Karnataka High Court
Smt. Lalitavva Lalitavva W/O ... vs Smt. Parvatevva W/O ... on 6 January, 2023
Bench: M.G.S. Kamal
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MSA No. 100012 of 2018
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
M.S.A.NO.100012 OF 2018
BETWEEN:
1. SMT. LALITAVVA W/O TIRAKAPPA KABBUR
AGE: 51 YEARS, OCC:HOUSEHOLD AND AGR.,
R/O HIRENANDIHALLI-581106,
TALUKA: BYADGI, DIST:HAVERI.
2. KUMARI SAVITA
D/O TIRAKAPPA KABBUR,
AGE: 27 YEARS, OCC: STUDENT,
R/O HIRENANDIHALLI-581106,
TALUKA: BYADGI, DIST: HAVERI.
3. SHRIKANT
S/O TIRAKAPPA KABBUR
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O HIRENANDIHALLI-581 106,
TALUKA: BYADGI, DIST: HAVERI.
...APPELLANTS
(BY SRI RAVI S.BALIKAI,
SRI VINEETH R.BALIKAI,
SRI F.M.MULZAN,
SMT.REBECCA SOLOMAN, ADVOCATES)
AND:
1. SMT. PARVATEVVA
W/O SHIVARUDRAPPA DODDAMANI
AGE: 56 YEARS, OCC: HOUSEHOLD WORK,
R/O HIRENANDIHALLI-581106,
TALUKA: BYADGI, DIST:HAVERI.
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MSA No. 100012 of 2018
2. SMT. GIRUJAVVA
W/O SHIDDAPPA DUMMALLI,
AGE: 54 YEARS, OCC: HOUSEHOLD WORK,
R/O SHIRAGUMBI-581116,
TALUKA: HIREKERUR, DIST: HAVERI.
3. SMT. SAVITRI @ SAVITRAVVA
W/O SHIVANANDAPPA MULIMANI
AGE: 50 YEARS, OCC:HOUSEHOLD WORK,
R/O HIRENANDIHALLI-581106,
TALUKA: BYADGI, DIST:HAVERI.
4. SMT CHANNABASAVVA
W/O KALAPPA MUDDAPPANAVAR,
AGE: 48 YEARS, OCC: HOUSEHOLD WORK
R/O HIREMALLUR-581205,
TALUKA: SHIGGAON, DIST: HAVERI.
5. SMT.PRAMELAVVA
W/O UJJANAGOUDA HOSAGOUDRA
AGE: 44 YEARS, OCC: HOUSEHOLD WORK
R/O OLD SHIDENUR-581106,
TALUKA: BYADGI, DIST:HAVERI.
6. SHIVANANDAPPA SIDDAPPA MULIMANI
SINCE DECEASED BY HIS LRS.
SMT.SANKAMMA
W/O SHIDDAPPA MULIMANI
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
R/O HIRENANDIHALLI-581106,
TALUKA: BYADGI, DIST: HAVERI.
7. PRAVEEN SHIVANANDAPPA MULIMANI
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O HIRENANDIHALLI 581106,
TALUKA:BYADGI, DIST: HAVERI.
8. SHIDDAPPA SHIVANANDAPPA MULIMANI,
AGE: 28 YEARS, OCC: AGRICULTURE,
R/O HIRENANDIHALLI-581106,
TALUKA: BYADGI, DIST: HAVERI.
9. KUMARI SWETA
D/O SHIVANANDAPPA MULIMANI
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MSA No. 100012 of 2018
AGE: 28 YEARS, OCC: STUDENT,
R/O HIRENANDIHALLI-581106,
TALUKA: BYADGI, DIST:HAVERI.
10. MAHADEVAPPA MURADEPPA MULIMANI
AGE: 76 YEARS, OCC: AGRICULTURE,
R/O: HIRENANDIHALLI-581106,
TALUKA:BYADGI, DIST:HAVERI.
...RESPONDENTS
(BY SRI. I C PATIL.,
SRI M.S.HUGAR, AND
SRI S.K.ARALIKATTI, ADVOCATES FOR R.1 TO R5.
NOTICE TO R.6 6O 9 : SERVED.
RESPONDENT NO.10 : DECEASED)
THIS MISCELLANEOUS SECOND APPEAL IS FILED UNDER
ORDER XLIII RULE 1(U) R/W SECTION 104 OF CPC PRAYING THIS
COURT TO SET ASIDE THE JUDGMENT AND DECREE DATED
03.01.2012 PASSED BY THE II ADDITIONAL DISTRICT JUDGE,
HAVERI SITTING AT RANEBENNUR IN R.A.NO.11/2013 AND SUCH
OTHER RELIEFS.
THIS PETITION COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The present appeal is filed by the defendants
being aggrieved by the order dated 03.01.2018 passed in
R.A.No.11/2011 on the file of II Additional District Judge
at Haveri (hereinafter referred to as "the First Appellate
Court" for short) in and by which, the First Appellate Court
while setting aside the judgment and decree dated
04.12.2012 passed in O.S.No.14/2011 on the file of Senior
Civil Judge, Byadgi (hereinafter referred to as "the Trial
MSA No. 100012 of 2018
Court" for short) remanded the matter to the Trial Court
for fresh disposal in accordance with law on merits after
providing sufficient opportunity to the parties. Being
aggrieved by the same, the defendants are before this
Court.
2. The above suit in O.S.No.14/2011 was filed by
the plaintiffs for relief of partition and separate
possession. The said suit came to be dismissed by the
Trial Court on the issue of res-judicata holding that on an
earlier occasion a original suit in O.S.No.123/2003 was
filed, which was dismissed on the premise of plaintiffs not
adding all the family properties for partition. The dismissal
order was apparently carried up to this Court in regular
second appeal in RSA.No.1579/2007 which had also
confirmed the said order.
3. It is stated that taking into consideration of the
dismissal of the earlier suit, the Trial Court in the aforesaid
impugned order framed the following issues:
MSA No. 100012 of 2018
1. zÁªÁ¹ÛUÀ¼ÀÄ ªÁ¢AiÀÄgÀÄ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄ ¦vÁæfðvÀ D¹ÛUÀ¼ÀÄ
C£ÀÄßöªÀÅzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
2. gɸÀdÄnPÉl ¹zÁÞAvÀ DzÁgÀzÀ ªÉÄÃ¯É zÁªÁ ¤®ÄèªÀÅ¢®è CzÀÄ ªÀeÁ
DUÀÄvÀÛzÉ ¥ÀæwªÁ¢ ¹zÁÞ ªÀiÁqÀÄvÁÛgÉAiÉÄÃ?
3. ªÁ¢ zÁªÁ¸ÀévÀÄÛUÀ¼À°è ¥ÀjºÁgÀ PÉýzÀAvÉ 1:7 gÀAvÉ »¸ÉìAiÀÄ£ÀÄß
¥ÀqÉAiÀÄ®Ä ºÀPÀÄÌ ªÀżÀèªÀgÁVzÁÝgÉAiÉÄÃ?
4. AiÀiÁªÀ DzÉñÀ ªÀÄvÀÄÛ rQæ?
4. Trial Court taking into consideration of the
dismissal of regular second appeal in RSA.No.1579/2007,
which arose out of the dismissal of suit in
O.S.No.123/2003, held that in view of dismissal of the
said regular second appeal, the same was hit by principles
of res-judicata and as such, the above suit in
O.S.No.14/2011 was not maintainable.
5. Being aggrieved by the same, the plaintiff has
preferred regular appeal in R.A.No.11/2013 before the
First Appellate Court. The First Appellate Court raised the
following points for its consideration;
1. Whether the Trial Court justified in dismissing
the suit of the plaintiffs by holding that, suit of
MSA No. 100012 of 2018
the plaintiffs is hit by the principles of res-
judicata as contemplated U/sec.11 of CPC?
2. Whether the impugned judgment and decree
passed by the trial court in O.S.No.14/2011
calls for any interference by this court?
3. What order or decree?
6. The First Appellate Court after appreciating the
material evidence on record reversed the judgment and
decree of the Trial Court by holding that dismissal of suit
in O.S.No.123/2003 confirmed by this Court in
RSA.No.1579/2007 did not amount to res-judicata and
accordingly remanded the matter for fresh disposal in
accordance with law after affording sufficient opportunity
to the parties. It is this order is challenged by the
appellants/defendants before this Court.
7. Sri Ravi S.Balikai, learned counsel for the
appellants apart from reiterating the grounds urged in the
memorandum of appeal submits that, the First Appellate
Court at the first instance did not have jurisdiction to try
the suit as it lack pecuniary jurisdiction. In that regard, he
MSA No. 100012 of 2018
submits that the value of the properties which were
subject matter of the suit was Rs.35,00,000/- and the
value of the share which was under challenge was about
Rs.30,00,000/- and the First Appellate Court therefore did
not have pecuniary jurisdiction to try the appeal.
8. Secondly he submits that, since the earlier suit
which was dismissed and dismissal of which was confirmed
by this Court in RSA.No.1579/2007 indeed amounts to
res-judicata. In that view of the matter, he submits that
there remained nothing for the First Appellate Court to
remand the matter. Hence, he seeks for allowing the
present appeal.
9. Per contra, Sri I.C.Patil, learned counsel for
respondent Nos.1 to 5 submits that, the objection with
regard to pecuniary jurisdiction ought to have been raised
by the defendants at the earliest point of time, that not
having been done, the same was amounts to waiver and
acquiescence wave. As regards the issue of res-judicata,
MSA No. 100012 of 2018
learned counsel submits that, there cannot be res-judicata
in the present suit for partition as there was no partition.
Hence, he submits that, the First Appellate Court was
justified in remanding the matter to the Trial Court for
fresh disposal in accordance with law.
10. Heard and perused the records.
11. Section 21(2) of the Code of Civil Procedure,
1908 reads as under:
"21. Objections to jurisdiction.-
(1) xxxxx.
(2) No objection as to the competence of a
Court with reference to the pecuniary limits of its
jurisdiction shall be allowed by any Appellate or
Revisional Court unless such objection was taken
in the Court of first instance at the earliest
possible opportunity, and, in all cases where
issues are settled, at or before such settlement,
and unless there has been a consequent failure of
justice."
12. Thus the first contention of the learned counsel
for the appellants, the First Appellate Court lacking
pecuniary jurisdiction cannot be countenanced as the
objection with regard to pecuniary jurisdiction ought to
MSA No. 100012 of 2018
have been raised at the first instance. Therefore the said
plea is not available to be raised at this stage in this
appeal.
13. As regards the second contention of the earlier
suit in O.S.No.123/2003 having been dismissed and the
dismissal having been confirmed by this Court in
RSA.No.1576/2007 amounting to res-judicata, also cannot
be countenanced in as much as the suit is one for partition
and separate possession and the earlier suit was
dismissed on account of plaintiff not adding all the family
properties for partition. Since the rights of the parties with
regard to partition not having been decided, the dismissal
of the suit would not amount to res-judicata.
14. 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
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MSA No. 100012 of 2018
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 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
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MSA No. 100012 of 2018
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 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
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MSA No. 100012 of 2018
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 looking into the pleadings. the
issues and the judgment in the previous suit."
15. The First Appellate Court has also taken into
consideration of the law laid down by this Court in the
case of BABURAO VS. ERANNA AND OTHERS reported in
ILR 2005 KAR 3177.
"Evidence Act, 1872-section 115-Doctrine of
Estoppel, code of Civil Procedure, 1908-Section II-
RES Judicata-Suit for partition-Earlier partition suit
filed by one of the brothers dismissed for default-
Whether subsequent partition suit is hit by section
II of CPC - Held - The right to suit for partition is a
continuing right and incidental to the ownership of
joint property. So long as the property remains
joint, one of the co-owners has a cause of action
for bringing a fresh suit for partition
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MSA No. 100012 of 2018
notwithstanding the dismissal of a previous suit for
partition filed by one of the co-owners. There is no
scintilla of evidence and material on record to
establish that, the plaintiffs are estopped from
seeking relief of partition and separate possession
in the joint family properties."
16. In view of aforesaid settled position of law, no
illegality or irregularity can be found with the order passed
by the First Appellate Court. In that view of the matter
appeal lacks merits, appeal is dismissed. Order of remand
is confirmed.
sd
JUDGE
EM
