IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1516 OF 2016 BETWEEN:
NANJUNDAPPA S/O MALLAPPA AGED 72 YEARS R/O RAMASANDRA VILLAGE, NARASAPUR HOBLI, KOLAR TALUK REPRESENTED BY P.A HOLDER R.N. SHIVAKUMAR, S/O NANJUNDAPPA, AGED 43 YEARS, R/O RAMASANDRA VILLAGE, NARASAPUR HOBLI, KOLAR TALUK-563 101.
(BY SRI S.M. KULKARNI, ADVOCATE) AND:
B. SHIVARAJU SON OF RUDRAPPA AGED ABOUT 52 YEARS R/O RAMASANDRA VILLAGE NARASAPUR HOBLI, KOLAR TALUK – 563 101.
...APPELLANT …RESPONDENT THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 22.06.2016 PASSED IN R.A.NO.178/2013 ON THE FILE OF I ADDL. DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.08.2013 PASSED IN O.S.NO.4/2006 ON THE FILE OF II ADDL.SENIOR CIVIL JUDGE, JMFC, KOLAR AND ETC., THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The unsuccessful plaintiff is before this Court assailing the correctness and validity of the judgment and decree of the Lower Appellate Court passed in R.A.No.178/2013 dated 22.06.2016 on the file of the I Additional District and Sessions Judge, Kolar, confirming the judgment and decree dated 23.08.2013 passed in O.S.No.4/2006 on the file of the II Additional Senior Civil Judge and JMFC, Kolar.
2. For brevity, the parties are referred to as per their status before the courts below.
3. Brief facts leading to the top noted appeal are as under:
The present appellant/plaintiff filed a suit for declaration claiming ownership over the suit schedule properties and for mandatory injunction for removal of illegal construction i.e., foundation in suit item No.1 and for delivery of vacant possession of the suit schedule property to the present appellant herein and for consequential relief of permanent injunction restraining the defendant and his men from interfering with the plaintiff’s possession and enjoyment over the suit schedule properties.
The appellant/plaintiff averred in the plaint that the suit schedule properties are ancestral properties and accordingly, there was a family partition between the father of the appellant/plaintiff namely Mallappa and grandfather of respondent/defendant namely Rudrappa. The appellant/plaintiff further contended that pursuant to partition, the suit schedule property had fallen to the share of the present appellant/plaintiff’s father. The plaintiff further contended that ever since partition, the plaintiff’s father was in peaceful possession and enjoyment over the suit schedule property without anybody’s obstruction. The plaintiff further averred that after the death of plaintiff’s father, he being the sole legal heir has succeeded to the suit properties and is in lawful possession and enjoyment over the suit property. The appellant/plaintiff further averred in the plaint that the respondent/defendant has encroached the northern side of the suit schedule item No.1 and has laid foundation over the same and hence, the present appellant was constrained to file a suit along with one Veerabadraiah S/o Channabasava Vadayar in O.S.No.313/1999 in respect of vacant site measuring East to West - 5 yards and North to South - 5 yards bearing Khaneshmari No.44. The appellant/plaintiff further averred that the property claimed in O.S.No.313/1999 and plaint schedule properties are separate properties. Inspite of repeated request by appellant/plaintiff several times, the respondent/ defendant is not in a mood to heed to the request of appellant/plaintiff and hence, the appellant/plaintiff is constrained to file the present suit.
4. The respondent/defendant, on receipt of summons, contested the suit by filing written statement. The respondent/defendant stoutly denied the entire averments made in the plaint. The respondent/defendant took a specific contention that the present suit is not at all maintainable since the subject matter in the present suit and the one filed earlier in O.S.No.313/1999 are same and between the same parties. The respondent/defendant further took a specific contention that the present suit is also filed on the same set of facts without disclosing the averments made in the earlier suit. The true facts are suppressed by the present appellant/plaintiff. The respondent/defendant also took a specific contention that in the family partition which is not in dispute, only two properties were the subject matter in the family partition and hence, the appellant/plaintiff by filing the present suit and the earlier suit is claiming one more property without any basis. In the family partition there were only two items and one claimed by the appellant/plaintiff was not at all the subject matter of family partition which is not in dispute and hence, defendant contended that the alleged suit schedule property measuring 5x5 yards is not at all in existence. The respondent/defendant would also contend that after full fledged trial in O.S.No.313/1999, the suit came to be dismissed by imposing exemplary cost. The said judgment has attained finality and hence, the present suit filed by the appellant/plaintiff claiming similar set of reliefs is not at all maintainable and hence, sought for dismissal of the suit.
5. Based on the rival contentions, the Trial Court framed the following issues:
“1) Whether the plaintiff proves existence of all suit properties?
2) Whether the plaintiff proves title to suit schedule properties?
3) Whether the plaintiff proves lawful possession over suit properties?
4) Whether the plaintiff proves that the defendant has illegally interfered with suit properties?
5) Whether the suit is barred under Order 6 Rule 2 of CPC in view of O.S.No.313/1999 on the file of Civil Judge (Jr.Dvn.), Srinivasapura?
6) Whether the suit is barred by principles of resjudicata?
Additional Issue No.1 dated 26.09.2006:
Whether the defendant proves that the suit is not properly valued?
7) What order or decree?”
6. The appellant/plaintiff in support of his contention lead in oral evidence by examining his son as PW.1 and one independent witness as PW.2. In support of his contention, the appellant/plaintiff relied on documentary evidence vide Exs.P-1 to P-20. The respondent/defendant in support of his contention examined himself as DW.1 and examined two independent witnesses as DWs.2 and 3. By way of rebuttal evidence to corroborate oral evidence, the respondent/defendant produced documentary evidence vide Exs.D-1 to D-39.
7. The Trial Court while answering issue No.6 in the affirmative, recorded a finding that the appellant/plaintiff having filed earlier suit in O.S.No.313/1999 pertaining to the suit schedule property was unsuccessful and the suit came to be dismissed and on perusal of Ex.D-35, which is the judgment and decree passed in O.S.No.313/1999, it is clearly evident that the appellant has filed the second suit in respect of the very same property which was the subject matter of earlier suit in O.S.No.313/1999. However, the appellant/plaintiff in the present suit has deliberately included the residential house situated in property bearing Khaneshmari No.44. But on a meticulous reading of the pleadings, it is quite evident that the dispute again revolves around alleged 5x5 yards vacant site which was earlier sought to be owned by the appellant/plaintiff. The Trial Court having examined the material on record dismissed the suit by examining the partition deed and also categorical admission given by the appellant/plaintiff in regard to allotment of shares which was not in dispute and hence, while dealing with issue No.6, the Trial Court answered issue No.6 in the affirmative by holding that the present suit is hit by principles of res judicata. The other issues were also dealt with by the Trial Court. While answering issue No.1, the Trial Court has held that the appellant/plaintiff has failed to prove the very existence of the suit schedule property measuring 5x5 yards East to West and 5x5 yards North to South and proceeded to dismiss the suit.
8. The appellant/plaintiff being aggrieved by the judgment and decree of the Trial Court, preferred appeal before the Lower Appellate Court. The Appellate Court on re-appreciation of the entire evidence on record, has recorded a finding that the appellant/plaintiff had sought for similar relief in earlier suit bearing O.S.No.313/1999, wherein the plaintiff had alleged that the respondent/defendant has encroached upon the northern side of the suit item No.1 (backyard) and had laid foundation over the same. Even in the present suit, the same relief is sought in respect of the very same property by alleging that the respondent/defendant has encroached on the alleged backyard measuring 5x5 yards. Since the matter in dispute between the same parties had reached finality in the earlier suit, the Lower Appellate Court was of the view that the present suit is hit by principles of res judicata and accordingly, proceeded to answer point No.2 formulated by it in the affirmative and consequently, dismissed the appeal. Being aggrieved by the concurrent judgment of the Courts below, the appellant is before this Court.
9. Learned counsel for the appellant would vehemently argue that the subject matter in the present suit is totally different from the one in O.S.No.313/1999. Learned counsel for the appellant would contend that in the earlier suit it was only the vacant portion measuring 5x5 yards, whereas in the present suit, the appellant is seeking the relief of mandatory injunction in respect of property which consists of a house and vacant space bearing Khaneshmari No.44. Learned counsel for the appellant would also bring it to the notice of this Court that there is one more property at item No.2 in the schedule. By highlighting this material aspect in the schedule, learned counsel for the appellant submits that Section 11 of CPC had no application to the present case on hand.
10. Having perused the judgment and decree of both the Courts below, it is quite evident that the appellant/plaintiff to escape clutches of ingredients of Section 11, has deliberately included the residential house suit in Khaneshmari No.44 only to see that he can get away by the findings recorded in the earlier suit bearing O.S.No.313/1999. On perusal of the pleadings and documentary evidence, what can be gathered is that even in the second suit, the disputed portion is only 5x5 yards which was squarely the subject matter in the earlier suit. By adding up two items, the appellant/plaintiff has tried to make out a case that the present litigation is in respect of some other property which was not the subject matter in the earlier suit. This contention has been negatived by both the Courts below and detailed reasons are assigned as to how the present suit is filed by the appellant/plaintiff on the same set of facts. The short question that would arise before this Court is that the appellant/plaintiff to overcome the finality that is arrived in O.S.No.313/1999, whether the present suit filed by including residential house would take away the application and operation of Section 11 of CPC. Though the appellant/plaintiff has included a residential house, on perusal of the judgments of the Courts below, it could be gathered that there is absolutely no relief sought in respect of residential house. There is no allegation that there is a threat or high-handedness on the part of the respondent/ defendant in respect of residential house. The judgments of the Courts below clearly indicate that the present suit is also in respect of the vacant space measuring 5x5 yards which was decided in O.S.No.313/1999 holding that the alleged vacant space is not in existence as contended by the present appellant/plaintiff.
11. In the light of this material record, this Court is of the view that the earlier judgment rendered in O.S.No.313/1999 is directly speaking upon the matter in question in the present suit filed in O.S.No.4/2006. The test of res judicata is the identity of the title in the two litigation and not the identity of actual property involved in the two cases. When the right to claim in both the suits is the same, the subsequent suit would be barred as res judicata. This Court is of the view that on examination of the material on record, the matter in issue of both the suits is substantially the same. The Doctrine of res judicata belongs to the domain of procedure.
12. The Courts below have meticulously examined the oral and documentary evidence and on going through the judgment and decree passed in the earlier suit which is produced by the respondent/defendant at Ex.D-35 by way of rebuttal evidence, have come to the conclusion that the properties set out by the appellant/plaintiff by alleging that the vacant space measuring 5x5 yards was allotted to him in a family partition was rightly negatived in the earlier suit bearing O.S.No.313/1999. The contention of the plaintiff by setting up a third item was not at all accepted by the Court in the earlier litigation.
13. The appellant/plaintiff neither in the earlier litigation nor in the present suit would dispute the contents of partition and allotment of properties to the respective parties. In that view of the matter, this Court would find that unfortunately the appellant/plaintiff is virtually re-litigating on the same cause of action which amounts to abuse of process of law. The grounds raised in the appeal memo would not invite any questions of law muchless substantial question of law. In that view of the matter, the second appeal being devoid merits, deserves to be dismissed.
Accordingly, the appeal is dismissed. No order as to costs.
I.A.No.1/2016 does not survive for consideration and accordingly, the same is dismissed.
Sd/- JUDGE CA