Karnataka High Court
Smt. Shakuntala Wife Of Shivaraj ... vs State Of Karnataka Ors on 2 January, 2017
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
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IN THE HIGH COURT OF KARNATAKA
R
KALABURAGI BENCH
DATED THIS THE 2ND DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.81480/2011 (LR-RES)
BETWEEN:
SMT. SHAKUNTALA
W/O SHIVRAJ DESHMUKH
AGE: 41 YEARS
OCC: AGRI. AND HOUSEHOLD
R/O YANGUNDA VILLAGE
TQ. AURAD DIST. BIDAR
...PETITIONER
(BY SRI SHIVAKUMAR KALLOOR, ADV.)
AND:
1. STATE OF KARNATAKA
DEPARTMENT OF LAND REVENUE
BY ITS SECRETARY VIDHAN SOUDHA
BANGALORE
2. LAND TRIBUNAL AURAD (B)
DIST. BIDAR, BY ITS
CHAIRMAN/SECRETARY
3. TAHASILDAR AND SECRETARY
LAND TRIBUNAL AURAD (B)
DIST. BIDAR
...RESPONDENTS
(BY SRI A. SYED HABEEB, ADV.)
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THIS PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE
RECORDS ISSUE WRIT OF CERTIORARI QUASHING THE
IMPUGNED ORDER ANNEXURES - B AND B1 PASSED BY THE
LAND TRIBUNAL AT BIDAR, THE 2ND RESPONDENT IN NO:
RSA/LRM/748/75-76, NO: RBA/LRM/175/76-77, NO:
13/LND/LR/58/70-71, NO: 21/LND/LR/69/70-71 AND NO:
11/LND/LR/56/70-71 AND ALSO ORDER ANNEXURE - B1 DATED
29.08.1979 AND 14.10.1980 PASSED BY THE LAND TRIBUNAL
AT BIDAR AND DIRECT THE LAND TRIBUNAL AT BIDAR TO
REOPEN THE DECLARATION AND CONSIDER PROVISIONS OF
HINDU SUCCESSION (AMENDED ACT) 39/05, REGARDING
GRANTING OF SHARES TO THE MAJOR DAUGHTERS; ISSUE
WRIT OF MANDAMUS, DIRECTING THE LAND TRIBUNAL TO
CONSIDER THE DECLARATION OF THE PETITIONER'S FATHER
VIDE ANNEXURE-A AS PER PROVISIONS OF THE HINDU
SUCCESSION (AMENDED ACT) 39/05 CONSIDERING THE
DECISION RENDERED BY THIS HON'BLE COURT IN 2009 I.L.R.
(KAR) PAGE NO. 3699.
THIS PETITION COMING ON FOR HEARING THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
Sri Kashinath Rao, S/o Sri Baswanth Rao Deshmukh, father of the petitioner had filed a declaration, under S.65 of the Karnataka Land Reforms Act, 1961 in the matter of the holding of land at Yangunda Village, Aurad Taluk, Bidar District. After conducting the enquiry, Land Tribunal, Aurad(B) passed a provisional order dated 29.08.1979 vide Annexure-B. On 14.10.1980, a final order was passed vide 3 Annexure-B1 and it was declared that there is surplus extent of 176.28 acres of "D" Class land.
2. Feeling aggrieved the petitioner's father filed W.P. No.1149/1981. As Dist. Land Reforms Appellate Authority was constituted at Bidar, by an order dated 02.07.1986 petition was transferred to the said Authority and registered as appeal No. BDAT.KLRA/ W.38/86-87. Sri Kashinath Rao having died, the petitioner and other legal representatives got themselves impleaded and prosecuted Appeal No. BDAT.KLRA/W.38/86-87. By an Order dated 05.05.1989, vide Annexure-C, appeal was allowed in part and extent of surplus land which the legal representatives of deceased declarant should surrender was determined at 115 acres and 01 gunta. It was observed that Land Tribunal and concerned authority shall conduct further proceedings as per law.
3. Feeling aggrieved, all the legal representatives of deceased Kashinath Rao, which included the petitioner, filed LRRP No.4786/1989. By an order dated 26.06.2001 it 4 was held, that the order passed by Appellate Authority does not suffer from any infirmity. Finding no merit, petition was dismissed. Said order attained finality.
4. A notice vide Annexure-E having been served on the legal representatives of deceased Kashinath Rao, to surrender the determined extent of excess land, this writ petition was filed to quash the orders passed by Land Tribunal vide Annexures - B and B1 and for issue of a direction to Land Tribunal to re-open the declaration and consider the case with reference to the provisions of amendment Act No.39 of 2005, inserted to Hindu Succession Act, 1956.
5. Sri Shivakumar Kalloor, learned advocate contended that the holding of land by petitioner's father consisted of himself, his wife and 5 daughters and the same was not considered by Land Tribunal while passing the orders as per Annexures - B and B1. He submitted that in the case of PUSHPALATHA N.V. Vs. V. PADMA, reported in AIR 2010 Karnataka 124, this Court having 5 held that a daughter is entitled for separate share as that of a co-parcener in a Hindu Joint Family by birth, the petitioner and her four sisters are entitled to 108 acres of more land to be retained. Learned counsel submitted that Land Tribunal having not considered the declaration of petitioner's father made vide Annexure- A, by keeping in view the provisions of the Hindu Succession Act, 1956 as was amended by Act No.39 of 2005, petition is liable to be allowed.
6. Sri Syed Habeeb, learned AGA on the other hand contended that the case of petitioner is barred by principles of res-judicata. He submitted that Appeal prosecuted by the petitioner and other legal representatives of deceased Kashinath Rao having been allowed in part, the orders passed by vide Annexures - B and B1 merged with the order passed as per Annexure-C by the Appellate Authority. He submitted that in view of the dismissal of revision petition filed by the petitioner and others, vide order as at Annexure-D, case of petitioner is clearly barred by principles of res-judicata. He further 6 submitted that the petition is also hit by delay and laches. Learned counsel submitted that Annexure-E is only an off- shoot of the orders as at Annexures - C & D and the same i.e. Anenxure-E having not given any fresh cause of action, the petition lacks in merit.
7. From the aforesaid narration of facts and rival contentions, two points arise in this petition for consideration viz., (1) in view of the amendment effected to S.6 of Hindu Succession Act, 1956, as per Act No.39 of 2005, whether the concluded proceedings of the case before the Land Tribunal, whose order merged in the order of the Appellate Authority and attained finality with dismissal of LRRP can be directed to be decided afresh? and (2) whether the dismissal of LRRP No.4786/1989 filed by the petitioner and others against the Judgment in Appeal No.BDAT.KLRA / W.38 / 86-87 would attract the principles of res- judicata and disentitle the petitioner from seeking any relief in this petition?
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8. It is trite that doctrine of res-judicata is not a mere technical doctrine. It is based on principles of justice and public interest viz., a litigant should not be vexed twice over the same issue and there should be finality. The doctrine is based on equity, justice and good conscience. Subsequent change in law cannot unsettle a matter which has attained finality.
9. In MOHANLAL GOENKA Vs. BENOY KISHNA MUKHERJEE, AIR 1953 SC 65, considering the principles of res-judicata, it has been held as under has:
"14... A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides.
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23. There is ample authority for the proposition that even an erroneous decision on a question of law operates as 'res-judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicata'. "8
10. In view of the aforesaid clear enunciation of law by the Apex Court, it would appear that even if the Judgment passed by Appellate Authority and the order passed in LRRP No.4786/1989 is considered to be erroneous, with reference to law laid down in the decision reported in AIR 2010 Karnataka 124, the case cannot be directed to be re-opened, as there is finality of litigation with the dismissal of LRRP No.4786/1989. Even an erroneous decision on a question of law attracts the doctrine of res judicata between the parties to it.
11. Amendment effected to the Hindu Succession Act on 5th September, 2005 cannot be the basis for re- opening of the case which attained finality with the dismissal of LRRP No.4786/1989. Apex Court in the case of SATYADHYAN GHOSAL AND OTHERS Vs. SMT.DEORAJIN DEBI AND ANOTHER, AIR 1960 SC 941, has held as follows:
" 7. The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a 9 res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter - whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S.11 of the Code of Civil Procedure; but even where S.11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct."
(emphasis is supplied)
12. In HOPE PLANTATIONS LIMITED Vs. TALUK LAND BOARD, PEERMADE, (1999) 5 SCC 590, Apex Court has explained the scope of finality of the Judgment as under:
" 17. .... One important consideration of public policy is that the decisions pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by appellate authorities; and the other principle is that no one 10 should be made to face the same kind of litigation twice ever, because such a process would be contrary to considerations of fair play and justice.
xxxxx xxxxx xxxxx
26...... Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are borne by the judgment and are estopped from questioning it."
13. In DR SUBRAMANIAN SWAMY Vs. STATE OF TAMIL NADU, (2014) 5 SCC 75, Apex Court has held as follows:
" 48. Even otherwise, a different view on the interpretation of the law may be possible but the same should not be accepted in case it has the effect of unsettling transactions which had been entered into on the basis of those decisions, as reopening past and closed transactions or settled titles all over would stand jeopardised and this would create a chaotic situation which may bring instability in the society"11
14. It would be impermissible to permit any party to raise an issue, inter-se, where such an issue under the very Act has been decided in an earlier proceeding. Even if the doctrine of res-judicata in its strict sense may not apply, but its principles would be applicable. The petitioner, who is seeking remedy was a party to both the appeal and the revision petition, noticed to supra. In view of the orders as at Annexures C & D, the petitioner cannot seek re-opening of the case both on principles of estoppel and res-judicata.
15. In PRAKASH Vs. PHULAVATHI, (2016) 2 SCC 36, considering S.6 of Hindu Succession Act, 1956, as substituted by Hindu Succession (Amendment) Act, 39 of 2005, Apex Court has held that there being no express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect, the contention that the amendment should be read as retrospective, being a piece of social legislation, was not accepted.
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16. In view of the settled position of law and the previous proceedings between the parties, noticed supra, which have attained finality, there is no merit in the contentions urged by Sri Shivakumar Kalloor.
Consequently, the petition being devoid of merit is dismissed with no order as to costs.
Sd/-
JUDGE sac*