IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 PRESENT THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ R.F.A. NO.842 OF 2019 (DEC) BETWEEN:
L. VENKATESH REDDY AGED ABOUT 50 YEARS S/O LATE H. LAKSHMAIAH REDDY RESIDING AT NO.39/24 THIMMAIAH REDDY ROAD APPAREDDYPALYA INDIRANAGAR POST BANGALORE-560038 ... APPELLANT (BY SRI. S.N. BHAT, ADVOCATE) AND:
1. SMT. L. MANJULA AGED ABOUT 41 YEARS W/O P. GOPAL REDDY RESIDING AT JAYALAKSHMAMMA NILAYA NO.4/1, APPAREDDYPALYA THIMMA REDDY ROAD INDIRANAGAR BANGALORE-560038 2. SMT. L. CHANDRAKANTHI AGED ABUT 40 YEARS W/O N. SURESH BABU RESIDING AT KUDLU VILLAGE SARJAPURA HOBLI ANEKAL TALUK BANGALORE SOUTH 3. L. PURUSHOTHAM REDDY AGED ABOUT 38 YEARS S/O LATE H. LAKSHMAIAH REDDY NO.1/1, APPAREDDYPALYA THIMMA REDDY ROAD INDIRANAGAR BANGALORE-560038 4. L. RAGHU RAM REDDY AGED ABOUT 37 YEARS S/O LATE H. LAKSHMAIAH REDDY NO.1/1, APPAREDDYPALYA THIMMA REDDY ROAD INDIRANAGAR BANGALORE-560038 ... RESPONDENTS (BY SRI. K.M. JAGANATH, ADVOCATE) THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 07.02.2019 PASSED IN O.S.NO.659/2007 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL JUDGE BENGALURU, DISMISSING THE SUIT FOR DECLARATION.
THIS RFA COMING ON FOR ADMISSION, THIS DAY, SURAJ GOVINDARAJ J., PASSED THE FOLLOWING:
JUDGMENT 1. Though this appeal is listed for admission, with the consent of learned counsel on both sides, it is heard finally.
2. The appellant is before this Court challenging the Judgment and decree dated 7.02.2019 passed by the IV Addl. Senior Civil Judge, Bangalore Rural District, Bengaluru (hereinafter referred to as the ‘trial Court’ for brevity) in O.S.No.659/2007 dismissing the said suit.
3. For the sake of convenience, the parties shall be referred to in terms of their ranking and status before the trial Court.
4. It is the case of the plaintiff that his mother, Smt.Guramma died on 20-01-1966, when he was a baby of about three months. Thereafter, defendant No.1, father of the Plaintiff, got married to Smt. Jayalakshmamma, out of which wedlock, defendant Nos.2 to 5 were born.
5. The suit schedule property bearing Sy. No.22/1, situated at Seegehalli Village, K.R.Puram Hobli, measuring a total extent of 13 acres 10 guntas, including 31 guntas of karab, out of which the cultivable extent is 12 acres 19 guntas, was the absolute property of Smt.Guramma, since, it stands in her name. The suit schedule property was purchased by Guramma with the help of her parents and from and out of the amounts received by her as customary ‘Harishina Kumkuma”. Guramma was in possession of the suit schedule property having khata in her name and after her demise, the khata has been transferred jointly in the name of his father, the defendant No.1 and plaintiff vide IH.No.1/76-77.
6. After the demise of Guramma, Plaintiff applied for khata in respect of suit schedule property, by virtue IHR.MR.No.4/89-90, dated 9-01-1990, due to consent of his father, khata of the entire property was mutated in plaintiff’s name, accordingly, plaintiff became the absolute owner, in possession occupation and enjoyment thereof.
7. His father Defendant No.1 colluded with revenue officials, got khata of the suit property, changed in the joint name of plaintiff and defendant No.1 vide MR.No.40/2002-03, dated.12-06-2003, without his knowledge. Thereafter, having no absolute right, his father executed a Gift Deed dated 12-12-2003 in favour of his children from the second wife, namely defendants No.2 to 5, to the extent of 6 acres. On the basis of such gift deed, defendants 2 to 5 applied for transfer of khata and got it transferred vide MR.23/2003-04, dated 30-03-2004. Aggrieved by which, Plaintiff filed Regular Appeal No.375/2005 before the Assistant Commissioner, Bangalore North Sub-Division, under Section 135(2) of Karnataka Land Revenue Act, 1964 (‘KLR Act’ for short) and the Assistant Commissioner vide order dated 22-01- 2005, was pleased to stay the mutation proceedings in MR.No.40/2002-03 in the name of his father and MR.23/2003-04 in the name of defendants No.2 to 5. Later, vide order dated 10-05-2006 of the Assistant Commissioner, set aside the order of the above said mutation and upheld his appeal.
8. Defendant No.1, being his father has not given any share, whatsoever, in his properties other than the suit schedule property belonging to the mother of the plaintiff, however, the defendants without having any right started interfering with his peaceful possession of the suit property. Hence, he filed the suit seeking a judgment and decree against the defendants to set aside the Gift Deed dated 12-12-2003 executed by his father in favour of other defendants, as null and void.
9. On service of summons, defendants appeared and defendant No.1 filed written statement which was adopted by defendant Nos.2 to 5. They have admitted the relationship and also the acquisition of the property by Smt.Guramma. However, it is contended by them that defendant No.1 purchased the property in the name of Smt.Guramma and hence, the property is not given to her as ‘Harishina Kunkuma’ by her parents. They admitted that Guramma died intestate in the year 2006 leaving behind the plaintiff and defendant No.1. Defendant No.1 got married to Smt.Jayalaksmamma and out of their wedlock, defendant Nos.2 to 5 were born.
Defendant No.1 bequeathed the said property by executing a gift deed in favour of defendant Nos.2 to 5 out of love and affection. According to them, both plaintiff and defendant No.1 being the legal heirs of Guramma have equal rights and out of the share of defendant No.1, he has executed a gift deed. Accordingly, they have become the owner of suit property.
10. That the suit filed by the plaintiff in OS No.1083/2005 on the file of I Addl. Civil Judge (Sr.Dn.) Bangalore Rural District for the relief of declaration to declare that he is the absolute owner of the suit property was dismissed, against which both had filed regular appeal. The said regular appeal was decreed in part holding that the plaintiff is the owner of half share in the plaint schedule property and also to declare that defendant No.1 is the owner of remaining half share.
Against the said judgment, he had also filed RSA No.1500/2009 before this Court and the said appeal was allowed, and judgment and decree in R.A. No.46/2009 dated 29.08.2009 was set aside, the suit was decreed by holding that plaintiff is the absolute owner of the entire suit schedule property and ordered for permanent injunction. Being aggrieved by the same, the defendants preferred appeal before the Hon’ble Supreme Court in Civil Appeal Nos.3725- 3726/2015, wherein the judgment and decree passed in RSA No.1500/2009 was set aside and judgment and decree of R.A. No.46/2009 dated 29.08.2009 was restored. Therefore, it is contended by them that, the issues in the case have already been fully and finally determined, the suit is hit by principles of res judicata. That, plaintiff cannot maintain the suit on the same cause of action. Hence, they had prayed for dismissal of the suit with exemplary costs.
11. The trial Court on the basis of the rival pleading framed the following issues and answered as under:
“1. Whether plaintiff proves that his mother Guramma had acquired suit schedule property by virtue registered sale deed No.3837/59-60 dated 14.11.1959?
2. Whether plaintiff proves that he became absolute owner of suit schedule property on the demise of his mother?
3. Whether the plaintiff proves that his father D1-H. Lakshmaiahreddy in collusion with revenue officials got khata changed in joint names of himself (D1) and plaintiff on 12.06.2003?
4. Whether plaintiff proves that registered gift deed No.18607/2003-04 executed by first defendant in favour of other defendants is illegal?
5. Is there no cause of action for the suit?
6. To what relief the parties are entitled?”
Additional Issue:
1. Whether the suit is barred by principle of res judicata?
12. The trial court answered the above issues as under:
Issue No.1: In the Affirmative.
Issue No.2: In the Negative.
Issue No.3: In the Negative.
Issue No.4: In the Negative.
Issue No.5: In the Negative.
Issue No.6: In the Negative. Addl. Issue No.1: In the Affirmative.
13. In support of his case, plaintiff examined himself as PW-1 and got marked 24 documents as Exs.P1 to 24. On the other hand, defendant No.4 was examined as DW-1, however, no documentary evidence was let in on their behalf.
14. The trial Court took up issue Nos.1 to 4 for consideration together since they are related to each other and while dealing with those issues has observed that originally the Suit property was standing in the name of Smt.Guramma, she having acquired the property by virtue of a Sale deed dated 14.11.1959. The plaintiff asserted that the said purchase is only by virtue of ‘Harishina-kumkuma’ from her parents, whereas defendants contended that defendant No.1 being the husband of said Guramma had purchased the property in her name. The trial Court observed that if any property stands in the name of any female member, then it is her absolute property irrespective of the said contentions taken up by the parties whether it is on account of ‘Harishina- kumkuma’ or on account of financial assistance extended by her husband, the property standing in the name of Guramma would be her absolute property.
15. The trial Court considering that Guramma died intestate on 21.01.1996, observed that the khatha of the property was mutated jointly in his name and that of his father viz., defendant No.1 and thereafter with the consent of his father, the khata of the entire property was transferred in the plaintiff’s name and therefore, Plaintiff became the absolute owner.
16. In the meanwhile, defendant No.1, colluding with Revenue officers got khata of the suit schedule property in the joint name of himself and plaintiff vide MR.No.40/2002-03 dated 12.06.2003 and on the basis of such mutation, he executed a gift deed dated 12.12.2003 in favour of other defendants.
17. The plaintiff examined himself and marked Exs.P1 to P24, amongst other documents, he had produced the Judgment of the trial Court in O.S.No.1083/2005 dated 6.1.2009, the Judgment in Appeal thereto dated 29.08.2009 in R.A.No.46/2009 and the order of the Hon’ble Supreme Court passed in Civil Appeal No.3725-3726/2015 to support his case.
18. The defendants relied upon those documents to contend that the Suit in O.S.No.1083/2005 filed by the plaintiff had been dismissed and therefore, the present suit would not survive.
19. In reply thereto, the plaintiff contended that on an appeal in R.A.No.46/2009, the appellate Court has declared that the plaintiff and defendant No.1 are equal owners of the plaint schedule property; the gift deed executed by defendant No.1 in favour of other defendants is declared null and void and parties directed to work out their rights in the final decree proceedings. Aggrieved by the same, the plaintiff filed the second appeal in RSA No.1500/2009 before this Court which came to be allowed by setting aside the Judgment in R.A. No.46/2009 and further holding the plaintiff to be the owner of the entire suit schedule property. The first defendant took up the matter in appeal to the Hon’ble Supreme Court in Civil Appeal Nos.3725-3726/2015 which came to be disposed of on 17.04.2015. The Hon’ble Supreme Court set-aside the order of this Court and restored the order in R.A. No.46/2009 passed by the lower Appellate Court.
20. Taking note of the above Judgments, the trial Court held that the issues between the parties having already been settled in the above proceedings, the plaintiff cannot raise the issues once again to contend that he is the absolute owner of the property.
21. As regards the gift deed, the trial Court held that since it has already been declared illegal, it cannot be raised once again by the plaintiff since it is barred by principles of res judicata and there is no cause of action. It is aggrieved by this Judgment, the plaintiff has filed the present appeal.
22. The arguments were heard on 11.1.2019, 18.1.2019, 23.01.2019, 29.01.2019 and on 6.2.2019, the matter was adjourned to 12.02.2019 for further arguments. However, the trial Court without any notice to the parties has observed in the order sheet that ‘Judgment completed at 5.20 p.m. on 7.02.2019, since ready, it is pronounced in open Court’. The plaintiff contends that he was deprived of submitting his arguments since pronouncement of Judgment was on a date not intimated to the parties, which is highly irregular. Therefore, he prays to set-aside the Judgment on that ground alone.
23. The plaintiff further contends that once the trial Court has held issue No.1 in the affirmative holding that Guramma had acquired the suit schedule property, the trial Court ought to have held the gift deed dated 12.12.2003 executed in favour of the defendant Nos.2 to 5 is not valid. The plaintiff contended that the trial Court has not considered issue Nos.2 to 6 properly in its Judgment, finding of the trial Court on the additional issue that the suit was barred by principles of res judicata is incorrect. The issues framed by the trial Court were inappropriate for deciding the controversy in the suit, defendant No.1 having contracted another marriage, it had the effect of disinheriting him to the estate of first wife when there was no partition of the suit schedule properties by metes and bounds, defendant No.1 could not have gifted his alleged right in a property and cannot deliver possession to the donee. The earlier proceedings in O.S.No.1083/2005, being one for injunction and the suit in O.S.No.659/2007 being for declaration, being two different reliefs, the principles of res judicata could not be said to be applicable to both suits. Defendant No.1, with a malafide motive and intention created the gift deed to cause loss to the plaintiff/appellant in order to deprive him of his mother’s property. Defendant No.1 has executed the said gift deed in favour of defendants No.2 to 5. The defendants have not led any documentary evidence, therefore, plaintiff sought for setting-aside the Judgment and decree dated 7.02.2019 passed by the IV Addl. Senior Civil Judge, Bangalore Rural District, Bengaluru in O.S.No.659/2007 and has further sought for decreeing the Suit in O.S.No.659/2007.
24. After service of notice, defendants entered appearance through Sri.K.M.Jaganath, learned Advocate.
25. Sri.K.M.Jaganath, learned counsel has contended that FDP No.57/2015 is pending on account of the earlier Judgments passed in various proceedings between the parties, there would be no purpose which could be achieved by considering this appeal when the parties can work out their remedies in FDP No.57/2015.
26. He submits that the Suit in O.S.No.1083/2005 was not merely one for injunction, but for declaration that the plaintiff therein was the absolute owner of the property detailed in the schedule and that the gift deed executed by the first defendant in favour of defendants No.2 to 5 therein was illegal. Apart from the said relief of declaration, the plaintiff therein had sought for a decree of permanent injunction, costs, etc. Thus, Mr. Jaganath submits that the reliefs which had been sought for in O.S.No.1083/2005 also being one for declaration, the finding of the Court in proceedings arising out of O.S.No.1083/2005 would amount to res judicata.
27. As noticed hereinabove, O.S.No.1083/2005 filed by the plaintiff herein came to be dismissed by holding that the plaintiff was not entitled for relief of declaration and permanent injunction and the Court held that defendants No.2 to 5 had proved that they are the owners in possession of six acres of land in Sy.No.22/1 by virtue of the gift deed dated 12.12.2003.
28. Aggrieved by the same, the plaintiff herein, who was the plaintiff therein filed Regular Appeal in R.A.No.46/2009 before the Prl. District Judge, Bangalore Rural district, Bangalore which came to be disposed of on 29.08.2009 reversing the finding of the trial Court and decreeing the suit of the plaintiff in part. The first Appellate Court declared the plaintiff as owner of half share of the property, defendant No.1 was also declared as owner of half share of the plaint schedule property. The first Appellate Court having held so and on account of the properties not having been partitioned by metes and bounds held that the parties could work out their rights in the final decree proceedings. and therefore, directed the office to draw up a preliminary decree and in furtherance thereto, the decree was also drawn up.
29. Aggrieved by the Judgment of the First Appellate Court, plaintiff filed a regular second appeal in RSA No.1500/2009 wherein the second Appellate Court declared the plaintiff to be the absolute owner of the property.
30. Aggrieved by the order in RSA No.1500/2009, the defendants herein had filed an appeal before the Hon’ble Supreme Court in Civil Appeal Nos.3725- 3726/2015. The Hon’ble Supreme Court set-aside the Judgment and decree of the second Appellate Court and restored the Judgment of the first Appellate Court in R.A.No.46/2009.
31. On the basis of the said Judgment of the Hon’ble Supreme Court, Mr.Jaganath, learned counsel contends that plaintiff and first defendant have been declared to be half share owners of the plaint schedule property and their rights in the properties have to be worked out in the final decree proceedings as decided in R.A. No.46/2009 and the present Suit is an abuse of process of Court and therefore, the appeal ought to be dismissed since there is already a decision in this regard by the trial Court, first Appellate Court, second Appellate Court and finally, the Hon’ble Supreme Court. Second round of litigation filed by the plaintiff is to be frowned upon and the trial Court was right in imposing a cost of Rs.10,000/- on the plaintiff. He, therefore, seeks for dismissal of this appeal.
32. Having heard both the counsels and having perused the records, the points that arise for determination of this Court are as under:
i) Whether the Suit in O.S.No.659/2007 is barred by principles of res judicata?
ii) Whether the rights of the plaintiff and defendants have already been adjudicated upon?
iii) Whether the Judgment and decree of the trial Court is required to be interfered with?
iv) What order?
POINT NOs. (i) and (ii) 33. As detailed hereinabove, the plaintiff filed O.S.No.1083/2005 seeking for declaration and injunction. The suit in O.S.No.659/2007 though has been cleverly worded as one for declaration that the gift deed is null and void, in effect the declaration which has been sought for in O.S.No.659/2007 and 1083/2005 are one and the same i.e., to declare the plaintiff to be the owner of suit schedule property and while doing so, to declare the gift deed to be null and void, it is rather audacious on the part of the plaintiff to have filed this second round of litigation, more so when his grievances have been addressed by the Hon’ble Supreme Court in Civil Appeal Nos.3725- 3726/2015 by way of Judgment dated 17.04.2015. Once all these aspects have been resolved and answered by Courts of law including the Hon’ble Apex Court, it is not available for the plaintiff to file the present suit again to re-agitate the decided issues. The principles of res judicata applies on all fours in the instant case.
34. The issues in both the suits namely in O.S.No.1083/2005 and OS No. 659/2007 are directly and substantially the same, the lis is between the same parties, both suits had been filed in a Court competent to try such suits. The suit in O.S.No.1083/2005 having been decided by the Hon’ble Supreme Court and the Judgment passed by this court having merged with the Judgment of the Hon’ble Supreme Court, the issues raised by the plaintiff having been decided, the same cannot be raised once again by the plaintiff in O.S.No.659/2007.
35. Admittedly, the Judgment and decree in O.S.No.1083/2005 rendered by the Hon’ble Supreme Court is a reasoned Judgment after having appreciated all the facts, pleadings and evidence. Thus, the subsequent suit in O.S.No.659/2007 is barred by principles of res judicata. The Hon’ble Supreme Court has decided the dispute between the parties, the decision of the Supreme Court has attained finality. The disputes having been finally decided, same cannot be re-agitated by the plaintiff.
36. In view of the above discussion, point Nos.1 and 2 are answered accordingly.
RE: POINT NO.(iii):
37. In view of the above discussion, there is no requirement for this Court to interfere with the Judgment of the trial Court in O.S.No.659/2007, more so, on account of the fact that as submitted by Sri.Jaganath, learned counsel for defendants, which has also been accepted by Sri.S.N.Bhat, learned counsel for the plaintiff, that in furtherance of the Judgment of the Hon’ble Supreme Court, defendant No.1 has filed a final decree proceedings in terms of the preliminary Judgment and decree passed by the first appellate Court in R.A.No.46/2009. It is in that proceeding that the division of the properties would be dealt with by the Court dealing with final decree proceedings. Apart therefrom, the Hon’ble Supreme Court having decided the lis between the parties, there would be no need for this Court to decide the same.
RE: POINT NO.(iv):
38. In view of our discussion hereinabove, the Judgment of the trial Court is confirmed.
39. In the result, the judgment and decree passed by the IV Addl. Senior Civil Judge, Bangalore Rural District, Bangalore, dated 07.02.2019 is confirmed. The appeal is dismissed since there is already FDP No.57/2015 pending consideration pursuant to the judgment passed in R.A. No.46/2009 by the Court of Prl. District Judge, Bangalore District, Bangalore, dated 29.08.2009, which has been confirmed by the Hon’ble Supreme Court in C.A. Nos.3725-3726/2015. We find there is no legal impediment other than the order of stay granted by this Court in W.P.No.35858/2019 filed by the appellant, which may be vacated by the Court seized of that matter for the parties to proceed in the said final decree proceeding.
It is needless to observe that the Court which is seized of the final decree proceedings shall dispose it of in an expeditious manner and in accordance with law.
Both parties are to co-operate with the concerned Court for expeditious disposal of the final decree proceeding.
The trial Court had already imposed cost of Rs.10,000/- on the plaintiff, the present appeal is dismissed but without any further cost.
Sd/- JUDGE Sd/- JUDGE ln