Karnataka High Court
Parvatewwa W/O Savalageppa Bagalkot vs Channappa S/O Basappa Modi on 30 August, 2023
-1-
NC: 2023:KHC-K:6912
RSA No. 200320 of 2016
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 30TH DAY OF AUGUST, 2023
BEFORE
THE HON'BLE MRS JUSTICE K S HEMALEKHA
REGULAR SECOND APPEAL NO.200320 OF 2016 (DEC)
BETWEEN:
PARVATEWWA W/O. SAVALAGEPPA BAGALKOT
SINCE DECEASED BY HER LR's.
1. PREMA W/O. IRAPPA DODAMANI
AGE:59 YEARS, OCC: HOUSEHOLD,
R/O. MURNAL, TQ. & DIST.: BAGALKOT.
2. DHANRAJ S/O NENMALJI JAIN
AGE: 83 YEARS, OCC: BUSINESS
3. PREMRAJ S/O DHANRAJ
AGE: 60 YEARS
OCC: BUSINESS
4. ASHOK S/O DHANRAJ JAIN
AGE: 55 YEARS, OCC: BUSINESS
Digitally signed
by SHYAMALA 5. RAMESH S/O DHANRAJ JAIN
Location:
HIGH COURT AGE: 49 YEARS, OCC: BUSINESS
OF
KARNATAKA 6. DINESH S/O DHANRAJ JAIN
AGE: 46 YEARS, OCC: BUSINESS
APPELLANT NOS.2 TO 6 ARE
PERMANENT R/O MAHAVEER SOCIETY
BLDE ROAD, VIJAYPUR.
... APPELLANTS
(BY SRI GANESH SUBHASHCHANDRA KALBURGI AND
SRI ANANTH S. JAHAGIRDAR, ADVOCATES FOR A-1;
SRI D.P. AMBEKAR, ADVOCATE FOR A-2 TO A-6)
-2-
NC: 2023:KHC-K:6912
RSA No. 200320 of 2016
AND:
CHANNAPPA S/O. BASAPPA MODI
AGE: 86 YEARS, OCC: BUSINESS,
R/O. B.B. ELECTRICALS SHRINAGAR
CINEMA COMPLEX, STATION ROAD,
HUBLI, DIST: DHARWAD-580020.
SINCE DECEASED REP. BY HIS LR's.
1(a) SMT. SHARADA
W/O. LATE CHANNAPPA BAGALKOT
AGE ABOUT 72 YEARS, OCC: HOUSEHOLD,
R/O. H.NO.58/B, BHUVANESHWARI NAGAR,
KESHWAPUR, HUBLI, DIST-DHARWAD-580023.
1(b) SMT. BHARATI D/O. LATE CHANNAPPA BAGALKOT
AGE ABOUT 50 YEARS, OCC: TEACHER,
R/O. H.NO.58/B, BHUVANESHWARI NAGAR,
KESHWAPUR, HUBLI, DIST-DHARWAD-580023.
1(c) SMT. ARATI W/O. SANJAY SAVALGI
AGE ABOUT: 48 YEARS, OCC: HOUSEHOLD,
R/O. 7TH CROSS 1ST MAIN ISRO LAYOUT,
BENGALURU-560111.
1(d) SMT. ARUNDHATI @ KAVITA
W/O. PAMPANGOUDA BASANGOUDA
AGE ABOUT 44 YEARS, OCC: HOUSEHOLD,
R/O. VIDAYA NAGAR, HAVERI-581110.
1(e) SMT. JYOTI W/O. MAHENDRA WALI
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O H.NO.39, KURBARHALLI, MAHALAXMIPURAM,
J.C. NAGAR, BENGALURU-560086.
1(f) SMT. SRIDEVI W/O. LATE SAVALAGEPPA BAGALKOT
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O. H.NO.9/5/490, ADARSH COLONY,
BIDAR-585401.
1(g) SHRI. MALLIKARJUN
S/O. LATE SAVALAGEPPA BAGALKOT
AGE: 20 YEARS, OCC: STUDENT,
R/O. H.NO.9/5/490,ADARSH COLONY,
BIDAR-585401.
-3-
NC: 2023:KHC-K:6912
RSA No. 200320 of 2016
1(h) KUMAR SIDDHESHWAR
S/O. LATE SAVALAGEPPA BAGALKOT
AGE: 16 YEARS, OCC: STUDENT,
R/O. H.NO.9/5/490, ADARSH COLONY,
BIDAR-585401.
SINCE MINOR REPRESENTED BY HIS
MOTHER AND NATURAL GUARDIAN
RESPONDENT NO.1(F) SMT. SRIDEVI
W/O. LATE SAVALAGEPPA BAGALKOT.
... RESPONDENTS
(BY SRI ASHOK R. KALYANSHETTY AND SRI S.S. MAMADAPUR,
ADVOCATES FOR 1(a) TO 1(g), 1(h) IS MINOR U/G OF 1(f))
THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
ALLOW THIS APPEAL AND SET ASIDE THE JUDGMENT DATED
24.07.2015 AND DECREE DATED 31.07.2015 PASSED BY LEARNED
PRINCIPAL SENIOR CIVIL JUDGE, VIJAYAPUR IN O.S.NO.13/2007
AND FURTHER SET ASIDE THE JUDGMENT DATED 19.08.2016 AND
DECREE DATED 25.08.2016 PASSED BY THE LEARNED PRINCIPAL
DISTRICT JUDGE, VIJAYAPUR IN R.A.NO.103/2015 AND FURTHER
DECREE THE PLAINTIFFIS SUIT WITH COST AND CALL FOR RECORDS
AND PREPARE IN O.S. NO.13/2007 ON THE FILE OF LEARNED
PRRINCIPAL SENIOR CIVIL JUDGE, VIJAYAPURA AND R.A.
NO.103/2015 ON THE FILE OF LEARNED PRINCIPAL DISTRICT JUDGE,
VIJAYAPUR AND DISPOSE OFF THIS APPEAL IN ACCORDANCE WITH
LAW, IN THE INTEREST OF JUSTICE.
THIS APPEAL COMING ON FOR DICTATING JUDGMENT, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
-4-
NC: 2023:KHC-K:6912
RSA No. 200320 of 2016
JUDGMENT
This Court, while admitting the appeal, has framed the following substantial questions of law on 04.11.2020:
(i) Whether the Trial Court and the First Appellate Court are justified in dismissing the suit on the ground that the said suit is hit by the provisions of Order 2 Rule 2 of the Code of Civil Procedure in spite of order on I.A.No.IV dated 27.06.2008 passed in this regard?
(ii) Whether the First Appellate Court is justified in holding that the suit of the plaintiff is hit by provisions of res-judicate in view of Section 11 explanation IV of the Code of Civil Procedure?
(iii) Whether dismissal of the suit is justified in view of pleadings and evidence placed by the parties?
2. The present regular second appeal by the plaintiff assailing the concurrent findings of the Courts below dated 24.07.2015 in O.S.No.13/2007 on the file of the Prl. Senior Civil Judge, Vijayapur and the judgment and decree dated 19.08.2016 in R.A.No.103/2015 on the file of Prl. District Judge, Vijayapur, whereby, the suit of the -5- NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 plaintiff for declaration and possession was dismissed by the Courts below.
3. Appellant No.1 was brought on record as plaintiff No.1(a) legatee under the Will after the death of the original plaintiff-Parwatewwa. Appellant Nos.2 to 6 are brought on record before this Court vide order dated 14.06.2023 who claim to be the purchasers from the original plaintiff.
4. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience.
5. The undisputed facts are that,
(i) The husband of Parwatewwa (original plaintiff) died on 15.01.1961.
(ii) The original plaintiff Parwatewwa was the only legal heir of her husband.
(iii) On the death of her husband, the original plaintiff-
Parwatewwa adopted defendant on 23.03.1961. -6-
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
(iv) The plaintiff - Parwatewwa filed suit in O.S. No.346/2002 for declaration that the alleged adoption deed dated 23.03.1961, is null and void and for relief of injunction.
(v) The suit in O.S.No.346/2002 came to be dismissed on 09.11.2006, being aggrieved, R.A.No.116/2006 was preferred by the plaintiff.
(vi) During the pendency of the regular appeal No.116/2006, the present suit in O.S.No.13/2007 was filed since the defendant illegally dispossessed the plaintiff from the suit schedule properties CTS.No.121/B and hence, the present suit for declaration of her ownership and for recovery of possession of the suit schedule properties i.e., bearing CTS.No.121/B.
(vii) R.A.No.116/2006 was dismissed confirming the judgment and decree in O.S.No.346/2002 on the point of limitation, but reversed the finding of trial Court on issue Nos.1 and 3.
-7-
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
(viii) Regular Second Appeal No.7305/2009 by the adopted son against the findings on issue Nos.1 and 3 and the cross-objections by the plaintiff against the dismissal of the suit on the point of limitation came to be filed.
(ix) RSA No.7305/2009 was allowed and the RSA Cross-
objection No.101/2010 was dismissed.
(x) The original plaintiff died during the pendency of suit in O.S.No.13/2007 and plaintiff No.1(a) - appellant No.1-Prema was brought on record as a legatee under the Will for prosecuting the present suit.
(xi) The original plaintiff sold the properties to appellant Nos.2 to 6 on 24.11.2009 during the pendency of the suit and they were brought on record as appellant Nos.2 to 6 in the present appeal.
(xii) In the present appeal, the trial Court and the first appellate Court held that the plaintiff is the absolute owner of the suit schedule properties under Section 14(1) of the Hindu Succession Act and Section 12(c) of the Hindu Adoption and Maintenance Act -8- NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 (hereinafter referred to as 'the Adoption Act' for short).
(xiii) On the point of limitation, res judicata, constructive res judicata and under Order II Rule 2 of the Code of Civil Procedure, 1908, the trial Court dismissed the suit.
(xiv) The first appellate Court held that the suit of the plaintiff is not barred by limitation, however, confirmed the judgment and decree of the trial Court on the point of res judicata, constructive res judicata and under Order II Rule 2 of CPC.
6. Sri Ganesh Kalaburagi, learned counsel for appellant No.1, Sri D.P. Ambekar, learned counsel appearing for appellant Nos.2 to 6 and Sri Ashok Kalyan Shetty, learned counsel for the respondents have been heard on the substantial questions of law framed by this Court.
7. Learned counsel for the appellants would contend that the reasoning recorded by the trial Court and -9- NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 the first appellate Court that the suit is barred under the provisions of Order II Rule 2 CPC and hit by Section 11 of CPC is perverse in view of the following facts:
(a) The trial Court while passing the order on I.A.No.4 dated 27.06.2008 held that the cause of action in O.S.No.346/2002 and the cause of action in O.S.No.13/2007 are altogether different and the plaintiff's suit is perfectly maintainable and not barred under the provisions of Order II Rule 2 CPC and consequently, dismissed I.A.No.4 filed by the defendant and the petition preferred before this Court stood confirmed and the order on I.A.No.4 has attained finality.
(b) The cause of action in the former suit O.S.No.346/2002 and O.S.No.13/2007 are not one and the same and are distinct.
(c) The subject matter in O.S.No.346/2002 is for declaration that the adoption deed is null and void and that the defendant is not the adopted son,
- 10 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 whereas, O.S.No.13/2007 is for declaration that the plaintiff is the absolute owner of the suit schedule properties and the courts below have concurrently held that the plaintiff is the absolute owner of the suit schedule properties and having held so, the Courts below were not justified in dismissing the suit on the ground of res judicata and Order II Rule 2 CPC.
(d) O.S.No.13/2007 was filed on a fresh cause of action due to the dispossession of the plaintiff by the defendant from the suit schedule properties and invariably the said relief could not have been sought in the former suit as the cause of action arose only after the disposal of O.S.No.346/2002.
(e) The reliefs claimed in O.S.No.346/2002 and O.S.No.13/2007 are altogether different and not hit by Order II Rule 2 CPC.
(f) The suit of the plaintiff is not hit by Section 11 CPC in view of the fact that, the issues involved and relief in the present suit is not decided in O.S.No.346/2002 and the said issue regarding declaration of title was
- 11 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 kept open in the former suit and the principles of res judicata is not applicable.
(g) The trial Court though held that the suit of the plaintiff is barred by limitation, the first appellate Court has rightly held that the suit of the plaintiff is within limitation and the same is not questioned by the defendant by filing any cross-appeal and the findings recorded by the first appellate Court holding that the suit is not barred by limitation has attained finality.
8. To buttress the submission, learned counsel for the appellants has placed reliance on the following judgments:
(i) Narashalli Kempanna & others vs. Narasappa and others1(Narashalli Kempanna);
(ii) Colonel R.Handa vs. M/s. Abhaya Land & Finance Pvt. Ltd., and others2 (Colonel R.Handa);1
AIR 1989 Kar. 50 2 2010 (4) AIR Kar. R 665
- 12 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
(iii) Saheb Reddy vs. Sharanappa & others3 (Saheb Reddy)
9. Per contra, learned counsel appearing for the respondents would justify the judgment and decree of the Courts below and contend that the suit of the plaintiff has been rightly dismissed by the Courts below having hit by the provisions under Order II Rule 2 and Section 11 of CPC and the concurrent findings of the Courts below is justifiable. The plaintiff ought to have sought for declaration that she is the absolute owner of the suit schedule properties in the earlier suit in O.S.No.346/2002 and having not done so, the plaintiff is debarred from raising the said plea under Order II Rule 2 CPC. Further, learned counsel would contend that the principles of res judicata would aptly apply to the present facts and circumstances of the case and the question of res judicata has to be applied since the issue has already been substantially held in the earlier suit. Learned counsel would 3 AIR 2016 SC 5253
- 13 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 contend that there was no cause of action for the plaintiff to file the present suit. Regarding limitation, it is contended that the first appellate Court was not justified in holding that the suit is not barred by limitation and the respondents can assail the said findings even in the absence of cross-objections.
10. In support of his contention, learned counsel for the respondents has relied upon the following judgments:
(i) Annasaheb Balesha Waghe & others vs. Appasaheb Dada Pommai & others4 (Annasaheb Balesha Waghe);
(ii) Sri. Channappa (L.Rs.) vs. Late Parwatewwa (L.R.)5 (Sri. Channappa);
(iii) Sri Lankappa & Others vs. Karnataka Industrial Corporation & others6 (Sri Lankappa)
(iv) Coffee Board vs. Ramesh Exports Pvt. Ltd.7 (Coffee Board) 4 2007 (5) Kar.L.J. 424 5 RSA.No.7305/2009 C/w. RSA. Crob.No.101/2010 6 2022(2) Kar.LJ 237 7 Civil Appeal No.5527/2014
- 14 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
(v) Vurimi Pullarao vs. Vemari Vyankata Radharani & others8 (Vurimi Pullarao)
11. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and carefully perused the entire material on record and judgment and decree of the Courts below.
12. The Courts below held that the plaintiff is the absolute owner of the suit schedule properties. The husband of the plaintiff died in the year 1961 and the plaintiff - Parwatewwa being the sole legal heir and on the death of her husband, the pre-existing right over the suit schedule properties, the plaintiff becomes the absolute owner of the suit schedule properties as envisaged under Section 14 (1) of the Hindu Succession Act.
13. Even assuming that the adoption in favour of the defendant is held to be proved, in light of the judgment rendered in O.S.No.346/2002 confirmed upto this Court, the defendant would not divest the plaintiff - Parwetawwa 8 Civil Appeal NO.9065/2019 [(2020) 4 SCC 110
- 15 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 from the vested right as per Section 12 (c) of the Adoption Act and the said section reads as under:
"12. Effects of adoption.--An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family:
Provided that--
(a) the child cannot marry any person whom he or she could not have married if he or she had continued in the family of his or her birth;
(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;
(c) the adopted child shall not divest any person of any estate which vested in him or her before the adoption."
14. In light of the above, both the Courts have concurred holding that the original plaintiff is the absolute
- 16 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 owner of the suit schedule properties. The cross-objections filed against the said findings have been confirmed by the first appellate Court and no appeal has been preferred by the respondent - defendant. This Court has considered the provisions of law pertaining to the right of a female having pre-existing right to become the absolute owner of properties in light of the provisions of Section 14 (1) of the Hindu Succession Act as stated supra and the provisions of law pertaining to adoption on death of the husband as envisaged under Section 12(c) of the Adoption Act, which emphasizes that, on adoption by a widow, the adopted child shall not divest any person or any estate which is vested in her before the adoption.
15. The Apex Court in the case of Saheb Reddy Vs. Sharanappa and others9 (Saheb Reddy) has held at paragraph No.14 as under:
"14. At the time when Shri Sharnappa died in 1957, defendant No.1 was not in the picture as he was adopted by Smt. Sharnappa on 9th February, 9 AIR 2016 SC 5253
- 17 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 1971. By virtue of proviso to Section 12 of the Adoption Act, an adopted child cannot divest any person of any estate which vested in him or her before the adoption. Thus, the property of late Shri Sharnappa which, upon his death in 1957, had vested in his widow and three daughters, would not be disturbed by virtue of subsequent adoption of defendant No.1."
16. In light of provisions of Section 14(1) of Hindu Succession Act, Section 12(c) of the Adoption Act and in light of the judgment stated supra, the Courts below have rightly held that the plaintiff is the absolute owner of the suit schedule properties. The said question about the ownership of the plaintiff is considered by this Court only in order to answer the substantial questions of law framed by this Court.
17. Now coming to the point of limitation, since the trial Court held that the suit of the plaintiff is barred by limitation holding that the suit for declaration should have been filed within three years from the date of cause of action applying Article 58 of the Limitation Act and held
- 18 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 that the plaintiff's suit is barred by limitation. The first appellate Court, on re-appreciation, has held and answered the limitation in favour of the plaintiff holding that, when a suit for declaration of title and recovery of possession is filed, it is to be governed under Article 65 of the Limitation Act and Article 58 is not applicable.
18. No cross-objection has been preferred by the respondent - defendant against the said findings regarding limitation. However, this Court has carefully considered, whether the suit of the plaintiff is barred by limitation. Article 58 of the Limitation Act prescribes three years for seeking declaration of title and the same reads as under:
"Article 58.
Multiple causes of action Successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued;
Right to sue first accrues There must be accrual of the right to sue for the plaintiff, and infringement or at least a clear and
- 19 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 unequivocal threat to infringe that right by the defendant should happen. So far as the right of the plaintiff is not infringed or there is no positive and overt act on the part of the defendant to infringe the right of the plaintiff, there would not be accrual of the right to sue;"
19. Article 65 prescribes a period of twelve years for seeking recovery of possession. The cause of action in the present suit is when the plaintiff dispossessed from the suit schedule properties CTS No.121/1B, during the pendency of the Regular Appeal No.116/2006 and also the declaration was filed after the decreetal of O.S.No.346/2002, when the defendant was held to be the adopted son and when the defendant tried to set up that he is the absolute owner of the suit schedule properties based on the findings in his favour that he is the adopted son. Taking the relevant facts, suit of the plaintiff cannot be said to be barred by limitation as rightly held by the first appellate Court.
20. Now the question that needs to be considered is, whether the Courts below were justified in holding that
- 20 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 the suit of the plaintiff is hit by the principles of res judicata, constructive res judicata and Order II Rule 2 of CPC? the same being the substantial question of law framed by this Court?
21. For ready reference, Section 11 of CPC is extracted 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. To answer whether the present suit is hit by res judicata, constructive res judicata and Order II Rule 2 CPC, the prayer, the issues and the findings recorded in the former suit in O.S.No.346/2002 needs to be considered.
- 21 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
23. The prayer in O.S.No.346/2002 is evident from Ex.D.44 - the plaint, is as under:
"11. Prayer :- The plaintiff, therefore, prays that, the court be pleased to:-
a) pass a decree declaring that the adoption deed created on 23.3.1961 created by the defendant showing that the deft is the adopted son of plaintiff as null and void and inconsequence thereof;-
b) Pass a decree of perpetual injunction restraining the defendant or his agents in alienating or transferring the house and shop properties of plaintiff mentioned in para No.2 of the plaint.
c) Award costs of the suit.
d) Pass any other reliefs deemed fit by this Hon'ble
court, in the interest of justice.".
24. The issues framed in O.S.No.346/2002 is available at Ex.P-6 and same reads as under:
"ISSUES
1. Whether the plaintiff proves that, the adoption deed dated 23.3.1961 that the defendant is the adopted son of plaintiff is null and void?
- 22 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
2. Whether the plaintiff is entitled for permanent injunction?
3. Whether the suit is time barred?"
(Emphasis supplied)
25. The findings in O.S.No.346/2002 more particularly, the issue regarding the declaration of title having kept open is evident from the judgment in O.S.No.346/2002 at paragraph No.9, which reads as under:
"9) Even though it is contended by the defendant that as per the PÀÄlÄA§ ªÀåªÀ¸ÁÜ ¥ÀvÀæ, dated 20.6.1998 all the suit properties were given to the defendant therefore plaintiff has no right whatsoever over the suit properties, this suit was filed by the plaintiff for declaration that adoption deed dated 23.3.1961 is null and vold, same is not binding on her and also for permanent injunction, whether the plaintiff has executed PÀÄlÄA§ ªÀåªÀ¸ÁÜ ¥Àv,Àæ giving up her all rights over the suit properties cannot be dealt with as the said question is not subject matter of the suit, therefore keeping this quest on open for the parties to agitate before the appropriate forum, if at all plaintiff is having share in the suit properties she
- 23 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 has to workout the same in a appropriate suit against the defendant who is none other than the adopted son."
(Emphasis supplied)
26. Careful reading of the plaint, issues and the findings in O.S.No.346/2002 would make it evident that the question regarding right over the suit schedule properties was not dealt with by the trial Court in the former suit, holding that the said question is not the subject matter of the suit and the title of the parties in respect of the suit schedule properties are kept open for the parties to be adjudicated before the appropriate forum. The issue in the present suit has not been directly and substantially in issue in the former suit to be held to establish that the present suit is hit by principles of res judicata.
27. In Regular Appeal No.116/2006 assailing the judgment and decree in O.S.No.346/2002, the first appellate Court at paragraph No.43, has held as under:
- 24 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 "43. From the above discussion, I hold that, the plaintiff has proved that, the adoption deed dated 23.3.1961 is null and void and I answer issue-1 in the affirmative. I also hold that, the suit is barred by time and I answer issue-3 in the affirmative. As the suit is barred by time, the plaintiff is not entitled for declaration and permanent injunction and I answer issue-2 in the negative. Hence, I pass the following:
ORDER The appeal is dismissed with costs. While confirming the judgment and decree dated 9.11.2006 passed by the 1st additional Civil Judge (Sr.Dn) Bijapur, in O.S.346/2003 on his file dismissing the suit, the findings of the trial Court on issues-1 and 3 are set aside and issues-1 and 3 are answered in the affirmative."
(Emphasis supplied)
28. The regular second appeal preferred by the plaintiff as well as the defendant in RSA No.7305/2009 connected with RSA Crob. No.110/2010 has held at paragraph No.45 as under:
"45. It is also necessary to note that the very suit filed by the plaintiff is one for a relief for declaration, namely, the Adoption Deed dated 23.03.1961, showing that the defendant as an adoptive son of the plaintiff was created and was thus null and void and also for the consequential
- 25 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 relief of injunction restraining the defendant for alienating the suit property. Thus the suit of the Plaintiff is primarily one for declaration of validity of the Adoption Deed, it would fall within the provisions of Section 34 of the Specific Relief Act. The said relief sought for in the plaint is the only substantive relief and the same is not incidental or ancillary to any other relief. In that view of the matter, Article 57 of the Limitation Act will apply with full vigour. Both the Trial Court and the first appellate court having categorically found that the Plaintiff was aware of the execution of the Deed of Adoption, and subsequent transactions in the nature of entries in the Revenue records and joint alienation by the Plaintiff and Defendant of one of the properties wherein, the Defendant was described as the adoptive son of the Plaintiff, and the suit not having brought within the time stipulated under Article 57 of the Limitation Act, it was not open for the first appellate court to have adjudicated the said matter. Needless to mention that there is a statutory presumption under Section 16 of the Act, whenever there is a registered deed of partition regarding the adoption having been made in compliance with the provisions of the Act unless and until it is proved to the contrary. Thus, the suit instituted to establish that the adoption was contrary to the provisions of law ought to have been filed within the stipulated period provided under article 57
- 26 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 of the Limitation Act. Section 15 of the Act, provides for the irrevocability of validity of adoption. Both the Trial Court and the first appellate court having held that the adoption was valid and the first appellate court particularly referring to the written statement wherein the Defendant had pleaded the prevalent customs in the Bombay-Karnataka region and having held the same not being contrary to Section 10 (iv) of the Act, could not have resorted to Section 11 (iv) to hold otherwise, particularly having already adverted to the issue of limitation."
29. The findings in O.S.No.346/2002 confirmed upto this Court clearly evidences that the issue was regarding the adoption and the res judicata is only pertaining to adoption, the title of the plaintiff was not the issue that was considered in the former suit and hence, the applicability of principles of res judicata is not forthcoming to be applied to the present facts and circumstances of the case. It is also relevant to note that in the present suit, the Courts below have concurrently held that the alleged family agreement deed of the year 1988 has not been established by the defendant and his right over the suit
- 27 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 schedule properties and the said findings have remained unchallenged.
30. Insofar as constructive res judicata and Order II Rule 2 of CPC is concerned, the same does not provide for an alternate, the prayer for declaration could be only an alternative plea in the former suit, since the suit O.S.No.346/2002 was only for declaration that the adoption deed dated 23.03.1961 is null and void and for consequential relief of injunction and not for the declaration that the plaintiff is the absolute owner of the suit schedule properties, wherein, in the said suit, the question of title was kept open and not at all fell for consideration more particularly, as is evident from the judgment in O.S.No.346/2002 as stated supra. The trial Court has kept open, the question over the right of the suit properties, for adjudication before the appropriate Court.
31. In order to answer whether Order II Rule 2 CPC applies to the present facts, the said provisions need to be looked into. Order II Rule 2 of the CPC reads as under:
- 28 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 "2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
32. The ingredients necessary to hold that the suit is hit by the provisions of Order II Rule 2, what needs to be looked into has been held in several judgments including the decision of the Privy Council in Mohammad
- 29 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 Khalil Khan Vs. Mahbub Ali Mian10 at paragraph Nos.61 has held as under:
"61. The principles laid down in the cases thus far discussed may be thus summarised:
(1) The correct test in cases falling under Order II, Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit."
(Moonshee Buzloor Ruheem v. Shumsunnissa Begum, supra.) (2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Read v. Brown, supra.) (3) If the evidence to support the two claims is different, then the causes of action are also different. (Brunsden v. Humphrey, supra.) (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. (Brunsden v. Humphrey, supra.) (5) The cause of action has no relation whatever to the defence that may be set up by the, defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers..to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. (Musst. Chandkour v. Partab Singh, supra). This observation 10 (1949) 51 BOMLR 9
- 30 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order II, Rule
2), where plaintiff made various claims in the same suit."
33. Reverting to the facts of this case, the plaintiff's cause of action in the earlier suit was, when the defendant tried to alienate the suit schedule properties and during the pendency of Regular Appeal No.116/2006 arising out of O.S.No.346/2002 when the defendant tried to dispossess the plaintiff from the suit schedule properties, the present suit O.S.No.13/2007 was filed. The cause of action mentioned in the subsequent suit is different from the cause of action mentioned in the former suit and it is relevant to note that I.A.No.4, which was allowed by the trial Court holding that the cause of action in both the suits are different, has attained finality.
34. It is relevant to note that the perusal of Order II Rule 2 emphasizes that the said provision would apply only if the prayer, which could have been sought in the former suit though available at that point of time and having not
- 31 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 availed shall not afterwards seek for the said relief. The claim of declaration is an alternative relief assuming that the suit for declaration that the adoption deed dated 23.03.1961 is held to be null and void in O.S.No.346/2002 to mean that, if the former suit of the plaintiff was decreed, the question of seeking declaration by filing the present suit in respect of the suit schedule properties would not have arisen. The illustration of Order II Rule 2 CPC is as under:
"Illustration A lets a house to B at an yearly rent of Rs.1,200/-. The rent for the whole years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for the year 1906. A shall not afterwards sue B for the rent of 1905 or 1907."
35. The Apex Court, in the case of Vurimi Pullarao supra, the decision relied by the learned counsel for the respondent, has held that when a cause of action for the plaintiff has arose in the earlier suit and having omitted the claim for relief without the leave of the Court, the bar under Order II Rule 2 would stand attracted. The present
- 32 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 case is not where the plaintiff would have sought for a declaration since the prayer for declaration would have been an alternative prayer. The reasoning of the Courts below is without considering the law pertaining to the applicability and maintainability of the subsequent suit without considering the ingredients of Order II Rule 2.
36. The Apex Court has opined that bar under Order II Rule 2 of CPC is highly technical plea and it tends to defeat justice and deprive the party of his or her legitimate right. Therefore, the Apex Court, in the case of Narasahalli Kempanna stated supra, has held that care must be taken to see that complete identity of cause of action is established and if in case where the previous suit is dismissed on the ground that the proper remedy is to file a suit for partition and separate possession, the relief as to the partition and separate possession of the suit properties must be held to have been kept open and the leave of the Court for such relief must be held to have been granted as otherwise in such a case, in the very suit itself a decree for
- 33 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 partition and separate possession could be passed. The Apex Court in para-14 of its judgment held as under:
"14. ......... It has also to be remembered that the plea of bar of suit based on Order II, Rule 2, is a highly technical plea. It tends to defeat justice and deprive the party of his of her legitimate fight. Therefore, care must be taken to see that complete identity of cause of action is established. If in a case where the previous suit is dismissed on the ground that the proper remedy is to file a suit for partition and separate possession, the relief as to partition and possession of the suit properties must be held to have been kept open and leave of the Court for such relief must be held to have been granted as otherwise in such a case in the very suit itself a decree for partition and separate possession could be passed. Instead of that, if the Court dismisses the suit stating that the relief has to be sought in a suit for partition, such a decree amounts to permitting the plaintiff to file a separate suit for partition and possession. In such a situation the bar contained in Order II, Rule 2, C.P.C is not attracted because the dismissal of the suit on that ground not only gives rise to a fresh cause of action but also, as already pointed out, amounts to granting leave for filing another suit for such relief. That being so, the
- 34 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 cause of action for both the suits cannot be held to be identical."
(Emphasis supplied)
37. The Apex Court in the said case has opined that the bar under Order II Rule 2 CPC is a technical bar and it has to be established satisfactorily and cannot merely be on the technical reasoning. The Courts below have gone on a wrong assumption that the suit of the plaintiff is barred by constructive res judicata, under Order II Rule 2, when the question of title has been specifically kept open in the earlier suit, the defendant cannot contend that the suit of the plaintiff is barred under Order II Rule 2 by a constructive res judicata.
38. The Apex Court in the case of M.Kallappa Setty vs. M.V. Lakshminarayana Rao11] at para No.6 has held as under:
"6. ......... it is in the interest of the parties to keep open the question of title to be agitated by the parties if they so desire in a fresh proceeding and confirm the decree of the trial court in respect of 11 (1973)2 SCC 358
- 35 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 relief 2 and set aside its decree in respect of relief 1. As we specifically keep open the question of title, it will not be open to the plaintiff or his representatives or successors to resist any suit the defendant or his representatives or successors may bring in future for possession of the suit on the basis of their title either on the ground of res judicata or Order II Rule 2." The Apex Court in the said decision held that when a question of title is kept open in the former suit, the latter suit would not operate as res judicata to make Order II Rule 2 CPC operative, like in the present case, the question of title of the plaintiff was kept open and now the defendants cannot resist the suit on the basis of their title either on the ground of res judicata or Order II Rule 2 CPC in the present appeal, both the Courts have concurrently held that the plaintiff is the absolute owner of the suit schedule properties.
39. The Apex Court, in the case of Union of India vs. H.K.Dhruv12 at para No.4, has held as under: 12
(2005) 10 SCC 218
- 36 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 "4. Having heard the learned Senior Counsel for the appellant as also the respondent appearing in person, we are satisfied that no fault can be found with the view taken by the High Court. In order to attract applicability of the bar enacted by Order 2 Rule 2 CPC, it is necessary that the cause of action on which the subsequent claim is founded should have arisen to the claimant when he sought for enforcement of the first claim before any court. On the facts found and as recorded in the judgment of the High Court and with which we find no reason to differ, the second demand raised by the respondent was not available to be made a part of the claim raised in the first application. The bar enacted by Order 2 Rule 2 CPC is clearly not attracted." The Apex Court in the said decision has held that the cause of action on which the subsequent suit is claimed is founded should have arisen when he sought for enforcement for the first claim before any Court. In the present facts, the cause of action in the subsequent suit occurred during the pendency of R.A.No.116/2009 and was not available to be raised in the former suit.
- 37 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
40. The Apex Court in another decision in the case of State Bank of India vs. Gracure Pharmaceuticals Ltd.13 at para Nos.11 to 17 held as under:
"11. The abovementioned decisions categorically lay down the law that if a plaintiff is entitled to seek reliefs against the defendant in respect of the same cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same, the plaintiff has to place all his claims before the court in one suit, as Order 2 Rule 2 CPC is based on the cardinal principle that the defendant should not be vexed twice for the same cause.
12. Order 2 Rule 2 CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate causes of action. On the abovementioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case.
13. We have gone through the plaints and the averments contained in both the suits in extenso and also the reliefs claimed in both the suits. The respondents had availed of various credit facilities 13 (2014) 3 SCC 595
- 38 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 from State Bank of India. It had an export order from M/s Medipharma Company, France, which had opened two letters of credit. The first letter of credit was opened with CDN and the second letter of credit was opened with BNP. The date of issue of first letter of credit by CDN was 16-1-2001 and it was to expire on 10-4-2001. Similarly, second letter of credit opened with BNP was issued on 16-1-2001 and was to expire on 30-4- 2001. On 20-3-2001, proceeds of the export deal were paid by the Bank honouring the bills of exchange against the letter of credit opened with CDN and credited the same to the account of the respondent on the understanding that in case the relevant documents were accepted by the opening owner/issuing Bank for any reason whatsoever, the respondent was liable to repay to the Bank, without demur or demand, the amount of the bills/documents along with overdue interest and other charges. Other clauses were also incorporated so as to safeguard the interest of the Bank.
14. On 28-3-2001 the Bank honoured the bills of exchange against the LC opened with BNP subject to the various conditions. The amount was credited to the account of the respondent subject to realisation of the LC. Since the amount of the LC was not received with the issuing Bank on 1-5-2001, the amount was debited to the account of the respondent
- 39 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 on account of non-receipt of the LC from CDN. Similarly, the amount of the LC having not received from the issuing Bank by 14-6-2001, the amount was debited to the account of the respondent for non- receipt of the LC from BNP.
15. The Bank sent various letters to the respondent to regularise the accounts. Since the accounts were not regularised, the Bank decided not to grant further facility. The respondent then on receipt of the payment from the foreign buyer and having failed to take any steps to realise the payment from the buyer or issuing Bank, filed a complaint on 30-9- 2001 with the Banking Ombudsman against the Bank on account of reversing the entry on non- receipt of payment of the LCs. The complaint filed by the respondent was, however, later withdrawn. The Bank's stand is that the closure of account was done on 20-3-2002 due to the fault of the respondent on non-regularisation of their accounts i.e. after non- receipt of payment of the LC, the amount became irregular and remained so continuously.
16. Let us now examine the averments contained in para 37 of the subsequent Suit No. 288/03/04 of 2003 in the above perspective. Para 37 is extracted hereinbelow for easy reference:
- 40 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 "37. That the cause of action to file the present suit accrued in favour of the plaintiff and against the defendants on all those occasions when the defendants wrote various letters to the plaintiff threatening to initiate or actually initiating action against the plaintiff in relation to various credit facilities which were being enjoyed by the plaintiff. The cause of action to file the present suit accrued further in favour of the plaintiff and against the defendants on all those occasions when the defendants actually initiated action against the plaintiff in relation to various credit facilities, which were being enjoyed by the plaintiff and thereby did not provide the said facilities to the plaintiff. The cause of action further accrued when the defendants wrote a letter dated 20-3-
2002 to the plaintiff conveying their decision to unilaterally and illegally rescind the contract between the parties and thereby stopping all credit facilities to the plaintiff. The cause of action accrued further when on 26-3-2002, the General Manager (Commercial) of Defendant 1 did not intervene to stop the arbitrary and illegal action of the officers concerned of the Industrial Finance Branch. The cause of action accrued further when prior to filing of the suit, the plaintiff through its counsel, issued and
- 41 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 served upon the defendants a legal notice dated 24-12-2002. The cause of action is still continuing and subsisting."
17. When we go through the abovequoted paragraph it is clear that the facts on the basis of which the subsequent suit was filed, existed on the date on which the earlier suit was filed. The earlier suit was filed on 15-3-2003 and subsequent suit was filed on 21-5-2003. No fresh cause of action arose in between the first suit and the second suit. The closure of account, as already indicated, was intimated on 20-3-2002 due to the alleged fault of the respondent in not regularising their accounts i.e. after non-receipt of the payment of the LC, the account became irregular. When the first suit for recovery of dues was filed i.e. on 15-3-2001 for alleged relief, damages sought for in the subsequent suit could have also been sought for. Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. The respondent is not entitled to split the cause of action into parts by filing separate suits. We find, as such, that the respondent had omitted certain reliefs which were available to it at the time of filing of the first suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of sub-rule 2 of Order 2 Rule 2
- 42 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 CPC. The object of Order 7 Rule 2 is to avoid multiplicity of proceedings and not to vex the partie over and again in a litigative process. The object enunciated in Order 2 laudable and it has a larger public purpose to achieve by not burdening the court with repeated suits."
The Apex Court in the said decision, emphasized the ingredient to come under the purview of Order II Rule 2 CPC, though in the said facts of the said decision, the Apex Court held that since the cause of action in both the suits being the same and the plaintiff having omitted in the former suit held the suit is hit by Order II Rule 2 CPC. The present facts are clearly distinct regarding the cause of action.
41. The Apex Court in the case of Colonel R.Handa vs. M/s. Abhaya Land & Finance Pvt. Ltd., and others14 at para Nos.53 and 54 has held as under:
"53. In coming to this conclusion by a comprehensive evaluation of the pleadings and evidence in the two suits, we are of the view that 14 2010 (4) AIR Kar. R 665
- 43 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 with the parties to the two suits, particularly, the plaintiff being the same company and the contesting defendant in the two suits being the same person and being the common appellant in these two appeals, we do not find anything untoward or improper in looking into the pleadings and evidence on record in a comprehensive manner though the cause of action for the two suits was not necessarily one and the same. The second suit having become necessary in the wake of the developments in the First earlier suit, we are of the view that the provisions of Order II, Rule 2 of the CPC are not of attracted.
54. Further submission of Sri Prasanna Kumar, learned counsel for the appellant, that independent of the outcome of the operation of the provisions of Section 34 of the Act, the provisions of Order II, Rule 2, CPC can operate and therefore the maintainability of the second suit should be examined independent of the outcome of the first suit, while theoretically is a possibility, in the sense, a situation contemplated when the provisions of Section 34 of the Act operate is a situation which operates only in respect of declaratory decrees or a suit for declaration, whereas the provisions of Order II, Rule 2, CPC operate in general in all situations, irrespective of the suit e being one for the relief of declaration or something else, whenever the same plaintiff, who files a
- 44 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 subsequent suit, had omitted to seek the entire relief as was open to such a person to seek for in the former suit the provisions of Order II, Rule 2, CPC operate as a bar to a person who wants to seek reliefs in instalments or in piecemeal, the object of which provision is obviously to avoid multiplicity of litigation, in the present situation, on facts, even the proviso to Section 34 of the Act being not attracted, further question of the provisions of Order II, Rule 2, CPC being attracted does not arise. We can immediately notice that the situation contemplated in the proviso to Section 34 of the Act is a specie of genus of such a suit, wherein the plaintiff had omitted to seek the entire possible relief in the first suit. Even in a situation where the proviso to Section 34 is attracted, it is not as though the provisions of Order II, Rule 2, CPC are automatically attracted. On the other hand, the examination in the subsequent suit will be as indicated by the Supreme Court in the case of Kunjan Nair Sivaraman Nair (supra), as to whether the plaintiff who had filed a subsequent suit has pleaded all necessary ingredients to attract the provisions and as to whether he has made good such plea by cogent supporting evidence. Even on applying this test also, the argument of Sri Prasanna Kumar that the provisions of Order II, Rule 2, CPC are attracted, fails."
- 45 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
42. The judgment relied by the learned counsel for the respondent in the case of Annasaheb Balesha Waghe & others vs. Appasaheb Dada Pommai & others15 at para 14 has held as under:
"14. Therefore, it follows that Order 41, Rule 22 gives two distinct rights to the respondent in the appeal. The first is the right of upholding the decree of the court of first instance on any of the grounds on which that court decided against him; and the second right is that of taking cross-objection to the decree which the respondent might have taken by way of appeal. In the first case he supports the decree and in the second case he attacks the decree. The use of the word "Support" makes it plain that the right given is limited to the sustaining of the decree in so far as it is in his favour, and does not extend beyond so as to enable him to obtain an alteration giving him a further advantage. This he can secure only by an appeal or cross-objection."
Learned counsel for the respondent relied upon the judgment of the Apex Court in the case of Annasaheb supra to contend that the party who has not preferred any appeal against the findings, wherein, it is adverse to him 15 2007 (5) Kar. L.J. 424
- 46 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 can assail the said findings in the absence of cross- objections. The said judgment was a case where the appeal was withdrawn or dismissed for default and cross- objection survived. In the present case, against the dismissal of the cross-appeal, the respondent has not preferred any appeal.
43. The Apex Court has held in the said judgment that the sustaining of a decree insofar as it relates in his favour and does not extend beyond it and he can secure only by filing an appeal or cross-objection. The said judgment relied is against the respondent.
44. RSA.No.7305/2009 which was preferred by the very parties has attained finality insofar as the adoption is concerned. This Court in the said judgment at para-45 has categorically held as stated supra that as the suit of the plaintiff was only for declaration of validity of adoption deed and no other issue had fallen for consideration in this appeal, the said judgment is again protecting the interest of the plaintiff to seek for declaration of her title.
- 47 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016
45. The other judgments relied upon by the learned counsel for the respondent have no application to the present facts and circumstances of this case, more particularly the judgment in the case of Vurimi Pullarao, wherein, the plaintiff had filed a suit for permanent injunction when the plaintiff had cause of action to file a suit for specific performance, the Apex Court held that when a bigger relief of specific performance was available to the plaintiff in a suit for injunction and the subsequent suit for specific performance was held to be barred by limitation under Order II Rule 2 CPC, the said judgment is not applicable to the present facts and circumstances of this case as the relief sought for declaration was only an alternative relief that would not be prayed for by the plaintiff in the former suit. The judgments and decrees of the Courts below holding that the suit of the plaintiff is hit by res judicata, constructive res judicata and Order II Rule 2 CPC is unsustainable and liable to be set aside for the reasons stated supra, accordingly, the substantial question
- 48 -
NC: 2023:KHC-K:6912 RSA No. 200320 of 2016 of law framed by this Court is answered in favour of the plaintiff-appellant herein and this Court pass the following:
ORDER
(i) The regular second appeal filed by the appellant is hereby allowed.
(ii) The judgments and decrees of the Courts below on the point of res judicata and Order II Rule 2 are set aside and the suit of the plaintiff is decreed.
Sd/-
JUDGE S* List No.: 1 Sl No.: 64