Karnataka High Court
Palakshagouda S/O Tirakanagouda vs Puttappa S/O Veerappa Chikkanandi @ ... on 5 April, 2024
1
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
M.S.A. No.100102 OF 2018 (RO)
BETWEEN
1. PALAKSHAGOUDA
S/O TIRAKANAGOUDA DODDAGOUDAR
AGED MAJOR,
OCC:AGRI,
R/O BENCHIHALLI,
DIST:HAVERI
2. SMT. RATNAVVA
W/O MAHADEVAPPA DODDAMANI
AGED MAJOR, OCC:HOUSEWIFE,
R/O MANCHAPUR,
TQ:KALAGHATAGI
DIST:DHARWAD
3. SMT.GANGAVVA @ ANSUYA
W/O SHIVANAGOUDA PATIL
AGED MAJOR, OCC:HOUSEWIFE
R/O KACHAVI,
PRESENT AT: BIGOOR ROAD,
KALAGHATAGI,
TQ:KALAGHATAGI,
DIST:DHARWAD
SMT.TIRAKAVVA
W/O TIRAKANAGOUDA DODDAGOUDRA,
(DEF.1, DIED HER LRS ARE APPL 1 TO 3)
4. SMT. ANNAPURNAVVA
2
W/O SHIVAPPA LINGADALLI
AGED ABOUT 48 YEARS,
OCC:HOUSEHOLD WORK,
R/O HOMBARADI,
TQ:HAVERI
SMT. GOURAVVA
W/O HANUMANTHAPPA PUJAR (D2)
(DIED HER LRS IS APPL.4)
5. MALLIKARJUN
S/O NANJUNDAPPA PUJAR
AGED ABOUT50 YEARS,
OCC:AGRI AND COOLIE
R/O ARASHINAGUPPI,
TQ HANGAL, DIST:HAVERI
PARAMESHAPPA
S/O NANJUNDAPPA PUJAR D3/R3
(DIED LRS ARE NOT KNOWN)
VEERAPPA
S/O BASAVANNEPPA CHIKKANANDI @
BANKAR, D5/D5 (DIED AND
HE WAS DELETED AS PER ORDER 28.11.07)
6. SMT. NINGAVVA
W/O CHANNABASANAGOUDA
HUDED, AGED ABOUT 81 YEARS,
OCC:HOUSEHOLD WORK,
R/O HOMBARADI, TQ:HAVERI
7. SMT. RATNAVVA
W/O BASAVANTAPPA BASETTIYAVAR
AGED ABOUT 63 YEARS,
OCC:HOUSEHOLD WORK,
R/O KURUBABONDA,
TQ: HAVERI
(CHANABSANAGOUDA
S/O RUDRAGOUDA HUDED D6
DIED APPL NO.8 and 9 ARE HIS LRS)
3
8. BHARAMGOUDA
S/O CHANNABASANAGOUDA HUDED,
AGED ABOUT 61 YEARS, OCC:AGRI
R/O HOMBARADI, TQ:HAVERI
9. SMT. SAROJAVVA
S/O BASAPPA CHIKKANANDI BANAKAR
AGED ABOUT 51 YEARS,
OCC:HOUSEHOLD WORK
R/O HOMBARADI, TQ:HAVERI
10. VIRESH
S/O BASAPPA CHIKKANANDI @ BANAKAR
AGED ABOUT 17 YEARS,
MINOR REPRESENTED BY HIS MINOR
GUARDIAN HIS MOTHER RESP.8
SMT.SAROJAVVA
W/O BASAPPA
CHIKKANANDI @ BANAKAR,
R/O HOMBARADI, TQ:HAVERI
...APPELLANTS
(BY SRI N P VIVEKMEHTA, ADVOCATE)
AND
1. PUTTAPPA
S/O VEERAPPA CHIKKANANDI @ BANAKAR
AGED ABOUT 61 YEARS,
OCC:AGRI
R/O HOMBARADI, TQ:HAVERI
2. SMT. MAHADEVAKKA
W/O MALLAPPA BISTAKKANAVAR
AGED ABOUT 53 YEARS,
OCC:AGRI & HOUSEHOLD WORK
R/O HOMBARADI, TQ:HAVERI
3. SMT. PUTTAVVA
W/O VEERAPPA CHIKKANANDI
4
AGED ABOUT 79 YEARS,
OCC:AGRI
R/O HOMBARADI, TQ:HAVERI
....RESPONDENTS
(BY SRI ROHIT S PATIL, ADVOCATE FOR R1
SRI K H BAGI, ADVOCATE FOR R2 & R3)
THIS MSA IS FILED U/SEC.43 RULE 1 (u) OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD: 25.10.2018 PASSED IN
R.A.NO.12/2007 ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, HAVERI, ALLOWING THE APPEAL FILED AGAINST
THE JUDGEMENT AND DECREE DTD:27.01.2007 PASSED IN
O.S.NO.56/1986, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HAVERI, DISMISSING
THE SUIT FILED FOR PARTITION AND POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.02.2024 COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The present Miscellaneous Second Appeal is filed under Order 43 Rule 1 (u) of the Code of Civil Procedure1 to set aside the judgment and decree dated 25.10.2018 passed in R.A. No.12/2007 by the I Addl. District and Sessions Judge, Haveri2 and to confirm the judgment and decree dated 27.1.2007 passed in O.S. No.56/1986 by the Addl. Civil Judge (Sr.Dn.) and JMFC., Haveri.
1 hereinafter referred to as 'CPC' 2 hereinafter 'first appellate Court' 5
2. The parties will be referred to as per their rank before the Trial Court for the sake of convenience.
3. Before noticing the facts of the case, it is relevant to note the genealogy which is as follows:
GENEALOGY Basavanneppa (died on 22-5-1978) | ____________________________________________________________ | | | | Veerappa (D5) Tirakavva (D1) Gouravva (D2) Dyamavva(Died) | | Puttavva (Wife) (P4) Mallikarjun (D3) | Parameshwarappa (D4) Puttappa (P1) Basappa (P2) Mahadevakka (P3)
4. Plaintiff Nos.1, 2 and 3 are the children of Plaintiff No.4 (Smt. Puttavva - Mother) and Defendant No.5 ( Shri Veerappa - father). The relevant facts leading to the present appeal are that Defendant No.5-Veerappa relinquished his share in respect of the suit property vide Relinquishment Deed dated 03.06.1959 (erroneously mentioned as 22.7.1986 in the issues framed by Trial Court) in favour of his father Shri.Basavanneppa. Plaintiff No.4 - Puttavva wife of Veerappa filed a suit in O.S. No.56/1969 6 for partition and separate possession as a guardian of her children against Veerappa and her father in law - Basavanneppa and also questioned the Relinquishment Deed dated 03.06.1959 executed by her husband - Veerappa. The said suit was dismissed on 31.03.1973. Being aggrieved, the plaintiffs preferred R.A. No.21/1973. By judgment and decree dated 28.07.1975, the said appeal was allowed and the matter was remanded to the Trial Court. Being aggrieved, Basavanneppa preferred MSA No.208/1975 which was allowed by this Court with a direction to the first appellate Court to frame an additional issue and call for a finding from the Trial Court after providing an opportunity to the parties.
5. In the meantime, Basavanneappa executed a registered Will dated 15.12.1976 (Ex.D2 in OS No.56/1986) bequeathing the property to his daughters. Thereafter, Basavanneppa died on 22.05.1978 during the pendency of R.A. No.21/1973 and his daughters i.e., Tirakavva (Defendant No.1) and Gouravva (Defendant No.2) and the children of another daughter Dyamavva i.e., Mallikarjun (Defendant No.3) and 7 Parameshwrappa (Defendant No.4) were brought on record as the legal heirs of said Basavaneppa. Thereafter, the plaintiffs filed I.A.No.12 for amendment of the plaint and I.A.No.13 for production of additional evidence in R.A. No.21/1973, wherein the amendment that was sought was, that after the death of Basavanneppa their shares have been increased and it is a subsequent event. The said applications were allowed. However, by judgment and decree dated 22.04.1983, R.A. No.21/1973 was dismissed. Being aggrieved, the Plaintiffs preferred RSA No.696/1983 which was dismissed on 15.07.1984.
6. Thereafter, the Plaintiffs filed O.S. No. 56/1986 for partition and separate possession claiming 5/8th share in the suit schedule properties. The Trial Court framed 13 issues and recorded the evidence of the parties. Issues No.1 framed was 'whether the suit is barred by res judicata in view of the decision in O.S. No.56/1969?'. The Trial Court by its judgment and decree dated 27.1.2007 answered the said issue in favour of the defendants that the suit was barred by res judicata and as such the other issues do not survive for and consideration. Being 8 aggrieved, the Plaintiffs preferred R.A. No.12/2007. The first appellate Court by judgment and decree dated 25.10.2018 allowed the appeal and remanded the matter to the Trial Court to decide the suit on merits and give finding on all the issues. Being aggrieved the present Miscellaneous Second Appeal is filed.
7. Sri N.P. Vivek Mehta, learned counsel appearing for the appellants vehemently contended that the plaintiffs having claimed a share in the properties, consequent to the death of Basavanneppa during the pendency of R.A. No.21/1973 and the present defendant Nos.1 to 4 having been bought on record as legal heirs of Basavanneppa, and the same having been adjudicated upon on its merits and the decision having attained finality with the dismissal of RSA No.696/1983, it was not open to the Plaintiffs to once again file a suit in O.S. No.56/1986 claiming for a share in the properties of Basavanneppa. That Veerappa not having challenged the Will of Basavanneppa, it is not open to the present plaintiffs to challenge the same. He further submitted that the Trial Court has adequately appreciated the matter in question and dismissed the suit on the ground of res judicata, 9 which has been erroneously interfered with by the first appellate Court. He refers to the sequence of events in details and submits that the suit of the plaintiff is liable to be dismissed as per the judgment of the Trial Court as being barred by res judicata and the question of the matter being remanded for adjudication of other issues does not arise. Hence, he seeks for setting aside of the order of remand passed by the fist Appellate Court and affirming the judgment and decree passed by the Trial Court.
8. Per contra, learned counsel Shri Rohit S. Patil, appearing for Respondent Nos.1 to 3 - plaintiffs submits that the Plaintiffs are entitled for a share in the properties of Basavanneppa. That the subject matter of the suit in O.S. No.56/1969 which attained finality by dismissal of RSA No.696/1983 was with regard to the share of the Veerappa and hence, the Plaintiffs were entitled to maintain the subsequent suit in O.S. No.56/1986. That the Trial Court had erroneously dismissed the suit as being barred by res judicata and the same has been rightly interfered with by the first appellate Court. That 10 the claim of the plaintiffs is required to be adjudicated upon its merits. Hence, he seeks for dismissal of the above appeal.
9. The submissions of both the learned counsel have been considered and the material on record including the records of the Trial Court and the first appellate Court have been perused. The question that arises for consideration is, whether the first appellate Court was justified in setting aside the judgment and decree of the Trial Court and remanding the matter to the Trial Court to decide issue Nos.2 to 13?
10. The suit in OS No.56/1969 was filed by the plaintiffs claiming for a share in the properties of Veerappa, who was the father of plaintiff Nos.1 to 3 and husband of plaintiff No.4 in the said suit. It was also sought that the Relinquishment Deed dated 03.06.1959 is not binding on the plaintiffs. The said Veerappa was arrayed as defendant No.2 and his father Basavenneppa was arrayed as defendant No.1 in the said suit. In the said suit, defendant No.2 - Veerappa remained ex parte and defendant No.1 - Basavenneppa contested the said suit. It was specifically contended that Veerappa had executed a registered 11 Relinquishment Deed on 03.6.1959 relinquishing his rights in the suit properties in favour of Basavanneppa and hence, the plaintiffs did not have any right in the suit property. In the said suit, the Trial Court framed the following issues:
i) "Whether plaintiffs prove the correctness of the genealogy?
ii) Whether the plaintiffs and defendants constitute the members of the joint un-divided family?
iii) Whether the suit properties are the joint family properties of the plaintiffs and the defendants?
iv) Whether plaintiffs are entitled to the partition and possession sought?
v) Whether plaintiff No.3 is entitled to the maintenance and marriage expenses?
vi) Are plaintiffs entitled to the mesne profits claimed?
vii) What decree or order?"
11. The Trial Court recorded a finding that the Relinquishment Deed dated 03.6.1959 was executed before the children of Veerappa i.e., plaintiff Nos.1 to 3 were born and hence, Veerappa having relinquished his co-parcenary prior to the birth of his children, they did not have right in the suit properties.
Hence, the suit of the plaintiffs in OS No.56/1969 was dismissed 12 by the Trial Court vide judgment and decree dated 31.1.1973 (Ex.D9).
12. Being aggrieved, the plaintiffs preferred RA No.21/1973. The first appellate vide its judgment dated 28.7.1975 allowed the appeal and remanded the matter to the Trial Court to permit the plaintiffs to amend the plaint, defendant No.1 to file additional written statement and to allow plaintiff No.1 to produce the Birth Certificate and give an opportunity to both the parties to lead further evidence and dispose of the case according to law. Being aggrieved, MSA No.208/1975 was preferred and this Court allowed the appeal and directed the first appellate Court to frame an issue on Ex.D2(in OS No.56/1969) and to call for a finding on it from the Trial Court. Accordingly, the first appellate Court framed an issue on Ex.D2(in OS No.56/1969) on 7.3.1977 as follows:
"Whether the plff. proves that the relinquishment of the share of deft.2 in favour of deft.1 as per Ex.D.2 is fraudulent and ostensible and not meant to be acted upon and so not binding upon the plffs.?"13
13. Consequent to the framing of the said issue, the matter was sent to the Trial Court and evidence was adduced. The Trial Court recorded a finding on the said issue in the affirmative on 22.4.1978 and sent the finding to the first appellate Court. The respondents in the said appeal have filed their objections to the said finding. Further, during the pendency of the said appeal, the first defendant - Basavanneppa died on 22.5.1978. The daughters of Basavanneppa namely, Tirakavva (defendant No.1), Gouravva (defendant No.2) and the children of the other daughter Dyamavva namely, Mallikarjun and Parameshwarappa (defendant Nos.3 and 4) were brought on record as the legal representatives of deceased Basavanneppa pursuant to the order dated 8.1.1979 passed on IA.No.6 in RA No.21/1973. Subsequently, the plaintiffs in the said appeal filed IA.No.12 for amendment of the plaint and IA.No.13 for production of additional evidence. The first appellate Court framed the following points for consideration:
i) "Whether the finding on the additional issue that, the relinquishment under Ex.D2 is fraudulent, ostensible, and not meant to be acted upon and so not binding upon the plffs., is not proper and correct? 14
ii) Whether the plffs.-appellants can be allowed to amend the plaint, and produce additional evidence?
iii) What order?"
(emphasis supplied)
14. Subsequently, the first appellate Court dismissed the appeal of the plaintiffs and passed the following:
"For the reasons discussed above, the objections of the respondents to the finding of the lower court on the additional issues is upheld. The finding of the lower court is reversed. The appellants have failed to prove that Ex.P5 pertains to plaintiff No.1 Puttappa Chiknandi and he was born at the time of the execution of the relinquishment deed on 3.6.1959. They have also failed to prove that, it is fraudulent and ostensible deed, not intended to be acted upon. There are no sufficient grounds to interfere with the judgment and decree of the lower court. IA.Nos.12 and 13, are allowed, subject to the reversal of the finding on the point No.1, as it is the amendment is not necessary. The appeal is dismissed with costs."
(emphasis supplied)
15. The plaintiffs preferred RSA No.696/1983. This Court by judgment and decree dated 15.7.1984 dismissed the said appeal. After disposal of RSA No.696/1983, the plaintiffs filed the present suit in OS No.56/1986 for partition and separate possession and claimed 5/8th share. In the said suit, it is the specific contention of the plaintiffs that they are entitled to a 15 share in the properties of Basavanneppa and they dispute the Will executed by Basavanneppa. The daughters of Basavanneppa namely, Tirakavva, Gouravva were arrayed as defendant Nos.1 and 2 and the children of the other daughter Dyamavva namely, Mallikarjun and Parameshwarappa were arrayed as defendant Nos.3 and 4. Defendant No.5 is Veerappa, the father of defendant Nos.1 to 3. The other defendants in the said suit are the subsequent purchasers of the suit properties. Defendant Nos.1 and 2 entered appearance and filed a written statement and defendant Nos.3 and 4 have also entered appearance and filed a separate written statement. The Trial Court, based on the pleadings of the parties framed the following issues:
"1. Whether the defendants prove that the plff's suit is bared by res-judicata in view of the decision in O.S. 56/69 on the file of the Munsiff, Haveri and R.A. 21/73 dated 22.4.83 on the file of Civil Judge, Haveri and RSA No.696/83 dated 15.7.84?
2. Whether defendants 1 to 4 prove that the deceased Basavanneppa has executed a Will on 15.12.1976 and is it his last and valid Will as alleged in para 5 of the Written Statement of defendants 1 to 4?
3. Whether the defendants prove that the decree in O.S.39/70 on the file of Munsiff, Haveri and the dismissal of RSA.193/75 and the execution of the said decree by 16 the defendant No.6 in Ex.Case 25/1981 is binding on the plffs as contended in para 6 and 16 of written statement?
4. Whether defendant No.6 further proves that he has validly relinquished his rights over the said property in favour of defendant No.7 as alleged in para 6 of the written statement?
5. Whether det.No.6 proves that he has become owner of suit 1(A) property (RS.No.242/1+2) by virtue of the alleged sale by the deceased Basavanneppa as stated in para 17 of the written statement?
6. Whether the decrees in O.S.59/70 and RSA 195/1975 are binding on the piffs. who were not parties to the said proceedings?
7. Whether the decree in O.S.39/70 and RSA.No.193/75 were obtained fradulently and collusively by deft.No.6 and deceased Basavanneppa and hence, not binding on the plaintiffs?
8. Whether the sale of suit 1(A) property of defendant No.6 is hit by the doctrine of champerty and maintainence etc and for other reasons as contended in para No.12(a) to 12(e) of plaint and therefore the sale is against public ััะต policy and void U/s.23 of the contract Act?
9. Whether plaintiffs prove that deft. No.5 has relinquished his share in the suit property by virtue of a registered relinquishment deed dt.22.7.1986 in favour of plaintiff No.1?
10. Whether court fee paid is proper?
11. Whether the plaintiffs are entitled to partition and separate possession of 5/8th share in the suit properties?
12. Whether the plaintiffs are entitled for permanent injunction as prayed for?
13. What decree or order?"17
16. Plaintiff No.1 was examined as PW.1. Exs.P1 to P5 were marked in evidence. Defendant No.2 was examined as DW.1; the Sub Registrar, Haveri was examined as DW.2; a witness to the Will has been examined as DW.3; and defendant No.3 was examined as DW.4. Exs.D1 to D29 were marked in evidence. The Trial Court by its judgment and decree dated 27.1.2007 answered issue No.1 in the affirmative that the suit is hit by the doctrine of res judicata. Since issue No.1 was answered in the affirmative, issue Nos.2 to 9 were held as not arising for consideration and hence, the suit was dismissed with costs. Being aggrieved, the plaintiffs preferred RA No.12/2007. The first appellate Court, by its judgment and decree dated 25.10.2018 allowed the appeal and passed the following order:
"The appeal filed by appellants U/s.96 r/w Order 41 rule 1 of CPC is hereby allowed against respondents. The judgment and decree passed on issue No.1 dtd. 27.01.2007 in OS No.56/1986 by learned Addl.Sr.Civil Judge, Haveri is hereby set aside.
The suit is remanded back to its original position. It is directed to lower Court to decide suit on merits, by giving finding on all issues framed in it as per mandate of Order 18 20 rule 5 of CPC. It is one of the oldest suit. It is directed to lower court to decide suit expeditiously. Under circumstances of case, parties shall bear their own costs.
Send lower court records along with copy of this judgment forthwith."
17. It is relevant to note that in OS No.56/1969 the claim of the plaintiffs was with regard to the share of Veerappa who is the father of the plaintiff Nos.1 to 3 and husband of plaintiff No.4. Veerappa was arrayed as defendant No.1 and his father Basavanneppa as defendant No.2. Defendant No.1 remained ex parte and the said suit was contested by defendant No.2 - Basavanneppa, wherein a specific contention was taken that since Veerappa had executed a registered Relinquishment Deed dated 03.06.1959 even prior to the birth of plaintiff Nos.1 to 3, the suit properties had ceased to be co-parcenery properties and the plaintiffs did not have any right to the suit properties. The said claim of the defendants was accepted and the suit of the plaintiffs was dismissed. Being aggrieved, the plaintiffs preferred RA No.21/1973.
19
18. It is further forthcoming that Basavanneppa executed a registered Will dated 15.12.1976 bequeathing the property in favour of his daughters. The said Basavanneppa died on 25.2.1978 during the pendency of RA No.21/1973. The daughters namely, Tirakavva and Gouravva (defendant Nos.1 and 2) and the children of the other daughter Dyamavva i.e., Mallikarjun and Parameshwarappa (defendant Nos.3 and 4) came on record as legal representatives of deceased Basavanneppa by virtue of the order passed on IA.No.6 dated 8.1.1979 in RA No.21/1973. Subsequently, the plaintiffs filed IA.No.12 for amendment of the plaint and IA.No.13 for production of additional evidence, which was allowed along with the main judgment dated 22.4.1983 passed in RA No.21/1973. Further, the first appellate Court answered the points for consideration and upheld the dismissal of the suit in OS No.56/1969, which was affirmed by this Court in RSA No.696/1983. Subsequently, the plaintiffs have filed the present suit in OS No.56/1986 claiming for a share in the properties of Basavanneppa. It is the specific contention of defendant Nos.1 to 4 that deceased Basavanneppa executed a Will 20 on 15.12.1976, by virtue of which the said defendants assert right, title and interest in the suit properties. Having regard to the pleadings of the parties, the Trial Court has framed issue No.2 and the burden has been cast on defendant Nos.1 to 4 to prove the due execution of the Will.
19. Having regard to the aforementioned, it is relevant to note that due execution of the Will dated 15.12.1976 was not the subject matter of consideration in the earlier round of litigation and no issue was framed with regard to due execution of the Will dated 15.12.1976 in RA No.21/1973.
20. It is relevant to note that the father of plaintiff Nos.1 to 3 i.e., Veerappa has been arrayed as defendant No.5 in the suit and respondent No.5 in RA No.12/2007. However, the counsel for the appellants filed IA.No.1 in RA No.12/2007 on 14.11.2007 under Order XXII Rule 2 read with Section 151 of the CPC to delete respondent No.5 (defendant No.5) in the cause title since respondent No.5 is deceased. In the affidavit filed in support of the application, it is stated that the whereabouts of respondent No.5 is not known since from last 15 to 16 years. Vide order 21 dated 28.11.2007 the first appellate Court has ordered that the whereabouts of respondent No.5-Veerappa (who was arrayed as defendant No.5 in the suit) are not known for more than 7 years and his legal heirs i.e., respondent Nos.8 and 9 and appellants are already on record. Hence, permission was granted to delete the name of respondent No.5 - Veerappa from the cause title of the appeal memo.
21. The learned counsel for the appellants would vehemently contend that having regard to Explanations 4 and 5 of Section 11 of the CPC, the suit of the plaintiffs is hit by res judicata.
22. It is relevant to notice Section 11 of the CPC and the relevant Explanations therein are 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.22
Explanation 1....
Explanation 2.....
Explanation 3. The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation 4. Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation 5. Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused.
Explanation 6 .......
Explanation 7 .......
Explanation 8........"
23. In this context, as noticed earlier, the subject matter of consideration in the earlier suit was with regard to the claim of the plaintiffs as being the legal heirs of Veerappa in the coparcenary property. The said claim was opposed by the father of Veerappa namely, Basavanneppa on the ground that Veerappa had executed a registered Relinquishment Deed dated 03.06.1959. That consequent to the death of Basavanneppa during the 23 pendency of RA No.21/1973 his daughters namely, Tirakavva, Gouravva and the children of another daughter Dyamavva came on record claiming under the Will dated 15.12.1976 executed by Basavanneppa. It is undisputed that there was no adjudication in RA No.21/1973 as to whether the Will dated 15.12.1976 was validly executed by Basavanneppa. Further, the scope of the earlier round of litigation was with regard to the entitlement of the plaintiffs in coparcenary property claiming as legal heirs of Veerappa. Hence, the scope of the earlier suit is completely different from the scope of the present suit.
24. It is relevant to note the judgments referred by the learned counsel for the respondents:
i) The Hon'ble Supreme Court in the case of Raman Nair Gopalan Nair v. Lekshmi Amma bharathi Amma3 while considering the aspect of res judicata has held as follows:
"7. If a party who acquires a fresh right during the pendency of the suit wants to claim a relief in the suit on the basis of that right he will have to seek an 3 1951 SCC OnLine Ker 126 24 amendment of the pleading and the Court is not bound to allow the amendment. Therefore it cannot be said that a party is bound in law to put forward a claim in a suit on the basis of a right acquired by him during the pendency of the suit. We are therefore of opinion that the claim based on the revenue sale was not one which the 70th defendant was bound to put forward in the suit. The plea of his assignee cannot therefore be said to be barred by 'res judicata'. With regard to the third point, namely whether the Court executing the decree is competent to go behind the decree, we are of opinion that so long as the claim is not barred by 'res judicata' the Court is competent to go into the question under Section 47 of the CPC. If a party to the decree can file a fresh suit on the basis of a right acquired by him during the pendency of the suit the Court executing the decree can treat a proceeding under S. 47 as a suit and grant appropriate relief to the party. The lower Court was therefore competent to consider the claim put forward by the assignee of the 70th defendant and grant him appropriate relief."
(emphasis supplied)
ii) A Division Bench of Madras High Court in the case of Kokila v. Rajabathar4 while considering the aspect of res judicata, considering the scope of Explanation 4 of Section 11 of the CPC has held as follows:
We respectfully agree with this statement of the rule. As we have already mentioned, the joining of the plea of illegitimacy would have certainly led to confusion or embarrassment in the prior suit and therefore we cannot say that the ground of illegitimate sonship was a 4 AIR 1957 Mad 470 25 matter which ought to have been made a ground of attack in the former suit. We therefore agree with Subba Rao J. that the suit is not barred by res judioata, and on the same reasoning by O. 2, R. 2, C.P.C. We may also add that the cause of action of the present suit which is based on the plaintiff being the illegitimate son is not the same as the cause of action on which the prior suit was based, namely, that the plaintiff was the legitimate son of Munuswami."
(emphasis supplied)
iii) In the case of Erach Boman Khavar v. Tukaram Shridhar Bhat5 the Hon'ble Supreme Court considering the aspect of res judicata has held as follows:
"39. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue involved must have been decided at earlier stage of the same litigation."
(emphasis supplied)
25. The Trial Court consequent to the pleadings of the parties, framed 13 issues. Issue No.1 was with regard to res judicata which is as follows:
5
(2013) 15 SCC 655 26
1. Whether the Defendants prove that the plaintiff's suit is barred by res judicata in view of the decision in O.S. No.56/69 on the file of the Munsiff, Haveri and R.A. No.21/73 dt. 22.04.1983 on the file of Civil Judge, Haveri and RSA No.696/83 dtd.
15.07.84?
26. While considering issue No.1, the trial Court had recorded the following findings:
(i) The Plaintiffs in the present suit are the plaintiffs in O.S. No.56/1969. The Defendant Nos.1 to 4 were the Defendants who are brought on record after the death of Basavanneppa who was the Defendant in the said suit and Defendant No.5 was also Defendant in the earlier suit.
(ii) O.S. No.56/1969 was suit for partition wherein the plaintiffs claimed 3/8th share. In the present suit for partition, the plaintiffs have claimed 5/8th shares in the suit properties.
(iii) In O.S. No.56/1969, the suit properties were R.S. No.242/1+2 measuring 15 acres situated at 27 Hombaradi Village, Haveri Taluk and house property with backyard bearing VPC No.41 of Hombaradi Village Haveri. In the present suit also it is the same suit property.
(iv) As could be seen from the plaint in O.S. No.56/1969 (Ex.D6), the Plaintiffs have contended the suit properties were the joint family properties of Veerappa and his father Basavanneppa. That the said Veerappa who is the father of Plaintiff Nos.1 to 3 and husband of plaintiff No.4 were addicted to bad habits and he is not looking after his minor children and wife and had not made any provision for their maintenance. That Relinquishment Deed executed by Veerappa on 03.06.1959 in favour of his father Basavanneppa was illegal, null and void and not binding on the plaintiffs. That it was the contention of the Defendants in the Written Statement filed in the said suit (Ex.D7) that Veerappa has relinquished his share in favour of his father vide Relinquishment Deed 28 dated 03.06.1959 and after the Plaintiff Nos.1 to 3 were born, they do not have any right over the suit properties.
(v) It is the contention of the Plaintiffs in the present suit that the suit properties are the joint family properties and the alleged Relinquishment Deed dated 03.06.1959 executed by Veerappa in favour of his father Basavanneppa is illegal, null and void and not binding on the Plaintiffs. It is also alleged that Will dated 15.12.1976 executed by Basavanneppa in favour of Defendant No.4 is null and void and not binding on the plaintiffs and the said Basavanneppa was not in a position to execute the Will.
(vi) It is forthcoming from the order passed in RSA No.193/1975 (Ex.D5) that the present Plaintiff had filed I.A. No.5 in the said second appeal to be added as respondents. That it was contended in the affidavit that Basavanneppa who was the grand father of the 29 applicants was the Manager of the joint family and that the relinquishment made by Veerappa is not binding. That the claim made by the daughters of Basavanneppa viz., Tirakavva and Gouravva and the sons of another deceased daughter Smt. Dyamavva under the Will of Basavanneppa is not liable to be granted as the Will is not genuine. The said contentions have been put forth in the present suit also. However, the High Court dismissed IA No.5.
(vii) The present Defendant Nos.1 to 4 were brought on record as the legal heirs of Basavanneppa in RSA No.193/1975.
(viii) It is seen from the Judgment and decree passed in O.S. No.56/1969 (Ex.D9) that the suit was dismissed holding that Veerappa had relinquished his share in favour of his father under the Relinquishment Deed dated 03.06.1959 which was valid and he has executed the same before the birth of his children and they had no right in the properties. The said finding 30 was affirmed in R.A. No.21/1973 (the judgment of which is marked as Ex.D11) and RSA No.193/1975 (the judgment of which is marked as Ex.D4) which has become final and conclusive.
(ix) The parties in O.S. No.56/1969 and RSA No.193/1975 and the present suit properties in all the suits are the same and the real question in controversy between the parties in O.S. NO.56/1969 and RSA No.193/1975 and the present suit are the same.
(x) The order passed by the High Court in RSA No.193/1975 holding that that the present Defendants was the only legal representatives of Basavanneppa is also final and conclusive and now the Plaintiffs cannot be permitted to challenge said orders under the guise of filing the present suit.
27. The first appellate Court while considering the Appeal filed by the Plaintiffs framed the following points for consideration: 31
i) "Whether judgment passed by Court below on issue No.1 itself is proper and correct without considering other issues based on evidence?
ii) Whether impugned judgment challenged under this appeal is perverse, capricious and liable for interference by this Court?
iii) What Order?"
28. While considering point Nos.1 and 2, the following findings were recorded:
i) Point of res judicata is a mixed question of law and fact cannot be decided as a preliminary issue alone, when other material and important triable issues are available in O.S. No.56/1986.
ii) In O.S. No.56/1969, it has been clearly upheld that the father of the Plaintiff Veerappa has relinquished his right in favour of his father Basavanneppa. The said judgment has attained finality and there is no concept of joint family. The Plaintiffs have no remedy against Defendants for partition or any maintenance. The remedy of the Plaintiffs after the demise of Basavanneppa is to be 32 succeeded as his legal heirs which question is raised and pleaded in O.S. No.56/1986. Hence, this Court is of the opinion that the issues involved in O.S. No.56/1969 and O.S. No.56/1986 are totally different.
iii) Parties in the earlier suit and parties in the later suit are not same. Right on property was co-
ownership in the previous suit, subsequently in the later suit right on property are different. Hence, res judicata is not applicable. Judgment given only dealing with the plea of res judicata is not tenable and the same is to be decided along with the main and issue regarding res judicata should not be tried as a preliminary issue. Therefore, reasoning and finding of the Trial Court only on issue No.1 is bad in law.
29. In view of the discussion made above, it is clear that there has been no adjudication with regard to the Will dated 15.12.1976 (Ex.D2 in OS No.56/1986) executed by 33 Basavanneppa. Further, in the earlier round of litigation, the question that arose for consideration was the entitlement of the plaintiffs in the property of Veerappa. The entitlement of the plaintiffs, if any, in the property of Basavanneppa inherited by him has not been adjudicated upon.
30. It is the vehement contention of the learned counsel for the appellants that Veerappa had vide letter (Ex.D22) had not disputed and accepted the Will of Basavanneppa and the only other person who could contest the Will having not chosen to contest the same, the suit of the plaintiffs is liable to be dismissed. However, as noticed above, the entitlement of the plaintiffs, if any, in the property of Basavanneppa which was inherited by him is required to be adjudicated upon. Hence, the said letter (Ex.D22) by Veerappa will not aid the case of the appellants.
31. Having regard to the discussion made above and the evidence having been adduced by the plaintiffs on all the issues, the Trial Court erred only in answering issue No.1 in the affirmative and holding that the suit is barred by res judicata. The 34 first appellate court was justified in setting aside the judgment and decree of the Trial Court and remanding the matter to the Trial Court to decided issue Nos.2 to 13. Hence, the question framed for consideration is answered in the affirmative.
32. In view of the aforementioned, the following:
ORDER
i) The above appeal is dismissed;
ii) The judgment and decree dated 25.10.2018 passed in R.A. No.12/2007 by the I Addl. District and Sessions Judge, Haveri, is affirmed.
No costs.
Sd/-
JUDGE Bs/nd