Karnataka High Court
Jattanaika vs Manjappa on 28 June, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:22835
RSA No. 2758 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 2758 OF 2006 (RES)
BETWEEN:
JATTANAIKA
S/O HIRENAIKA
SINCE DEAD BY LRS
1. SMT. GANGAMMA
W/O LATE JATTANAIKA
AGED ABOUT 63 YEARS
2. MOTAMMA
D/O LATE JATTANAIKA
3. KOLLAPPA
S/O LATE JATTANAIKA
SINCE DECEASED ON 25.7.2006
BY HIS LEGAL REPRESENTATIVE
3A SMT. YESHODA
W/O LATE KOLLAPPA
Digitally signed
by SHWETHA
RAGHAVENDRA 4. MAHABALA
Location: High S/O LATE JATTANAIKA
Court of
Karnataka
5. JANARDHANA
S/O LATE JATTANAIKA
APPELLANTS 1 TO 5 ARE ALL MAJOR
THEY ARE ALL RESIDENTS OF DEVARAGADDE
KURANAIKA HOLBI
HOSANAGAR TALUK-577418
6. RATHNAMMA
W/O RAMACHANDRA
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NC: 2023:KHC:22835
RSA No. 2758 of 2006
MAJOR
R/O MATTIKOPPA
BANIGA POST
HOSANAGARA TALUK-577 418
7. SUSHEELAMMA
W/O KRISHNAPPA
MAJOR
R/O JUMBALLI VILLAGE
BEEMAGARE POST
KASABA HOBLI
HOSANAGAR TALUK-577418
8. KURANAIKA
S/O HIRENAIKA
SINCE DECEASED BY HIS
LEGAL REPRESENTATIVE
8A SMT. LAKSHAMMA
W/O LATE KURA NAIKA
AGED ABOUT 68 YEARS
8B SRI. GANAPATHI
S/O LATE KURA NAIKA
AGED ABOUT 48 YEARS
8C SRI SHANMUKAPPA
S/O LATE KURA NAIKA
AGED ABOUT 45 YEARS
8D SRI. MOHAN
S/O LATE KURA NAIKA
AGED ABOUT 43 YEARS
ALL THE APPELLANT NO.8(A) TO (D)
ARE R/O HUMCHA HOBLI
VARAMBALLI VILLAGE
DEVARAGUDDE
HOSANAGAR TALUK-577418
8E SMT. KAMALAKSHI
D/O LATE KURA NAIKA
AGED ABOUT 40 YEARS
R/O ERAVAKKI
ANANDAPURA HOBLI
SAGAR TALUK-577412
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NC: 2023:KHC:22835
RSA No. 2758 of 2006
8F SMT. VASANTHI
D/O LATE KURA NAIKA
AGED ABOUT 35 YEARS
VARAMBALLI VILLAGE
TERAHALLI HOBLI
HOSANAGAR TALUK-577418
...APPELLANTS
(BY SRI. PADMANABHA V. MAHALE, SENIOR COUNSEL A/W
SMT. BHARGAVI D. NAYAK FOR
SRI. H DEVENDRAPPA & VINITA D., ADVOCATE)
AND:
MANJAPPA
S/O KOORANAIKA
MAJOR
R/O DEVARAGADDE
HUMCHA HOBLI
HOSANAGARA-577418
...RESPONDENT
(BY SRI. G. KRISHNA MURHTY, SENIOR COUNSEL A/W
SMT. G.K. BHAVANA, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGEMENT & DECREE DT.18.7.2006 PASSED IN
R.A.NO.59/1998 ON THE FILE OF THE ADDL. CIVIL JUDGE (SR.DN),
SAGAR, ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DT.26.10.1998 PASSED IN
O.S.NO.305/1992 ON THE FILE OF THE CIVIL JUDGE (JR.DN) AND
JMFC, HOSANAGAR AND ETC.
THIS RSA, COMING ON FOR HEARING, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed praying to set aside the judgment and decree dated 18.7.2006 passed by Addl. Civil Judge (Sr.Dn) & JMFC, Sagara in RA No.59/1998 and for confirming the judgment and decree dated 26.10.1998 -4- NC: 2023:KHC:22835 RSA No. 2758 of 2006 passed in OS No.305/1992 by Civil Judge (Jr. Dn.) & JMFC, Hosanagar.
2. This appeal is filed by legal representatives of defendant No.1 and defendant No.2. The defendant No.2 is the Appellant No.8 who died during the pendency of this appeal and he is represented by his legal representatives and the respondent is plaintiff.
3. The parties are referred to as per their rankings in the trial Court.
4. The plaintiff has filed a suit in OS No.305/1992 before the Civil Judge (Jr. Dn.) & JMFC, Hosanagar against the defendants No.1 and 2, praying for a judgment and decree for delivery of the vacant possession of the suit schedule property bearing Sy. No.60 measuring 1 acer 13 guntas.
5. The case of the plaintiff before the trial Court is as under;
The plaintiff and one Biliyanaika are brothers and their father Kuranaika is an aged person, the plaintiff is managing the family affairs. As there was no difference -5- NC: 2023:KHC:22835 RSA No. 2758 of 2006 of opinion among the plaintiff and his brother, he has filed this suit for himself and on behalf of his family. It is stated that his father is deaf and dumb and lost eye-sight. It is stated that, father of the plaintiff and the defendant were belonged to the joint family. As there was a difference of opinion among the father of plaintiff and his brother Dakappa, Rudranaika, Teekappa and Thimmanaika and the defendants, they divided the ancestral properties under a registered partition deed. As per said partition deed, the suit schedule property has fallen to the share of the plaintiff's father Kuranaika, the suit schedule property is bearing Sy.No.60 measuring 1 acre 13 guntas of Varamballi Village having the following boundaries, to east land of the one Dharmegowda, to the west land of Thimmanayaka, to the south land of defendant No.1 and to the north the government forest. It is further stated that out of 11 acre 14 guntas wet land, 1 acre 13 guntas was dry land. It is further stated that, the upper part of wet land measuring 3 acres 5 guntas had fallen to the share plaintiff's father and 5 -6- NC: 2023:KHC:22835 RSA No. 2758 of 2006 guntas of bagayat is also allotted to the share of plaintiff's father. The plaintiff's father was also allotted the share in the other properties in the said partition deed. It is stated that since the date of partition, the parties to the partition deed are enjoying the land fallen to their share. It is stated that, though 1 acre 13 guntas of dry land in Sy.No.60 of Varamballi Village fallen to the share of plaintiff's father. The defendant taking un-due advantage of demarcation and delination of the land as per the partition deed forcibly kept the said land in their possession and has been enjoying the same. It is stated that as per recitals of the partition deed 1 acre 13 guntas of land has not fallen to the share of the defendants. The plaintiff's father alongwith the plaintiff have filed a suit in OS No.242/1977 seeking a relief of permanent injunction in respect of the suit schedule property measuring 1 acre 13 guntas in Sy.No.60 of Varamablli village and the said suit came to be dismissed.
In the said suit, it was held that the suit schedule land was in possession of the defendants. It is further -7- NC: 2023:KHC:22835 RSA No. 2758 of 2006 stated that the suit schedule property has been fallen to the share of the plaintiff's father and defendants have no manner of right and title over the same. With this the plaintiff sought possession of the suit schedule property. The defendants filed a written statement contending that the suit of the plaintiff is not maintainable, that the defendants admitted the partition on 18.2.1971. The defendants contended that the upper part of the land in Sy.No.60 fallen to the share of defendants is bounded by to east land of one Mylaradevaru, to the west remaining part of the land in Sy.No.60 fallen to the share of Thimmanaika, to the north government forest and to the south land of the Ramadevaru. A stream flows in the land fallen to the share of the defendants in Sy.No.60. On either side of the said stream land of the defendants is situated. It is contended that, it is decided amongst the sharers to make division and delination of the property according to their occupation and enjoyment. There is no phodi or survey measurement that have been done in accordance with the terms of the partition deed. The -8- NC: 2023:KHC:22835 RSA No. 2758 of 2006 measurement has been mentioned in the partition deed approximately. The land in Sy.No.60 fallen to the share of the defendants is entirely wet land and defendants are rising paddy in it. The plaintiff has not shown 1 acre 13 guntas of dry land in Sy. No.60 and having not mentioned the boundary limits, he contended that the plaintiff is never in possession of the same. The defendants have given boundary of the share allotted to the plaintiff's father in Sy.No.60.
The defendant contended that the plaintiff and his father filed an OS No.70/1982 before the Munsiff Court, Sagar and the same has been dismissed. The appeal challenging the same in RA No.14/1984 filed by the plaintiff has been dismissed.
It is further stated that, prior to filing of OS No.70/1982, the father of the plaintiff Kuranaika, in respect of suit schedule property, has filed one more suit and the said suit has also been dismissed. The defendants contended that therefore, the present suit filed by the plaintiff is hit by limitation and it is time -9- NC: 2023:KHC:22835 RSA No. 2758 of 2006 barred, as the plaintiff's suit was earlier dismissed, the present suit is also not maintainable.
They contended that there is no dry land in Sy. No.60 as contended by the plaintiff. The entire Sy.No.60 is wet land and bagayat land. The plaintiff is not entitled to claim possession of the suit schedule property with this, they pray to dismiss the suit.
6. On the basis of the said pleadings, the trial Court has framed the following issues and additional issue;
1. Whether the plaintiff proves that they are entitled for possession of the suit property?
2. Whether the defendants prove that the suit brought by the plaintiff is not maintainable as per the contention taken by them in para No.5 of their written statement?
3. What decree or order?
Additional Issues:
4. Whether the suit is barred by law of limitation?
5. Whether the suit is barred by res-judicata?
7. The plaintiff has been examined as PW1 and two witnesses were examined on behalf of the plaintiff as PWs 2 and 3 and got marked Ex.P.1 to 3. The defendant
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 No.1 has been examined as DW1 and got marked Ex.D.1 and 2.
8. The trial Court after hearing the arguments on both sides and apricating the evidence on record has answered issue No. 1 and 2 in the negative and dismissed the suit of the plaintiff. Against the said judgment and decree passed by the trial Court, the plaintiffs filed appeal in RA No.59/1988 before Addl. Civil Judge (Sr. Dn), Sagar (the First Appellate Court). The First Appellate Court after hearing the arguments on both sides has formulated the following points for consideration;
1. Whether the appellants prove that the order of judgment and decree passed by the Trial Court is not sustainable, perverse, and needs to be interfered?
2. What order?
9. The First Appellate Court answered the point No.1 in the affirmative and allowed the appeal and set aside the judgment and decree passed by the trial Court and decreed the suit of the plaintiff. The appellants have challenged the judgment and decree passed by the First
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 Appellate Court in this second appeal. The second appeal came to be admitted to consider the following substantial question of law:
"Whether the findings recorded by the Lower Appellate court that the suit filed by the respondent herein was not barred by the principles of res- judicata is sustainable along with his father and brother had filed O.S.No.70/1982 for the same reliefs earlier which came to be dismissed by the judgment dated 09.01.1984 vide Ex.D.1.?"
10. Heard learned senior counsel for the appellants and learned senior counsel for the respondents.
11. Learned senior counsel for the appellant has urged the following points;
The plaintiffs have filed the suit for possession without seeking declaration of title and therefore the suit is not maintainable. There are no boundaries for identifying the land measuring 1 acre 13 guntas in Sy.No.60 and therefore the plaintiff cannot seek possession of the said land. There was no phodi of the land bearing Sy.No.60 as per partition deed dated
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 18.2.1971 (Ex.P.3). The defendants are in possession of the property as per the boundaries given in the written statement. The plaintiff and his father earlier filed two suits for the relief of permanent injunction and the same came to be dismissed and appeal filed challenging the judgment and decree passed in OS No.70/1982 has been withdrawn and therefore, the present suit is not maintainable, and it is barred by Principles of res-judicata. There is no dry land in Sy.No.60 and the entire land is wet and bagayat land. Considering all these aspects, the trial Judge has rightly dismissed the suit of the plaintiff. The First Appellate Court without properly considering the evidence on record and contention of the defendants has set aside the judgment of the trial Court and decreed the suit.
12. Learned senior counsel for the respondent has urged the following points;
The defendants have not disputed the partition deed dated 18.2.1971 (Ex.P3). The plaintiff claims possession of property allotted to their share in the said partition deed
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 (Ex.P3). The suit of the plaintiff is based on title and therefore Article 65 of the Limitation Act is applicable.
The defendants have not set up any adverse possession and therefore, there is no limitation for plaintiffs for filing a suit for possession based on title. The suits filed by the plaintiff and his father earlier in OS No.70/1982 and OS No.242/1977 were for perpetual injunction, the title and claim for possession were not involved in earlier suits and therefore, there was no adjudication of title in the earlier suit and hence, the principles of res-judicata is not applicable to the case on hand.
The defendant has been allotted 4 acres 2 guntas of wet land in Sy.No.60. In his written statement the defendant has admitted that he is possession of more land than the share allotted to him. The very aspect goes to show that the defendants are in possession of the share allotted to the plaintiff's father. The contention of the defendants that there is no dry land in Sy.No.60 cannot be accepted, since the same is mentioned in the Ex.P.1-RTC
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 of Sy.No.60. The defendant who has been examined as PW1 has admitted in his cross examination that he has been allotted 4 acres 2 guntas in Sy.No.60 and he has not disputed the partition deed (Ex.P3).
13. He placed reliance on the following decisions:
1. 1998 (1) SCC 3614 2. RSA No.442/2007
3. 2000 (3) SCC 350
4. 2000 (7) SCC 543
14. The plaintiff has filed the suit seeking relief of possession of the suit schedule property. The plaintiff has not sought any declaration of the title. Learned senior counsel for the appellant argued that the suit for possession without seeking the relief of declaration of title is not maintainable. Seeking declaration is not necessary in a suit for possession based on title if defendant has not proved his title. The Co-ordinate Bench of this Court in the case of Sri. Narayana & others vs. Smt. Indira & another in RSA No.442/2007, has held as under;
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NC: 2023:KHC:22835 RSA No. 2758 of 2006
11. The short question that needs consideration at the hands of this Court is as to whether the defendant can resist the present suit filed for possession based on title. On reading the defence set up by defendant, this Court would find that defendant is not asserting title in himself. All that is stated in the written statement is that he is in a settled position and his possession dates back to 40 years. Now in a suit for possession based on title, the question as to whether the plaintiffs have to seek declaration depends upon the counter title documents, if any, by defendant. In the present case on hand, except bald allegations in the written statement disputing plaintiffs' title, the defendant has not placed on record any title document which would create a cloud over plaintiffs' title and would compel plaintiffs to seek relief of declaration as held by the Apex Court in the case of Anathula Sudhakar .vs. P. Buchi Reddy (Dead) by Lrs. and others. The clinching evidence let in by the plaintiffs has virtually gone unchallenged. A feeble attempt is made by defendant to protract handing over of possession. It is in this background, both the Courts having found that plaintiffs predecessor
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 Narayana having acquired valid right and title under registered settlement deed have rightly proceeded to decree the suit. This Court is unable to understand as to how the defendant who is a stranger to the plaintiffs' family can question the settlement deed executed by the second plaintiff's grand mother namely Ammu Hengsu vide Ex.P1. The settlement deed is totally an internal matter of the plaintiffs' family. The defendant who is a tress passer has no locus to question the settlement deed. What can be gathered from the tenor of defence let in by the defendant during trial is that he remotely traces his possessory right through one K. Doomappa, who has suffered dismissal decree in a bare suit for injunction, which is evident from the judgment rendered in O.S.No.156/1993 vide Ex.P10.
12. During trial, the defendant has also set up a plea of adverse possession though there is no foundation in the written statement in that regard. Therefore, both the Courts referring to the cogent and clinching evidence let in by the plaintiffs have rightly proceeded to hold that plaintiffs by placing on record the title
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 documents and other supporting documents have succeeded in discharging their initial burden and have proved their title. Therefore, in absence of rebuttal title documents let in by the defendant, both the Courts were justified in decreeing the suit filed by the plaintiffs seeking possession which is obviously based on title documents. Both the Courts were also justified in not giving any credence to the defence set up by the defendant. As rightly pointed out by the learned counsel for the plaintiffs, defendant has not chosen to mount the witness box and it is his wife who is examined in this case. Even the conduct of the defendant has to be taken into consideration.
13. In that view of the matter, the substantial questions of law (a) and (b) are answered in the affirmative. Substantial question of law (c) does not survive for consideration. In the light of the defence set up by the defendant in HRC.No.35/2000 substantial question of law (d) does not survive for consideration. Insofar as Substantial question of law (e) is concerned, the present suit is filed by the plaintiffs seeking possession which is based on title. Therefore, the
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 provisions of Limitation Act have no application to the present case on hand as defendant has not set up the plea of adverse possession. If Article 65 has no application, then the suit for possession based on title is not barred by limitation. Accordingly, the substantial question of law (e) is answered in the negative. Further, substantial questions of law (f) to (h) are also answered in the negative.
15. In the case on hand the suit filed by the plaintiffs is for the relief of possession based on title. The plaintiffs claimed title on the basis of partition deed (Ex.P.3). The defendants have not disputed the partition deed (Ex.P.3). Except bald allegation in the written statement disputing plaintiffs' title, the defendants have not placed on record any title documents which would create a cloud over the plaintiffs' title and would compel the plaintiff to seek relief of declaration as held by the Hon'ble Apex Court in the case of Anathula Sudarshan Vs. P. Buchi Reddy (Dead) by LRs and others reported
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 in 2008 (4) SCC 594 which has been referred to in the above referred case.
16. The suit of the plaintiffs is for possession. Admittedly the defendants are in possession of the suit schedule property. The defendants have not claimed title over the suit schedule property. The plaintiffs' title is derived under partition deed (Ex.P.3). Said partition deed (Ex.P.3) is not disputed by the defendants. When the suit is based on title for possession, once title is established on the basis of the relevant document and other evidence, unless the defendants prove adverse possession for the descriptive period the plaintiffs cannot be non-suited. In the case on hand the defendants have not put up any adverse possession. The Hon'ble Apex Court in the case of Indira Vs. Arumugam and Another reported in 1998 (1) SCC 614 has held as under:
4. The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if Old Article 142 of the earlier Limitation Act was in force
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65 which reads as under:
Description of Period of Time from
suit limitation which
period
begins to
run
65. For Twelve When the
possession of years possession
immovable of the
property or defendant
any interest becomes
therein based adverse to
on title the plaintiff.
Considering the above aspects, the first appellate Court has rightly held that the suit of the plaintiff seeking possession of the suit schedule property based on title is not barred by limitation.
17. Plaintiff and his father earlier filed a suit in O.S. No. 242/1977 against the defendants. Said suit is filed for the relief of permanent injunction in respect of suit
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 schedule property. Said suit came to be dismissed by judgment and decree dated 05.04.1980. The plaintiffs have not challenged the said judgment and decree. Said suit came to be dismissed as the plaintiffs failed to prove their possession over the suit schedule property. Title was not involved and adjudicated in the said suit. The plaintiff, his father and brother had filed a suit in O.S. No. 70/1982 against the defendants. An issue has been framed regarding proof of ownership in issue No. 1 which reads thus:
Whether plaintiffs prove that they are the owners of the suit schedule property?
18. While passing the judgment, the Court held that the plaintiffs have not sought the relief of declaration of title and the suit is for injunction. Said suit also came to be dismissed holding that the plaintiffs have failed to prove their possession over the suit schedule property. The ownership over the suit schedule property has been decided in the said suit. The judgment and decree passed
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 in O.S. No. 70/1982 are at Ex.D.1 and Ex.D.2. The plaintiffs, aggrieved by the said judgment and decree passed in O.S. No. 70/1982 have preferred an appeal in R.A. No. 14/1984. During the pendency of the said appeal, the plaintiffs who were appellants have filed a memo seeking permission to withdraw the appeal as they intended to file a suit for possession. Based on the said memo, the appeal came to be dismissed as withdrawn by order dated 31.08.1989.
19. Earlier suits filed by the plaintiffs against the defendants were only suits for injunction and not for title. No question of title was gone into or decided. Said decision cannot therefore be binding on the question of title. Even if in an earlier suit for injunction there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was necessary in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. The Hon'ble Apex Court in
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 the case of Gram Panchayat of Village Naulakha Vs. Ujagar Singh and others reported in 2000 (7) SCC 543 has held as under:
"10. We may also add one other important reason which frequently arises under Section 11 CPC. The earlier suit by the respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be finding on the question of title. See in this connection Sajjadanashin Sayed Vs. Musa Dadabhai Ummer, 2000 (3) SCC 350, where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case."
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20. The plaintiffs' suit for possession is based on title. In the suit on hand where the finding on title is directly and substantially in issue. If a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be resjudicata in a latter proceeding where the matter is directly and substantially in issue. The Hon'ble Apex Court has considered the said aspect in the case of Sajjadanashin Sayed Md. B.E.Edr. (D) By LRs Vs. Musa Dababhai Ummer and others, reported in 2000 (3) SCC 350 wherein the Court has observed thus:
"12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceedings. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.
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18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., P.104). The learned author says : a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a later case (Mulla, P. 104). One has to examine the plaint, the written statement, the issues and the judgment to
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 find out if the matter was directly and substantially in issue (Ishwer Singh Vs. Sarwan Singh and Syed Mohd. Salie Labbai Vs. Mohd. Hanifa). We are of the view that the above summary in Mulla is a correct state of the law."
21. In the earlier suits filed by the plaintiff and his father title was not directly and substantially in issue. Those two suits were filed for the relief of injunction. Those two suits were dismissed as plaintiffs failed to prove possession over the suit schedule property. In the said suits title was not involved and title is not decided. Therefore, the present suit is not hit by principles of res judicata. The first appellate Court has rightly held that the suit is not barred by limitation and principles of res judiciata are not applicable and it is not attracted.
22. In partition deed (Ex.P.3), land measuring 1 acre 13 guntas in survey No. 60 has been allotted to the share of plaintiffs' father. In the partition deed (Ex.P.3) it is stated that said 1 acre 13 guntas is dry land. It is the
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 contention of the defendants that there is no dry land in survey No. 60. Ex.P.2 is the RTC of survey No. 60 measuring 15 acres 17 guntas having pot kharab land of 2 acres. In column No. 12(2) for the years 1972-73 against the name of defendant No.1, in column Nos. 12(8) to (10) there is mention that 1 acre 13 guntas is dry land (khuski) and 4 acres 2 guntas is tari land i.e., wet land. Said partition has taken place on 18.02.1971 and considering the entries in Ex.P.2 - RTC, land measuring 1 acre 13 guntas was dry land at the time of said partition. Said dry land measuring 1 acre 13 guntas has been allotted to the share of plaintiff's father under partition deed (Ex.P.3). Therefore, the contention of learned counsel for appellants that there was no dry land at all in survey No. 60 cannot be accepted.
23. In paragraph No. 5 of the written statement the defendants have stated that they are in possession of excess land and it belongs to them. Defendant No. 1 has been allotted 4 acres 2 guntas of wet land in survey No.
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NC: 2023:KHC:22835 RSA No. 2758 of 2006 60 under partition deed (Ex.P.3). P.W.3 in his cross- examination has stated that earlier the land allotted to the share of father of plaintiff measuring 1 acre 13 guntas was khuski land and now paddy is grown in it. Defendant No.1 who has been examined as D.W.1 in his cross-examination has admitted that he has been allotted 4 acres 2 guntas of wet land in survey No. 60. The defendants are in possession of excess land than the land allotted to their share measuring 4 acres 2 guntas in survey No. 60. Therefore, the first appellate Court has rightly held that the plaintiffs are entitled for possession of suit schedule property from the defendants as they have proved their title in respect of property measuring 1 acre 13 guntas in survey No. 60. Accordingly, substantial question of law is answered in the affirmative and appeal is dismissed.
Sd/-
JUDGE SR,LRS List No.: 1 Sl No.: 17