IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.2602/2006 BETWEEN:
Sri P. L. Shankara Rao S/o Lakshman Rao Aged 55 years Tailor, Old M.C. Road Mandya City-571401.
(By Sri K. N. Phanindra – Advocate for M/s.Hegde and Rao) AND:
1. Smt. Jayamma W/o Late Puttaswamy Aged Major 2. Sri Mahesha S/o Late Puttaswamy Aged Major 2(a) Smt. Jayamma W/o Late Puttaswamy Age Major 2(b) Sri Aswath .M.P.
S/o Late Puttaswamy Age Major ..APPELLANT 2(c) Usharani D/o Late Puttaswamy Age Major All resident of Mallayakana Katte Village, Dudda Hobli Mandya Taluk.
3. Sri Aswath M.P.
S/o Late Puttaswamy Aged major 4. Usharani D/o Late Puttaswamy Aged major Respondents 1 to 4 are all residents of Mallayakana Katte Village Dudda Hobli, Mandya Taluk-571401.
5. Srikantaiah S/o Kapanigowda Aged Major Shankarapura Extension Mandya City-571401.
Dead by LRs’ (a) Umesh S/o Late Goligouda 26 years, 3rd Cross Shankarmutt Old M.C. Road, Mandya.
(b) Nandeesh S/o Late Goligouda 23 years, 3rd Cross Shankarmutt Old M.C. Road, Mandya.
(c) Ashwatha S/o Late Srikantaiah 37 years R/o Opp. Aralikatte Shankarmutt Old M.C. Road Mandya.
(d) Naganna S/o Late Srikantaiah 37 years, 3rd Cross Shankarmutt Old M.C. Road, Mandya.
(e) Shankar S/o Late Srikantaiah 30 years, R/o 3rd Cross Shankarmutt Old M.C. Road, Mandya.
(f) Ms. Geetha D/o Late Srikantaiah 42 years, 3rd cross Shankarmutt Old M.C. Road Mandya.
(g) Ms. Deveri D/o Late Srikantaiah 47 years, R/o 3rd cross Shankarmutt Old M.C. Road Mandya.
(h) Smt. Ningamma W/o Srikantaiah 60 years, No.934, 3rd cross Shankarapura Old M.C. Road, Mandya.
(i) M.S. Latha W/o Sri Bhanuprakash D/o late Srikantaiah 40 years, No.934, 3rd cross Shankarapura Old M.C. Road, Mandya.
(j) Smt. Nandini M.G. W/o Shivarudra 29 years, No.934, 3rd cross Shankarapura Old M.C. Road, Mandya.
6. Hottappa S/o Chikkaboregowda Aged Major Mallanayakana Katte Village Dudda Hobli Mandya Taluk-571401.
..RESPONDENTS (By Sri P. Nataraju, Adv., for M/s P. Nataraju Assts., For R-5(a, b, e to j); R-1, 3, 4, 5(c), 5(d) and 6 are Served and unrepresented; R-1, 3, & 4 are LRs’ of R-2 vide order dated 26.07.2012) This RSA is filed under Section 100 of CPC against the judgment and decree dated 05.07.2006 passed in R.A. No.80/2003 on the file of the Principal District Judge, Mandya, dismissing the appeal and confirming the judgment and decree dated 21.12.94 passed in O.S. No. 372/89 (353/88) on the file of the Principal Munsiff and JMFC, Mandya.
This appeal coming on for Further hearing this day, the court delivered the following:
JUDGMENT This appeal is directed against the Judgment and decree passed by learned Principal District Judge, Mandya, in R.A.No.80/2003 wherein the appeal came to be dismissed on 05.07.2006, thereby confirming the Judgment and decree passed by learned Principal Munsiff and JMFC, Mandya in O.S.No.372/1989 (353/88). Learned Trial Judge also had dismissed the suit. Thus, this appeal is preferred by the plaintiff.
2. In order to avoid confusion and overlapping, parties are hereinafter referred to in accordance with their ranking before the Trial Court.
3. The plaintiff P.L. Shankara Rao filed an original suit before the Court of the learned Principal Munsiff and JMFC Mandya in O.S.No.372/1989 (353/88) for the relief of declaration of his title and injunction to restrain the defendants from interfering with his peaceful possession of the suit site bearing Katha No.D2/618/931/1 situated in Kallahalli Extension (Azad Nagar), Mandya, measuring East to West 45 feet on Southern side, 63 feet on Northern side and North to South 60 feet.
4. The Trial Court considered the matter with reference to title and possession of the schedule property and considering the pleadings, documents, relevant material in the form of evidence of both the parties and circumstances, dismissed the suit as barred by principles of Res judicata.
5. An appeal being preferred by plaintiff in R.A.No.80/2003 aggrieved by the dismissal of the suit. The Principal District Judge, Mandya, by its Judgment dated 05.07.2006, dismissed the appeal.
Thus, the Judgment and decree passed by the learned Principal Munsiff and JMFC, Mandya, came to be confirmed by the Appellate Court as well.
6. Plaintiff has preferred the present appeal challenging the judgment and decree passed by the First Appellate Judge confirming the judgment of the Trial Court.
7. Learned counsel Shri K.N. Phanindra for the appellant would submit that the suit of the plaintiff was not barred by principles of res judicata. He would submit that the earlier suit which is said to have been adjudicated in O.S.No.483/1970 related to landed property which is different from the schedule property.
8. Learned counsel would further submit that no doubt, there was a civil suit between plaintiff’s vendor’s father and the defendant-Channamma in O.S.No.483/1970 which came to be decreed.
9. It is further submitted that the present suit is in respect of property bearing Katha No.D2/618/931/1 situated in Kallahalli Extension (Azad Nagar), Mandya. Thus, the suit was not barred under Section 11 of the Code of Civil Procedure which is assigned.
10. The concept of resjudicata implies that no court shall try the suit wherein issue involved in the same was substantially directly a point for consideration in a previous litigation where any one of the parties has succeeded. The same parties means same litigants or persons claiming under the rights of plaintiff. The subject matter in the present suit should be substantial and directly the same in the earlier litigation.
11. Learned counsel for respondent-defendants would submit that in the earlier proceedings O.S.No.483/1970 and R.A.No.97/1974, the property claimed by the plaintiff’s vendor’s father in O.S.No.483/70 came to be decreed and first appellate court in R.A.97/74 reversed the finding of the trial court. Thus, it is hit by the principles of res judicata and the plaintiff is claiming under his vendor who inherited the property from his father.
12. Further, the learned counsel Shri P. Nataraju for defendants would submit that the subject matter of the present suit and the earlier one in O.S.No.483/1970 are one and the same and the earlier adjudication of civil suit has already concluded by virtue of disposal of R.A.No.97/1974.
13. It is stated that the parties are same, in the sense, the present plaintiff’s vendor’s father and defendant-Channamma.
14. Thus, the counsel for defendants contend that adjudication of the suit without change of circumstance on the same subject matter for the same relief between the same parties, would go to show that the claim of plaintiff in the present case is not maintainable.
15. It is necessary to analyse Section 11 of Code of Civil Procedure which reads as under:
“11. Res judicata – No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
16. In order to attract doctrine of resjudicata, following are worth considered:
i. The disposal of suit by a competent court of law having jurisdiction.
ii. Between the same parties or persons claiming under them.
iii. Right in respect of the property and the matter must be substantially and directly the same.
In the present case there is dispute regarding measurement and identity of the property.
17. It is necessary to mention that question of fact differs from question of law. Former consists of bunch of facts that has to be ascertained basing on the pleadings, documents, evidence and state of affairs which are not answered prior.
18. On the other hand questions of law are those in
bound by adjudication of a suit that was completely adjudicated in the previously conducted proceedings. Here also it is to be noted that persons include those who claim under original parties.
19. The point which the learned counsel for defendants would submit is earlier plaintiff for the litigation was the father of the plaintiff’s vendor-Abdul Baseeth and he strenuously submitted that the issue was already subject matter of previous proceedings (O.S.No.483/1970) and finally adjudicated.
20. When a suit filed by owner of a property claiming possession is hit by the earlier proceedings wherein the matter was adjudicated between the same parties is deemed to have adjudicated the subject matter of the present suit.
21. Substantial question of law framed on 13.07.2009 is as under:
“Whether the courts below are justified in applying the principles of resjudicata enunciated under Section 11 of CPC to the case on hand though the respondent- defendant were not parties to the earlier suit in O.S.No.483/70 nor they claimed right through the parties to the earlier suit?”
22. Before dwelling on the other circumstances it is necessary to analyse the scope of order XIV of Civil Procedure Code. The mandate of order XIV Rule 2 is that the court shall give finding on all the issues. Under Rule 2 to the said order it is the duty of the court to pronounce Judgment on all the issues. The very commencement of order 14 Rule 2 is to the effect that it starts with non-abstante clause wherein it is stated that a case may be disposed on a preliminary issue notwithstanding subject to provisions of sub-rule (2) court shall pronounce Judgment on all issues. Insofar as schedule property which is the subject matter in the present case is as under:
Property situated in Kallahalli Extension (Azad Nagar), Mandya, bearing Municipal Katha No.D2/618/931/1, measuring East to West 45 feet on Southern side, 63 feet on Northern side and North to South 60 feet and bounded on East by: Municipal Road West by: house of Lingaiah (originally belong to Holalu Chikkanna North by: house of Hyamaiah and Settahalli Lingaiah South by: Old M.C.Road The schedule property in the earlier suit (O.S.No.483/70) is as under:
Sy.No.197, Kallahalli Extension, Mandya Town, bounded on:
East by: Road, West by: house of Holalu Chikkanna South by: Old M.C.Road, North by: House of Vardegowda’s son – Hyamaiah and Settihalli Ningaiah In between 0-5 guntas house site bearing Municipal No.1526.
23. Learned counsel for plaintiff submits that the schedule description is to the extent of 3 guntas. Learned counsel for defendants would submit that the extent of property according to Ex.P.20 is 55’x105’. Nodoubt the extent is mentioned in terms of guntas. In the sale deed it is mentioned both in terms of guntas and square feet. It is necessary to mention 1 gunta =1089 sq. ft and 1 acre 40 guntas comes upto 43,560 sq.ft. Thus, total property said to have purchased by plaintiff is 55x105 =5775 sq.ft.
24. Learned counsel for defendants also questions the measurement stated in the suit schedule is lesser than the extent mentioned in the title deed filed by the defendants. Learned counsel Sri Nataraju would submit that boundaries are stated with a false location only to see that it is filed to knock off the property.
25. It is necessary to note trial court disposed of the matter on preliminary issue wherein though other issues are framed in its wisdom trial court chooses to dispose of the matter on the concept of resjudicata. It is also to be noticed that the matter of adjudication was not on admitted facts or those relating to pure question of law. It is necessary to mention question of facts is bunch of facts regarding state of affairs or suit of a property or person. On the other question of law would be those points on which the answer is available in statute and Judge made law which requires no further interpretation other than what is already known and popular. Thus, learned trial Judge framed following issues:
“1. Does plaintiff prove that the suit site belonged to and was in possession of one Habeeb Ahamad, referred in Para-2 of the plaint?
2. Did the plaintiff derive title over, and possession of the suit site under sale deed dated 20.09.83 executed by said Habeeb Ahamad in plaintiff’s favour?
3. Is the alleged interference true?
4. Did the suit properties belong to Kapanigowda, S/o Nanjundegowda of Mandya.
5. Did the said Kapinigowda convey title and possession of suit property to defendant’s favour Chikkaborewda, under registered sale deed dated 23.11.53?
6. Did defendant and his brother Hottappa sell the suit property to Srikantaiah –the said son of Kapinigowda?
7. Is the plaintiff entitled for declaration of title?
8. Is the plaintiff entitled for injunction?
Addl. Issue 1. Whether defendant proves that this suit is barred by principles of rejudicata?
26. However the adjudication is effected on additional issue No.1 which is as under:
“Whether defendant proves that this suit is barred by principles of rejudicata?”
27. This issue alone is answered of course in the affirmative. Thus, it would have been proper and appropriate had the trial court disposed of the matter by answering all the issues as contemplated under Order 14 Rule 2 of CPC and not adhering to that is nothing but error and the disposal is incomplete. When there was dispute regarding the identity of the property, it should have been adjudicated. Further plaintiff and defendant should have been given fair opportunity and the matter belongs to such category of properties wherein all the issues should have been discussed and reasons assigned and adjudication on only additional issue on resjudicata and keeping others out of file does not appear to be a proper and suitable approach. Having framed issues regarding factual matters which are directly concerned to point of law, the Judgment of the trial court and the appellant court are incomplete.
28. Learned trial Judge erred in dismissing O.S.No.372/89. Appellate court did not make any improvement and confirmed the order passed by trial court which in my view is wrong and requires to be set aside.
Accordingly the substantial questions of law are answered.
Hence, I proceed to pass the following:
ORDER Appeal is allowed. Judgment and decree dated 05.07.2006 passed in R.A.No.80/2003 by the Principal District Judge, Mandya is set aside and consequently the Judgment and decree dated 21.12.1994 passed in O.S.No.372/89 is also set aside.
The matter is remanded to the court of Principal Munsiff and JMFC, Mandya with a direction that learned Judge shall adjudicate points on all the issues and to give comprehensive reasons.
Further no notice shall be issued to the parties from the trial court. On the other hand, parties shall appear before the trial court on 27.04.2019.
Office is directed to send the records to the trial court.
In the light of time spent for adjudication it is better the proceedings shall be disposed of by learned trial Judge as expeditiously as possible, however not beyond the outer time limit of four months from the date of receipt of records without seeking for further extension.
Learned trial Judge shall grant opportunity both for plaintiff and defendants for filing documents and adducing oral evidence and parties are directed to co- operate in the light of outer limit time fixed for disposal of the matter.
Sd/- JUDGE KS/SBN