Karnataka High Court

Neelappagouda S/O Sankanagouda ... vs Smt Kamalawwa on 22 June, 2022

Bench: E.S.Indireshpresided Byesij

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                                   RSA No. 100091 of 2022


     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

           DATED THIS THE 22ND DAY OF JUNE, 2022

                         BEFORE
           THE HON'BLE MR JUSTICE E.S.INDIRESH
     REGULAR SECOND APPEAL NO. 100091 OF 2022 (DEC-)
BETWEEN:

NEELAPPAGOUDA S/O SANKANAGOUDA PATIL
AGE. 69 YEARS, OCC. AGRICULTURE
R/O. DEVALAPUR, TQ. BAILHONGAL
DIST. BELAGAVI-591102

                                            ...APPELLANT
(BY SRI. AVINASH BANAKAR, ADVOCATE)
AND:
1.     SMT KAMALAWWA W/O FAKIRAGOUDA PATIL
       AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
       R/O GOPUNAKOPPA, TQ: HUBBALLI
       DIST: DHARWAD-580023

2.     SMT SHANTAWWA W/O KALLANAGOUDA BAGALI
       AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
       R/O DHARWAD, TQ/DIST: DHARWAD-580001

3.     SMT KASTURI W/O BASANAGOUDA
       CHANNAPPAGOUDRA
       AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
       R/O GADGOLI, TQ: RON
       DIST: GADAG-582203

4.     SMT SAVITRI W/O BAPUGOUDA MULKIGOUDRA
       AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
       R/O KOUJAGERI, TQ: RON
       DIST: GADAG-582203

5.     SMT INDRA W/O TIRAKAGOUDA SURKOD
       AGE: 63 YEARS, OCC: HOUSEHOLD WORK,
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                                RSA No. 100091 of 2022


      R/O KOUJAGERI, TQ: RON
      DIST: GADAG-582203

6.    SMT BASAVANEVVA W/O BASANAGOUDA PATIL
      AGE: 61 YEARS, OCC: HOUSEHOLD WORK,
      R/O BALAGANUR, TQ/DIST: GADAG-582203

7.    SMT SHAKUNTALA W/O SIDDANAGOUDA PATIL
      AGE: 59 YEARS, OCC: HOUSEHOLD WORK,
      R/O DEVALAPUR, TQ: BAILHONGAL
      DIST: BELAGAVI-591102

8.    SHIVANAGOUDA S/O CHANDRAGOUDA
      KALLANAGOUDAR
      AGE: 57 YEARS, OCC: TEACHER,
      R/O SANGAL, TQ: RAMDURG
      DIST: BELAGAVI-591123

9.    VEERNAGOUDA S/O CHANDRAGOUDA
      KALLANAGOUDAR
      AGE: 55 YEARS, OCC: AGRICULTURE,
      R/O SANGAL, TQ: RAMDURG
      DIST: BELAGAVI-591123

10.   DANAPPAGOUDA S/O CHANDRAGOUDA
      KALLANAGOUDAR
      AGE: 53 YEARS, OCC: TEACHER,
      R/O SANGAL, TQ: RAMDURG
      DIST: BELAGAVI-591123

11.   KASHAVVA W/O BASANAGOUDA PATIL
      AGE: 78 YEARS, OCC: AGRICULUTRE/HOUSEHOLD,
      R/O DEVALAPUR, TQ: BAILHONGAL
      DIST: BELAGAVI-591102

12.   RUDRAGOUDA S/O DYAMANAGOUDA
      KALLANAGOUDAR
      AGE: 70 YEARS, OCC: SERVICE,
      R/O HALE-ALUR,
      TQ/DIST: GADAG-582203
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                                 RSA No. 100091 of 2022


13.   MALLIKARJUNAGOUDA S/O DYAMANAGOUDA
      KALLANAGOUDAR
      AGE: 70 YEARS, OCC: AGRICULTURE,
      R/O MALAWAD, TQ: RON
      DIST: GADAG-582203

14.   SHAKUNTALA W/O SHASHIDHAR PATIL
      AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
      R/O BASAVA NAGAR, 6TH CROSS, BAILHONGAL,
      TQ/DIST: BAILHONGAL -591101

15.   SIDDANAGOUDA S/O BALANAGOUDA PATIL
      AGE: 49 YEARS, OCC: AGRICULTURE,
      R/O BASAVA NAGAR, 6TH CROSS, BAILHONGAL,
      TQ/DIST: BAILHONGAL -591101

16.   SHANTAWWA W/O LINGANAGOUDA PATIL
      AGE: 52 YEARS, OCC: HOUSEHOLD WORK,
      R/O. GOKUL HUBBALLI, ARJUN VIHAR,
      TQ/DIST: DHARWAD -580012

17.   LALITA W/O VEERANAGOUDA KUDARI
      AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
      R/O VALVEKAR PLOT, KESHWAPUR, HUBBALLI,
      TQ/DIST: DHARWAD -580023

18.   GEETA W/O RAMESH PATIL
      AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
      R/O ANURAG BUILDING, 1ST MAIN, 4TH CROSS
      SHIVAJI NAGAR, BELAGAVI,
      TQ/DIST: BELAGAVI -590001

19.   BASANAGOUDA S/O SANKANAGOUDA PATIL
      AGE: 88 YEARS, OCC: AGRICULTURE
      R/O DEVALAPUR, TQ: BAILHONGAL
      DIST: BELAGAVI-591102

20.   SANKAWWA W/O HANAMANTGOUDA PATIL
      AGE: 78 YEARS, OCC: HOUSEHOLD WORK
      R/O SANGAL, TQ: RAMDURG
      DIST: BELAGAVI-591123
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                                               RSA No. 100091 of 2022




21.    SUMITA W/O VEERANAGOUDA BYAHATTI
       AGE: 73 YEARS, OCC: HOUSEHOLD WORK
       R/O KURALAGERI, TQ: NAGRAGUND
       DIST: GADAG-582207
                                      ...RESPONDENTS
(BY SRI.CHETAN MUNNOLI, ADVOCATE)
                                     ---
      THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.11.2021
PASSED IN R.A.NO.25/2015 ON THE FILE OF THE SENIOR
CIVIL JUDGE, RAMDURG, PARTLY ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
20.12.2014, PASSED IN O.S. NO.61/2009 ON THE FILE OF THE
CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
RAMDURG, DISMISSING THE SUIT FILED FOR DECLARATION.

     THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                               JUDGMENT

This Regular Second Appeal is filed by defendant No.1,

challenging the judgment and decree dated 12.11.2021 passed in

R.A.No.25/2015 on the file of the Senior Civil Judge, at

Ramadurga, (hereinafter referred to as 'the First Appellate Court',

for brevity), partly allowing appeal and modifying the judgment and

decree dated 20.12.2014 passed in O.S.No.61/2009 on the file of

the Civil Judge and JMFC, Ramadurg (hereinafter referred to as

'the trial Court', for brevity) , decreeing the suit of the plaintiff.

RSA No. 100091 of 2022

2. For the sake of convenience, the parties to this appeal

shall be referred to in terms of their status and ranking before the

trial Court.

3. The relevant facts for adjudication of this appeal are

that, the plaintiffs claims to be the surviving Class-II heirs of late

Sri.Mallanagouda Siddanagouda Patil. Sri.Mallanagouda

Siddanagouda Patil died on 23.02.1982 at Belagavi.

Mallanagouda Siddanagouda Patil is propositus having 3 children,

one Sankanagouda, Mallanagouda and Smt.Shamabavva.

Sankanagouda died on 03.05.1980 leaving behind Balanagouda,

Basanagouda (defendant No.3), Sankavva (defendant No.4),

Smt.Sumitra (defendant No.5) and Neelappagouda (defendant

No.6). Balanagouda died leaving behind his wife - Parawwa

(defendant No.2). The second son of Siddanagouda -

Mallanagouda married Basavva. Basavva died on 08.11.1975 and

Mallanagouda died on 23.02.1982. They died without leaving any

children. Shamabavva died on 16.07.1991 leaving behind plaintiffs

1 to 5. It is the case of the plaintiffs that, plaintiffs have filed P &

SC No.7/2007 on the file of the Senior Civil Judge, Ramdurg,

seeking succession certificate and the said competent Court

RSA No. 100091 of 2022

directed the plaintiffs to secure declaratory relief and as such, P &

SC No.7/2007 was dismissed on 05.03.2009. Hence the plaintiffs

filed O.S.No.61/2009 on the file of the trial Court seeking

declaration as surviving Class-II successors of late

Sri.Mallanagouda Siddanagouda Patil.

4. On service of summons, defendant No.1 entered

appearance and filed detailed written statement denying the

averments made in the plaint. However, accepted the relationship

with the plaintiffs. It is the case of the defendants that, after the

death of Mallanagouda, the Revenue Authority has issued survival

certificate on 12.03.1982 in the name of the defendants. It is

further stated that the order in P & SC No.7/2007 is a decree and

accordingly, the suit filed by the plaintiffs is hit by the principle of

res judicata. It is also averred in the written statement that, OS

No.146/2007 was filed by the plaintiffs seeking declaration with

consequential relief of injunction and the said suit came to be

dismissed on 16.04.2008 and therefore, it is the specific contention

of the defendant that the suit is not maintainable. It is further stated

in the written statement that, the plaintiffs are the children of

Shamabavva and therefore, she being the daughter of late

RSA No. 100091 of 2022

Mallanagouda Siddanagouda Patil, not entitled for share in the suit

schedule properties and accordingly, sought for dismissal of the

suit. It is also stated in the written statement that, the defendants

have filed O.S.No.312/1982 before the trial Court seeking

declaration and injunction against one Ayyanagouda and the said

case was compromised between the parties and in terms of the

compromise decree, defendants have become absolute owners of

the schedule properties and therefore, the defendants urged that,

the plaint is to be dismissed in limine.

5. Based on the pleadings on record, the trial Court

framed the issues for its consideration. In order to establish their

case, plaintiffs have examined one witness as PW1 and got

marked 6 documents and the same were marked as Exs.P1 to P6.

Defendants have examined 3 witnesses as DWs.1 to 3 and got

marked 43 documents and the same were marked as Exs.D1 to

D43. The trial Court after considering the material on record by its

judgment and decree dated 20.12.2014, dismissed the suit. Being

aggrieved by the same, plaintiffs have preferred R.A.No.25/2015

before the First Appellate Court and the same was resisted by the

defendants.

RSA No. 100091 of 2022

6. The First Appellate Court after considering the material

on record, by its judgment and decree dated 12.11.2021, partly

allowed the appeal, holding that the plaintiffs are the Class-II legal

heirs of the deceased Mallanagouda and plaintiffs are entitled to an

extent of ½ share in the suit schedule property. Being aggrieved

by the same, defendants have presented this Regular Second

Appeal.

7. I have heard Sri.Avinash Banakar, learned counsel

appearing for the appellants and Sri. Chetan Munnoli, learned

counsel appearing for the Caveator/respondent No.1.

8. Sri. Avinash Banakar, learned counsel appearing for

the appellants contended that, both the Courts below have not

properly appreciated the factual aspects of the matter. He further

submitted that the suit itself is not maintainable as the same is hit

by the principle of res judicata in view of conclusion of the

proceedings in P & SC No.7/2007 and in O.S.No.146/2007.

Emphasizing on these aspects, he submitted that, the finding

recorded by the First Appellate Court is contrary to Section 15(2) of

the Hindu Succession Act, 1956 (hereinafter referred to as 'the

Act', for brevity) and accordingly sought for interference of this

RSA No. 100091 of 2022

Court. To buttress his contentions, Sri. Avinash Banakar relied

upon the judgment of this Court in the case of Alisab Vs. Tukaram

Sidharam Kathave reported in ILR 2020 KAR 2216.

9. Per contra, Sri. Chetan Munnoli, learned counsel

appearing for the respondents sought to justify the impugned

judgment and decree passed by the First Appellate Court. He

contended that, the issue involved in O.S.No.146/2007 and P & SC

No.7/2007 with the issues raised in OS No.61/2009 are distinct and

therefore, suit is maintainable and accordingly, argued in favour of

the judgment and decree passed by First Appellate Court. He

further contended that, in view of Section 15 (1) (d) of the Act,

plaintiffs are entitled for a share in the suit schedule properties.

He relied upon the judgments of the Hon'ble Apex Court in the

case of Erach Boman Khavar Vs. Tukaram Shridhar Bhat and

Another reported in (2013) 15 SCC 655 and in the case of

Jaswant Singh and Another Vs. Custodian of Evacuee

Property, New Delhi, reported in (1985) 3 SCC 648. Accordingly,

he sought for dismissal of the appeal.

10. Heard the learned counsel appearing for the parties

and perused the original records.

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RSA No. 100091 of 2022

11. In the light of the submissions made by the learned

counsel appearing for the parties, it is relevant to extract the

genealogy of the original propositus Siddanagouda Mallanagouda

Patil and his family which is as under:

Siddanagouda Mallanagouda Patil

Sankanagouda Mallanagouda Shamabavva (Died on 03.05.1980) (Died on (Died on 16.07.1991 23.02.1982)

Basavva (Wife) (Died on 08.11.1975)

Balanagouda (Basanagouda Sankavva Sumitra Neelappagouda (Dead) (D-3) = (R-19) (D-4) = (R- (D-5) = (D-6) = (A-1)

20) (R-21)

Parawwa - Wife (D-2) (Dead) (Lrs are R14 - 18)

Basanagouda Chandragouda Kasavva Rudragouda Mallikarjungouda (P-1) (Dead) (P-2) (Dead) (P-3) (P-4) (P-5) = (R-13) (Lrs are R1-4) (Lrs. Are R5- R-11) (R-12)

10)

12. In view of the aforementioned genealogy, plaintiffs are

the children of Smt. Shambavva. She died on 16.07.1991.

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RSA No. 100091 of 2022

Defendants are the children of Sankanagouda, who died on

03.05.1980. Mallanagouda was the second son of Siddanagouda

and he married Smt. Basavva, who died on 08.11.1975.

Mallanagouda died on 23.02.1982. Mallanagouda and Basavva

had no issues.

13. In the backdrop of these aspects, I have carefully

considered the arguments advanced by the learned counsel

appearing for the parties.

14. Sri. Chetan Munnoli, learned counsel appearing for the

caveator/respondent No.1 refers to Schedule to Section 8 of the

Act, particularly Class II, which reads as under:

"THE SCHEDULE [Section 8]

HEIRS IN CLASS I AND CLASS II

CLASS I

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre-deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre- deceased son; daughter of a pre-deceased son of a pre- deceased son; widow of a pre-deceased son of a pre- deceased son.

CLASS II

I. Father.

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RSA No. 100091 of 2022

II. (1) Son's daughter's son, (2) son's daughter's daughter, (3) brother, (4) sister.

III. (1) Daughter's son's son, (2) daughter's son's daughter, (3) daughter's son, (4) daughter's daughter's daughter.

IV. (1) Brother's son, (2) sister's son, (3) brother's daughter, (4) sister's daughter.

V. Father's father; father's mother.

VI.. Father's widow; brother's widow.

VII. Father's brother; father's sister.

VIII. Mother's father; mother's mother.

IX. Mother's brother; mother's sister.

Explanation: In this Schedule, references to a brother or sister do not include references to a brother or sister by uterine blood."

15. It is the specific case of the plaintiffs that, they are the

class II legal heirs of Siddanagouda Mallanagouda Patil. In this

regard, I have carefully considered the order passed in P & SC

No.7/2007 dated 05.03.2009 (Ex.P1). The said petition was filed

by the plaintiffs under Section 372 of Indian Succession Act, 1925,

for grant of Succession Certificate in respect of the scheduled

property and in the said proceedings, at paragraph 12 of the

judgment, the Probate Court declined to entertain the petition under

Section 372 of the Indian Succession Act. Paragraph 12 of the

said judgments reads as under:

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RSA No. 100091 of 2022

"12. In view of the principle laid down in this decision and the provisions of section 370 and 372 of the Indian succession Act 1925 it is clear that, succession certificate can be given in respect of debt or securities. The petitioners are not entitled for succession certificate in respect of petition schedule landed properties. Respondent is saying that, the landed properties came to the wife of Mallanagouda Patil from her father and it is her "sthree Dhana" properties. After her death name of her husband Mallanagouda is entered in the revenue records. Since these properties are not came to Mallanagouda from his father Siddanagouda after the death of Mallanagouda said Shambavva will not succeed to the petition schedule landed properties as class II heirs. This is summary proceeding.

Whether Shambavva succeeded to the properties of deceased Mallanagouda or not cannot be decided in the petition. The petitioners have to file separate suit claiming their right over the petition schedule properties. Our Hon'ble High-court in the decision reported in ILR 2000 Karnataka short Note 119 in the case of Hasamknan @ Hasin v/s The State of Karnataka and others, held that, The issue relating to the legal heirs would have to be determined by the Civil Court as serious adjudication is required. Therefore in view of these reasons the petition filed by the petitioners under section 372 of Indian succession Act 1925 for grant of succession certificate in respect of petition schedule landed properties is not maintainable. Hence the petition is liable to be dismissed. Therefore the issue NO.1 and are answered in the negative."

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RSA No. 100091 of 2022

16. The prayer in the plaint in OS No.146/2007 reads as

under:

"12) ªÁ¢AiÀÄgÀ «£ÀAw K£ÉAzÀg-

É

C) zÁªÁzÀ D¹ÛU½ À UÉ ªÁ¢AiÀÄgÉÃ «gÀÄzÀÞ PÀ§eÁ¢AzÀ ªÀiÁ°ÃPÀgÀÄ EgÀÄvÁÛgÉ JAzÀÄ WÉÆÃ¶¸À¨ÃÉ PÁV «£ÀAw CzÉ.

§) vÀvÀàj£ÁªÀÄªÁV ¥Àw æ ªÁ¢AiÀÄgÁUÀ° CxÀªÁ CªÀgÀ vÀ¥É AiÀiÁgÉÃ DUÀ°Ã zÁªÁzÀ D¹ÛU¼ À À ªÁ¢AiÀÄgÀ ¥Àv æ ÀåPÀë PÀ§eÁ ªÀ»ªÁl G¥À¨Æ sÉ ÃUÀPÌÉ AiÀiÁªÀÅzÉÃ jÃw ºÀgPÀ v À ,À CrØ, CvÀAPÀ ªÀUÉÊgÉ ªÀiÁqÀ¨ÁgÀzÀÄ CAvÁ ¥Àw æ ªÁ¢AiÀÄgÀ ªÉÄÃ¯É ¤gÀAvÀgÀ vÁQÃ¢ ºÀÄPÀÄA DUÀ¨ÃÉ PÀÄ JAzÀÄ «£ÀAw CzÉ.

PÀ) ¥Àw æ ªÁ¢AiÀÄjAzÀ ªÁ¢AiÀÄjUÉ PÉÆÃlð RZÀÄð PÉÆr¸À¨ÃÉ PÀÄ.

zÀ) ¥À¸ æ A À UÁ£ÀÄ¸ÁgÀ C¸À®fð zÀÄgÀ¹Û ªÀiÁqÀ®Ä ¥Àgª À Á¤UÉ EgÀ¨ÃÉ PÁV «£ÀAw CzÉ.

E) ªÀiÁ£Àå PÉÆÃnðUÉ AiÀÄÄPÀÛ PÀAqÀ EvÀgÀ £ÁåAiÀÄ±ÀA æ iÀÄ MzÀV¸À¨ÃÉ PÀÄ."

17. Ex.D5 is the certified copy of the order sheet in O.S.

No.146/2007 order dated 16.04.2008 reads as under:

"Plaintiff No.1 is not present. Advocate for plaintiffs submitted that plaintiff No.1 is not keeping well and he prayed to adjourn the case. Advocate for defendant No.5 Shri. R. S. K. submitted that, taking undue advantage of pendency of suit the plaintiffs are causing disturbance. Shri. R. K. K. Adv. Submitted that if that being so, necessary order

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RSA No. 100091 of 2022

may be passed in the suit. Plaintiffs evidence not adduced. Hence suit is dismissed for non-prosecution."

18. Having taken note of the aforementioned documents,

in P & SC No.7/2007, the Probate Court has not gone into the

merits of the case and held that, the petition under Section 372 of

the Indian Succession Act is not maintainable and as such,

relegated the parties to declare their status before the Civil Court.

Therefore, I am of the view that there is no conclusion of

proceedings on merits between the parties in P & SC No.7/2007.

19. Perusal of the plaint in the O.S.No.146/2007 would

indicate that the said suit is filed by the plaintiff seeking declaratory

relief in respect of the suit schedule property. The said suit came

to be dismissed for non-prosecution and therefore, there is no

finding with regard to the rights of the parties in the said suit. That

apart, the defendants have filed a suit in O.S. No.312/1982 and the

prayer in the said suit reads as under:

"For the above stated reasons the Plaintiffs pray that setting aside the contentions of the Defendants, if any, a decree be kindly passed:

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RSA No. 100091 of 2022

(1) declaring that the Plaintiffs and Defendants 2 and 3 are entitled to succeed to the estate of deceased Mallangouda;

(2) restraining Defendant No.1 permanently from obstructing the peaceful possession and enjoyment of the suit properties by the Plaintiffs and Defendants 2 and 3;

(3) awarding costs of the suit;

(4) granting any other relief the Plaintiffs may be found entitled to."

The said suit came to be compromised between the parties.

Order sheet dated 30.06.1987 in OS No.312/1982 reads as under:

"I.A.5 is filed by the plaintiffs to withdraw from the suit. The defendants have no serious objection. Hence considering the request of the plaintiffs, I.A.5 is allowed and the plaintiffs are permitted to withdraw from the suit. No Costs. In view of the above, I.A.4 does not survive, hence rejected."

20. Having considered the aforementioned documents, I

am of the view that the contentions raised by the learned counsel

appearing for the appellant that the suit is barred by the principles

of res judicata is incorrect and therefore, the finding recorded by

the First Appellate Court is just and proper and does not call for

interference in this appeal.

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RSA No. 100091 of 2022

21. That apart, Schedule under Section 8 of the Hindu

Succession Act provides for devolution of the properties in case of

males. It is not in dispute that Shambhavva is the sister of late

Mallanagouda and Sankanagouda. After the death of Basavva and

her husband Mallanagouda, property is required to be devolved

between the children of Sankanagouda and Shambhavva, who are

the plaintiffs and defendants in the suit. In that view of the matter, I

do not find any acceptable ground to interfere with the finding

recorded by the First Appellate Court and setting aside the

judgment and decree passed by the trial Court, is just and proper.

22. Though the learned counsel appearing for the

appellant places reliance on the judgment of Alisab (supra),

however, the factual aspects of the said case is on different footing

and not applicable to the case on hand. In this regard, the Hon'ble

Apex Court in the case of Jaswanth Singh (supra), at paragraph 14

of the judgment held as follows:

"14.........It is well-settled that in order to decide the question whether a subsequent proceeding is barred by res judicata it is necessary to examine the question with reference to the (i) forum or the competence of the Court, (ii) parties and their representatives, (iii) matters which ought to have been made

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RSA No. 100091 of 2022

ground for defence or attack in the former suit and (v) the final decision.................."

23. Perusal of the above judgment would indicate that, the

decision in the earlier suit shall be applicable to the subsequent

proceeding if the earlier proceeding is decided on the merits of the

case and rights of the parties has been decided. However, in the

present case, P & SC No.7/2007 and O.S. No.146/2007 was not

decided on merits of the case and therefore, the judgment

rendered in the above proceedings is not applicable to the present

case. Therefore, I find force in the submission made by the

learned counsel appearing for the respondents.

24. The aforesaid view is also fortified by the Hon'ble Apex

Court in the case of Erach Boman Khavar (supra), wherein the

Hon'ble Apex Court at paragraph 39 of the judgment held as

follows:

"39. From the aforesaid authorities it is clear as crystal that to attract the doctrine of res judicata it must be manifest that there has been a conscious adjudication of an issue. A plea of res judicata cannot be taken aid of unless there is an expression of an opinion on the merits. It is well settled in law that principle of res judicata is applicable between the two stages of the same litigation but the question or issue