Karnataka High Court
Sri Manchaiah S/O Hymagiraiah vs Sri Hyamaiah S/O Hymagiraiah on 31 October, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 31ST DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MRS. JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 2692 OF 2010 (PAR)
BETWEEN:
SRI. MANCHAIAH,
S/O HYMAGIRAIAH,
AGED ABOUT 63 YEARS
RESIDING AT HULIKATTE,
HULIYUR DURGA HOBLI,
KUNIGAL TALUK, TUMKUR DISTRICT
... APPELLANT
(BY MR: T. SESHAGIRI RAO, ADVOCATE)
AND:
1. SRI. HYAMAIAH S/O HYMAGIRAIAH,
AGED ABOUT 73 YEARS,
2. SRI. VARADAIAH S/O HYMAGIRAIAH
AGED ABOUT 70 YEARS,
3. SRI. RAJAIAH S/O HYMAGIRAIAH
AGED ABOUT 48 YEARS,
RESPONDENTS 1 TO 3 ARE RESIDING AT
HULIKATTE, HULIYUR DURGA HOBLI,
KUNIGAL TALUK, TUMKUR DISTRICT
4. SMT. HEMAMMA W/O KARDAIAH
AGED ABOUT 67 YEARS
RESIDING AT ANTHARAHALLI,
HULIYUR DURGA HOBLI,
KUNIGAL TALUK, TUMKUR DISTRICT
5. SMT. CHANNAMMA,
W/O KALLUBOREGOWDA,
AGED ABOUT 67 YEARS,
RESIDING AT BOMMANAHALLI,
2
HULIYUR DURGA HOBLI,
KUNIGAL TALUK, TUMKUR DISTRICT
6. SMT. GOWRAMMA W/O KALASAIAH,
AGED ABOUT 58 YEARS,
RESIDING AT DODDAKOPPALU VILLAGE,
GOWDANAPURA POST,
HULIYUR DURGA HOBLI,
KUNIGAL TALUK TUMKUR DISTRICT.
7. SMT. GANGAMMA W/O BETTAIAH,
R/A GUDDATHIPPASANDRA VILLAGE,
RESIDING AT BETTAIAHJANAPALYA,
GOWDANAKUPPA, HULIYUR DURGA HOBLI
KUNIGAL TALUK,
TUMKUR DISTRICT.
8. SRI. BETTAIAH
S/O HYMAGIRIAH,
SINCE DEAD BY HIS LRS
8(A) SMT. BORAMMA
W/O LATE BETTAIAH,
AGED 72 YEARS
R/AT HULLIKATTE VILLAGE,
HULIYURDURGA HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT
8(B) SRI. KADAIAH @ CHANDRAPPA
S/O LATE BETTAIAH,
AGED 48 YEARS,
R/AT NO. 228, 2ND CROSS,
ARUNDATHINAGAR,
NEAR MUNESHWARA TEMPLE,
CHANDRA LAYOUT,
BANGALORE - 39.
8(C) SMT. GANGAVARADAMMA
D/O LATE BETTAIAH,
AGED 46 YEARS,
R/AT NO. 9/13,
BEHIND SONA APARTMENT,
3RD MAIN ROAD, VIJAYANAGAR,
BANGALORE - 40.
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8(D) SRI. HYAMAGIRAIAH @ BUDDA
S/O LATE BETTAIAH,
AGED 44 YEARS,
R/AT HULLIKATTE VILLAGE,
HULIYURDURGA HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT
8(E) SMT. HEMAMMA
D/O LATE BETTAIAH,
AGED 40 YEARS
R/AT HULLIKATTE VILLAGE,
HULIYURDURGA HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT
9. SMT. MANCHAMMA,
W/O THIMMAIAH
AGED ABOUT 67 YEARS
RESIDING AT
HONEGOWDANADODDI,
HULIYUR DURGA HOBLI,
KUNIGAL TALUK,
TUMKUR DISTRICT.
... RESPONDENTS
(BY MR: H.V. DEVARAJU, ADVOCATE FOR
R1 TO R3. AND R8 (A TO E)
R4, R5, R7 AND R9 ARE SERVED.
V/O DATED 6/1/2015, R6 SERVICE HELD SUFFICIENT.)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 15.09.2010 PASSED IN
R.A.NO.283/07 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE,
TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 09.04.2007 PASSED IN
O.S.NO.200/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
KUNIGAL.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 01.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The appellant has preferred this appeal being aggrieved by the impugned judgment and decree dated 09.04.2007 passed in O.S.No.200/2001 on the file of the learned Civil Judge (Sr.Dn.), Kunigal (hereinafter referred to as 'trial Court' for brevity) decreeing the suit of the plaintiffs and allotting them 1/6th share in the suit schedule properties and directing to hold an enquiry to determine the mesne profits relating to 'B'-schedule properties, which was confirmed by judgment dated 15.09.2010 in R.A.No.283/2007 on the file of the Principal District Judge, Tumkur (hereinafter referred to as 'First Appellate Court' for brevity) by dismissing the appeal.
2. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
3. Brief facts of the case are that respondent Nos.1 to 3 as plaintiffs have filed O.S.No.200/2001 before the trial Court against the appellant and respondent Nos.4 to 9, seeking declaration that A, B and C schedule properties are the joint family properties and for partition and separate possession of their 1/6th share in the same. Further to declare that the sale deeds dated 03.04.1976, 02/08.09.1986, 5 01.06.1991 and 20.06.1991 got executed in the name of defendant No.1, judgment and decree passed in O.S.No.657/1993 will not affect the rights of the plaintiffs, their shares and for mesne profits, partition and separate possession of the schedule properties. The plaintiffs contended that they are the children of Basamma, the second wife of Hymagiraiah. Defendant Nos.1 to 5 are the children of Basamma and defendant Nos.6 and 7 are the children of late Chennamma, the first wife of Hymagiraiah.
4. It is the contention of plaintiff Nos.1 to 3 that their predecessor Hymagiraiah died in the year 1965. His first wife Chennamma died in the year 1992 and the plaintiffs and defendants were the members of the Hindu undivided family. It is also contended that defendant No.1 was the Kartha and he got the income from the joint family properties. From out of the said income, he purchased some of the schedule properties under the registered sale deeds dated 03.04.1976, 02/08.09.1986, 01.06.1991 and 20.06.1991. However, the sale deeds were got executed in the name of defendant No.1 for and on behalf of all the members of the undivided family. 6
5. It is also contended that defendant No.1 instituted the suit in O.S.No.657/1993 behind the back of other members of the family in respect of 'B' schedule properties and managed to get a decree in his favour to the effect that those properties are his self acquired properties. But since these properties, fully described in the 'B' schedule were purchased by defendant No.1 from out of the joint family income, all the members of the family are having right over the same.
6. It is contended that there was no partition amongst the members of the joint family in respect of the schedule properties. Deliberately, defendant No.1 had not arrayed the other members of the family in O.S.No.657/1993 and refused to give the legitimate share to the coparceners. The plaintiffs and other defendants are also entitled for equal share in the schedule properties and therefore, the plaintiffs prayed for decreeing the suit and allotting their share in the schedule properties.
7. Schedule 'A' appended to the plaint describes 08 items of the agricultural properties. 'B' schedule contains item Nos.9 to 13 and Schedule 'C' contains item Nos.14 to 16 7 situated at Huliyurdurga Hobli, Hulikatte and Anthralli Villages.
8. Defendant No.1 has appeared before the trial Court and filed his written statement denying the contentions taken by the plaintiffs in toto. It is contended that there is no cause of action for the suit. Defendant No.1 admitted that suit item Nos.1 to 8 are the joint family properties but contended that the same were divided amongst the plaintiffs and defendant Nos.1 and 6 about 30 years back and khatha in respect of the same were changed in their respective names. Thus, they are living separately since 30 years by paying the land revenue. It is also contended that Sy.Nos.1/4, 6/1 and 5/19 are also ancestral properties but they were not included in the schedule. It is further contended that in item No.1 of the schedule, plaintiffs, defendant Nos.1 and 6 have got 02 guntas of land each. Plaintiff No.3 is having 02 guntas of land on the eastern portion and to the west of the said land, 02 guntas of land belonging to defendant No.1 is situated and to further west, land belonging to defendant No.1, 02 guntas of land allotted to the share of plaintiff No.2 and thereafter the land belonging to plaintiff No.1 is situated. It is stated that to 8 the further west, 02 guntas of land is allotted to defendant No.6 and thus they are cultivating their respective lands. It is further contended that in item No.2, plaintiffs, defendant Nos.1 and 6 have got 25 guntas each and in item No.3 plaintiff Nos.1, 2 and defendant No.1 were allotted 06½ guntas each. Similarly, all other items of the properties up to item No.8 were partitioned amongst them. It is contended that rest of the items of the schedule properties are self acquired properties of defendant No.1 and those properties are described in 'B' schedule which were purchased by defendant No.1 after division of the family properties. The khatha and pahani in respect of 'B' schedule properties stands in his name and he is the absolute owner in possession of the same.
9. It is further contended that Sy.Nos.67/7 and 67/5 described in 'B' schedule were mortgaged by defendant No.1 in favour of one Sakamma and as such the same is in her possession. It is also contended that item Nos.10 to 13 were purchased by defendant No.1 under the registered sale deeds dated 03.04.1976, 28.07.1987, 01.06.1991 and 20.06.1991 respectively.
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10. It is contended by defendant No.1 that during the year 1993, plaintiffs started interfering with the peaceful possession and enjoyment of the suit item Nos.10 to 13 and therefore, he has filed suit O.S.No.657/1993 against the plaintiffs seeking permanent injunction before the Principal Civil Judge (JD) at Kunigal. The said suit was came to be decreed as per judgment and decree dated 22.06.2001 holding that suit item Nos.10 to 13 are the self acquired properties of defendant No.1. The plaintiffs have never challenged the said judgment and decree and thus the same has attained finality. The plaintiffs have admitted the possession of defendant No.1 in the said suit and therefore, they cannot contend that they are having right over the said properties. It is contended that the plaintiffs have filed the suit for partition and separate possession suppressing all these material facts, including the fact that the suit O.S.No.657/1993 is decreed against them. Therefore, defendant No.1 prayed for dismissal of the suit with cost.
11. Since the plaint was amended to include 'C' schedule properties, defendant No.1 filed his additional written statement contending that the newly included 10 Sy.No.5/19 measuring 1.28 acres of land was also divided amongst the family members as stated in the written statement and the sharers are in separate possession and enjoyment of the same.
12. On the basis of these pleadings, following issues and additional issues came to be framed.
1. Whether the plaintiffs prove that the plaint - 'A' and 'B' and 'C' schedule properties are 'Hindu' undivided family properties?
2. Whether the plaintiffs prove that they are entitle to 1/6th share each in the suit schedule properties by metes and bounds?
3. Whether the Ist defendant proves that there was a partition in their family about 30 years back and since then the parties to the suit have been enjoying their shares?
4. Whether the Ist defendant proves that he has purchased the plaint 'B' schedule properties after division in their family?
5. Whether the plaintiffs prove that they are entitle for mesne profits? If so, whether an enquiry U/Or.20 R.18 is necessary?
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6. Whether the plaintiffs prove that they are entitle for partition and separate possession of their 1/6th share each upon their share?
7. To what decree or order?
Additional issues
1. Whether the Ist defendant proves that item No.14 measuring only 1 acre 28 guntas was divided in oral partition and plaintiff No.1 to 3 and this defendant and 6th defendant each were allotted 0-13½ guntas and they are all cultivating the same?
2. Whether the Ist defendant proves that item No.15 was allotted infavour of 3rd plaintiff and 6th defendant and they are cultivating the same?
13. The plaintiff No.1 was examined as PW.1, Plaintiff No.3 was examined as PW.2 and two more witnesses were examined as PWs.3 and 4. They got marked Exs.P1 to P15 in support of their defence. Defendant No.1 examined himself as DW.1 and two more witnesses as DWs.2 and 3 and got marked Exs.D1 to D47 in support of their contention.
14. The trial Court after taking into consideration all these materials on record, answered issue Nos.1, 2, 6 in the affirmative and issue Nos.3, 4, 5 and additional issue Nos.1, 2 12 in the negative and held that the plaintiffs are entitled for a decree and accordingly, the suit was decreed and the defendants were restrained by means of permanent injunction from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule properties.
15. Being aggrieved by the judgment and decree passed by the trial Court, defendant No.1 preferred regular appeal in R.A.No.283/2007 on the file of the learned Principal District Judge, Tumkur. The First Appellate Court, after taking into consideration all the materials placed before the Court, came to the conclusion that there are no merits in the appeal and accordingly, the appeal was dismissed, confirming the judgment and decree passed by the trial Court. Being aggrieved by the same, defendant No.1 is before this Court.
16. Heard Sri. T.Seshagiri Rao, learned counsel for the appellant and Sri. H.V.Devaraju, learned counsel for respondent Nos.1 to 3 and respondent No.8(a-e). Respondent Nos.4, 5, 6, 7 and 9 are served but unrepresented.
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17. Learned counsel for the appellant contended that even though it is admitted that schedule 'A' and 'C' properties are joint family properties, the same were partitioned long back and the revenue records were also mutated in their respective names. Accordingly, sharers were in actual possession and enjoyment of the properties that had fallen to their shares. 'B' schedule properties are the self-acquired properties of the appellant as the same were purchased under different sale deeds. The plaintiffs started interfering with the 'B' schedule properties and the appellant filed O.S.No.657/1993 seeking permanent injunction amongst them. The said suit was contested by the plaintiffs herein. But the same was came to be decreed vide judgment and decree dated 22.06.2001. The plaintiffs have not challenged the said judgment and decree passed by the trial Court. Therefore, the said judgment and decree has attained finality. The trial Court in the said case has given categorical finding that there was partition between the joint family members and they are in possession of their respective shares. It is also held that 'B' schedule properties are the self-acquired properties of defendant No.1 as he derived income from the 14 properties which were allotted to his share in his family partition. When such categorical finding of fact is glaring at the plaintiffs, they could not have maintained the suit for partition and separate possession of their shares in the schedule properties.
18. Learned counsel for the appellant further contended that the suit filed by the plaintiffs clearly hit by the principles of res judicata, since the civil court having competent jurisdiction, has considered the rights of the parties between plaintiffs and defendant No.1 and decreed O.S.No.657/1993. The parties to the said suit cannot maintain the second suit for partition. The trial Court as well as the First Appellate Court have committed an error in decreeing the suit of the plaintiffs. The First Appellate Court has not applied its mind to the materials on record but proceeded to dismiss the appeal only relying on the finding given by the trial Court.
19. Learned counsel for the appellant also contended that the suit of the plaintiffs is barred by limitation as the same was came to be filed on 09.10.2001 where defendant No.1 had filed the suit in O.S.No.657/1993 asserting his right 15 over 'B' schedule properties and contend that there was partition amongst the family members much earlier on 20.11.1993. No declaration was sought in respect of registered sale deeds that were executed in favour of defendant No.1. While passing impugned judgment and decree, the trial Court and First Appellate Court have not considered any of these contentions. Hence, the same are liable to be set aside.
20. Learned counsel for the appellant placed reliance on the decision of the Hon'ble Apex Court in the case of SYED MOHD. SALIE LABBAI (DEAD) BY L. Rs. AND OTHERS vs. MOHD. HANIFA (DEAD) BY L. Rs. AND OTHERS1, to contend that in order to consider the plea of res judicata, the Court must consider:
1) Whether the litigating parties are same in both the suits;
2) Whether the subject matter of the suit are identical;
3) Whether the matter was finally decided between the parties; and
4) Whether the suit was decided by a court of competent jurisdiction.1
(1976) 4 SCC 780 16 Placing reliance of this judgment, learned counsel for the appellant contended that the judgment passed in O.S.No.657/1993 satisfies all these requirements and therefore, the principles of res judicata is applicable and the suit of the plaintiffs is to be dismissed in limine. Accordingly, he prays for allowing the appeal in the interest of justice.
21. Per contra, learned counsel for the respondents opposing the appeal contended that the suit O.S.No.657/1993 is a suit for permanent injunction. The trial Court in the said case decided about the possession of the properties and granted injunction. The rights of the plaintiffs and defendants over the schedule properties were never decided in the said suit. Therefore, the finding in the said suit will not act as res judicata. There is no decision on the rights of the plaintiffs and defendants. Learned counsel further submitted that no specific issue was raised in O.S.No.657/1993 regarding ownership of the properties in question nor there is any issue in the present case regarding res judicata. The pleadings in O.S.No.657/1993 are not part of records in the present case and under such circumstances, the appellant cannot plead that the claim of the plaintiffs is hit by the 17 principles of res judicata. Learned counsel placed reliance on the decision in the case of V.RAJESHWARI (SMT) VS. T.C. SARAVANABAVA2 in support of his contention.
22. Learned counsel for the respondents contended that when admittedly schedule 'A' and 'C' properties are the joint family properties and defendant No.1 was the kartha of the family, purchase of 'B' schedule properties under various sale deeds is from out of the income of the joint family and defendant No.1 has not placed any materials in support of his contention that he purchased those properties from out of his independent income. Under such circumstances, the contention of the learned counsel for the appellant that the present suit is barred by limitation cannot be accepted. Therefore, the concurrent finding of facts recorded by the trial Court and First Appellate Court is required to be upheld. Accordingly, he prays for dismissal of the appeal with costs.
23. I have considered the arguments advanced by the learned counsel for both the parties and perused the materials on record.
2 (2004) 1 SCC 551 18
24. The appeal was admitted vide order dated 31.07.2019 and the following substantial questions of law were formulated:
"(i) Were the Courts below justified in granting decree for partition in favour of the plaintiffs in view of the judgment and decree dated 22.06.2001 made in O.S.No.657/1993 in respect of item Nos.9, 10, 11, 12 and 13 which are also subject matter of suit in O.S.No.200/2001, in view of the provisions of Section 11 of the Code of Civil Procedure?
(ii) Whether the Courts below justified in granting the relief of partition, in the facts and circumstances of the case?"
25. In view of the contentions raised by the appellant that the suit filed by the plaintiffs is barred by limitation and since both the learned counsel addressed their arguments on this point, I deem it appropriate to frame the following substantial question of law for consideration:
"(iii) Whether the claim of the plaintiffs for partition and separate possession of the 'B' schedule properties is hit by the provision of the Limitation Act in view of the judgment passed in O.S.No.657/1993 on the file of learned Civil Judge (Sr.Dn.), Kunigal?"19
26. The plaintiffs approached the trial Court seeking partition and separate possession of the plaint schedule properties. Both the parties have led in evidence taking specific contentions. The trial Court and the First Appellate Court on consideration of the materials on record, concurrently held that the plaintiffs are entitled for share in the schedule properties by metes and bounds while rejecting the contention taken by defendant No.1 that 'B' schedule properties are his self-acquired properties and there was already a partition with regard to 'A' and 'C' schedule properties.
27. When the trial Court and the First Appellate Court on appreciation and re-appreciation of the materials, recorded a concurrent finding of facts, the scope under Section 100 of CPC to interfere with such findings would be very limited. The jurisdiction of the High Court under this Section to entertain the second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction to interfere with pure question of fact, while exercising its jurisdiction. Since there is concurrent finding of facts by both the Courts below, the scope of this appeal is 20 very limited. It is the settled proposition of law that when the findings of the Trial Court and the First Appellate Court are against the materials that are available on record or when it is against the settled proposition of law or the findings appear to be perverse, this Court can definitely interfere with such concurrent findings of facts.
28. It is relevant to refer to the decision of the Hon'ble Apex Court in Thiagarajan and Others v. Sri Venugopalaswamy B. Koil and Others3, where the scope and ambit of Section 100 was discussed at length and it is held that existence of substantial question of law is sine-qua- non for the exercise of the jurisdiction under the amended provisions of Section 100 of CPC. It is reiterated that where findings of fact by the First Appellate Court are based on evidence, the High Court in second appeal cannot substitute its own findings on re-appreciation of evidence, merely on the ground that another view was possible.
29. In Narayan Rajendran and Another v.
Lekshmy Sarojini and Others4, the Apex Court discussed at 3 (2004) 5 SCC 762 4 (2009) 5 SCC 264 21 length about the scope and ambit of Section 100 CPC both prior to the amendment to CPC in 1976 and after it and held that the second appeal can lie only on one or the other grounds specified in the section. It is also held that even before the amendment, interference under Section 100 CPC was limited and after the amendment the power has been further curtailed. The amendment Act 1976 has introduced drastic changes in the scope and ambit of this section which is now confined to cases where a question of law is involved and such question must be a substantial one. The Court has referred to several such judgments after amendment to Section 100 of CPC and re-iterated that the jurisdiction of the High Court under this section to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction to interfere with pure question of fact while exercising its jurisdiction.
30. The Hon'ble Apex Court referred to its earlier decision in Madhavan Nair Vs Bhaskar Pillai5, to hold that the High Courts are not justified in interfering with the 5 (2005) 10 SCC 553 22 concurrent findings of fact. Even if the First Appellate Court commits an error in recording a finding of fact, that itself will not be a ground that the High Court to upset the same.
31. Referring to the Fifty Fourth report of the Law Commission of India submitted in 1973, the legislative background which led to amendment of Section 100 CPC was highlighted that 'the question could perhaps be asked, why the litigant who wishes to have justice of the highest court of the State should be denied the opportunity to do so, atleast where there is a flaw in the conclusion of facts reached by the Trial Court or by the Court of first appeal. The answer is obvious that, even litigants have to be protected against too persistent a pursuit of their goal of perfectly satisfactory justice. It is held that an unqualified right of first appeal may be necessary for the satisfaction of the defeated litigant; but a wide right of second appeal is more in the nature of a luxury'. Thus, the Apex Court once again crystallized the legislative intention by referring to its several other decisions to caution the High Courts to refrain from interfering with the concurrent findings of fact without there being a substantial question of 23 law. Thus, the position of law is very well settled with regard to interference under Section 100 of CPC.
32. Specific contention is raised by the learned counsel for the appellant that the suit of the plaintiffs is hit by the principles of res judicata and it is barred by limitation. Since both these contentions are legal contentions, I deem it appropriate to consider the contentions of the parties in this regard.
33. It is the contention of defendant No.1 that he had filed suit O.S.No.657/1993 seeking permanent injunction against the plaintiffs and the said suit was came to be decreed as per Exs.D37 and D38. Since a categorical finding is recorded in the said suit that there was an earlier partition in the family in respect of the schedule properties and 'B' schedule properties are the self-acquired properties of defendant No.1 herein, the claim of the plaintiffs for partition is hit by res judicata. However, the learned counsel for the respondents placed reliance on the decision in the case of V.RAJESHWARI (SMT) supra in support of his contention. 24
34. The Rule of res judicata will not strike the jurisdiction of a Court trying the subsequent suit at the root. This Rule is based on the principle that no one should be vexed twice for the same cause. This plea of res judicata is to be proved in accordance with law by placing required materials on record. It is not sufficient to raise the plea of res judicata in the pleadings but a specific issue is to be raised to put the parties on guard about the evidence that they are required to adduce. Inspite of this, if there are no required materials to apply the Rule of res judicata, then the appellant will not be successful only on that ground.
35. The party who takes up the defence of res judicata has to substantiate the same by producing the pleadings, issues and the judgment in the previous proceedings. In the present case, no specific issue with regard to res judicata was framed by the trial Court nor there was a prayer for framing additional issue in that regard. The appellant who is the contesting defendant produced only the judgment and decree in O.S.No.657/1993 as per Exs.D37 and D38. The said documents were also produced by the plaintiffs as per Exs.P14 and P15. Defendant No.1 has not chosen to 25 produce the copies of the pleadings in the said suit in support of his contention.
36. Admittedly, the suit O.S.No.657/1993 on the file of learned Principal Civil Judge (JD), Kunigal was filed by the appellant herein for permanent injunction. Only two issues were framed in the said suit. The first issue is with regard to lawful possession of the suit schedule properties and second one is with regard to the interference with such possession and enjoyment. Both these issues were answered in the affirmative and it was held that the appellant herein was in the possession of the schedule properties and that there was interference by the plaintiffs herein. As I have already noted that the pleadings of the parties in O.S.No.657/1993 or the evidence led by them are not produced in the present case, the question arises as to whether Rule of res judicata could be applied in such cases.
37. The Hon'ble Apex Court in the case of V.RAJESHWARI (SMT) supra categorically held in Para-13 as under:
"13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the 26 pleadings, issues and judgment in the previous case. May be, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa, the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal, placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council, pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous suit and what was heard and decided.27
Needless to say these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.
(emphasis supplied) The Hon'ble Apex Court referred to the decision of the Privy Council in KALI KRISHNA TAGORE v. SECY. OF STATE FOR INDIA in ILR 16 Cal 173, wherein it is categorically held that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. It is also made clear that the decision in that regard can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.
38. Even though it is admitted that O.S.No.657/1993 was filed by the appellant against the plaintiffs herein and it is also admitted that the said suit was came to decreed, the same is not sufficient to apply the doctrine of res judicata. A well settled procedure is contemplated under law by various verdicts of the Hon'ble Apex Court as well as the privy council as discussed above. Without following the said procedure, the Rule cannot be applied in the present case.
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39. When the appellant contended that the controversy in O.S.No.657/1993 had the very same controversy which was directly and substantially an issue and it has become final and Section 11 of CPC bars filing of fresh suit, it is the bounden duty of the appellant to place all the materials on record to consider as to whether the issue raised in the present case was the issue that was directly and substantially raised and decided in the previously instituted suit and it operates as res judicata. Therefore, the appellant has failed to establish his contention that the suit of the plaintiffs is barred by the principles of res judicata and the trial Court as well as the First Appellate Court committed an error in granting the relief to the plaintiffs inspite of judgment in O.S.No.657/1993. Accordingly, I answer substantial question of law No.1 against the appellant and in favour of the respondents.
40. When the first substantial question of law regarding res judicata is answered against the appellant, his contention that the suit is barred by limitation will also to be held in the negative, since the reason assigned by the appellant to contend that the suit is barred by limitation is 29 judgment in O.S.No.657/1993 passed on 22.06.2001. Accordingly, third substantial question of law is answered against the appellant.
41. On going through the impugned judgment and decree passed by the trial Court and by the First Appellate Court, it is clear that a categorical finding is recorded to the effect that the finding in O.S.No.657/1993 will not bind the plaintiffs to claim partition and separate possession of the schedule properties. When the appellant failed to establish his contention that the present suit is hit by the principles of res judicata and the suit is barred by limitation, the said finding recorded by both the Courts cannot be termed as perverse or illegal. Under such circumstances, I do not find any reason to interfere with the impugned judgment and decree passed by the trial Court and the First Appellate Court. As a result, the present appeal shall fail. Hence, the following:
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 09.04.2007 passed in O.S.No.200/2001 on the file of learned Civil Judge (Sr.Dn.), 30 Kunigal, confirmed by the Principal District Judge, Tumkur, vide judgment dated 15.09.2010 in R.A.No.283/2007 is hereby confirmed.
(iii) Registry is directed to send back the Trial Court Records along with copy of this judgment.
Sd/-
JUDGE SMJ