Karnataka High Court
Sri Alisab S/O Davalsab Shaik vs Late Tukaram Sidharam Kathave Since ... on 28 February, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF KARNATAKA R
KALABURAGI BENCH
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
PRESENT
THE HON'BLE MR.JUSTICE M.NAGAPRASANNA
REGULAR SECOND APPEAL NO.1077/2006
BETWEEN:
SRI. ALISAB S/O DAVALSAB SHAIK
DECEASED BY HIS LRS.
01A. SMT. MALANBI W/O ALLISAB SHAIK
AGE: 65 YEARS OCC: H.H. WORK
R/O: BALOORGI TQ: AFZALPUR
DIST: GULBARGA.
01B. SMT. PASHABI W/O ABDULNABI TAXALI
AGE: 50 YEARS OCC: H.H. WORK
R/O: HERAPUR DIST: GULBARGA.
01C. SMT. KHAIRUNBI W/O SAYED SHAIK
AGE: 48 YEARS OCC: H.H. WORK
R/O: DUDHANI TQ; AKKALKOT
01D. SMT. AALIMABI W/O MAHIBOOB SHAIK
AGE: 46 YEARS OCC: H.H. WORK
R/O: DUDHANI TQ: AKKALKOT.
01E. ASHTAJBI W/O MAKBUL SHAIK
AGE: 44 YEARS OCC: H.H. WORK
R/O: RUBY NAGAR, SOLAPUR
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01F. MAHIBOOB S/O ALLISAB SHAIK
AGE: 42 YEARS OCC: AGRICULTURE
01G. TOLAMBI D/O ALLISAB SHAIK
AGE: 40 YEARS OCC: H.H. WORK
BOTH R/O: BALOORGI TQ: AFZALPUR
DIST: GULBARGA.
...APPELLANTS
(BY SRI S. S. MAMADAPUR., ADVOCATE)
AND:
LATE TUKARAM SIDHARAM KATHAVE
SINCE DEAD BY HIS LRS.
01. SMT. MANGLA W/O LATE TUKARAM
AGE: 45 YEARS
02. SHRI SANJEEV S/O LATE TUKARAM
AGE: 25 YEARS
03. SMT. MADHURI D/O TUKARAM
AGE: 22 YEARS.
RESPONDENTS NO.1 TO 3 ARE NOW AT
KUMBARI VILLAGE
TQ: SOUTH SOLAPUR - 413 001.
MAHARASTRA STATE.
04. SRI RAMAPPA S/O LOKAWWA HARIJAN
AGE: 30 YEARS
3
05. SHRI DEVAPPA S/O LOKAWWA HARIJAN
AGE: 27 YEARS
RESPONDENTS NO.4 AND 5 ARE AGRICULTURISTS
R/O: BALOORGI TQ: AFZALPUR
DIST: GULBARGA-585 101.
...RESPONDENTS
(BY SRI M.A. JAGIRDAR., ADVOCATE FOR R1 TO R3
R4 AND 5 SERVED)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC PRAYING TO SET-ASIDE THE
JUDGMENT AND DECREE DATED 03.01.2006 PASSED BY
THE LEARNED PRESIDING OFFICER, FAST TRACK COURT-
V, GULBARGA IN R.A.NO.535/2004 AS WELL AS THE
JUDGMENT AND DECREE DATED 26.11.2002 PASSED BY
THE LEARNED CIVIL JUDGE (JR. DN) AFZALPUR IN
O.S.NO.43/2000 AND DISMISS THE SUIT IN THE
INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL HAVING BEEN HEARD, RESERVED FOR
JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE
FOLLOWING :-
4
JUDGMENT
Aggrieved by the judgment and decree dated 26.11.2002 passed by the Civil Judge (Jr. Dn) Afzalpur decreeing the suit in O.S.No.43/2000 and the judgment and decree dated 03.01.2006 passed by the Fast Track Court-V Gulbarga in R.A.No.535/2004 affirming the decreeing the suit of plaintiff, the defendants have preferred the instant appeal against the concurrent findings of the Trial Court and the First Appellate Court.
02. The ranking of the parties will be as in the original suit for the sake of convenience.
03. The plaintiff had filed a suit against the defendants for declaration that, he is the owner of land bearing Sy.No.189/A measuring 10 acres and 35 guntas situated at Baloorgi village and also for recovery of the eastern side 08 guntas of suit land from defendants No.2 and 3 and also for recovery of northern side 03 acres and 33 guntas of suit land from defendant No.1. Apart from 5 above, the plaintiff also sought for permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit land.
04. Plaintiff claimed to be the owner of suit land bearing Sy.No.189/A measuring 10 acres and 35 guntas situated at Baloorgi village towards eastern side which was fallen to his share in a family settlement. The boundaries of the suit land are as under:-
East :- Land of defendant Nos.2 and 3.
West :- Public Road
North :- Land Sy.No.188 belonging to defendant
No.1.
South :- Land of Channabasappa Sonna
05. It is his case that in the family partition the neighboring land i.e., Sy.No.188 fell to the share of one Basvant who was brother of the plaintiff and Basvant had sold the land in favour of defendant No.2-Ramappa and defendant No.3-Devappa. Defendants No.2 and 3 also purchased certain eastern portion of the land measuring 11 acres and 20 guntas of land in Sy.No.189 from Basvant.6
06. Defendant No.1 Alisab during the year 1991 purchased the land in Sy.No.188 from brother of the plaintiff i.e., Basvant. Defendants have no tittle or interest over the suit land Sy.No.189/A measuring 10 acres and 35 guntas.
07. It is case of the plaintiff that defendant No.1 had illegally encroached 03 acres and 33 guntas of suit land towards northern side and defendants No.2 and 3 had encroached 08 guntas eastern side of the suit land.
It is further case of the plaintiff that he got the Taluka Surveyor to measure the suit land and it was at that point of time he came to know the encroachment of the suit land both on northern and eastern side made by the defendants. When the defendants declined to hand over the encroached area of the suit land, the plaintiff moved an application before the Tahasildar Afzalpur with a request to settle the matter. The Tahasildar in the matter directed the plaintiff to approach the Civil Court. It is on that cause of action plaintiff preferred O.S.No.43/2000. 7
08. Defendant No.1 contended that land bearing Sy.Nos.188 and 189 of Baloorgi village are the family properties of the plaintiff and are one composite land without any boundary in between two lands. Late Sidhram Khatare who was father of the plaintiff had left behind him, his ownership in family properties in land Sy.Nos.188 and 189. The plaintiff after death of his father without dividing the family properties gave application to the Village Accountant for change of Khata of the properties left by his father in his favour and in favour of his brother-Basvant. On request of the plaintiff Khata at Sy.No.188 was changed in the name of his brother-Basvant and Sy.No.189 was changed in the name of plaintiff and the family has not divided the properties.
09. It is case of defendant No.1 that the children of Sidhram have not divided the family properties and continued to be a undivided joint family properties. It was case of defendant No.1 that mother of the plaintiff 8 had consented for the sale of 09 acres and 31 guntas of land in Sy.No.188 in favour of defendant No.1. Based upon the aforementioned fact the parties were put on trial and the following issues were framed by the Trial Court.
01. Whether plaintiff proves that he is owner of suit land bearing Sy.No.189/A measuring 10 acres and 35 guntas situated at Baloorgi villagge as described in para 3 of the plaint?
02. Whether plaintiff proves that 1st defendant Alisab is in unauthorised occupation of 03 acres and 33 guntas of suit land on its northern portion as described in para No.4 of the plaint?
03. If so, whether plaintiff proves that he is entitled to get possession off that 03 acres and 33 guntas of northern portion of the suit land from 1st defendant?
04. Whether plaintiff proves that 2nd and 3rd defendants are in unauthorised occupation of eastern portion of 08 guntas of suit land, as described in para No.4 of the plaint?
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05. If so, whether plaintiff proves that he is entitled to get possession of that 08 guntas of land from 2nd and 3rd defendant?
06. Whether plaintiff proves that he is in peaceful possession and enjoyment of 06 acres and 34 guntas of land out of suit land described in Para 3 of the plaint as shown in the tonch map dated 24.12.1999?
07. If so, whether plaintiff proves that defendants are interfering over his such possession and enjoyment of portion of suit land?
08. Whether instant court having pecuniary jurisdiction to try the suit?
09. Whether plaintiff has properly valued, the suit, and had paid proper court fees thereon?
10. To what relief parties are entitled?
11. What order or decree?
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10. The Trial Court after considering the evidence decreed the suit with costs. The Trial Court ordered that the plaintiff is owner of suit land bearing Sy.No.189/A measuring 10 acres and 35 guntas situated at Baloorgi village with the boundaries indicated therein. Further ordered that the plaintiff is entitle to get vacant possession of suit northern portion of 03 acres and 33 guntas of land in Sy.No.189/A from defendant No.1 and also is entitled to get eastern side north south direction of 08 guntas of land from defendant Nos.2 and 3.
11. Defendant No.1 alone challenged the judgment of the Trial Court dated 26.11.2002 in O.S.43/2000 before the Fast Track Court-V at Gulbarga in R.A.No.535/2004. The First Appellate Court apart from issues framed by the Trial Court, formulated the following points for consideration:-
01. Whether the respondent No.1 able to prove that appellant is in possession of 03 acres 33 guntas of land in survey no.189/A on northern side of Baloorgi village?11
02. Whether the respondent No.1 able to prove that respondents No.2 and 3 have encroached 08 guntas of land in survey no.189/A of eastern side?
03. Whether the judgment and decree passed by the court below is perverse, capricious, liable to be interfered with?
04. What order?
12. On re-considering the entire evidence that was led in the Trial Court the First Appellate Court dismissed the appeal affirming the judgment and decree passed by the Trial Court by its judgment and decree dated 03.01.2006.
13. Against the aforesaid concurrent judgments of the Trial Court as well the First Appellate Court, defendant No.1 preferred the instant Regular Second Appeal. The Regular Second Appeal was admitted on 11.11.2009. While admitting, this Court framed the following substantial questions of law which read as follows:-
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01. Whether in view of the dismissal of the suit in O.S.No.208/1991 filed by the respondent seeking the relief of declaration of title, possession and injunction in respect of the suit property, the claim of the respondent for declaration of title and injunction in the suit instituted before the Trial Court is hit by the principles of res-judicata?
02. Whether in the facts and circumstances of the case and having regard to the sale deed of the year 1991 in favour of the defendant the suit instituted by the plaintiff before the Trial Court is barred by limitation?
03. Whether in the absence of any proof of partition, settlement and the documents of title, the plaintiff is entitled to the relief of declaration of title in respect of the suit property?
14. Heard Sri S. S. Mamadapur, the learned counsel for the appellants and Sri M. A. Jagirdar, the learned counsel for the respondents.13
15. Before considering the merits of the judgment and decree of the Trial Court and the First Appellate Court, I would proceed to consider the substantial questions of law Nos.1 and 2 as both the questions of law formulated go to the root of the matter and raise jurisdictional issues. If the Trial Court had no jurisdiction to consider the suit on its merits on principles of res-judicata none of the other grounds will hold water.
16. Defendant No.1 contends before this Court, in terms of substantial questions of law framed that, suit in O.S.No.43/2000 seeking relief of declaration of title, possession and injunction was barred by principles of res-
judicata, in the light of fact that the earlier suit instituted by the plaintiff in O.S.No.208/991 for the same relief was dismissed for non-prosecution. Invoking Order IX Rule 9 of CPC 1908 defendant No.1 submits that the subsequent suit with the same cause of action is barred by res- judicata. Order IX Rule 8 and Order IX Rule 9 of CPC read thus:-
14
Order IX Rule 8 of CPC :- Procedure where defendant only appears - Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.
Order IX Rule 9 of CPC :- Decree against plaintiff by default bars fresh suit - (1) Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from brining a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient causes for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.15
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
17. Order IX Rule 8 of CPC depicts the circumstance where the defendant appears and the plaintiff does not appears when the suit was called for hearing, the Court would make an order dismissing the suit unless the defendant admits the claim. Order IX Rule 9 of CPC would depicts that if the suit is dismissed under IX Rule 8 of CPC the plaintiff will be precluded in bringing a fresh suit in respect of the same cause of action unless the condition in the aforeextracted provision of CPC are fulfilled. To buttress his submission defendant No.1 would rely on judgment of the Hon'ble Apex Court in the case of Mayandi v. Pandarachamy in Civil Appeal No(s).6424/2019 (Arising from SLP (C) No.6330/2018), wherein the Hon'ble Supreme Court was pleased to hold thus;
"01. Leave granted.16
02. The judgment and decree passed by the High Court is liable to be set aside on the short and singular ground that in the previous suit i.e., original Suit in No.85/1996 a similar relief was prayed by Pechimuthu s/o. Arumgasamy Thevar, Minor Manimegalai D/o. Pechimuthu, Thilagavathi (Minor) D/o. Pechimuthu and Arul Pandian (Minor) D/o. Pechimuthu. Prayer was made for declaration of title and for permanent injunction on the basis of Will dated 05.12.2004 executed by Sadaiyappa Konar which became operative on his death on 20.02.1995. O.S.No.85 of 1996 was filed in which following prayer was made:-
"A. declaring the plaintiffs 2 to 4 is title to the plaint 1st schedule property.
B. granting permanent prohibitary injunction restraining the defendants from sub letting the 2nd schedule house without the written permission of the plaintiff.
C. awarding the costs of this suit to the plaintiffs."17
3. It was on the basis of the Will, Civil Suit No.85/1996 was filed. It was dismissed vide order dated 16.03.2001, when the counsel for the plaintiffs was absent and the counsel for the defendants was present in the Court.
4. Plaintiff Nos.2 3 and 4 filed the second suit i.e., Suit No.1106/2004 against the defendants. The prayer was made for permanent injunction on the basis of the Will only. After filing of the suit, Respondent No.1 purchased the property from the original plaintiffs.
5. The High has decreed the suit of the plaintiffs by the impugned judgment and decree, while allowing the second appeal.
6. After hearing learned counsel for the parties, it is apparent from the order of dismissal of the prior suit that it was dismissed under the provisions of order IX Rule 8 of the CPC as the counsel for defendants was present and counsel for the plaintiffs was absent. In view of the provisions contained in Order IX Rule 9 decree against plaintiffs by default bars fresh suit. Order IX Rule 9 is extracted hereunder:-18
"9. Decree against plaintiff by default bars fresh suit (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceedings with the suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party."
7. In view of the aforesaid, High Court erred in law in holding that the subsequent suit was based on different cause of action, as such it was maintainable. The 19 impugned judgment and decree is patently illegal. Thus, it is set aside and the suit is ordered to be dismissed as it was not maintainable. The purchaser is sailing in the same boat as that of the original plaintiffs, he cannot be said to be having better rights than the original plaintiffs.
8. The appeal is, accordingly, allowed."
18. In terms of the facts and the law declared by the Hon'ble Supreme Court as extracted hereinabove, defendant No.1 would contend that the second suit filed by the plaintiff on the same cause of action after dismissal of first suit in O.S.No.208/1991, is barred in terms of the relevant provision of CPC as also by res- judicata. To consider this point it is necessary to notice the prayer that were sought before the Trial Court while the plaintiff instituted a suit in O.S.No.208/1991. The prayer of the plaintiff in O.S.No.208/1991 reads as under:-
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"1. That the plaintiff be declared as owner and possessor of suit land described below:
2. That a decree for perpetual injunction be passed as against the defendant, his servants, agents or any other person claiming from his be restrained from interfering into the lawful possession of the plaintiff over the suit land Sy.No.189 ad-
measuring 10 acres 35 guntas having R.A. of Rs.14-41 Ps situated at Belurgi, Tq: Afzalpur Dist: Gulbarga having the following boundaries:
East : Land of Lokawwa West : Cart road and then land of Malappa Pujari South: Land of Channabasappa Sonne North: Sy.No.188.
3. Costs of the suit be awarded.
4. Any other relief to which the plaintiff is entitled may be granted."21
19. This was a suit instituted by the plaintiff with aforementioned prayer against his brother Basvant in the year 1991. By then Basvant had already sold the property in favour of defendant No.1 in the year 1989 itself and mother of plaintiff had consented to the said sale deed. Thus the sale deed in respect Sy.No.188 was well within the knowledge of the plaintiff. At Para No.8, 9, 10, 11 of the plaint in O.S.No.208/1991 plead thus :-
"8. That it was rumoured in the village that the defendant has entered into an agreement for sale with one Alisab to sell his owned land Sy.No.188 alongwith 03 acres of suit land Sy.No.189 with the well. This is quite illegal as the defendant has no right or authority to sell the portion of the suit land belonging to the Plaintiff. Therefore the plaintiff issued a lawyers notice dated 03.12.1990 to the defendant and the intending purchaser. Both the defendant as well as the Alisab received the notices but never replies the same till this date. The office copy of the notice and Acknowledgement due age produced under a cover of list.22
9. That the act of the defendant is nothing but denial of title and interference into the lawful possession of the plaintiff over the suit land. Therefore the defendant, his servants, agents or any other person claiming through him may be restrained by a decree of perpetual injunction otherwise the plaintiff will have to face multiplicity of proceedings and suffer irreparable loss. All the concerned revenue records are produced under a cover of list for the perusal of the Hon'ble Court.
10. That the defendant along with his associates redently entered into the suit land and intended to remove the motor pumpset, thereby stopped the irrigation and put the plaintiff to irreparable loss. This has happened in the last week of March 1991. The Plaintiff stopped the same.
11. That these above mentioned facts constitute causes of action and immediate cause of action arose in the last week of March 1991 when the defendant interfered denying the title of the plaintiff. Hence, the plaintiff is entitled to sue and defendant is liable to answer the same".23
20. The afore extracted paragraphs of the plaint in O.S.No.208/1991 clearly indicates that the plaintiff was well aware of the sale and had approached the authorities and had also caused a legal notice. Later he filed a suit seeking a decree of declaration and permanent injunction and from the records it is seen that the Trial Court in O.S.No.208/1991 had to dismiss the suit for non-prosecution for non-appearance of the plaintiff. This fact of the dismissal of the suit for default is admitted by the plaintiff before this Court, but justifies filing of the present suit on the ground that it had nothing to do with the earlier suit in O.S.No.208/1991. But the afore extracted paragraphs and prayer would indicate to the contrary. But the fact remains that the plaintiff has not disputed the fact of filing of O.S.No.208/1991, its dismissal for default and suppression of the same while instituting O.S.No.43/2000.
21. The plaintiff instituted the instant suit in O.S.No.43/2000 seeking the following prayer :- 24
A. That it may kindly be decreed and that the plaintiff is the owner of land Sy.No.189/A measuring 10 acres 35 guntas of Baloorgi village with the boundaries mentioned in the plaint para No.3.
B. The defendants No.2 and 3 be directed to hand over the 08 guntas of suit land towards eastern side of suit land in favour of plaintiff.
C. That defendant No.1 be directed to hand-over the possession of 03 acres 33 guntas of suit land towards northern portion of suit is in favour of plaintiff.
D. That the defendant No.1 his agents LRs and representatives may kindly be restrained permanently from interfering into the possession and enjoyment of the suit land.
E. Costs of the suit be awarded.
F. Any relief to which the plaintiff is
found entitled may also be granted in the interest of justice.25
22. A bare reading of prayer in suit O.S.No.43/2000 instituted by the plaintiff in juxtaposition with that of the prayer in the suit O.S.No.208/1991 would in unmistakable terms indicate that they are one and the same. But in the entire body of the plaint in O.S.No.43/2000 the plaintiff does not even whisper a word about his instituting of suit in the year 1991 with the same prayer. The parties in the suit in the year 1991 and 2000 are at slight variation, but defendant No.1's name that he had purchased the property from his brother had already been indicated in the plaint in O.S.No.208/1991 and even in the legal notice that was caused upon defendant No.1 by the plaintiff.
23. The counsel for the plaintiff would contend before this Court that it is not hit by the principles of res- judicata or under the provisions of Order IX Rule 8 or IX Rule 9 of CPC, as one of the defendants is different from the defendant that was in suit O.S.No.208/1991 and mentions that he need not disclose the earlier suit and 26 cannot be non-suited on that ground. I am unable to accept the contention of the plaintiff that he has no duty to disclose the suit that was earlier filed, with the same cause of action. The present suit was clearly barred under provision of Order IX Rule 9 and Section 11 of CPC as also by the principles of constructive res-judicata as the suit which was filed in the year 1991 was subsequent to the sale of the property by the brother of the plaintiff and in favour of defendant No.1. Thus, the law declared by the Hon'ble Supreme Court in the aforesaid judgment, is applicable all fours to the case of hand. Thus the suit was not even maintainable. Hence, any of the findings in a suit that was not maintainable will have no bearing in law. In view of the above, the first question of law arising for consideration is answered by holding that the second suit with the same prayer which was identical to the suit in O.S.No.208/1991 having been dismissed, the second suit with the same prayer in O.S.No.43/2000 was clearly hit by Order IX Rule 9 of CPC and principles of res- judicata. The second suit was not maintainable before the 27 Trial Court. Since, the suit itself is held to be not maintainable other issues need not be gone into and the order in Regular Appeal affirming the findings in the suit as a consequence will also be held to be not maintainable.
24. For the aforementioned reasons, I proceed to pass the following:
ORDER
1. This second appeal is allowed with costs throughout.
2. The judgment and decree dated 03.01.2006 on the file of the Fast Track Court-V at Gulbarga, in R.A.No.535/2004 is set-aside.
3. The judgment and decree dated 26.11.2002 passed in O.S.No.43/2000 by the Court of Civil Judge (Jr. Dn) Afzalpur, is set-aside.
4. Suit in O.S.No.43/2000 is dismissed.
Sd/-
JUDGE KJJ