Karnataka High Court
Hanumegowda vs Sudarshanachar on 16 September, 1988
Equivalent citations: ILR1988KAR3238
JUDGMENT Shyamasundar, J.
1. The pursuer herein is the defendant in O.S.42 of 1970 on the file of the Civil Judge, Mandya which was initially instituted in the Court of Munsiff, Mandya in O.S. 163/66 but the vicissitudes of that suit finally led to the archives of the Civil Judge, Mandya to be reborn as O.S.42/70 at which stage some more defendants had been brought on record who, however, did not evince any interest in the aforesaid proceeding which has been mainly fought out between the pursuer in this appeal viz., the first defendant in the suit and the plaintiff who is currently the sole contesting respondent herein.
2. I shall refer to the parties as plaintiff and defendant during the course of this Judgment.
3. The plaintiff who holds a Bachelor's Degree in Arts, appears interested in speculative land deals. On obtaining grant of substantial chunks of land in Sy.No. 1 108/16 of Doddarasnakere village from Government the plaintiff sold the same in bits to the defendant No. 1 and other defendants herein. We are here concerned with the transaction of the plaintiff with defendant No. 1, an illiterate villager by name Hanumegowda. According to facts as have since transpired Sudarshanachar contracted to sell to Hanumegowda 3 acres and 6 guntas of land in Sy.No. 1108/16 for a consideration of Rs. 9,000/- the deal having been put through on the 6th December, 1 963 and recorded in a written agreement. Thereunder the plaintiff took Rs. 2,000/- as advance. It is common ground Sudarshanachar also put Hanumegowda into possession under the aforesaid agreement.
4. The case of the defendant is that even before that agreement was consumated by a full-dressed sale deed Sudarshanachar sold and conveyed another bit of land measuring 3 acres 6 guntas in Sy.No. 1108/16 and that was under the sale deed dated 3-10-64 pursuant to which Sudarshanachar inducted him into actual possession. According to the defendant in this manner he was in possession of two bits of land measuring in the aggregate 6 acres and 12 guntas, all located in Sy.No. 1108/16 of village Doddarasnakere. But, then, Sudarshanachar for some reason having shown some reluctance to complete the deal under the agreement of 6-12-1963 by executing a sale deed, as he should have done, defendant-Hanumegowda was obliged to file a suit in the Court of Munsiff, Mandya which later came to be transferred to the Court of Civil Judge, Mandya and numbered as O.S. 103/66. Therein Hanumegowda had sought for a decree commanding Sudarshanachar to execute a sale deed in his favour in terms of the agreement Ex.P. 1, dated 6-12-1963.
5. The plaintiff-Sudarshanachar was the sole defendant in that suit. He contested the suit alleging that the agreement which was the focal point of controversy in that suit had been duly consumated by the sale deed dated 3-10-1964 under which he had actually conveyed due title to the property therein to Hanumegowda and, therefore, there was nothing left for him to perform in terms of the agreement Ex.P. 1 as alleged by Hanumegowda, in the suit. The specific stand of the plaintiff herein in the said suit was that land agreed to be sold under the sale agreement Ex.P.1 dated 6-12-1963 was the one which was ultimately sold to Hanumegowda under the sale deed dated 3-10-1964 as per Ex.D.4. In other words the stand was the transaction under the agreement dated 6-12-63 had stood consumated by the execution of the sale deed in favour of Hanumegowda by Sudarshanachar on 3-10-1964 under the deed Ex.D.4. In that suit, amongst other issues, one particular issue bearing on the aforesaid controversy had been framed, tried and disposed off by recording a finding against Sudarshanachar.
6. The issues originally framed on 15-3-1963 in that suit read :
1. Whether plaintiff was not prepared to pay the balance and get the sale deed executed as pleaded?
2. Whether plaintiff has no cause of action as pleaded?
3. To what relief, if any, parties are entitled?
The additional issue referred to supra was framed as follows :
1) Whether the land referred to in the agreement Ex.P.1 and the sale Deed Ex.D.4 is one and the same?
On that issue, the learned Civil Judge recorded a finding at the trial after an apprisal of the relevant evidence, in the following terms :
"From the evidence and other surrounding circumstances available before Court I have no hesitation to say that the lands covered under Exs.P. 1 and D.4 are not one and the same and that is my finding on the additional issue."
Pursuant to the above finding, learned Judge had little difficulty in granting a decree for specific performance and ordering Sudarshanachar the defendant in the suit to execute a sale deed in favour of Hanumegowda within one month from the date of Judgment and to receive inturn the balance of Rs. 7,000/- due under the transaction. The decree passed by the Court in that behalf reads :
"The defendant is directed to execute the sale deed within one month from today on receiving Rs. 7.000/-from the plaintiff, failing which the Court shall execute the document on the deposit of the amount of Rs. 7,000/-. The plaintiff will not be entitled to possession or mesne profits, as defendant himself admits that the plaintiff is put in possession pursuant to the agreement and he is in possession of it. The defendant is liable to pay the costs of the suit."
7. Sudarshanachar, the plaintiff herein did not adopt any further proceedings from the Judgment and decree of the Civil Judge supra and when he did not perform the task enjoined on him by the said decree, the defendant Hanumegowda having sued out execution of the Civil Judge's decree notice of the same was served on Sudarshanachar. He once agains appeared before Court and apart from raising other objections about the tenability of the execution petition sought to- again contend therein that he was not bound to perform the obligation enjoined on him under the decree because it had been consumated by the execution of the sale deed already on record. The learned Civil Judge overruled that contention and disposed it off as under:
"As regards the other contention that the JDr has already executed the sale deed and therefore there is no need for him to execute another sale deed pursuant to the decree is concerned, the same is untenable. The very case was put forward by the JDr. In the original suit and after recording the evidence the Court has come to the conclusion that the sale deed executed by him is not pursuant to the agreement and that it relates to another bit of land. It is not open to him to over again put forward the same plea and advance an argument that the agreement has been complied with. The JDr is bound by the Judgment and decree and it is not open to him to say that he is not liable to comply as argued by learned Advocate for JDr."
The objections to the execution petition having thus been rejected, the Court proceeded further and executed the sale deed in favour of Hanumegowda. It is now admitted the balance of sale consideration due under the agreement referred to supra Rs. 7,000/- was deposited to the credit of the suit in O.S. 103/66 in Ex. Petition 45/76 and the same had been withdrawn subsequently by Sudarshanachar, none other than the Jdr therein. Even to this day neither the decree in O.S. 103/66 nor the proceedings that followed subsequently in Ex.45/66 had been challenged by Sudarshanachar in any superior Court although undoubtedly he had that right and under the law legal forums Were open to him for agitating the decree or the final verdit of the executing Court in Ex.45/76. Sudarshanachar, however, did not choose to take any such step but remained acquiescent without offering any further challenge to the decree in O.S. 103/66 which had stood satisfied as a result of sale deed having been subsequently executed by the Court in regard to a bit of land measuring 3 acres and 6 guntas in Sy.No. 1108/16 and must hence be treated to have received total acceptance at the hands of Sudarshanachar by his conduct in withdrawing the money deposited by Hanumegowda signifying the performance of his part of the obligation under the decree. When matters thus stood concluded resulting in Hanumegowda becoming the owner of two separate bits of land, each measuring 3 acres 6 guntas in Sy.No. 1108/16, Sudarshanachar who could not but held to be fully cognizant of all these events, filed a suit in O.S.42/70 out of which this appeal arises and sought therein, to start with, the relief of permanent injunction restraining the defendant Hanumegowda from interfering with the alleged possession and enjoyment of 3 acres 6 guntas of land in Sy.No. 1108/60. Hanumegowda duly arrived on the scene following the summons of the Court and filed a written statement in which he adverted to the proceedings in O.S. 103/66 and the fact that he was in possession of 6 acres 12 guntas of land in Sy.No. 1108/ 16 as a result of which the plaintiff could not claim to be in possession of anything more than 25 guntas of lands thereon having regard to the fact that apart from the sale of 6 acres of land to the defendant, the plaintiff Sudarshanachar had sold 2 acres to one Sappe Boregowda and another 15 guntas to some other persons which thereafter left in his holding ultimately an extent of 25 guntas only having regard to the fact that admittedly the total extent of land available in Sy.No. 1108/16 is 8 acres 37 guntas excluding the phut karab which was not taken into reckoning. Admittedly the total extent of land did not exceed 8-37 guntas and if 5 guntas of phut karab was included the total extent would aggregate to 9 acres 12 guntas. Hanumegowda also pleaded interalia the decree in O.S.103/66 in which the question as to whether Sudarshanachar had conveyed only one bit of land in Sy.No. 1108/16 or two bits as contended by Hanumegowda had been tried and held against Sudarshanachar that the said finding operated as a bar or constituted res judicata and, therefore, the suit was not maintainable.
8. In the light of the pleadings, the Civil Judge framed the following issues :
1. Whether the plaintiff proves that he had agreed to sell an extent of 3 acres and 6 guntas on the northern side in the suit survey number to the 1st defendant and by virtue of the proceedings in O.S. 103/66 on the file of this Court the said northern 3 acres and 6 guntas was put in possession of the 1st defendant?
2. Whether the plaintiff proves that after the other alienation referred to in para-2 of the plaint, the plaintiff has retained 3 acres and 6 guntas towards the south in the suit survey number?
3. Whether the plaintiff proves that out of the 3 acres 6 guntas towards the south which he has retained the 1st defendant has encroached upon 2-36 guntas which is the suit property?
4. Whether the defendant proves that the 1st defendant purchased an extent of 6-12 guntas of the suit survey number towards the north from the plaintiff and there was a decree in respect of that property in O.S. 103/66 on the file of this Court?
5. Whether the defendants prove that the suit is barred by principles of res judicata by virtue of the decision in O.S. 103/66 on the file of this Court?
6. Whether the valuation of the suit and the Court fee paid thereon is not proper for the reasons stated in para-4 of the written statement of the 1st defendant?
7. Whether the plaintiff is entitled to a declaration of his title to the suit property and recovery of possession of the same from the defendants?
8. Whether the plaintiff is entitled to future mesne profits?
9. What order?
But, the learned Civil Judge disposed off the suit in the first instance pronouncing on the sixth issue based on the res judicata and having found that the Judgment and decree in the earlier suit was a bar to the trying of this suit in O.S.42/70 upheld the bar of res judicata pleaded by Hanumegowda and dismissed the suit. There was an appeal from that decree in R.A.7/73. In that appeal Sudarshanachar filed an application for amending the plaint schedule. Under the amendment he wanted to make out Hanumegowda was in possession of 2 acres and 31 guntas only and not 3 acres and 6 guntas. That application found favour with the learned District Judge, who felt that in the light of the amendment ordered by him, the matter merited a remand more so on the view he took in regard to the issue relating to res judicata The Court opined that the matter required a reapprisal in the light of the evidence to be adduced in the suit touching the identity of the property involved in O.S. 103/66 juxtaposed with the property involved in this suit viz: 42/70.
9. From this order of the learned District Judge, Hanumegowda, preferred a Misc. Second Appeal to this Court in M.S.A. 100/77 disposed off by Hon'ble Mr. Justice Malimath (as he then was) on 21st March, 1978 holding the appeal to be not tenable and that the order of remit made by the District Judge was justified in the facts and circumstances of the case. In the course of his Judgment Lordship made the following observation :
"As there is dispute in regard to the identity of the property sold under Ex.D.1 and the suit property, the learned District Judge felt that this was a case wherein the parties should be permitted to lead evidence before deciding the question of the res-judicata. This view taken by the learned District Judge is well founded. The eastern and western boundaries of the property sold under Ex.D.4 and the suit property, the same cannot be said to be identical. But, if the defendant contends notwithstanding the difference in the boundaries that the two properties are identical, the same has to be established before he can persuade the Court to hold that the decision in O.S. 103/66 operates as res judicata. It is precisely to give this opportunity to the defendant that the case had to be remanded. Therefore, I do not find any ground to interfere with the order of remand."
After the disposal of the Misc. Appeal referred to supra, the matter went back to the learned Civil Judge. The suit plaint then under went a sea-change in that the plaintiff sought and obtained leave to seek a declaration of his title to the 2 acres 31 guntas of land referred to in the suit against Hanumegowda as also for possession from him, thereby clearly admitting that he was not in possession of the suit property, the same being with Hanumegowda. The learned Civil Judge once again went into the matter and it is not clear from the records whether any fresh evidence was adduced after the case went back to the Civil Judge on remand but the learned Civil Judge on this occasion recorded a finding on all the issues arising in the suit including that of res judicata. In sum he found that it was not open to the plaintiff to challenge findings recorded in O.S. 103/66 holding that plaintiff had sold and conveyed to the defendant two separate bits of land, each measuring 3 acres 6 guntas, in Sy.No. 1108/16 and further held that in the light of the finding in the earlier suit which bound the parties, the plaintiff had no title to the suit property at all regard being had to his case of having sold 2 acres 15 guntas of Sy.No. 1108/16 to some others which ultimately would have left with him not more than 10 guntas of land and consequently found he was neither entitled for a declaration of his title to the suit property nor for possession thereof. While disposing of issue Nos.1 and 2 which bore on the material question as to the aggregate of land sold by plaintiff to the defendant, the learned Civil Judge held :
"The Judgment and decree passed in O.S. 103/66 is binding on the plaintiff. The plaintiff cannot now contend that he sold only 3-06 guntas of land and the 1st defendant is not entitled to more than that area. The plaintiff in his plaint has clearly stated that what was put in possession of the defendant in O.S. 103/66 on the file of this Court comprised of northern 3-06 guntas without mentioning the sale deed dated 3-1.0-1964. I have already pointed out that under the sale deed dated 3-10-1964, the 1st defendant was put in possession of 3-06 guntas of land. By virtue of the Judgment and decree in O.S. 103/66 the 1st defendant was put in possession of another 3-06 guntas of land and in alt the 1st defendant became the owner of 6-12 guntas of land in S.No. 1108/16. For all the reasons stated above, I hold issue No. 1 accordingly."
On issue No. 2 the learned Civil Judge held :
"While discussing issue No. 1, I have already held that the plaintiff sold 6-12 guntas of land as contended by the defendant. It is an admitted fact that the plaintiff has also sold 2 acres of land to one Sappeboregowda of Devarahalli Village and about 15 guntas of land to one Gejje Beeranna Lingaiah of the same village. It is also an admitted fact that the suit S.N.1108/16 measures 8-37 guntas. When the plaintiff had sold 6 acres. 12 guntas of land to the 1st defendant, 2 acres to one Sappe Boregowda and 15 guntas to one Gejje Beeranna Lingaiah, the total extent sold by the plaintiff will be 8.27 guntas and the remaining land will be only 10 guntas. The plaintiff has not placed any material on record to show he is in possession or 3-16 guntas of land, when he has sold 8.27 guntas of land. I have already pointed out that the plaintiff in his cross-examination has clearly admitted that he has received sale consideration of Rs. 7,000/- under the sale deed dated 3-10-1964 and that he has also received the advance of Rs. 2,000/- and the remaining amount of Rs. 7,000/- deposited in Court under the agreement dated 6-12-1963. I have also pointed out that the plaintiff has sold two items of property to the 1st defendant measuring 3-06 guntas each. When that is the case, the contention of the plaintiff that he has retained 3-16 guntas on the southern side of the suit survey number cannot be accepted. Therefore. I answer issue No. 2 in the negative."
I have already pointed out that in regard to the plea of res judicata, the Civil, Judge upheld the same and held the plaintiff to be precluded from reagitating the same issue over again viz. Whether the plaintiff had sold only one bit of land in Sy.No. 1108/16 or two bits. Anent to the same the Civil Judge had also found, as noticed from the excerpts of the Judgment referred to earlier, taking into consideration the totality of the transactions entered into by the plaintiff with the defendant and others, that on the date of suit he could not have been left with more than 10 guntas of land in Sy.No. 1108/16 and consequently his claim seeking declaration of his title to land measuring 3 acres 6 guntas or 2 acres 31 guntas, as the case may be, was clearly untenable, was not justified leading thus to a rejection of his claim in toto. But Sudarshanachar appealed to the District Judge in R.A.24/83 and succeeded in getting the decree of the Civil Judge reversed in total.
10. The learned District Judge, on a purported reapprisal of the evidence, came to the conclusion that the property sold to the defendant Hanumegowda under Ex.D-4 was different from the suit schedule property and relying on the observations of Malimath, J while disposing off the M.S.A.100/77 pointing out the difference between the boundaries of two properties meriting a close consideration, the District Judge came to the conclusion that the property sold under Ex.P. 1 and the suit property were not the same and that the decree in O.S. 103/66 therefore did not operate as res judicata. Following is his view in that behalf :
"In the face of the documentary evidence placed before this Court it is not possible to hold that the subject matter of the present suit and the land sold under the sale deed dated 3-10-1964 are one and the same. Therefore, I reject the contention urged on behalf of the defendant before my predecessor in first appeal in 1977 and also before the Hon'ble High Court in Second appeal that the property sold under the sale deed dated 3-10-1964 and the present suit property are one and the same. Therefore, there is no question of the Judgment and decree passed in the earlier suit O.S. 103/66 operating as res judicata."
11. Dealing with the argument based on the discrepancies in the description of the boundaries in the agreement Ex.P. 1 and the sale deed Ex.D.4 and notwithstanding the same, the view the District Judge took was that all discrepancies would enure to the benefit of Sudarshanachar and should lead to falsifying the evidence of defendant Hanumegowda that he was put in possession of two separate bits of land once under Ex.D.4 and once under Ex.P. 1. When it was next pointed out to him that the difference in value under the two deeds being different in that the land under Ex.P. 1 was agreed to be sold for Rs. 9,000/- whereas the land under Ex.D.4 was sold for Rs. 7,000/- and in that situation there cannot be two sums of varying considerations for the same bit of land, the learned District Judge disposed off that argument as follows :
"In other words the plaintiff agreed to sell 3-06 acres of land to the defendant for Rs. 9,000/-. It was pointed Out if it were really so how can the plaintiff agree to sell very same extent of land i.e., 3-06 acres for Rs. 7,000/- and that too subsequently. Relying on this circumstances it was pointed out that the lands covered by the agreement to sell and the sale deed are one and the same, This question cannot be gone into because the Judgment in O.S. 103/66 has become final."
Proceeding further he drew up a balance sheet endeavouring to establish as to how the plaintiff was still in possession of 2 acres 3 guntas of land and ordered delivery of possession to the plaintiff of that property with mesne profits etc.
12. This Court, while admitting the appeal, the following substantial questions of law have been formulated as arising for consideration :
1. Whether the Judgment and decree in O.S. 103 of 1966 regarding the question of the property in Ex.D. 1 dated 3-10-64 (Ex.P.4) being or not being the same as in Ex.P. 16 (Ex.D.7) executed by the Court in O.S. 103/66, operates as res judicata, in this suit?
2. If it so operates, whether the plaintiff establishes his title to the alleged encroached portion which is the subject matter of this suit particularly when the plaintiff has not prayed for a decree of declaration of his title?
13. Mr. Padubidri Raghavendra Rao who appeared in support of the appeal basing himself mainly on the decree in the earlier suit in O.S. 103/66 sought to urge that the said decree operating clearly as res judicata conclusively demolished the plaintiff's case. He strongly criticised the Judgment of the District Judge in recording a finding contrary to the Judgment and decree in O.S. 103/66 which has since become final and conclusively binding on the parties when neither side had sought to challenge it in any appeal. He pointed out that the learned District Judge had really missed the core of the controversy which was regarding availability of any land in Sy.No. 1108/16 in excess of 10 guntas as held by the Civil Judge in the earlier suit or even 25 guntas as admitted by defendant in the light of the totality of the transactions admittedly effected by the plaintiff in regard to the sum total of his holding in the said survey number. It is urged by him that it was the suit claim that was false and not the defence put forward by Hanumegowda as held by the District Judge.
14. Per contra Sri. Ramachandra Rao appearing for the plaintiff in this Court put forward a very strenuous and tenacious argument in support of the Judgment and decree of the Court-below which he commended for acceptance. He also contended that on the points formulated by this Court the ultimate question being one of identity of property and that being essentially a question of fact this Court cannot interfere with the Judgment of the Court-below and in support of this proposition cited three or four decisions to which it may not be necessary to call attention to since it is well established that a Court of second appeal does not reopen findings of fact and must necessarily accept those findings as recorded by the final fact finding authority viz., lower Appellate Court as binding on it. It seems to me, on the facts adumbrated in the plaint and as transpiring from the evidence at the trial of the suit, there could not have been any cause of action to the plaintiff. This is made clear by the changes the suit under went. In the beginning it was a suit for bare injunction restraining the defendant from interfering with 3 acres 6 guntas of suit property. Then the extent was scaled down on the basis of defendant's stand that he had only 25 guntas of land in the suit property and underwent a further change when plaintiff sought for a declaration of title to the suit property after scaling down its extent to 2 acres 31 guntas and further asking for possession thereof from the defendant, a marked change from the earlier prayer for injunction on the basis of pre-existing possession. It may be seen the plaintiff admits having sold and conveyed to the defendant 3 acres and 6 guntas of land and having disposed off another extent of 2 acres and 15 guntas of land in favour of Sappe Boregowda and another person, therefore, on his own showing he had disposed of 5 acres and 21 guntas in Sy.No. 1108/16 and hence in the usual course he must be left with 2-16 guntas of land in Sy.No. 1108/16, the total holding therein being 8 acres 37 guntas. Nowhere in the plaint did he advert to the fact that he had sold 3 acres 6 guntas to the defendant under the sale deed Ex.D.4 and had actually put him in possession. He simply made a play of adverting to the proceeding in O.S. 103/66 that the decree therein covered only 3 acres 6 guntas of land and proceeded to assert as if some more land that was not sold to the defendant was in his possession being the suit schedule property. He appeared to rely principally on the difference in the boundaries of the suit property as juxtaposed with the boundaries of the suit property in O.S. 103/66 highlighting the northern boundary being different.
15. The learned Civil Judge had seen through this game of side-tracking the decision in O.S. 103/66 wherein a clear finding had been recorded that the plaintiff having sold two separate bits of land in Sy.No. 1108/16, each measuring 3 acres 6 guntas and the plaintiff was now trying to exploit the situation to the disadvantage of the defendant Hanumegowda by putting forward an untenable contention that the property agreed to be sold under the agreement and the property ultimately sold under the sale deed Ex.D.4 was one and the same. The Court in O.S. 103/66 had come to the conclusion that there were two bits of properties and on both occasions the defendant was inducted into possession of two separate bits of properties by the plaintiff under the two transactions. It is only on that conclusion and the Civil Judge having found the agreement being yet to be consumated had ordered execution of the sale deed by awarding a decree for specific performance of the agreement at Ex.P. 1. I have drawn attention to the proceedings in Ex.45/66 earlier wherein once again before the executing Court the plaintiff's point of having sold only one item and not two items in Sy.No. 1108/16 featured and was rejected straight away. I have also adverted to the fact that pursuant to the direction of the executing Court in Ex.45/66 upon failure of Sudarshanachar to execute the sale deed, the Court itself had executed the sale deed to an extent of 3 acres 6 guntas of land in the said survey number and subsequent thereto the plaintiff had also drawn the balance of consideration due to him under the agreement being a sum of Rs. 7,000/- which had been deposited by Hanumegowda, the decree holder in the suit. All this should signify without any doubt whatsoever that Sudarshanachar had in fact sold and conveyed two different bits of land each measuring 3 acres 6 guntas on two different occasions, one under Ex.P.1 and another under Ex.D.4 leading to the inevitable conclusion that out of the total holding of 8.37 guntas in Sy.No. 1108/16 Sudarshanachar had conveyed title to the defendant Hanumegowda over an extent of 6 acres 12 guntas and this fact if taken into consideration with other admitted sales made by Sudarshanachar in favour of others totalling to 2 acres and 15 guntas would in the aggregate account for 8 acres 27 guntas of land in Sy.No. 1108/16 which could then leave only 10 guntas of land in Sy.No. 1108/16 with him as rightly held by the Civil Judge while disposing off O.S.42/70 to which I have adverted to. In any view of the matter the plaintiff admitted having sold to the defendant 3 acres 6 guntas and also admitted the sale of some other lands to Boregowda and another, all of which accounted for the bulk of the suit property in Sy.No. 1108/16. The balance thereof, whether it was 3 acres 6 guntas or 2 acres 31 guntas, as now claimed, must be treated as having been conveyed to the defendant under the decree of the Civil Judge in O.S. 103/66. In any view of the matter plaintiff could not have been in possession of the extent of the land adumbrated in the suit schedule.
16. The question of identity of properties over which Sudarshanachar makes a lot of play, is clearly besides the point and merely side-tracks the real issue. In fairness he ought to have made a reference in his plaint to the sale transaction under Ex.D.4 of the year 1964. He scrupulously avoided making a reference to the sale deed under Ex.D.4. A reference to both the transactions alongside would have proved without more that the cause of action in the instant suit was clearly a myth and should have resulted in a summary rejection of the plaint under Order 7 of C.P.C. The contrived omission of the plaintiff to make a reference to the state of affairs as prevailing on the date of suit to his knowledge had resulted distinctly in miscarriage of justice and in fact had even beguiled this Court while disposing off M.S.A. into thinking that there was some question of identity of property involved in the suit and that question had to be decided in the light of further evidence to be let in. This Court, therefore; felt it necessary to uphold the order of remand made in R.A.91/73.
17. Even in this Court it does not appear to have been pointed out that the effective decision in O.S. 103/66 was the finding of the Court that plaintiff had in fact conveyed to the defendant two bits of separate properties of 3 acres 6 guntas apiece under separate properties of 3 guntas apiece under separate transactions one under the agreement to sell Ex.P. 1 and another under the sale deed Ex.D.4 and that the two transactions did not relate to one and the same property as contended by Sudarshanachar. This point having not been effectively focussed before this Court or before the learned District Judge in R.A. 19/73, wherein a smoke screen was sought to be drawn on the real issue by presenting an application for amending the plaint seeking to reduce the extent of suit property from 3 acres 6 guntas to 2 acres 31 guntas which introduced a further element of doubt creating a disconcerting situation which inturn resulted in unnecessary doubts being raised about the identity of the properties involved in O.S. 103/66 and the instant case, the case of the defendant had, therefore, to suffer.
18. If it had been borne in mind that what was upheld in O.S. 103/66 was the case of the defendant that Sudarshanachar had sold two different portions of property in Sy.No. 1108/16, both measuring 3 acres 6 guntas and he had thus become the owner of 6 acres 12 guntas of land in Sy.No. 1108/16, notwithstanding the gimmicks of the plaintiff in switching stands first by reducing the area and thereafter seeking for declaration and possession all founded on the basis of mistaken identity, the plaintiff's suit would have received a quietus long back. It, therefore, becomes clear that primarily due to lack of candour and strict rectitude expected of a litigant who comes before Court to vindicate bonafide, his right to properties all this bungling over a matter concluded by an unchallenged decree of a competent Court had been upstaged to become embroiled in a litigation which has now lasted for nearly 22 years.
19. It is a matter of regret that the learned District Judge should have got mixed up with the issues in this case which ultimately led to the contravening of basic tenets of law leading to contradicting matter concluded between parties by a Judgment of a competent Court, resulting ultimately in contradictory findings being recorded. Several parts of his Judgment bring into sharp focus the widely discordant views he had taken particularly with reference to the finding recorded on the earlier occasion by the Civil Judge in O.S.103/66 holding that the transaction under Ex.P. 1 was different from the transaction Ex.D.4 and on both occasions plaintiff had sold and conveyed different bits of lands in the same survey number. The Judgment and decree now made by the District Judge is not merely contrary to the aforesaid finding which had never been challenged before any Court but also conveys title to the plaintiff over the suit property over which on his own showing he could not have any title at all. The learned District Judge had drawn up a balance-sheet of the land available to the plaintiff in Sy.No. 1108/16 which I have reproduced herein before. The erroneous supposition that he still had 2 acres and 31 guntas of land in Sy.No. 1108/16 clearly proceeds on the basis and arises out of a gross error committed by the District Judge in not merely overlooking but differing from the findings recorded by Civil Judge in O.S. 103/66 viz., that the transactions were different and were in respect of two different bits of land in Sy.No. 1108/16.
20. The parties were bound by the previous Judgment and could not take a stand opposed to the earlier Judgment. The learned District Judge ought to have borne in mind that he could not arrive at a different conclusion on the same facts by reason of the bar of res-judicata. Regrettably this aspect has been over-looked.
21. I need hardly state that there cannot be a collateral attack on a finding concluded by an earlier Judgment between the same parties unless it be the earlier Judgment was null and void. But then it being nobody's case the Judgment in O.S. 103/66 was null and void and in fact subsequently the decree having been executed and the plaintiff having received apparent satisfaction under the decree, could not have looked askance at all at the decree in O.S. 103/66 and nor could he have made any endeavour to escape the consequences thereof.
22. It would be useful in this connection to briefly notice the state of the law in regard to the plea of res judicata based on the bar arising out of earlier proceedings between parties by which they must be held bound be it by a decision or finding validly made and recorded by a Court of competent authority touching rights of parties. In the case of GAHAN v. MANGAY, (1793) Ridg. L. & S. 20 the distinction and relation to the method of collateral attack was clearly brought out by Lord Carleton as follows :
"It must be admitted thai if the Judgment were null and void it would not impede the plaintiff's recovering; but mere matters of alleged error (which, if realy, would only render the Judgment voidable by the proper judicature on appeal, and not actually void) cannot at the instance of a person bound by the Judgment, be a proper subject of discussion in this Court, not possessed of any direct appellate jurisdiction over the decision of sub-commissioners, and proceeding only in a collateral action, in which such Appellate Authority cannot be obliquely assumed."
In the book Jurisdiction and Illegality by Amnol Rubinstein, the learned author dwelling on the availability of collateral attack and its limitations has said :
"The doctrine of collateral attack is well known with regard to decisions made in litigated proceedings where estoppel by record applies. There the distinction between collateral and direct proceedings must be recognized, as estoppel by record can not apply to proceedings directly impeaching the disputed decision; otherwise, ail methods of appeal would be futile. On the other hand, estoppel does apply in collateral proceedings but is negatived where the decision is void."
The principle, therefore, is that record of a previous Judgment estops parties from litigating an issue concluded by an earlier Judgment in which there is already a finding and the same is immune from collateral attack unless of course it so transpires that the earlier decision could be treated as void for some reason. Therefore in this case it was not open to any one to suggest that the finding of the Civil Judge recorded in O.S. 103/66 to the effect that Sudarshanachar had sold and conveyed two different bits of land in Sy.No. 1108/16 on two different occasions is void, because it was acted upon by both the parties and matter stood concluded. What is more the plaintiff had fully acquiesced in the decree and hence it would be least open to such a person to deny the correctness of the earlier finding or to invite the Court in this suit to make a different view on facts.
23. In the treatise by Black on Judgments, Vol.2, II Edition, 1902 at page 513, learned author refers to the circumstances when the findings recorded by the Court in an earlier proceedings can be called in question. Learned author points out that any liberty to be taken in that behalf was only where the earlier proceeding had resulted in a void Judgment but if the Judgment is voidable findings therein cannot be departed from in a subsequent proceeding and that a mere wrong decision by a Court of competent authority cannot be ignored or overlooked by a subsequent forum before whom the same question arises. Suffice it to refer in this behalf to the following statement in para 513 at page 513 :
"But here the distinction is to be carefully noted between Judgments that are absolutely void and those which are merely voidable for errors in fact or irregularities. The former kind are of no effect whatever, either by way of estoppel or for any other purpose. Hence if the Court from which the Judgment proceeds had no jurisdicdiction over the parties to the suit; or if the subject matter of the controversy was beyond its lawful cognizance; or if, these two elements of jurisdiction being present, it still assumed to go beyond the sphere of the actual litigation, as developed by the pleadings and evidence, and render a Judgment or decree upon a matter not in dispute or not submitted to it; in either such case the sentence cannot have the force of res judicata. But where the Court has jurisdiction of the subject matter and the parties, and where jurisdiction attaches in the particular case and authorizes the particular adjudication made, its Judgment, although it may be voidable for irregularities, or liable to be reversed or set aside for errors in law or fact, is binding and conclusive upon the parties until its effect is destroyed in some regular proceeding for that purpose. It is also to be remarked that a Judgment rendered upon constructive service of process, when the statute has been fully complied with, is as conclusive as if there had been personal service on the defendant. And a doubt expressed by the Court as to its right "to entertain jurisdiction of the particular suit will not lessen the effect of its Judgment, as res judicata, if in fact it does exercise jurisdiction and determine the controversy."
Learned author further observes in para 514 as:
Erroneous Judgments "It is not essential to the operation of a Judgment or decree as. an estoppel that it should be legally right; it is enough if a Court having jurisdiction has decided the point in issue. Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause, and whether its decision be correct or otherwise, its Judgment until reversed, as a general rule is regarded as a binding in every other Court'. Hence when a Judgment of a Court of general jurisdiction is offered as evidence in a Collateral suit, and is pertinent to the issue in such collateral suit, the Judgment, however erroneous, is admissible, and is conclusive upon the point to which it speaks, unless it is made affirmatively to appear that the Court which rendered it had no jurisdiction of parties or subject-matter."
Thus it may be seen an erroneous Judgment by a competent Court cannot be meddled with subsequently by another Court nor can the latter permit itself the liberty of departing from the findings reached in the earlier proceedings although they may be wrong but on the other hand the alleged error in the Judgment, rendered earlier will continue to bind the parties unless of course it is set aside or reversed on appeal by a superior Court. This principle of binding character of a Judgment rendered by a competent Court has been succintly pointed out by the Privy Council in SHEOPARSAN SINGH v. RAMNANDAN SINGH, 43 Indian Appeals 91 @ 93. Sir Lawrence Jenkins who delivered the Judgment of the Board made this often quoted statement :
"In view of the arguments addressed to them, their Lordships desire to emphasize that rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. "It hath been well said" declared Lord Coke, interest reipulicae ut sit finis litium otherwise great oppression might be done under colour and pretence of law." Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu Commentators. Vijaneswara and Nilakantha include the plea of a former Judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus:
"If a person, though defeated at law, sues again, he should be answered, 'you were defeated formerly."
This is called the plea of former Judgment. And so the application of the rule by the Courts in India should be influenced by no technical consideration of form, but by matter of substance within the limits allowed by law."
To similar effect is yet another pronouncement of the Privy Council in RAMACHANDRA RAO v. RAMACHANDRA RAO, 49 Indian Appeals 129 which decided that where a dispute regards the right to receive compensation had been referred to the Court, a decree thereon not appealed from renders the question of title, res judicata in a later suit between the parties to the dispute. The Court while holding as aforesaid observed :
"The High Court appears only to have regarded the matter as concluded to the extent of the compensation money but that is not the true view of what occurred for, as pointed out in Badar Bee v. Habib Merican Noordin 1909 A.C. 623, it is not competent for the Court in the case of the same question arising between the same parties to review a previous decision no longer open to appeal, given by another Court having jurisdiction to try the second case."
Both these decisions were followed with approval by Supreme Court in R. LAKSHMI DASI v. BANAMALI SEN, . It has been observed therein as:
"The test of res judicata is the identity of title in two litigations and not the identity of the actual property involved. in the two cases. It could not be said that the Judgment of Privy Council could not operate as res judicata against the present contention of the Sens and mortgagees, about the title to the four anna share of Raj Ballay's Estate, because the subject matter of those proceedings was the compensation money and not the property that was the subject-matter of the present suit.
The condition regarding the competency of the former Court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone. When a plea of res judicata is founded on general principles of law, all that is necessary to establish is that the Court that heard and decided the former case was a Court of competent Jurisdiction."
On the principle as propounded in the decisions referred to supra, treating a decision on a disputed question in an earlier proceeding before a competent Court as not amenable to a denovo adjudication in any manner, the clear finding of the Civil Judge in O.S. 103/66 to the effect that Sudarshanachar had sold and conveyed to Hanumegowda two different bits of lands in Survey No. 1108/16 on two different occasions measuring 3 acres 6 guntas under each one of those transactions, could not be departed, ignored or frowned upon by any Court subsequently under any pretext much less under the convenient ground of an artificial dissension introduced by the plaintiff inviting the Court to juxtapose the suit schedule property with the property covered by the agreement under Ex.P.1.
24. Hence the answer to the query as to how much land the plaintiff could still be said to hold in Sy.No. 1108/ 16 should at all times have been as asserted by the defendant and the finding by the Civil Judge in the earlier suit holding that Sudarshanachar had sold and conveyed to defendant 6 acres and 12 guntas of land in Survey No. 1108/16 should have been borne in mind and treated as binding. The learned Civil Judge while dismissing the suit on the second occasion took adequate notice of this and made no mistake in the final disposal of the suit in dismissing it. It is easy to see that but for the controversy needlessly raised by the plaintiff seeking to raise again the bogey of having sold under Exhibit D.4 the land agreed to sold under Ex.P.1 despite the same having been negatived in the earlier suit, the plaintiff had no cause of action at all because in terms of the totality of the transactions gone through by him with reference to his total holding in Sy.No. 1108/16, aggregating to 8 acres 27 guntas, he would have been left with only 10 guntas as admitted by the defendant in his evidence at the trial in the suit. The basic error committed by the Court-below notwithstanding the very prolific "and elaborate Judgment recorded by it in the course of which it made interminable references to the Judgment in O.S. 103/66 terming it as a piece of haunted record which epithet to my mind was not deserved since the plaintiff who was a party to it did not choose to prefer an appeal but on the other hand accepted it in the end by taking away even the money deposited by the defendant that probably helped him to finance this accursed litigation.
25. Curiously the Judge appears to have adopted different standards in regard to the earlier suit in O.S. 108/66, when it was pointed out to him that if the properties sold under Ex.P.1 and D.4 were one and the same the defendant could not have paid twice for the same property, he conveniently discounted the same by holding that the Judgment in O.S. 103/66 had concluded that controversy. He said :
"It was pointed out if it were really so how can the plaintiff agree to sell very same extent of land i.e., 3-06 acres for Rs. 7,000/- and that too subsequently. Relying on this circumstances it was pointed out that the land covered by the agreement to sell and the sale deed are one and the same. This question cannot be gone into because the Judgment in O.S. 103/66 has become final."
The conclusion which merited the above observation having apparently emanated at the instance of the plaintiff who desired to make out at all times that the lands covered under the sale deed and the lands covered under the agreement to sell are one and at one stage the same had been apparently refuted by the learned Judge at one stage on the ground that it was already decided in O.S. 103/66.
26. But what the learned Judge overlooked was the factor that in O.S. 103/66 the Court had decided the lands covered under the agreement to sell was different from the lands sold under the sale deed Ex.D.4 and thus the plaintiff had conveyed to the defendant two different pieces of land each measuring 3 acres 6 guntas and had thus conveyed a total of 6 acres 12 guntas of land. If only the learned Judge had stuck to this view he would not have committed this grave error which he certainly must be held to have committed by reaching the ultimate conclusion that the plaintiff was bound to succeed on the basis of what must appear to be a cause of action that was totally nonest in the light of the finding in the earlier suit to which the District Judge, while seemingly paying heed as indicated in the foregoing excerpts of his Judgment, ended up in failing to hold on to course. If he had only noticed that the question of the transactions under Ex.P. 1 and D.4 being one and the same or different and distinct having been decided earlier in O.S. 103/66, could not, therefore, be gone into in the instant suit, he would have easily realised that as between the plaintiff and the defendant plaintiff had no title to the suit properties at all and could not have called anything outside 10 guntas of land in Sy.No. 1108/16 as his own. The defendant had made it clear that he was not in possession of any land belonging to the plaintiff while conceding that the defendant was still the owner of 10 guntas of land but on the stand that plaintiff had taken that he was not in possession of even that 10 guntas of land, there being no material to ascertain that defendant was in possession of that 10 guntas of land in which the plaintiff still had some vestige of title, even that claim had to fail because plaintiff had failed in his endeavour to find title to the suit schedule properties measuring a larger extent and therefore relief even limited to the lesser extent cannot be granted and the suit has, therefore, to fail in toto.
27. Hence, it is I must record a finding against the plaintiff although it may not strictly answer the points raised for consideration herein but on the substantial question of law which otherwise arises for consideration being whether the plaintiff had, on the basis of his own case and on the basis of the finding in the earlier suit in O.S. 103/66 which was binding on him, any subsisting title to the suit property for being declared and in consequence to be put in possession, finding is that he had no subsisting title at all and consequently he was wholly ineligible for the relief of declaration and possession.
28. Upon this finding the appeal has to succeed and is, therefore, allowed. The Judgment and decree passed by the District Judge, Mandya in R.A.24/83 is hereby set aside. The Judgment and decree passed by the Civil Judge, Mandya in O.S.42/70 dismissing the suit with costs is restored and the said suit shall stand dismissed throughout with costs.