional City Civil Judge, Bangalore (CCH-7) in O S No.1338/1982 dismissing the suit. R F A No.403/2012 is filed by plaintiffs whereas R F A No.741/2012 is filed by defendants No.2(b) to 2(e).
2. The facts of the case to be stated in brief are that one B Venkataswamy Reddy S/o Kyathappa along with Chikka Pillaiah, Ramaswamy filed suit O S No.6/1965 for partition and separate possession against B Pilla Reddy @ Papaiah, Puttaswamy, daughter of late Muniswamappa and others. It is their specific case that one Bhoja Reddy @ Pillaiah was the propositus of the joint family. He died in the year 1922 leaving behind him Papaiah, Muniswamy Reddy, Kyathappa. Papaiah died leaving behind him Pilla Reddy, deceased appellant herein, to succeed to his estate. Muniswamy Reddy died leaving behind him Puttamma. Kyathappa’s children are, Venkataswamy Reddy, Chikka Pillaiah and Ramaswamy. It is urged by them that, they are entitled for partition and separate possession of the several immovable properties. The matter was contested. By the judgment and decree dated 31.3.1980, the suit filed by Venkataswamy Reddy came to be decreed.
3. From amongst the properties that were the subject matter of O S No.6/1965, the property bearing Sy.No.345, 3 acres 21 guntas came to be included. The suit was proceeded only in respect of one item of property.
4. In the written statement, it is categorically admitted by B Venkataswamy Reddy that item No.4 belongs to Venkataswamy Reddy and he is in possession of the property.
He also admitted that he has put up construction. It was indicated specifically that small piece of land in the said property is used as burial ground, constructed a compound wall covering the entire land, not merely burial ground, stone-slab compound was erected long prior to the filing of the suit.
5. The only contesting party was the first respondent and his legal representatives. It was concentrated, contradicting in respect of only one item. Item No.4 property was not included. The entire suit, the parties understood the proceedings, considered to have understood the proceedings, have proceeded in relation to only one item property, Sy.No.345, in relation thereto, to the contention that item No.4 property is the self- acquired property or a property, which is the joint family property.
6. The court below framed as many as 18 issues and treated issue No.15, namely, whether suit is barred by res judicata? And issue No.17 namely, whether the suit is barred under Order 2 Rule 2 of CPC were only dealt with. Issue No.17 was answered in the negative and holding issue No.15 in the affirmative, dismissed the suit. Challenging the correctness of the same, the present appeals are filed.
7. I have heard the learned counsel for the parties. The learned counsel for the appellant in R F A No.403/2012 submits that in the earlier proceedings the said survey number was not claimed solely on the ground that the Deputy Commissioner had not passed the order conferring occupancy rights, which is clear from Ex.D5. That apart, the Land Acquisition Officer had notified the property for acquisition. Having notified the property for acquisition, the parties were not definite with regard to the rights pertaining to the property. In the meanwhile the preliminary decree proceedings had commenced. The right to take a decision of the left over property could not be urged in the very same suit O S NO.6/1965. The point required to be answered is, whether another suit can be filed in respect of the left over property if the said property was not included, preliminary decree proceedings had attained its finality. O SNo.6/1965 was earlier renumbered as O S No.44/1946. The code of Civil Procedure incorporating principles of res judicata was from explanation 5 to 7 on 10.2.1977. Ex.D27 application submitted by Sri Venkata Swamy Reddy establishes that Deputy Commissioner for INAM granted land to the family since the family was a tenant under one Mudaliar, the Inamdar. This document was not available to the appellant/plaintiff during pendency of the proceedings or pendency of the appeal.
8. It is further submitted that in W P No.1816/2014 (LA- BDA) it was admitted that Inam Deputy Commissioner has passed an order. What is suppressed is pendency of the original suit proceedings and other proceedings. The submission before the inamdar is made available to the court specifically contending that it is the ancestral property and it continues to be a joint family property. If these subsequent events are taken into consideration, it cannot be disputed that the properties are Joint Hindu Undivided Family properties. It cannot be disputed that it is an ancestral property as admitted or ordered in the writ petition. The BDA has abandoned the acquisition and having abandoned acquisition, if the documents are carefully noticed, the reasoning is perverse. It is submitted that once a person cannot usurp the property on technical reasons by depriving other shareholders it amounts to fraud on court. If the contesting defendants have played fraud, they are disentitled for any relief and even dismissal of the appeal or the suit. The property deserves to be divided as item No.4 to be shared by all family members.
9. The learned counsel for respondents 1B1, 1B@, 1B3, 1B4 in R F A No.403/2012 and appellants in R F A No.741/2012 filed written arguments. Item Nos.4 & 16 were not included in the earlier suit and all other properties were the subject matter of earlier suit. The present suit is not one for reopening of the partition which is an attempt of the present plaintiff in this case could be only by challenging the partition decree as a nullity and obtained out of fraud and the second ground is by stating that some property of the family was not within the knowledge of the plaintiffs or defendants was left out by inadvertence or due to lack of knowledge about its existence. No such claim is made in the present appeal. The appellant in R F A No.403/2012 who was the plaintiff filed IA No.2 & 3 of 2010 to permit the plaintiff to lead further evidence by issuing summons to the witnesses annexed to the said application. The trial court opined by order dated 18.8.2009 that a suit for partition cannot be converted into one for declaration, based on Will and therefore, the prayer for amendment to seek declaration on the basis of the alleged Will executed by late Pillareddy came to be rejected. The said order has not been set aside by the higher court. Therefore, there is no question of plaintiff in the present suit being entitled for any relief.
10. The point that arises for consideration in these appeals is, whether the court below has committed any error in dismissing the suit as one hit by the principles of res judicata? My answer would be in the negative for the following reasons.
11. Except suit item Nos.4 & 16, the other properties were properties in the previous suit and there was already a decree for partition. The object of principle of res judicata is that no one should be vexed twice for the same cause and there shall be a finality to the decision of the courts and the judicial decisions must be accepted as final, when they have attained finality.
12. The two principles that are enumerated in Section 11 of C P C are; (1) direct res judicata, which is apparent from the records and (2) the implied or constructive res judicata. The rule of constructive res judicata engrafted in Explanation IV to Sec. 11 of C P C is an artificial form of res judicata and provides that a plea that could have been taken by a party in a proceeding between him and his opponent, but not taken, should not be permitted to take the plea against the same party in a subsequent proceeding with reference to the same subject matter. Reagitating the matter is opposed to the considerations of public policy on which the doctrine of res judicata is based and would mean harassment and hardship to the opponent and the doctrine of finality of judgments pronounced by the courts. Therefore, it is palpable that a matter, which might and ought to have been a ground of defence or attack in a former proceeding, but was not so made, is deemed to have been decided and cannot be permitted to be re-agitated.
13. So far as suit item No.4, land in Sy.No.345, it is to be noted that the present suit is not open for re-opening of the partition under any of the known modes of law. It is an attempt of the present plaintiff to reopen the partition. But it could have been only by challenging the partition decree as a nullity or obtained out of fraud and the second ground is by stating that some property of the family was not within the knowledge of the plaintiffs or defendant, was left out by inadvertence or due to lack of knowledge about its existence. The appellant has not made any such claim in the present suit.
14. What is to be seen is whether the existence of land in Sy.No.345 was within the knowledge of the original plaintiff when he filed the written statement in the earlier suit. Some of the inam lands were included in the previous suit. Only one property, which is land in Sy.No.345, which is the only property in dispute in the present case, that was not arrayed in the said case. If really land in Sy.No.345 was the joint family property and everybody had a right over the same, the present original plaintiff, who was defendant No.1 in the previous suit, could not have kept quiet without raising a plea that the suit in O S No.6/65 was bad for partial partition for not including the land in Sy.No.345. The existence of land in Sy.No.345 was very well within the knowledge of the present original plaintiff and he did not raise any defence in the previous suit. He had not raised a plea or defence, which was available to him pertaining to land in Sy.No.345 and he was not come to the court, seeking reopening of the partition due to inadvertence of the inclusion of the said property in the previous suit. In the circumstances, the present suit is hit by principles of constructive res judicata. Therefore, in respect of item No.4, land in Sy.No.345, the present suit was barred by res judicata.
15. The court below noticed that land in Sy.No.345 was in possession of Boja Reddy Pillaiah and later in the hands of Venkataswamy Reddy son of Kyatappa as per the order of Inam D.C. of M R 124/1966-67. There was also alienation of the said property in favour of one T Narayanappa s/o Thayappa under registered sale deed dated 10.8.1966, M R No.16/68-69. The very document produced by plaintiff evidenced that there was already alienation of the land in Sy.No.345. Neither the said Narayanappa nor his legal representatives are made as parties in this suit, much less the said alienation is called in question. Hence no relief could be granted to the plaintiff pertaining to land in Sy.No.345.
16. So far as item No.16, which is a building in Sy.Nos.180 to 182 in new Nos.309 to 311, the very principle of implied res judicata, is applicable. The plaintiff did not produce any document pertaining to this property to show that the said property still belong to the family of the plaintiff.
17. In the circumstances, I am of the view that the principle of constructive res judicata applies to the two items of the properties, which were not included in O S No.6/65 and direct res judicata is applicable to other properties and therefore the suit was barred by principles of res judicata. The court below has properly considered the materials and evidence on record and has come to correct conclusions. The court below has not committed any irregularity or illegality in passing the impugned judgment. The point raised for consideration is accordingly answered.
In the result and for the reasons stated above, these appeals fail and they are accordingly dismissed.
Sd/- JUDGE akd