Basavaraj And Anr vs Smt.Sharanawwa And Ors
2022 Latest Caselaw 3803 Kant

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         IN THE HIGH COURT OF KARNATAKA
                   KALABURAGI BENCH

      DATED THIS THE 7TH DAY OF MARCH, 2022

                          BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


               MSA No.200091/2020 (RO)

BETWEEN:

1.    Basavaraj S/o. Golappa Pujari,
      Aged about 48 years, Occ: Agriculture,
      R/o Ganesh Nagar, Masabinal Road,
      Basavanabagewadi, Dist. Vijaypur.

2.    Sharanabasappa S/o. Golappa Pujari,
      Aged about 55 years, Occ: Agriculture,
      R/o. Ganesh Nagar, Masabinal Road,
      Basavanabagewadi, Dist. Vijaypur.
                                                  ...Appellants
(By Srinivas S.Sidhapurkar, Advocate)

AND

1.    Smt. Sharanavva W/o Late Nandappa Pujari,
      Aged about 78 years, Occ: Agriculture & Household,
      R/o. Ganesh Nagar, Masabinal Road,
      Basavanabagewadi, Dist. Vijaypur.

2.    Yamanawwa W/o. Murugeppa Pujari,
      Aged about 54 years, Occ: Agriculture and Household,
      R/o. Ganesh Nagar, Masabinal Road,
      Basavanabagewadi, Dist. Vijaypur.

      Golappa S/o Sangappa Pujari,
      Since3 deceased (died during pendency of
      OS No.194/2011)
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3.    Shrishail S/o. Golappa Pujari,
      Aged about 59 years, Occ: Agriculture,
      R/o. Ganesh Nagar, Masabinal Road,
      Basavanabagewadi, Dist. Vijaypur.

4.    Shivappa S/o. Golappa Pujari,
      Aged about 43 years, Occ: Agriculture,
      R/o. Ganesh Nagar, Masabinal Road,
      Basavanabagewadi, Dist. Vijaypur.

5.    The State of Karnataka,
      Represented by Deputy Commissioner,
      Vijayapur.

6.    The Tahasildar,
      Mini Vidhansoudha Building,
      Huvinhipparagi Road, Basavanabagewadi,
      Dist. Vijayapur.

7.    The Taluka Surveyor,
      Mini Vidhansoudha Building,
      Huvinhipparagi Road, Basavanabagewadi,
      Dist. Vijayapur.
                                               .....Respondents

     This MSA filed U/s 104 R/w. XLIII Rule-1 of CPC, praying

to call for the records, allow the appeal and set-aside the

judgment dated 20.02.2020 passed Basavanabagewadi and be

further pleased to confirm the order and decree passed in

O.S.No.194/2011 dated 08.07.2014 passed by the Civil Judge &

JMFC, Basavanabagewadi, with costs throughout.



      This Appeal coming on for admission, this day, the Court
delivered the following:-
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                      JUDGMENT

This appeal is filed by the appellants challenging

the judgment and decree dated 20.02.2022 passed in

R.A.No.18/2014 by the Senior Civil Judge & JMFC,

Basavana Bagewadi.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellants are defendant Nos.2 and 5. Respondent

Nos.1 and 2 are the plaintiffs, respondent No.3 is

defendant No.2, respondent No.4 is defendant No.4

and respondent Nos.6 to 8 are defendant Nos.6 to 8

before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

3.1. Respondent Nos.1 and 2 filed a suit for

relief of declaration of sale deed dated 18.12.1968,

obtained by defendant No.1 from one Nandappa i.e.

deceased husband of plaintiff No.1 and father of

plaintiff No.2 pertaining to suit schedule property as

null and void with the further sought for consequential

relief of declaration that the defendant No.1 has no

subsistence right title or interest over the suit

schedule property and further declaration that the

mutation entry by the defendant Nos.7 and 8 in favour

of defendant No.1 pertaining to the suit schedule

property are illegal, null and void. Further, declaration

that the division of the suit schedule property into two

portions by the defendant Nos.6 to 8 is not binding on

the plaintiffs right title, interest with the alternative

relief of declaration that the plaintiffs have become

the absolute owners of suit schedule property.

3.2. In the said suit defendant No.7 filed written

statement denying the plaint averments. Defendant

Nos.2 to 5 field IA.No.2 under Order 7 Rule 11(d) r/w

151 of CPC, on the ground that the suit of the

plaintiffs is barred by res-judicata. The said

application was opposed by the plaintiffs.

3.3. After hearing the parties, the trial Court

allowed the said application filed by defendants and

rejected the plaint. Aggrieved by the judgment and

decree passed by the trial Court, the plaintiffs filed the

appeal in R.A.No.18/2004. The appellate Court

allowed the appeal and set aside the judgment and

decree passed by the trial Court. Hence, the

defendants aggrieved by the judgment and decree

passed appellate Court in R.A.No.18/2014, filed this

second appeal.

      4.      Heard        learned             counsel         for   the

appellants/defendants.


      5.      Learned             counsel                for         the

appellants/defendants        submits            that     the    appellate

Court has committed an error in allowing the appeal

filed by the plaintiffs. He further submits that the

present suit is filed for partition and separate

possession. He submits that earlier the suit was filed

in O.S.No.57/1994 and the subject matter of the suit

property involved in the said suit and the present suit

are one and the same. Hence, he submits that the suit

hit by principles of res-judicata under Section 11 of

CPC. The trial Court was justified in allowing the

application filed by the defendants. He further submits

that the appellate Court without properly considering

the contention of the defendants has allowed the

appeal. Hence, on these grounds he prays to allow the

appeal.

6. Perused the records and considered the

submissions made by learned counsel for the

appellants.

7. Defendants have filed an application

IA.No.2 for rejection of plaint on the ground that the

said suit is hit by principles of res-judicata. The said

application was opposed by the plaintiffs stating that it

was not served on the counsel appearing for the

plaintiffs and there is no endorsement regarding

having furnished the copy of the application on the

counsel for the plaintiffs before the trial Court. The

trial Court without providing any opportunity to the

plaintiffs to file objections to IA.No.2 has proceeded to

pass the impugned judgment. The judgment and

decree passed by the trial Court is in violation of

principles of natural justice. The trial Court without

hearing the legal representatives of plaintiffs only

heard the learned counsel for the defendants has

proceeded to pass the impugned judgment. After

considering the material on record, the appellate

Court recorded a finding that in the order sheet it is

silent as to what was the issue framed in the earlier

suit and what is finally heard and decided and what is

the issue in the subsequent suit in O.S.No.194/2011.

The entire order is silent regarding what are the

documents produced by the defendants. The appellate

Court after considering the entire material on record

directed the Trial Court to frame issue regarding res-

judicata and treat the same as preliminary issue. The

appellate Court after considering the entire material

on record was justified in remanding the matter to the

Trial Court with a direction to frame issue regarding

res-judicata. The said issue requires evidence. The

Trial Court without recording the evidence on the said

issue has proceeded to pass the judgment and decree

dated 08.07.2014. The appellate Court after re-

appreciating the entire material on record was

justified in allowing the appeal filed by the plaintiffs. I

do not find any ground to interfere with the impugned

order. Accordingly, appeal is dismissed.

In view of disposal of the main matter,

I.A.No.1/2020 does not survive for consideration.

Sd/-

JUDGE

msr/VNR