Bombay High Court
Kashinath Krushna Kdam(Deceased) ... vs Tanaji Aatmaram Kadam And Others on 22 October, 2024
2024:BHC-AS:42911
H.C. SHIV 3.ao614.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.614 OF 2022
WITH
INTERIM APPLICATION NO.3743 OF 2022
IN
APPEAL FROM ORDER NO.614 OF 2022
1. Kashinath Krushna Kadam (Decd)
Through Legal heirs
1A. Kamal Kashinath Kadam
Age 60 years, Occ : Agriculturist ...
1B. Prakash Kashniath Kadam
Age 40 years, Occ : Agriculturist ...
1C. Sharad Kashinath Kadam
Age 30 years, Occ : Agriculturist ...
1D. Vandana Jagannath Damame
Age 35 years, Occ : Agriculturist
R/at: Retharebudruk,
Tal. Karad, Dist: Satara ...
2. Dilip Pandurang Kadam
Age 40 years, Occ : Agriculturist ...
3. Arjun Pandurang Kadam
Age 38 years, Occ : Agriculturist ...
4. Chandrakant Pandurang Kadam
Age 34 years, Occ : Agriculturist ...
Nos.1A to 1C & 2 to 4 are R/at:
Shelkabav, Tal. Kadegaon, Dist: Sangli. ... Appellants
(Orig. Defendants)
vs.
1. Tanaji Aatmaram Kadam
Age 68 years, Occu: Agriculturist ...
1
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H.C. SHIV 3.ao614.22.doc
2. Shivaji Aatmaram Kadam
Age 66 years, Occu: Agriculturist ...
3. Bhanudas Aatmaram Kadam
Age 64 years, Occu: Agriculturist ...
4. Lata Pandharinath Kadam
Age 46 years, Occu: Agriculturist ...
5. Anil Pandharinath Kadam
Age 28 years, Occu: Agriculturist ...
6. Sunita Subhash Shinde
Age 26 years, Occu: Agriculturist ...
7. Ganesh Pandharinath Kadam
Age 25 years, Occu: Agriculturist ...
Nos.1 to 7 are R/at: Shelkabav,
Tal. Kadegaon, Dist: Sangli ... Respondents
(Orig. Plaintiff Nos.1
to 6 and Defendant
No.5)
Mr. Mahindra Deshmukh for the Appellants.
Mr. Kuldeep U. Nikam with Prasad Avhad for Respondent Nos.1 to 7.
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 31st JULY, 2024
PRONOUNCED ON : 22nd OCTOBER, 2024
JUDGMENT :
Present appeal is impugning a Judgment and Order dated
14th March 2022, passed by the Court of learned District Judge-4, at
H.C. SHIV 3.ao614.22.doc
Sangli, thereby said Court allowed a Regular Civil Appeal No.254/2017
and set aside the Judgment and Order dated 9th August, 2017 passed
by the Court of learned Civil Judge, Junior Division, Kadegaon in
Regular Civil Suit No.147/2010, and remanded the suit for re-trial.
(Hereinafter, the parties are being referred to as per their status in the
suit i.e., Appellants as 'Defendants' and Respondent Nos.1 to 6 as
'Plaintiffs and Respondent No.7 as Defendant No.5.)
2) Heard, Mr.Deshmukh, learned Advocate for the Appellants
and Mr.Nikam, learned Advocate for the Respondent Nos.1 to 7.
3) Rule. Rule is made returnable forthwith and taken up for
final hearing with the consent of the parties.
4) The suit property is as under :-
1A) Land bearing Gat No.469 admeasuring 0H-80 Are,
uncultivable 0H-1 Are, situated at Mouje Shelakbav, Taluka
Kadegaon, District Sangli.
1B) Out of the aforesaid land, western side 0H-09Are
land, having four boundaries as under :-
To East Plaintiffs' land out of the suit property.
To South Land of Plaintiff and Defendants in common
Gat No.467
To West Defendants' land in Gat No.468
To North Land of Hanmant Tukaram Mahadik
H.C. SHIV 3.ao614.22.doc
5) The Plaintiffs averred that the suit property 1A is their
ancestral property and is in their possession and occupation. The
Defendants are having their land Gat No.468, adjoining to the west of
the suit property 1A. From the last 7-8 months, the Defendants have
illegally encroached the suit property 1A, claiming that the said land
was given to them by a Court of law. Hence, the Plaintiffs got the suit
property 1A measured on 23rd March, 2010, which revealed that the
Defendants have encroached upon the suit property 1A to the extent of
suit property 1B i.e. 9Are. The Plaintiffs questioned the Defendants
about the encroachment, but they claimed that now it has become
their property and refused to remove the encroachment. Thus, the
cause of action arose for the suit on 23rd March, 2010, therefore, the
Plaintiffs filed the said R.C.S.No.147/2010 for the relief of removal of
the encroachment and recovery of the possession of said 9 Are land. It
is stated that, the Defendant No.5 was not present, hence, he has been
arrayed as formal party to the suit.
6) Defendant Nos.1 to 4 resisted the suit by entering their
written statement (Exh.12). Thereafter, the Defendant No.1 expired.
His legal heirs-Defendant Nos.1A to 1D adopted the written statement
in their defence vide purshish dated 30th December 2014.
H.C. SHIV 3.ao614.22.doc
6.1) The Defendants have not admitted and denied each and
every allegation, averment and statement made against them in the
plaint. The Defendants have denied that they have encroached upon
the suit property, as averred. They have contended that the Plaintiffs
have filed this suit to take disadvantage of a mistake of a Gat
Consolidation Officer. They have specifically contended that, in fact
the Gat Scheme was made applicable to Mouje Shelakbav in the year
1962-63. Before the Consolidation Scheme (amalgamation), Survey
No.79/1/2 admeasuring 3 acres and 13 gunthas and Survey No.79/1/3
admeasuring 28 gunthas were the ancestral lands of the Defendants.
Whereas lands bearing Survey No.79/1/4 admeasuring 37 gunthas and
Survey No.79/1/1 admeasuring 29 gunthas, were owned by the
Plaintiffs. During the Gat Scheme, out of the land Survey No.79/1/2,
0H-90Are, area bearing Gat No.637, was independently recorded/
mutated in the name of the Defendants and, the remaining 43Are land
was again divided in two parts. While consolidating the Gat No.468,
the Consolidation Officer consolidated said Gat No.468 comprising of
total 14Are land out of Survey No.79/1/3, No.79/1/1 and No.79/1/2, in
which Plaintiffs' 29Are land out of pre-Gat Survey No.79/1/1, was
included. As a replacement thereof, the Plaintiffs received 29Are of
H.C. SHIV 3.ao614.22.doc
land in Gat No.469 out of (pre Gat) Survey No.79/1/2 of the ownership
of the Defendants. Thus, since 1962-63 the Plaintiffs and Defendants
are having separate occupation of their respective lands.
6.2) It is contended that the Plaintiffs' 9Are eastern side land
out of their pre Gat Survey No.79/1/4 was included in the land bearing
Gat No.470, of Shamrao Kadam, which is to the east of the Plaintiffs'
said land. In consideration, the Plaintiffs took the land of Shamrao
Kadam in Gat No.687. However, while preparing '9 x 3' and 9 x 4'
extracts of the said consolidation, the Consolidation Officer did not
include in the Gat No.468 the Defendants' 14Are land out of Survey
No.79/1/2. As a result, less area has been recorded in 7 X 12 extract of
Gat No.468.
6.3) It is contended that, in fact only 29 gunthas land out of
Survey No.79/1/2 and only 28 gunthas land out of Survey No.79/1/4
being included in the Plaintiffs' Gat No.469, the Plaintiffs were never
and are not in occupation of more area than that. However, the
Plaintiffs mischievously held the measurement to take disadvantage of
the mistake of the Consolidation Officer and the extra area noted in
their 7 X 12 record. It is contended that without establishing the
ownership of 80Are land in Gat No.469, the Plaintiffs' suit is not
H.C. SHIV 3.ao614.22.doc
tenable in law. It is contended that as the Defendants have already
given to the Plaintiffs their 29 gunthas land out of Survey No.79/1/2 at
the time of Gat consolidation, the Plaintiffs are not entitled to get more
area than that from the Defendants.
6.4) It is contended that, the Plaintiff No.1 being an ex-military
man and a SBI employee, he has influenced the creation of a false
record of Gat No.469 having hands in glove with Consolidation
Officer. It is contended that, never the 80Are land was and is in the
occupation of the Plaintiffs. Therefore, there is no question of the
Defendants encroaching upon the Plaintiffs' land. It is contended that,
the Plaintiffs' have not stated as to when the Defendants have
committed the encroachment. The cause of action stated in the plaint
is false and incorrect. The suit is barred by limitation, as the cause of
action shall be deemed to have occurred in 1962-63.
6.5) The Defendants contended that, the measurement of Gat
No.469 dated 23rd March 2010, is a private one and illegal, therefore, it
is not acceptable to the Defendants. In the alternate it is contended
that, if on merit it is revealed that, the Defendants have encroached
the 9Are land in Gat No.469, they have become its owner by adverse
possession as since 1962-63 till date they are in continuous open,
H.C. SHIV 3.ao614.22.doc
unobstructed and peaceful occupation of the said land. Hence, the
Plaintiffs are not entitled to remove encroachment by the Defendants.
6.6) It is contended that earlier the Plaintiffs' had filed a R.C.S.
No.109/1995 against the same Defendants for the relief of removal of
the same alleged encroachment in the suit property and recovery of its
possession. The said suit was tried on merits and dismissed by a
Judgment dated 2nd February, 2002. The Plaintiffs assailed the said
Judgment in R.C.A. No.61 of 2002. However, the said Appeal came to
be dismissed by the District Court on 1st September 2008. The
decision in R.C.A. No.61 of 2002 has attained finality. The subject
matter property and parties to R.C.S.No.109/1995 and the subject
matter property and parties in this R.C.S. No.147/2010 are the same.
The issues involved in the earlier suits and in this suit, are same.
Therefore, this R.C.S.No.147/2010 has been barred by the principle of
Res-judicata. Thus, the defendants have prayed to dismiss the suit.
7) In view of the rival pleadings, the Defendants submitted an
Application at Exhibit.15 and prayed for framing a preliminary issue
i.e., "Whether suit of the Plaintiff is hit by the principle of Res-
judicata?". The parties did not lead evidence on the said issue. After
considering the material pleadings, documents on record and hearing
H.C. SHIV 3.ao614.22.doc
the parties, the trial Court answered the preliminary issue 'in the
affirmative'. In this regard, the trial Court held that, considering the
Judgment in R.C.S.No.109 of 1995 and the Judgment in R.C.A. No.61
of 2002, it is apparent that, the issues that may be raised by virtue of
the reliefs sought in this suit in respect of the encroached area, the said
issues have been already adjudicated by the Courts of competent
jurisdiction. The Plaintiffs have not raised the issue of jurisdiction.
There is no direction in the Judgment in R.C.A. No.61 of 2002 that
the parties to the suit should get their lands measured. Therefore,
there is no substance in the averment by the Plaintiffs that, as per
decision in R.C.A. No.61 of 2002, the parties should get their land
measured; but the Defendants are not ready to measure their land;
hence, the Plaintiffs got their land measured which revealed the
enchroachment; and thus, there is a fresh cause of action for the suit.
Therefore, and as provided in Section 11 of the Code of Civil Procedure
('CPC', for short), there is bar of res judicata to this suit. Accordingly,
the trial Court dismissed the suit.
8) However, in the impugned Judgment and Order of R.C.A.
No.254/2017, the learned Judge of the First Appellate Court observed
that the decision in R.C.A No.61 of 2002, the same District Court
H.C. SHIV 3.ao614.22.doc
held that, "the Cadestral Surveyor has committed fatal defect in
preparing the survey map. The survey map prepared on that basis was
against the rule incorporated in survey manual. The measurement was
totally defective. The surveyor has not measured the land of the
Defendants, even adjoining land to locate the encroachment. Thus, the
measurement already carried out was defective and hence the dispute
regarding the encroachment of disputed portion of land was not at all
resolved between the parties. The surveyor Mr. Namdeo Patil had
admitted that after consolidation scheme, the area of the Plaintiffs'
land was increased. Under such circumstances, in view of various
judgments of the High Courts and Supreme Court that dispute of
encroachment can be resolved by joint measurement of lands of the
Plaintiffs and lands of the Defendants, and as there was no joint
measurement of lands of the parties at the time of filing of first suit i.e.
R.C.S. No.109/1995, the dispute has not been finally decided between
parties." Therefore, the First Appellate Court held that the suit is not
barred by the principle of Res-judicata, and quashed and set aside the
trial Court's Judgment and Decree in R.C.S. No.147/2010 and
remanded the suit for decision afresh with following directions :-
H.C. SHIV 3.ao614.22.doc
(a) The learned Civil Judge, Junior Division, Kadegaon
to frame the necessary issues after considering the
pleadings of the parties.
(b) The learned Civil Judge, Junior Division, Kadegaon
to give opportunity to both the parties to adduce the
evidence.
(c) The learned Civil Judge, Junior Division, Kadegaon
is directed to appoint Taluka Inspector Land Record
(TILR) to carry out the joint measurement of land of
plaintiffs and land of defendants directing to T.I.L.R. to
carry out the measurement as per the Survey Manual and
file his detail report along with the suitable map.
(d) The Plaintiffs to deposit the necessary fees for joint
measurement within one month from the receipt of record
and proceedings and first date fixed by Civil Judge, Junior
Division, Kadegaon.
(e) If the Plaintiffs failed to deposit the necessary fees
within the prescribed period the suit shall stand
dismissed.
(f) The T.I.L.R. is to carry out the measurement within 3
months from the date of the order.
9) Learned Counsel Mr. Deshmukh for Defendants strongly
submitted that, looking at the rival pleadings in this suit, there could
be only 2 issues in this suit for decision i.e., (i) whether the Plaintiffs
H.C. SHIV 3.ao614.22.doc
prove their title over the 'disputed portion of the land'? (ii) Whether
the Defendants have become owner of the 'disputed portion of the
land', by adverse possession ?
9.1) He submits that, during first round of limitation, the R.C.A
No.61/2002 was decided on 1st September, 2008. Subsequent suit was
decided on 16th September 2010 i.e., exactly after two years. The
alleged area of encroachment in the first suit and subsequent suit is
same. The parties and subject matter of the suit are same. He submits
that, the earlier suit was decided on merit. The decision in R.C.A
No.61/2002 has attained finality. The Plaintiffs failed to prove their
ownership over the 81Are land stated in that suit. As a result, they also
failed to prove the alleged encroachment. Therefore, the trial Court
was justified in disposing of the suit, only on the basis of the findings
as to the preliminary issue of res judicata. Secondly, the need of fresh
measurement was not directly or implicitly expressed by the First
Appellate Court in the Judgment in R.C.A.61/2002. Even if such
measurement is undertaken and it indicates an extra land, it would not
confirm any title to the Plaintiffs as the decision in R.C.A No.61/2002
is in existence, holding that the Plaintiffs have failed to prove their
ownership on the land over their 66 gunthas land. However, the
H.C. SHIV 3.ao614.22.doc
finding and decision in this suit has been unnecessarily quashed and
set aside by the First Appellate Court by way of the impugned
Judgment and Order, which is erroneous as well as illegal because in
the facts, the case does not require a fresh measurement. Hence, the
impugned Judgment and Order is liable to be quashed and set aside
and the Judgment and Order of the trial Court be restored.
10) In contrast, learned Counsel Mr. Nikam for Plaintiffs
submits that, even though the issue of encroachment was framed in
the first round of litigation, no finding was possible in that regard due
to faulty measurement of the lands, as all the lands owned by the
Plaintiffs and the Defendants were not measured together. Therefore,
even though the trial Court accepted the rival pleas of encroachment
and ownership by adverse possession, the First Appellate Court set
aside the said findings in R.C.A No.61/2002. If the measurement was
proper, the decision of the suit in the trial Court would have been in
favour of the Plaintiffs and so of the R.C.A No.61/2002. However, the
Plaintiffs are not restricted in law from getting the suit property
measured again and file this fresh suit to claim the necessary relief,
may it be identical to the earlier suit. Hence, the Plaintiffs got the suit
property thoroughly measured and then filed this suit.
H.C. SHIV 3.ao614.22.doc
10.1) He submits that, the cause of action on account of the
encroachment is of continuous nature, hence, this suit is maintainable
at the instance of the Plaintiffs because the issue of the encroachment
was not decided on merit during the first round of litigation. He
submits that, considering the averments in the plaint, contentions in
the written statement and evidence proposed by the Plaintiffs in this
second suit, the trial Court was duty bound to frame and decide the
material issues i.e., whether the Plaintiffs prove that they are owner of
the suit property 81Are; that, whether the defendants have encroached
upon 9Are of the suit property; and that whether the Plaintiffs are
entitled for recovery of possession of the encroached land? However,
without thinking of framing such significant issues, the trial Court
dismissed the suit only on the basis of the finding as to the preliminary
issue. As such, the Judgment and Order of the trial Court was not only
erroneous on facts but also in law. Therefore, the same has been
rightly quashed and set aside by the First Appellate Court in R.C.A
No.254/2017. In view thereof, the impugned Judgment and Order
cannot be held as faulty so as to interfere with the same. As a result,
the Appeal may be dismissed.
H.C. SHIV 3.ao614.22.doc
11) Looking at the controversy that surfaced from the rival
contentions, first it is apposite to analyze the question that "Can a trial
Court frame and decide an issue as to bar of res judicata, as a
preliminary 'Issue of law' or not?" To get an answer to this question, it
is needful to look into the decisions cited by the learned Counsel for
the parties.
12) In Govinda Goga Donde and Anr. vs. Mayur Ramesh
Bora1., while answering the reference, the three Judges' bench in
paragraph 28 and 29, has held as under :-
"28. Sub-rule (2) of Rule 2 of Order 14 confers power on
the Court to adjudicate issues relating to the jurisdiction of
the Court or such bar created by any law for the time being
in force which has the effect of disposing of "any part
thereof". The expression "any part" thereto occurring in
sub-rule (2) of Rule 2 of Order 14 of the CPC, is
conspicuously absent in Section 9-A of the CPC, which
provides an indication that what was intended by the
Legislature at the time of introduction of Section 9-A of the
CPC was disposal of suit in its entirety and not part of the
suit.
29. For the reasons assigned above, we are of the view
that while exercising power under Section 9-A of the CPC,
the Trial Court cannot frame an issue which has the effect
1. W.P. No.6769/2011 (Bom), dd. 18.07.2024.
H.C. SHIV 3.ao614.22.doc
of disposing of suit in part or cause of action in part. It is
therefore held that while exercising power under Section 9-
A of the CPC, the Trial Court can frame an issue of
jurisdiction only if result of such issue would dispose of the
suit or cause of action in its entirety. ..."
13) In Sathyanath and Anr. vs. Sarojamani2, the challenge in
the appeal was to an Order dated 03.09.2021 whereby in the revision
petition filed by the defendant under Article 227 of the Constitution of
India, the trial Court was directed to frame preliminary issue as to
whether the suit is barred by res judicata. While examining this
challenge, the Apex Court considered the provisions of Section 11, Or.
14 R. 2, Or. 41 Rr. 24 & 25 and Or. 20 R. 5 of the CPC, various earlier
pronouncements by the Hon'ble Supreme Court and several High
Courts.
13.1) In paragraph 6, the Apex Court referred the pre-amended
Or. 14 R.2. In paragraph 7, the Apex Court held that, in a judgment
reported as Major S. S. Khanna vs. Brig. F. J. Dillon [AIR 1964 SC
497], it was held that under Order 14 Rule 2 of the Code where issues
both of law and of fact arise in the same suit and the Court is of
opinion that the case or any part thereof may be disposed of on the
2. (2022) 7 SCC 644.
H.C. SHIV 3.ao614.22.doc
issues of law only, it shall try those issues first, and postpone the
settlement of the issues of fact until other issues of law have been
determined. Then the Apex Court considered the amended provisions
of Or. 14 R.2 and in paragraph 16, 17, 23, 25, 26, 28 and 29, it is held
as under :-
"16. The matter has also been examined by this Court in a
judgment reported as Ramesh B. Desai and Ors. vs. Bipin
Vadilal Mehata and Ors. [(2006) 5 SCC 638] wherein it
was held as under:
"13. Sub-rule (2) of Order 14 Rule 2 CPC lays down
that where issues both of law and of fact arise in the
same suit, and the Court is of the opinion that the
case or any part thereof may be disposed of on an
issue of law only, it may try that issue first if that
issue relates to (a) the jurisdiction of the Court, or (b)
a bar to the suit created by any law for the time being
in force. The provisions of this Rule came up for
consideration before this Court in Major S. S.
Khanna vs. Brig. F. J. Dillon and it was held as
under: (SCR p. 421)
"xxx xxx xxx"
Though there has been a slight amendment in the
language of Order 14 Rule 2 CPC by the amending
Act, 1976 but the principle enunciated in the above
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quoted decision still holds good and there can be no
departure from the principle that the Code confers
no jurisdiction upon the Court to try a suit on mixed
issues of law and fact as a preliminary issue and
where the decision on issue of law depends upon
decision of fact, it cannot be tried as a preliminary
issue."
"17. This Court in Ramesh B. Desai held that the
principles enunciated in Major S. S. Khanna still hold good
and the Code confers no jurisdiction upon the Court to try
a suit on mixed issues of law and fact as a preliminary issue
and where the decision on issue depends upon the question
of fact, it cannot be tried as a preliminary issue. The said
finding arises from the provision of Order XIV Rule 2
clause (a) and (b). After the amendment, discretion has
been given to the Court by the expression 'may' used in
sub-rule (2) to try the issue relating to the jurisdiction of
the Court i.e. territorial and pecuniary jurisdiction, or a bar
to the suit created by any law for the time being in force
i.e., the bar to file a suit before the civil court such as under
the Securitisation and Reconstruction of Financial Assets
and Enforcement of Security Interest Act, 2002 and
numerous other laws particularly relating to land reforms.
Hence, if Order XIV Rule 2 is read along with Order XII
Rule 5, the Court is expected to decide all the issues
together unless the bar of jurisdiction of the court or bar to
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the suit in terms of sub-rule (2) clause (a) and (b) arises.
The intention to substitute Rule 2 is the speedy disposal of
the lis on a question which oust either the jurisdiction of
the Court or bars the plaintiff to sue before the Civil Court.
"xxx xxx xxx"
23. The different judgments of the High Court referred to
above are in consonance with the principles laid down by
this Court in Ramesh B. Desai (Supra) that not all issues of
law can be decided as preliminary issues. Only those issues
of law can be decided as preliminary issues which fell
within the ambit of clause (a) relating to the "jurisdiction
of the Court" and (b) which deal with the "bar to the suit
created by any law for the time being in force." The reason
to substitute Rule 2 is to avoid piecemeal trial, protracted
litigation and possibility of remand of the case, where the
appellate Court differs with the decision of the trial Court
on the preliminary issues upon which the trial Court had
decided.
"xxx xxx xxx"
25. In Abdul Rahman vs. Prasony Bai & Anr. [(2003 1
SCC 488], this Court was examining a suit filed by the
appellant in the year 1999 to declare that the defendant is
not the daughter of Mangal Singh and that the appellant is
in adverse possession even during the life time of Mangal
Singh. An additional issue was framed regarding the
jurisdiction of the civil suit to try the said suit. The High
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Court in proceedings passed an order on 29.11.2001
dismissing the suit on the preliminary issue whether the
dispute to the present civil suit has already been decided
and adjudicated by the Court and is barred by the
principles of res judicata. An intra Court appeal was filed
which was dismissed on 4.12.2001 and thereafter, the
matter travelled to this Court. In these circumstances, this
Court held as under:
"21. For the purpose of disposal of the suit on the
admitted facts, particularly when the suit can be
disposed of on preliminary issues, no particular
procedure was required to be followed by the High
Court. In terms of Order 14 Rule 1 of the Code of Civil
Procedure, a civil court can dispose of a suit on
preliminary issues. It is neither in doubt nor in
dispute that the issues of res judicata and/or
constructive res judicata as also the maintainability of
the suit can be adjudicated upon as preliminary
issues. Such issues, in fact, when facts are admitted,
ordinarily should be decided as preliminary issues."
26. A perusal of the above judgment of this Court shows
that it was an admitted fact that issue of res judicata and of
constructive res judicata can be adjudicated as preliminary
issue. Since it was an admitted fact, it cannot be said that
principle of law has been enunciated that a plea of res
judicata can be decided as a preliminary issue.
H.C. SHIV 3.ao614.22.doc
13.2) In Sathyanath and Anr. (Supra), in paragraph 28 the Apex
Court referred the decision in Shrihari Hanumandas Totala vs.
Hemant Vithal Kamat [(2021) 9 SCC 99], and noted that, "... the plea
of res judicata requires consideration of pleadings, issues and decision
in the previous suit and such a plea would be beyond the scope of
Order VII Rule 11. However, in the operative paragraph, it was
observed that the trial Court shall consider whether a preliminary
issue should be framed under Order XIV, and if so, to decide it within
a period of three months of raising the preliminary issue." Then, in
paragraph 29 held as under :-
"29. This Court was thus examining the scope of Order VII
Rule 11 of the Code, whereas such is not the issue in the
present appeal. In fact, the defendant has filed an
application for framing of preliminary issues. The
direction of the High Court is on such application.
Therefore, such application needs to be considered in the
light of the provisions of Order XIV Rule 2 of the Code.
13.3) In Sathyanath and Anr. (Supra), in paragraph 30 and 31,
the Apex Court referred the decision in the case of Jamia Masjid vs. K.
V. Rudrappa, [(2022) 9 SCC 225 and in particular paragraph 26 and
66]. Then in paragraph 32 and 33 thereof, it is held as under :-
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32. A perusal of the said judgment would show that only
issue Nos. 5 and 6 were decided relating to res judicata and
limitation as preliminary issues by judgment dated
3.2.2006. This Court set aside the finding on the
preliminary issue by judgment dated 23.9.2021 i.e., almost
more than 15 years later when the matter was remanded
back to the trial Court. The absence of the decision on all
issues have necessitated the matter to be remanded back,
defeating the object of expeditious disposal of lis between
the parties. The conclusion in Para 66.1 is that the plea of
res judicata in appropriate cases may be determined as
preliminary issue when it is neither a disputed question of
fact nor a mixed question of law and fact. Such finding is
what this Court held in Ramesh B. Desai.
33. We find that the order of the High Court to direct the
learned trial court to frame preliminary issue on the issue
of res judicata is not desirable to ensure speedy disposal of
the lis between parties. Order XIV Rule 2 of the Code had
salutary object in mind that mandates the court to
pronounce judgments on all issues subject to the
provisions of sub-Rule (2). However, in case where the
issues of both law and fact arise in the same suit and the
Court is of the opinion that the case or any part thereof
may be disposed of on an issue of law only, it may try that
suit first, if it relates to jurisdiction of the Court or a bar to
the suit created by any law for the time being in force. It is
only in those circumstances that the findings on other
H.C. SHIV 3.ao614.22.doc
issues can be deferred. It is not disputed that res judicata is
a mixed question of law and fact depending upon the
pleadings of the parties, the parties to the suit etc. It is not
a plea in law alone or which bars the jurisdiction of the
Court or is a statutory bar under clause (b) of sub-Rule (2).
14) In R. M. Sundaram alias Meenakshisundaram vs . Sri
Kayarohanasamy and Neelayadhakshi Amman Temple (Through its
Executive Officer) Nagapattinam, Tamil Nadu3, in paragraph 36, it is
held as under :-
"36. General principle of res judicata under Section 11 of
the Code contains rules of conclusiveness of judgment, but
for res judicata to apply, the matter directly and
substantially in issue in the subsequent suit must be the
same matter which was directly and substantially in issue
in the former suit. Further, the suit should have been
decided on merits and the decision should have attained
finality. Where the former suit is dismissed by the trial
Court for want of jurisdiction, or for default of the
plaintiff's appearance, or on the ground of non-joinder or
mis-joinder of parties or multifariousness, or on the
ground that the suit was badly framed, or on the ground of
a technical mistake, or for failure on the part of the
plaintiff to produce probate or letter of administration or
3. 2022 SCC OnLine SC 888
H.C. SHIV 3.ao614.22.doc
succession certificate when the same is required by law to
entitle the plaintiff to a decree, or for failure to furnish
security for costs, or on the ground of improper valuation,
or for failure to pay additional Court fee on a plaint which
was undervalued, or for want of cause of action, or on the
ground that it is premature and the dismissal is confirmed
in appeal (if any), the decision, not being on the merits,
would not be res judicata in a subsequent suit. The reason
is that the first suit is not decided on merits."
15) Considering the law laid down in the aforesaid reported
decisions it is clear that, not all issues of law can be decided as
preliminary issues. Only those issues of law can be decided as
preliminary issues which fell within the ambit of clause (a) relating to
the "jurisdiction of the Court" and (b) which deal with the "bar to the
suit created by any law for the time being in force". The reason to
substitute Rule 2 is to avoid piecemeal trial, protracted litigation and
possibility of remand of the case, where the appellate Court differs
with the decision of the trial Court on the preliminary issues upon
which the trial Court had decided. Hence, in my considered view,
depending on facts of the case, an issue as to bar of res judicata can be
framed and decided as "preliminary issue of law".
H.C. SHIV 3.ao614.22.doc
15.1) Now the second question is whether the instant suit is
barred by res judicata or not ? In this regard it is significant to note
that there is no disagreement between the parties herein as to the fact
that the averments of the Plaintiffs and contentions of the Defendants
in the earlier suit as well as in this suit, are exactly same. In the earlier
R.C.S. No.109/1995, the trial Court had framed following issues :-
1) Whether plaintiffs prove that, defendants have made
encroachment in land described in para 1 (b) of plaint i.e.
suit land?
2) Whether defendants prove that, they are owner of the
suit land by adverse possession ?
3) Whether Plaintiffs are entitled to recover possession
of suit land ?
3A) Whether the suit is within limitation ?
4) What relief ?
15.2) In view of the evidence on record, the trial Court answered
the said issue Nos.1 and 2 'in the affirmative', issue Nos.3 and 3A 'in
the negative' and hence, dismissed the R.C.S. No.109/1995.
16) However, in R.C.A. No.61/2002 against that Judgment, the
First Appellate Court considered following points for determination :-
1) Whether the plaintiffs prove title over the 'disputed
portion of the land' ?
H.C. SHIV 3.ao614.22.doc
2) Whether defendants are the owners of the 'disputed
portion of the land' by adverse possession ?
16.1) After considering the evidence and rival submissions, the
First Appellate Court answered the points as " No" for following
reasons (in paragraph 13 to 18 of Judgment ). Accordingly, it allowed
the Appeal and quashed and set aside the trial Court's Judgment and
Decree in R.C.S. No.109/1995. Said reasons are as under :-
13. After careful perusal of pleadings in defence, it will
certainly appear that, the required ingredient of
defendants' animus to blame them for laying hand on the
'disputed portion of the land', is missing. Defendants
required to plead and establish 'animus possessendi'. For
whatever longer period, the defendants may be having in
possession of 'disputed portion of the land', unless they
prove animus against true owner and accept his title of
'disputed portion of the land', the defendants cannot claim
title by prescription.
The learned trial Court, while recording such finding
of fact, has committed a legal error, although has at some
places in judgment has quoted correct position of law, but
has come to wrong conclusion to hold that, defendants
have become owners of 'disputed portion of the land' (9
Rs), by adverse possession.
14. At the out-set, it is to be noted that, the cadestral
surveyor has committed fatal defect in preparing the
H.C. SHIV 3.ao614.22.doc
survey map. At this juncture, it would not be out of place
to mention, from the evidence of surveyor that, the survey
and map prepared thereon is against the rule incorporated
in the survey manual. The measurement is totally
defective. The surveyor has not measured the land of
defendants, even the adjoining land, to locate the
encroachment. He has fixed as many as six new points
while adopting measurements as per plane-table method.
Without measuring the adjoining or adjacent land of
defendants, the survey manual does not allow cadestral
surveyor to declare that, the particular piece of land has
been encroached upon by the contiguous or adjoining
owner.
15. The surveyor Namdeo Patil's evidence does not show
that, he had tippan (टि प्पण) book or phalani (फाळणी) maps
with him. He measured the land of defendants Gat No.468
alone. He obtained the signatures of persons present at the
time of measurement, which included defendants. He
knows that, after consolidation scheme was employed, the
area of plaintiff's land was increased. He admits that, he
found only one old fixed stone on north-east boundary.
16. Even if it is assumed that, on the basis of fixed stone
he has measured by using plane-table method, the "suit
land" alone, without measuring the land of defendants, it
was not possible for him to include the 'disputed portion
of land' in the "suit land", unless he has measured all the
Pot hissas (पो टि स्से /टि स्सा) of original survey numbers, as
H.C. SHIV 3.ao614.22.doc
per the consolidation record of original holdings. He also
knows that, the defendants have preferred an appeal
before Jamabandi Ayukt (जमाबं दी आयु क्त), Pune
(Consolidation Commissioner), and thus the parties have
resorted to remedy provided in statue for correction of
record.
17. Apart from that, what is evidence of plaintiffs to
prove their title to the extent of 80 + 1 Rs, recorded in
their name in the record of right or 7x12 extract of Gat
No.469 ?
Plaintiffs' witness in his cross examination
admits that, the consolidation scheme was applied to his
village in the year in 1957-58. At that time, name of his
father was recorded to the land S.No. 79/1/1 and 79/1/4.
Both these lands ad-measure 29 gunthas and 37 gunthas,
respectively. That means his total holding was to the
extent of 66 Rs. At the time of consolidation, there was
exchange of the lands, within the vicinity. Defendants say
that, there was no superiority or inferiority. Therefore,
plaintiff cannot maintain a claim over more than 66 Rs.
Whereas, undisputedly; the land to the extent of 80+1 Rs.,
came to be recorded in favour of plaintiffs, as Gat No. 469,
the "suit land". It is not the case of plaintiffs that, during
exchange of lands, they received more area of land from
and out of defendants' land, to consolidate the block of
defendants. Therefore, against this admission, the plaintiff
even cannot lay claim before consolidation officer, now, to
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state that he was holding title over 80+1 Rs. of land
although so recorded to the 7x12 record.
18. However, the learned trial Court has recorded
affirmative finding about the title of plaintiff, over "suit
land" block No.469, in entirety, i.e. 80+1 Rs., which per-se
is incorrect in view of above discussed position of evidence
on record, i.e. the admission of plaintiff.
19. Defendants have given details as to how the
blocks were consolidated and how the plaintiffs own 66
gunthas of land alone and there is no encroachment.
The learned trial Court ought to have recorded
negative finding as to title of plaintiffs over the 'disputed
portion of suit land'. He has mixed the "suit land" and
'disputed portion of the land', though the pleadings are
very specific raised in defence by written statement, to
come to know that 14 Rs. land is extraneously recorded to
the 7x12 extract alone, there is exchange of 28 or 29
gunthas between plaintiffs and defendants to form
respectively block Nos. 469 and 468, without changing the
original acerage, over which both have held the title since
the time of their ancestors.
The learned trial Court thus has also committed error
in recording finding of fact in issue No.1, holding plaintiffs
to be title holder of the "suit land" Gat No.469 in its
entirety.
In this situation, I am inclined to accept arguments
on behalf of respondents to exercise powers vested in this
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Court, under Order under Order 41, Rule 33 Civil
Procedure Code, 1908, to convert findings of facts though
there is no cross objections, but to confirm the "impugned
judgment and decree".
17) Looking at the pleadings of the Plaintiffs it is evident that,
they have claimed that they are owner of the entire 81Are suit property
1A and 1B, as it is their ancestral property. Same fact they had pleaded
in the earlier suit. To prove that fact the evidence adduced and relied
by the Plaintiffs in the earlier suit and this suit is same. There is no
dispute that on the strength of said evidence in the earlier suit, the
trial Court held that, the Plaintiffs are owner of the suit property 1A
and 1B, however, in the R.C.A. No.61/2002 the First Appellate Court
clearly held that, "the Plaintiffs' witness in his cross examination
admits that, the consolidation scheme was applied to his village in the
year in 1957-58. At that time, name of his father was recorded to the
land S.No. 79/1/1 and 79/1/4. Both these lands ad-measure 29
gunthas and 37 gunthas, respectively. That means his total holding
was to the extent of 66Rs. At the time of consolidation, there was
exchange of the lands, within the vicinity. The Defendants say that,
there was no superiority or inferiority. Therefore, plaintiffs cannot
H.C. SHIV 3.ao614.22.doc
maintain a claim over more than 66Rs. However, 80+1 Are. land came
to be recorded in favour of plaintiffs, as Gat No. 469, the "suit land".
Neither it is case of the Plaintiffs nor there is evidence that, during
exchange of lands, they received more area of land from and out of
Defendants' land, to consolidate the block of Defendants. Therefore,
against this admission, the Plaintiffs even cannot lay their claim before
the Consolidation Officer, now, to state that the Plaintiffs were holding
a title over 80+1 Are of land although so recorded to the 7x12 record.
The First Appellate Court, therefore, held that, the affirmative finding
of the learned trial Court, as to issue No.1, about the title of the
Plaintiffs, over "suit land" block No.469, in entirety, i.e. 80+1 Are, is
per-se incorrect in view of the above discussed position of evidence on
record, i.e. the admission of Plaintiff. Further, the First Appellate
Court held that, the Defendants have given details as to how the blocks
were consolidated and how the plaintiffs own 66 gunthas of land alone
and there is no encroachment. Hence, the learned trial Court ought to
have recorded a negative finding as to title of plaintiffs over the
'disputed portion of suit land'. Thus, what the First Appellate Court
held is that, the Plaintiffs have failed to prove their ownership over the
entire 81Are land including encroachment on the disputed 9Are land."
H.C. SHIV 3.ao614.22.doc
18) In this background, if the trial Court is made to decide this
subsequent suit on merit i.e., after hearing the evidence of the parties
as directed in the impugned Judgment and Order of the First
Appellate Court in R.C.A. No.254/2017, then the first issue the trial
Court will have to frame and examine is, whether the Plaintiffs prove
that the suit property total 81Ares land is their ancestral property and
they are its owner? However, the trial Court will not be in position to
frame and decide this issue and record a new finding on it. Because,
this issue has been already fought on merit in the first suit and
ultimately in the R.C.A. No.61/2002, the first Appellate Court on
reversing the affirmative finding on this issue, held that the Plaintiffs
have failed to prove that they are owner of the disputed portion i.e. 9
Are land. The Plaintiffs have not challenged the Judgment and Order
of the first Appellate Court filing Second Appeal as such said
Judgment and Order of the First Appellate Court has attained finality.
Thus, in short, without proving that the Plaintiffs are owner of 81 Are
land, the question of encroachment cannot be re-examined for a fresh
finding. That apart, the Judgment in R.C.A. No.61/2002 also held that,
the encroachment is not proved. The preliminary issue was not a
mixed question of law and fact. Nor its finding was depending on the
H.C. SHIV 3.ao614.22.doc
finding of any other issue of fact. The finding on the preliminary issue
was sufficient to decide the entire suit. Thus, it has the effect of
achieving the objective of the principle of res judicata as well as Or. 14
R.2 (b). Therefore, the learned Judge of the trial Court is correct in
framing and deciding the preliminary issue 'in the affirmative'.
19) No doubt, the affirmative finding on the said issue No.1 in
the R.C.S. No.109/1995 was purely the finding of fact, but on account
of affirmative finding as to issue no.2 of 'adverse possession' and the
negative findings on issue Nos.3 and 3A, the suit was dismissed. Thus,
overall, the decision in R.C.A. No.61/2002 did not adversely affect the
Defendants and finely it was in their favour. However, without there
being any cross objection or an independent appeal by the Defendants
against the finding as to said issue No.1, the First Appellate Court in
R.C.A. No.61/2002 set aside the said finding, exercising powers under
Order 41, Rule 33. However, now, this is of no rescue to the Plaintiffs
as they have not challenged the decision of the first Appellate Court in
R.C.A. No.61/2002 and hence, it has become final. If it is held
otherwise, then it would make the principle of res judicata, redundant.
20) In Kashinath Ramkrishna Chopade Vs. Purushottam
Rulshiram Tekade & ors.4, this Court observed and held that, ". ... The
4. 2005 (6) Bom.C.R., 267.
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cases of boundary disputes and disputes about the identity of lands are
instances when a Court should order a local investigation under Order
XXVI Rule 9 of CPC. In order to determine whether there has been an
encroachment, it is always desirable to get the fields measured by an
expert and find out the area encroached upon" . In Sulemankhan and
ors. Vs. Bhagirathibai and ors.5, this noted that, "This Court has time
and again expressed opinion about the necessity of duly drawn
measurement plan/map in any suit, in which there is a boundary
dispute. The Trial Court as well as First Appellate Court, which are
Court of facts, are duty bound to ascertain that a map is drawn to the
appropriate scale by competent Government official from the office of
TILR or DILR, as the case may be, so that measurement of suit
property is carried out in presence of the parties after due notice to
them or even if they are absent, so as to ensure that the suit property is
properly measured, boundaries are fixed and boundary dispute is
finally settled by producing map in the Court by the plan maker who
can prove its genuineness by deposing in support of such plan/map, if
it is so necessary in the absence of admission for exhibiting the map".
21) Admittedly, the measurement in the earlier suit was
defective. This subsequent suit was also filed on the basis of a defective
5. 2014 (4) Mh.L.J., 250.
H.C. SHIV 3.ao614.22.doc
measurement, as held in the impugned Judgment, therefore, the view
of learned Judge of the First Appellate Court is right that dispute of
encroachment can be resolved by joint measurement of lands involved
in the dispute. Yet, on account of the bar of res judicata, the said
learned Judge could not have remanded the suit for fresh decision in
view of the new measurement.
22) Considering the facts and circumstances of the case, it
appears that, after the decision in the R.C.A. No.61/2002, lately the
Plaintiffs realised that the said decision may prove an obstacle in their
claim before the Consolidation Commissioner, seeking for correction
of the record. Therefore, the Plaintiffs have filed this suit fully aware of
the principle of res judicata. All that is discussed in the forgoing
paragraphs, is not considered by the learned Judge of the First
Appellate Court. As a result, an error crept in the impugned Judgment
and Order and hence, it is liable to be quashed and set aside. The
Appeal from Order succeeds, thus. Hence, following Order.
- Order -
1) Appeal from Order No.614 of 2022 is allowed.
2) The impugned Judgment and Order dated 14 th March
2022, passed by the Court of learned District Judge-4, at
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Sangli, in Regular Civil Appeal No.254/2017 is quashed and
set aside.
3) The Judgment and Order dated 9th August, 2017
passed by the Court of Civil Judge, Junior Division,
Kadegaon in Regular Civil Suit No.147/2010, is restored.
4) The Appeal from Order is disposed of in aforesaid
terms. Rule is made absolute.
5) As a result, Interim Application No.3743/2022
stands disposed of.
PREETI
HEERO
JAYANI
JAYANI [SHYAM C. CHANDAK, J.]
