Karnataka High Court

Laxman vs The Tahsildar on 3 January, 2023

Bench: M.G.S. Kamal

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                                                                        RSA No.100851 of 2014


                                           IN THE HIGH COURT OF KARNATAKA,
                                                    DHARWAD BENCH

                                       DATED THIS THE 3RD DAY OF JANUARY, 2023

                                                            BEFORE

                                         THE HON'BLE MR JUSTICE M.G.S. KAMAL

                                           R.S.A.NO.100851 OF 2014 (DEC/INJ)

                                 BETWEEN:

                                 1.    LAXMAN S/O. BABURAO SHETTY,
                                       AGED ABOUT 46 YEARS, OCC: BUSINESS,
                                       R/AT RUMEWADI CROSS, KHANAPUR,
                                       TALUK: KHANAPUR,
                                       BELAGAVI DISTRICT - 591302.

                                 2.    POORNIMA W/O. LAXMAN SHETTY,
                                       AGED ABOUT 39 YEARS, OCC: HOUSEHOLD,
                                       R/AT H.NO.504, RUMEWADI CROSS,
                                       KHANAPUR TALUK,
                                       BELAGAVI DISTRICT - 591302.
                                                                                ...APPELLANTS
                                 (BY    SRI K.RAGHAVENDRA RAO,
                                        SMT. V.VIDYA IYER AND
                                        SMT BRUNDA RAO, ADVOCATES)

                                 AND:

                                 1.    THE TAHSILDAR
                                       KHANAPUR REVENUE SUB-DIVISION,
           Digitally signed by
           ROHAN HADIMANI
                                       KHANAPUR,
ROHAN      T

HADIMANI
           Location: HIGH
           COURT OF
                                       BELAGAVI DISTRICT - 591302.
           KARNATAKA
T          DHARWAD
           Date: 2023.01.12
           12:09:16 +0530

                                 2.    THE STATE OF KARNATAKA
                                       REPRESENTAED BY
                                       DEPUTY COMMISSIONER,
                                       BELAGAVI DISTRICT - 591302.

                                 3.    THE PRESIDENT
                                       KRIDA MANDAL CLUB,
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                                                  RSA No.100851 of 2014


      STATION ROAD, KHANAPUR,
      KHANAPUR TALUK,
      BELAGAVI DISTRICT - 591302.
                                                         ...RESPONDENTS
(BY    SRI M.H.PATIL, AGA FOR R1 AND R2
       NOTICE TO RESPONDENT NO.3 - SERVED)

     THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908 PRAYING THIS
COURT TO SET ASIDE THE JUDGMENT AND ORDER IN
R.A.NO.133/2011 DATED 20.04.2012 PASSED BY THE PRESIDING
OFFICER, FAST TRACK COURT AT KHANAPUR AND ALSO SET ASIDE
THE JUDGMENT AND ORDER IN O.S.NO.27/2010 DATED 13.04.2011
PASSED BY THE SENIOR CIVIL JUDGE KHANAPUR AND ALLOW THIS
APPEAL WITH COSTS AND GRANT SUCH OTHER RELIEFS.

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

                               JUDGMENT

1. Appeal is admitted to consider the following

substantial question of law.

"Whether the Trial Court and the First Appellate Court were justified in dismissing the suit of the plaintiffs considering Issue No.6 on resjudicate as preliminary issue, when the same is a mixed question of law and fact without allowing the parties to lead evidence?"

2. Though this matter is admitted today, with the

consent of learned counsel for the parties, taken up for

final disposal.

RSA No.100851 of 2014

3. Parties are referred to as per their ranks before

the Trial Court for the sake of convenience.

4. The present appeal is filed by the plaintiffs

being aggrieved by the judgment and decree dated

09.03.2011 passed in O.S.No.27/2010 on the file of Senior

Civil Judge Khanapur (hereinafter referred to as "the Trial

Court" for short) in and by which the Trial Court while

answering Issue Nos.6 & 7 as preliminary issues,

dismissed the suit of the plaintiffs.

5. Being aggrieved by the same, the plaintiffs

preferred regular appeal in R.A.No.133/2011 on the file of

Presiding Officer, Fast Track Court, Khanapur (hereinafter

referred to as "the First Appellate Court" for short). The

First Appellate Court by the impugned judgment and order

dated 20.04.2012 dismissed the appeal confirming the

judgment and decree passed by the Trial Court.

6. Brief facts of the case :

RSA No.100851 of 2014

6.1 It is the case of the plaintiffs that a non

agricultural piece of land bearing Sy.No.53/A, TMC

No.1360 measuring 2750 Sq.Ft. comprising of a building

situated at Station Road Khanapur (hereinafter referred to

as "the suit property" for short) was originally granted by

defendant No.2-the State of Karnataka to defendant No.3-

President Krida Mandal Club. Defendant No.3 was in

uninterrupted and undisputed possession and ownership of

the suit schedule property. Defendant No.3 had let out the

suit property in favour of the father of plaintiff No.1 in

terms of a registered deed of lease dated 05.04.1963 on a

ground rent of Rs.10/- per month. The father of plaintiff

No.1 had constructed a building out of his own earning

and after obtaining necessary permission from the Town

Panchayath Authority on 15.04.1963.

6.2 That on 21.04.2009, defendant No.3 in its

general body meeting resolved to alienate the suit

property and in furtherance thereof sold the suit property

in favour of the plaintiffs for valuable consideration of

RSA No.100851 of 2014

Rs.12,00,000/- in terms of registered deed of sale on

04.06.2009. When things stood thus, defendant No.1

without any prior notice in violation of principles of natural

justice had come to the suit property and seized the same

with the help of police force.

6.3 The plaintiffs were constrained to approach this

Court by filing a writ petition in W.P.No.62364/2010. This

Court by order dated 04.06.2010 allowed the said writ

petition restoring the possession of the suit property to the

plaintiffs. The aforesaid facts and circumstances,

constrained the plaintiffs to approach the Trial Court by

filing aforesaid suit seeking relief of declaration and

consequential relief of permanent injunction.

7. The defendants appeared and filed their written

statement specifically contending that the suit was not

maintainable in view of non compliance of Section 80 of

the Code of Civil Procedure, 1908. That the suit was

barred by principles of res-judicata in view of the

RSA No.100851 of 2014

observation made by this Court in W.P.No.62364/2010.

That the plaintiffs were not a bonafide purchaser as the

vendor of the plaintiffs did not have title in respect of the

suit property. Hence, sought for dismissal of the suit.

8. Based on the pleadings the Trial Court framed

the following issues for its consideration.

1. Whether the plaintiffs prove that they are the owners of the suit schedule property as bonafide purchaser for value without notice?

2. Whether the plaintiffs prove that their possession over the suit schedule property is irrevocable?

3. Whether the plaintiffs prove that cause of action?

4. Whether the plaintiffs are entitled for the relief of declaration and consequential relief of permanent injunction?

5. Whether the defendants prove that suit is not maintainable for non-compliance of notice under Section 80 of C.P.C?

RSA No.100851 of 2014

6. Whether the defendants prove that suit is hit by principles of res-judicata in view of orders passed in W.P.No.62364/2010 by the Hon'ble High Court of Karnataka Circuit Bench, Dharwad?

7. Whether the Court fee paid is correct?

8. What order and decree?

9. The Trial Court, thereafter without recording

evidence based on the averments made in the written

statement considered Issue Nos.6 & 7 as preliminary

issues and by impugned judgment and decree held that

the observation made by this Court in the aforesaid writ

petition at paragraph Nos.4 to 6 amounted to res-judicata

and consequently held that the suit of the plaintiffs was

not maintainable. The Trial Court taking note of averments

of the plaintiffs in the plaint stated that they enquired

about the title of their vendor, only subsequent to

issuance of endorsement dated 28.07.2009, whereby the

vendor of the plaintiffs had informed them about non

availability of the title, held that the plaintiffs were not a

RSA No.100851 of 2014

bonafide purchaser, consequently dismissed the suit by

judgment and decree dated 09.03.2011.

10. Being aggrieved by the same, plaintiffs

preferred regular appeal in R.A.No.133/2011 before the

First Appellate Court. Considering the grounds urged by

the plaintiffs, the First Appellate Court framed the

following points for its consideration.

1. Whether the appellants prove that the judgment and decree passed by the lower court is illegal, vexatious contrary to the law and requires inference at the hands of the appellate Court?

2. What order?

11. By the impugned judgment and order dated

20.04.2012, the First Appellate Court dismissed the appeal

confirming the judgment and decree passed by the Trial

Court. Aggrieved by the same, the plaintiffs are before this

Court.

RSA No.100851 of 2014

12. Smt.Vidya Iyer, learned counsel for the

appellants reiterating the grounds urged in the

memorandum of appeal submitted that, a bare perusal of

the order passed by this Court in W.P.No.62364/2010,

would under no circumstances amount to res-judicata. She

submits that it is a settled proposition of law that res-

judicata is a mixed question of fact and law and unless and

until pleading of the parties in the previously instituted suit

and evidence led in therein are considered in the

subsequent proceedings it cannot be held that the earlier

order would amount res-judicata. She further submits

that, the issue at hand pertains to a declaration of title

acquired by the plaintiffs in terms of the registered deed of

sale. The Trial Court without allowing the plaintiffs to

adduce evidence ought not to have presumed that the

plaintiffs are not a bonafide purchaser merely on the basis

of the averments in the written statement of the

defendant. Hence she submits that, the impugned

judgment and decree passed by the Trial Court as well as

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RSA No.100851 of 2014

the First Appellate Court have given rise to the substantial

question of law requiring to be answered in favour of the

plaintiffs.

13. Per contra, Sri M.H.Patil, learned Additional

Government Advocate appearing for the respondents-

State submits that, the order passed by this Court in the

aforesaid writ petition has attained finality. He submits

that, this Court has taken note of the averments made in

the petition as well as statement of objections filed by the

respondents-authorities and only thereafter came to be

conclusion that the possession of the plaintiffs was

unauthorized and hence had reserved liberty to the

respondents-authorities to take action in accordance with

law. Hence, he submits that, the same amounts to res-

judicata as there was determination of rights of the parties

requiring no further recording of evidence which would be

an empty formality. He submits that, admittedly the

property belongs to the Government and was given on

lease to defendant No.3. Defendant No.3 himself did not

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RSA No.100851 of 2014

have any right over the suit property, the question of any

alienation of the same by defendant No.3 in favour of the

plaintiffs, even if any such document has been executed,

the same is not binding on the respondents-authorities. He

further submits that, in view of the aforesaid legal factual

aspects of the matter, substantial question of law needs to

be answered against the appellant dismissing the appeal.

14. Heard and perused the records.

15. Plaintiffs filed the above suit seeking relief of

declaration of their title and consequential relief of

permanent injunction against the respondent-authorities.

As seen above, the Trial Court based on the pleadings of

the parties framed as many as seven issues. However, the

Trial Court deemed it appropriate to consider Issue Nos.6

& 7 alone as preliminary issues. From the records it

appears that the Trial Court and the First Appellate Court

taking into consideration of the order passed by this Court

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RSA No.100851 of 2014

in W.P.No.62364/2010 have come to the conclusion that

the same amounts to res-judicata.

16. It is necessary at this juncture to extract the

order passed by this Court in W.P.No.62364/2010, which

reads as follows:

"ORDER In this Writ Petition, the petitioner has prayed for a Writ in the nature of Mandamus directing the respondent to restore the illegal seizure of shop bearing TMC No.1360, Station Road, Khanapur

2. Petitioners contend that, they came into possession of shop in question under a lease agreement dated 05.04.1963 as per Annexure 'A' having taken from Kreeda Mandal, situated at Khanapur Further, petitioners contend that they purchased the shop from the said Kreeda Mandal under a registered sale deed dated 04.06.2009 as per Annexure H. Petitioners further contend that they are running a business in the shop by obtaining licence from the Town Municipal Council at Khanapur as per Annexures 'B', 'C', 'D' and 'E. When the matter stood at that stage, the respondent Tahasildar on the directions of Deputy Commissioner, Belgaum District, went and seized the premises in question on 25.03.2010 on the ground that the same is Government land. Hence, this Writ Petition.

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RSA No.100851 of 2014

3. Heard arguments on both the side and perused the entire writ papers.

4. It is seen from the statement of objections that the respondent Government leased about five guntas of land in the year 1933 to the Kreeda Mandal situated at Khanapur for a period of 50 years. Though, lease period came to an end in 1983, the respondents have not taken any steps to evict the said Kreeda Mandal. In the meanwhile, it is seen from the record that Kreeda Mandal has unauthorisedly sub-let certain portions and sold certain portions without any authority of law.

5. It is always open for the respondents to take necessary steps against the lessee Kreeda Mandal and the unauthorised occupants of land in question. Without taking necessary steps in accordance with law, the impugned action of the respondents in seizing the shop in question is illegal.

6. For the reasons noted above, the following :

ORDER

(i) The Writ Petition is hereby disposed;

(ii) The respondents are hereby directed to raise and remove the seizure of shop bearing No.1360 at Station Road, Khanapur, immediately and to restore the possession to the petitioner,

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RSA No.100851 of 2014

(iii) Respondents are at liberty to take appropriate action in accordance with law as stated above and to recover the possession of the land in question including the shop purchased by the petitioners;

(iv) Ordered accordingly."

17. Paragraph No.4 of the aforesaid order, which

the Trial Court and the First Appellate Court have relied

upon to hold that the same amount to res-judicata,

appears to be incorrect. Holistic reading of the order

passed by this Court in the aforesaid writ petition as

extracted herein above reveal that paragraph No.4 of the

said order is mere recording of the statement of objections

filed by the respondent-authorities in the said writ petition.

Paragraph No.5 of the said order is only an observation by

the Court to the effect that, if lessee Krida Mandal was an

unauthorized occupant, it was open for the respondents to

initiate action against it. The said order as extracted

herein above does not appear to be a finding on

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RSA No.100851 of 2014

contentious facts. It also does not appear to be

determination right of the parties to the proceedings.

18. The Hon'ble Apex Court in the case of

V.Rejeshwari (smt.) Vs. T.C.Saravanabava reported in

(2004) 1 Supreme Court Cases 551 at paragraph Nos.11

to 13 dealing with res-judicate has held as under:

"11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.

12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra Deo Dhabal Deb v. Gour Hari Mahato, Medapati Surayya v. Tondapu Bala Gangadhara

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Ramakrishna Reddi and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya³). The view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal. However, an exception was carved out by this Court and the plea was permitted to be raised, though not taken in the pleadings nor covered by any issue, because the necessary facts were present to the mind of the parties and were gone into by the trial court. The opposite party had ample opportunity of leading the evidence in rebuttal of the plea. The Court concluded that the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.

13. Not only the plea has to be taken, it has to be substantiated by case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective

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RSA No.100851 of 2014

pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by

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RSA No.100851 of 2014

looking into the pleadings. the issues and the judgment in the previous suit."

19. Section 11 of the Code of Civil Procedure reads

as under:

"11. Res judicata

No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

20. A perusal of the order passed by this Court in

the aforesaid writ petition, in the light of the law laid down

by the Hon'ble Apex Court and the provisions of Section 11

of the Code of Civil Procedure would not in any manner

indicate that there has been a final adjudication of the

contentious issues between the parties. No issues or

points for consideration were raised in the said writ

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RSA No.100851 of 2014

petition. The Trial Court and the First Appellate Court have

not even referred to the pleadings of the parties in the

said writ petition. In that view of the matter the conclusion

arrived at by the Trial Court which is confirmed by the

First Appellate Court, to the effect that, the order passed

by this Court in the aforesaid writ petition would amount

to res-judicata cannot be countenanced. Least that could

be expected of the Trial Court was to allow the plaintiffs to

lead evidence on the issues framed and to canvas their

case based on the documents sought to be produced. That

not having been done, this Court is of the considered view

that the judgment and decree passed by the Trial Court

which is confirmed by the First Appellate Court based on

the premise of principles of res-judicata cannot be

sustained. Even to come to the conclusion that the same

amounted to res-judicata, the Trial Court ought to have

taken on record the pleadings in the writ petition. Thus

there is error and irregularity exercise of jurisdiction in

conducting the proceedings by the Trial Court. The

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RSA No.100851 of 2014

substantial question of law raised above therefore requires

to be answered in favour of the appellants and

consequently the following order:

: ORDER :

The appeal is hereby allowed.

The judgment and decree passed by the Trial Court and the First Appellate Court are hereby set aside.

The matter is remitted to the Trial Court to adjudicate upon all the issues framed, after providing sufficient opportunity to the plaintiffs to lead evidence and to defendants to cross- examine and to lead rebuttal evidence if any, shall dispose of the suit within an outer limit of six months from the date of receipt of certified copy of this judgment.

It is made clear that the parties shall render necessary cooperation in expeditious disposal of the suit without seeking any unnecessary adjournments.