Mallikarjun S/O Hanamanthappa ... vs Hanumawwa D/O Dharmappa
2022 Latest Caselaw 744 Kant

          IN THE HIGH COURT OF KARNATAKA
                  DHARWAD BENCH

      DATED THIS THE 17TH DAY OF JANUARY 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.5963/2012 (PAR)

BETWEEN

1.    MALLIKARJUN
      S/O HANAMANTHAPPA MADAR,
      AGE: 29 YEARS,
      OCC: COOLIE,
      R/O: KINNAL GATE,
      TQ AND DIST: KOPPAL.

2.    GAVISIDDAPPA
      S/O HANAMANTHAPPA MADAR,
      AGE: 25 YEARS,
      OCC: COOLIE,
      R/O: KINNAL GATE,
      TQ AND DIST: KOPPAL.
      PIN CODE : 583 231
                                          ... APPELLANTS
(BY SRI CHANDRASHEKHAR P.PATIL, ADV.)

AND

1.    HANUMAWWA
      D/O DHARMAPPA,
      AGE: MAJOR,
      OCC: HOUSEWIFE,
      R/O: BUDIHAL,
      TQ: BADAMI,
      DIST: BAGALKOT.

2.    KARIYAPPA
      S/O HANUMAWWA,
      AGE: MINOR,
      REPTD., BY HIS NATURAL
      GUARDIAN, HIS MOTHER,
                            2




     WHO IS RESPONDENT NO. 1,
     R/O: BUDIHAL,
     TQ: BADAMI,
     DIST: BAGALKOT.

3.   ANKALAWWA @ SHANKRAWWA
     W/O HANUMAPPA MADAR,
     AGE: MAJOR,
     OCC: HOUSEHOLD,
     R/O: KINNAL GATE,
     TQ AND DIST: KOPPAL,
     PIN CODE: 583231

4.   THE DIVISIONAL MANAGER,
     PERSONAL BRANCH,
     CENTRAL RAILWAY DIVISION,
     HUBLI, DIST: DHARWAD.
     PIN CODE: 583 231.

5.   THE SECTION ENGINEER, P.WAY
     THE SOUTH CENTRAL RAILWAY,
     GADAG, DIST: GADAG.
     PIN CODE: 583 131.
                                         ... RESPONDENTS
(NOTICE TO R.1 & R.2 : HELD SUFFICIENT.)
(NOTICE TO RESPONDENT NO.3 : SERVED-UNREPRESENTED)
(BY SRI AJAY U.PATIL, ADV. FOR RESPONDENT NOS.4 & 5)

     THIS APPEAL IS FILED UNDER SECTION 100 OF THE
CODE OF CIVIL PROCEDURE, 1908, PRAYING THIS COURT TO
SET ASIDE THE JUDGMENT AND DECREE DATED 11.06.2012
PASSED IN R.A.NO.37/2011 BY THE FAST TRACK COURT-I,
KOPPAL CONFIRMING THE JUDGMENT AND DECREE DATED
14.12.2010 PASSED IN O.S.NO.2/2004 BY THE LEARNED CIVIL
JUDGE & JMFC, KOPPAL AND DECREE THE SUIT OF THE
PLAINTIFFS BY ALLOWING THIS APPEAL, IN THE INTEREST OF
JUSTICE AND EQUITY.


     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                              3




                      : JUDGMENT :

The captioned second appeal is filed by the

unsuccessful plaintiffs, wherein the suit filed for

declaration contending that defendant No.3 is legally

wedded wife of one Hanamanthappa Madar and

therefore plaintiffs have legitimate share in the suit

schedule property and consequently decree in

O.S.No.73/1998 is not binding on them is dismissed

and confirmed by the First Appellate Court.

2. For the sake of convenience, the ranks of

the parties are referred to as per their ranking before

the Trial Court.

3. Facts leading to the above said case are as

follows:

Plaintiff Nos.1 and 2 claim to be the brothers and

they further claim that they are the children born to

one Hanamanthappa Madar through defendant No.3

Smt.Ankalawwa. The plaintiffs are asserting rights

over the monitory benefitS of deceased

Hanamanthappa Madar.

4. Defendant No.1 Hanamawwa on receipt of

summons contested the proceedings and stoutly

denied the entire averments made in the plaint. She

has specifically contended that the lis regarding who is

the legally wedded wife of Hanamanthappa Madar has

been put to rest in the earlier round of litigation. She

has specifically contended that, she was compelled to

file a suit in O.S.No.73/1998 by specifically contending

that she is legally wedded wife of deceased

Hanamanthappa Madar. The said suit was decreed and

confirmed by the Appellate Court in R.A.No.34/2001.

Against the concurrent findings, the mother of the

plaintiff namely Ankalawwa who is arrayed as

defendant No.3 in the suit preferred

RSA.No.1035/2002. This Court while concurring with

the judgments of the Courts below was of the view

that the mother of plaintiff has miserably failed to

substantiate her claim and no documentary evidence

is led in by defendant No.3 by demonstrating that she

is the legally wedded wife of Hanamanthappa Madar.

On these set of reasonings, the second appeal filed by

defendant No.3 was dismissed by judgment and dated

09.10.2003. On these set of pleadings defendant No.1

specifically contended that the present suit is not at all

maintainable.

5. Learned judge having assessed oral and

documentary evidence answered issue Nos.1 and 2 in

the negative by holding that plaintiffs have failed to

prove defendant No.3 is the legally wedded wife of

deceased Hanamanthappa Madar and present plaintiffs

are legitimate sons of deceased Hanamanthappa

Madar. The Trial Court also held that decree in

O.S.No.73/1998 would bind the present plaintiffs also

and while answering Issue No.3 in the affirmative, the

Trial Court has held that the present suit is not at all

maintainable and the same is squarely hit by Section

11 of CPC. The said judgment and decree of the Trial

Court, confirmed by the First Appellate Court. It is

against this concurrent judgment the present plaintiffs

are before this Court.

6. Heard learned counsel for the appellants

and learned counsel for the respondents. Perused the

judgments under challenge.

7. On perusal of the records this Court would

find that this is a second round of litigation. Therefore,

I am of the view that the findings recorded by this

Court in RSA.No.1035/2002 in earlier round of

litigation would be useful to this Court.

8. In earlier round of litigation, defendant

No.3 who is the mother of the plaintiff was appellant

and she preferred RSA No.1035/2002 assailing the

concurrent judgment and decrees of the courts below.

Paragraphs 4 to 6 would be relevant and the same are

culled out herein under:

"4. The appellant is the defendant and the respondents are the plaintiffs filed a suit for declaration that the first plaintiff is the legally wedded wife of one Hanamappa Madar employed in Railways and upon his death the Railway Authorities insisted legal credentials to show that the first plaintiff is the legally wedded wife in order to secure the service terminal benefits. The second plaintiff is the son of the first plaintiff said to be born out of the wed-lock of the deceased Hanamappa Madar and the first plaintiff. The appellant-defendant was making the rival claim that she is the legally wedded wife of the deceased Hanamappa Madar. Therefore, the suit came to be filed for the aforesaid reliefs. In the trial Court, the plaintiff has examined herself and three witnesses including the brother of deceased Hanamappa Madar to support that she is the legally wedded wife. The defendant has not examined herself nor produced any documents in support of the contentions. On the basis of the evidence on record, the trial Court found that the first plaintiff is the legally wedded wife and allowed the suit

and granting the decree. The First Appellate Court has confirmed the findings in the Judgment and Decree of the trial Court and dismissed the appeal of the defendant. Hence, the second appeal.

5. The first respondent-plaintiff has examined herself and three witnesses. PW 3 is none other than the brother of deceased Hanamappa Madar. The evidence of PW 3 is referred to by the trial Court and Appellate Court in their judgments categorically discloses that the marriage of Hanamappa Madar and PW 2 was performed at the same time and that the first plaintiff was married to the deceased Hanamappa Madar about 20 years ago. The priest was performed the marriage is also examined. The voters' list is produced to show that the first plaintiff and deceased Hanamappa Madar were residing together in the Railway Quarters. As against the evidence of the plaintiff, no contra evidence is placed by the defendant to substantiate her claim and nothing is elicited from the witnesses examined from the plaintiff to show that their evidence is not trustworthy.

6. In view of the unchallenged version of the plaintiff, substantiated by the evidence, the Court below have taken a sound and a proper view that the first plaintiff is the legally wedded wife and entitled to the terminal benefits of deceased Hanamappa Madar. The defendant-appellant appears to have filed the appeal without any merit, no evidence has been adduced by the defendant in the trial Court. Therefore, there appears to be absolutely no scope for the defendant to challenge the findings. No substantial question of law is involved. Accordingly, the appeal is dismissed."

9. If the finding recorded by this court in

paragraphs 4 to 6 are looked into, I am of the view

that plaintiffs are virtually re-litigating the cause which

is put to rest by this court in RSA No.1035/2002. The

second round of litigation is on same set of facts. Even

in the earlier round of litigation, the mother of the

plaintiffs i.e., defendant No.3 has suffered a decree

and if the present defendant No.1/Hanamawwa was

held to be legally wedded wife of Hanamappa Madar,

the question as to the legal status of the present

plaintiff cannot be independently examined when her

mother's status was decided by this court in the earlier

round of litigation and the same was given a quietus

by rendering a judgment in RSA No.1035/2002. The

principle of res judicata is not a technical principle, but

a fundamental doctrine aimed at putting an end to

litigation and that doctrine would apply irrespective of

the form the proceedings have taken, provided it was

on the same cause of action. It is trite law that when

circumstances other than those provided for the

section exist, the principles underlying the rule of res

judicata can be invoked in a proper case without

recourse to the provision of the section.

10. The judgments rendered in earlier round of

litigation would squarely bind the appellants/plaintiffs.

The judgment relied on by the learned counsel for the

appellants/plaintiffs in the case of Union of India and

Another Vs V.R.Tripathi1 was in regard to right to

claim compassionate appointment by the children born

out of void marriage. In the present case,

appellants/plaintiffs are claiming share in the service

(2019) 14 SCC 646

benefits of deceased Hanamanthappa.

Appellants/plaintiffs mother was claiming to be the

legally wedded wife is already decided and she has

suffered a decree, which is confirmed by this court in

RSA No.1035/2002. Therefore, though this court has

no cavil to the proposition laid down by the Apex Court

in the judgment cited supra, the principles and dictum

laid down in the judgment cited supra is not at all

applicable to the present facts and circumstances of

the case. Therefore, the prayer sought in the present

suit are squarely hit by the Section 11 of CPC. No

substantial question of law would arise for

consideration in the present appeal.

Accordingly, the appeal stands dismissed.

Sd/-

JUDGE EM/MBS