Smt Rajeena vs Pedru Fernandis
2022 Latest Caselaw 3213 Kant

                             1

        IN THE HIGH COURT OF KARNATAKA
                 AT BENGALURU

 DATED THIS THE 24TH DAY OF FEBRUARY, 2022

                        BEFORE

THE HON' BLE MR. JUSTICE N.S. SANJAY GOWDA

          R.S.A. No.1771/2017 (DEC-INJ)

BETWEEN:

SMT. RAJEENA
W/O JANARDHANA NAYAR,
AGED ABOUT 57 YEARS
HOUSE WIFE,
R/O 61, OPP:GANAPATHI TEMPLE,
VIVEKANANDA NAGAR,
HUBBLLI ROAD,
POST:CHIPAGI, TQ: SIRSI
UTTARAKANNADA DISTRICT-581401.
                                         ...APPELLANT

(BY SMT. HEMAVATHIMUTTAGUPPE, ADV. FOR
 SRI LAXMESH P MUTTAGUPPE, ADV.)


AND:

     PEDRU FERNANDIS
     S/O FARASKAFERNANDIS,
     DEAD BY LRS,

1.   SRI PHILIP FERNANDIS,
     S/O PEDRU FERNANDIS,
     AGED ABOUT 53 YEARS.

2.   SRI SALVODORFERNANDIS
     S/O PEDRU FERNANDIS,
                              2

   AGED ABOUT 51 YEARS.

3 . SMT. PRESILLA @ ROJINA FERNADIS
    D/O PEDRU FERNANDIS,
    AGED ABOUT 49 YEARS.

4 . SMT. JOSPHINFERNANDIS
    D/O PEDRU FERNANDIS,
    AGED ABOUT 47 YEARS.

5 . SRI FRANSISFERNANDIS
    D/O PEDRU FERNANDIS,
    AGED ABOUT 39 YEARS.

   RESPONDENTS NO.1 TO 5 ARE
   R/AT NEHUR NAGAR, 3RD CROSS,
   SAGAR TOWN, SAGAR
   SHIVAMOGGA-577405.

6 . SRI SEBASTIN
    @ BASTHAYAVFERNANDIS
    S/O PARASKAFERNANDIS,
    AGED ABOUT 63 YEARS.

7 . SRI RUJARIYOFERNANDIS
    S/O PARASKAFERNANDIS,
    AGED ABOUT 59 YEARS.

8 . SRI PAUL FERNANDIS
    S/O PARASKAFERNANDIS,
    AGED ABOUT 51 YEARS.

9 . SRI SANTHANFERNANDIS
    S/O PARASKAFERNANDIS,
    AGED ABOUT 56 YEARS.

10 . SMT. TEREZA FERNANDIS
     S/O PARASKAFERNANDIS,
     AGED ABOUT 54 YEARS.
                           3

11 . SMT. ANA MERY FERNANDIS
     D/O PARASKAFERNANDIS,
     AGED ABOUT 61 YEARS.

   RESPONDENTS NO.6 TO 11 ARE
   R/O CHURCH STREET,
   SAGAR TOWN, JOSEF NAGAR,
   SAGAR TALUK,
   SHIVAMOGGA DISTRICT-577401.

12 . THE COMMISSIONER
     CITY MUNCIPALITY,
     TALUK SAGAR,
     SHIVAMOGGA DISTRICT-577401.
                                       ...RESPONDENTS

(BY SRI BIMBADHAR M GOWDAR, ADV. FOR R1-11
 SRI VISHWANATH R. HEGDE, ADV. FOR R12)


     THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 29.05.2017
PASSED IN RA NO.40/2016 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE AND JMFC, SAGAR, DISMISSING THE
APPEAL AND CONFIRMING THE ORDER DATED 08.07.2016
PASSED IN OS NO.99/2015 ON THE FILE OF THE ADDL. CIVIL
JUDGE, SAGAR AND ETC.


     THIS R.S.A. IS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                      4

                                JUDGMENT

This is a second appeal by the plaintiff.

2. Smt.Rajeena who is admittedly the daughter of

Smt.Roman Fernandis filed a suit seeking for declaration that

she was the owner of property bearing katha assessment

No.34-34-407 measuring 40 x 120 feet on which, a Mangalore

Tiled Roof structure measuring 30 x 20 feet had been erected.

3. It was her case that the suit property belonged to

her grandfather and he had two daughters and a son. The

first daughter was Catherine and second daughter was Roman

Fernandis (mother of the plaintiff) while the son was Francis

Fernandis. It was her case that both the sister and brother of

her mother i.e., Catherine and Francis Fernandis died

unmarried and her mother was married to one Joseph, out of

which, the plaintiff was born.

4. It was the case of the plaintiff that her

grandfather had constructed a house in the suit property and

she had been in possession of the same. It was alleged that

the father of the defendants one Paraska Fernandis who was

stated to be the brother of the plaintiff's grandfather i.e.,

RuzoriFernandis had managed to get the katha registered in

his name by colluding with CMC officials and after coming to

know the death of the Paraska Fernandis, the present

defendants got the katha changed in their favour. It was

stated that the suit property belonged to her mother's brother

i.e., Francis Fernandis and though they did not have any right,

they got changed the katha in their names. A mandatory

injunction was also sought to the CMC to rectify the entries

and incorporate the name of the plaintiff in respect of the suit

property.

5. This suit was contested by the defendants. The

defendants principally contended that the plaintiff's mother

Roman Fernandis along with her brother and sister had filed a

suit in O.S.No.301/1976 seeking for partition and also for

declaration that the suit property herein was their absolute

property. It was stated that the said suit had been dismissed

and the prayer for declaration of the suit property herein was

their absolute property was negatived. It was stated that this

dismissal had been accepted and had also become final in as

much as no appeal had been preferred. It was contended

that since the claim of the plaintiff's mother that the suit

property belonged to her and her siblings, had been

dismissed, the plaintiff claiming right through her mother

could not seek for a declaration that she was the owner.

6. The Trial Court which had framed a preliminary

issue regarding maintainability of the suit, considered the said

plea and taking note of the fact that O.S.No.301/1976 which

had been filed by the plaintiff's mother in respect of the suit

property had been dismissed, the present suit filed by the

plaintiff who was admittedly claiming through her mother

could not be maintained. The trial Court applying the

principles of Section 11 of CPC proceeded to dismiss the suit.

7. The appeal filed by the plaintiff was also dismissed

since the Appellant Court concurred with the finding the Trial

Court and came to the conclusion that the claim of the

plaintiff's mother for declaration having already been

negatived, the plaintiff who was claiming a right through her

mother could not have been instituted the suit seeking for

declaration.

8. It is as against these concurring judgments, the

present second appeal has been preferred.

9. Learned counsel for the appellant contended that

when several issues were framed, the Trial Court could not

have decided the suit only on the question of maintainability.

According to her, the trial Court was obliged to hold a trial

and answer all the issues and the decision of the Trial Court in

deciding only preliminary issue No.1 was unsustainable. She

relied upon a judgment rendered by the Division Bench of this

Court in the case of MANJUNATH AND ANOTHER v/s

STATE OF KARNATAKA BY LAKSHMESHWAR POLICE

STATION - 2011(1) KCCR 663.

10. It is not in dispute that the mother of the plaintiff

along with her siblings had filed O.S.No.301/1976. It is also

not in dispute that in the said suit, a specific prayer for

declaration that the plaintiff's mother and her siblings were

owners of item No.2 therein was made. It is also not in

dispute that item No.2 in O.S.No.301/1976 was the subject

matter of the present suit i.e. O.S.No.99/2015.

11. Undisputedly, O.S.No.301/1976 was dismissed

anda specific finding was recorded in the said suit that item

No.2 therein, which is the suit property in O.S.No.99/2015,

was not the property of the plaintiff's mother and her siblings

and it was actually the property of Paraska Fernandis i.e.,

father of the defendants. Admittedly, this judgment had

attained finality. When the question as to whether the suit

property belonged to the plaintiff's mother and her siblings or

whether it belonged to the father of the defendants, had been

adjudicated and a decision was rendered that it belonged to

the father of the defendants which had attained finality, the

plaintiff who was claiming title under her mother, who was the

plaintiff in O.S.No.301/1976, cannot obviously maintain the

suit. Both the Trial Court as well as Appellate Court were

justified in coming to a conclusion that the suit filed by the

appellant was barred by principles of res-judicata.

12. Reliance placed upon by the learned counsel for

the appellant on the Division Bench ruling in Manjunath's

case cited supra cannot be accepted because, in the said

decision, this Court has held that all issues had to be tried and

decided together unless pure questions of law not involving

disputed facts arise for consideration. Admittedly, in this

case, the fact that O.S.No.301/1976 was filed and was

dismissed was not in dispute. When the undisputed fact that a

claim for declaration in respect of the suit property was the

subject matter of O.S.No.301/1976 in which, mother of the

plaintiff claimed her right, had been decided, the Trial Court

was justified in deciding the issue as a preliminary issue and

the requirement of holding a trial and rendering a finding on

all issues was not necessary.

13. In this view of the matter, the decision relied upon

by the learned counsel for the appellant cannot be of any

assistance. I am of the opinion that no substantial questions

of law arises for consideration in this second appeal and the

appeal is accordingly dismissed.

Sd/-

JUDGE

mpk/-* CT:bms