Karnataka High Court
Palakshagouda S/O Tirakanagouda vs Puttappa S/O Veerappa Chikkanandi @ ... on 5 April, 2024
1
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
DATED THIS THE 5TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
M.S.A. No.100102 OF 2018 (RO)
BETWEEN
1. PALAKSHAGOUDA
S/O TIRAKANAGOUDA DODDAGOUDAR
AGED MAJOR,
OCC:AGRI,
R/O BENCHIHALLI,
DIST:HAVERI
2. SMT. RATNAVVA
W/O MAHADEVAPPA DODDAMANI
AGED MAJOR, OCC:HOUSEWIFE,
R/O MANCHAPUR,
TQ:KALAGHATAGI
DIST:DHARWAD
3. SMT.GANGAVVA @ ANSUYA
W/O SHIVANAGOUDA PATIL
AGED MAJOR, OCC:HOUSEWIFE
R/O KACHAVI,
PRESENT AT: BIGOOR ROAD,
KALAGHATAGI,
TQ:KALAGHATAGI,
DIST:DHARWAD
SMT.TIRAKAVVA
W/O TIRAKANAGOUDA DODDAGOUDRA,
(DEF.1, DIED HER LRS ARE APPL 1 TO 3)
4. SMT. ANNAPURNAVVA
2
W/O SHIVAPPA LINGADALLI
AGED ABOUT 48 YEARS,
OCC:HOUSEHOLD WORK,
R/O HOMBARADI,
TQ:HAVERI
SMT. GOURAVVA
W/O HANUMANTHAPPA PUJAR (D2)
(DIED HER LRS IS APPL.4)
5. MALLIKARJUN
S/O NANJUNDAPPA PUJAR
AGED ABOUT50 YEARS,
OCC:AGRI AND COOLIE
R/O ARASHINAGUPPI,
TQ HANGAL, DIST:HAVERI
PARAMESHAPPA
S/O NANJUNDAPPA PUJAR D3/R3
(DIED LRS ARE NOT KNOWN)
VEERAPPA
S/O BASAVANNEPPA CHIKKANANDI @
BANKAR, D5/D5 (DIED AND
HE WAS DELETED AS PER ORDER 28.11.07)
6. SMT. NINGAVVA
W/O CHANNABASANAGOUDA
HUDED, AGED ABOUT 81 YEARS,
OCC:HOUSEHOLD WORK,
R/O HOMBARADI, TQ:HAVERI
7. SMT. RATNAVVA
W/O BASAVANTAPPA BASETTIYAVAR
AGED ABOUT 63 YEARS,
OCC:HOUSEHOLD WORK,
R/O KURUBABONDA,
TQ: HAVERI
(CHANABSANAGOUDA
S/O RUDRAGOUDA HUDED D6
DIED APPL NO.8 and 9 ARE HIS LRS)
3
8. BHARAMGOUDA
S/O CHANNABASANAGOUDA HUDED,
AGED ABOUT 61 YEARS, OCC:AGRI
R/O HOMBARADI, TQ:HAVERI
9. SMT. SAROJAVVA
S/O BASAPPA CHIKKANANDI BANAKAR
AGED ABOUT 51 YEARS,
OCC:HOUSEHOLD WORK
R/O HOMBARADI, TQ:HAVERI
10. VIRESH
S/O BASAPPA CHIKKANANDI @ BANAKAR
AGED ABOUT 17 YEARS,
MINOR REPRESENTED BY HIS MINOR
GUARDIAN HIS MOTHER RESP.8
SMT.SAROJAVVA
W/O BASAPPA
CHIKKANANDI @ BANAKAR,
R/O HOMBARADI, TQ:HAVERI
...APPELLANTS
(BY SRI N P VIVEKMEHTA, ADVOCATE)
AND
1. PUTTAPPA
S/O VEERAPPA CHIKKANANDI @ BANAKAR
AGED ABOUT 61 YEARS,
OCC:AGRI
R/O HOMBARADI, TQ:HAVERI
2. SMT. MAHADEVAKKA
W/O MALLAPPA BISTAKKANAVAR
AGED ABOUT 53 YEARS,
OCC:AGRI & HOUSEHOLD WORK
R/O HOMBARADI, TQ:HAVERI
3. SMT. PUTTAVVA
W/O VEERAPPA CHIKKANANDI
4
AGED ABOUT 79 YEARS,
OCC:AGRI
R/O HOMBARADI, TQ:HAVERI
....RESPONDENTS
(BY SRI ROHIT S PATIL, ADVOCATE FOR R1
SRI K H BAGI, ADVOCATE FOR R2 & R3)
THIS MSA IS FILED U/SEC.43 RULE 1 (u) OF CPC., AGAINST THE
JUDGEMENT AND DECREE DTD: 25.10.2018 PASSED IN
R.A.NO.12/2007 ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, HAVERI, ALLOWING THE APPEAL FILED AGAINST
THE JUDGEMENT AND DECREE DTD:27.01.2007 PASSED IN
O.S.NO.56/1986, ON THE FILE OF THE ADDITIONAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HAVERI, DISMISSING
THE SUIT FILED FOR PARTITION AND POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.02.2024 COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
The present Miscellaneous Second Appeal is filed under
Order 43 Rule 1 (u) of the Code of Civil Procedure1 to set aside
the judgment and decree dated 25.10.2018 passed in R.A.
No.12/2007 by the I Addl. District and Sessions Judge, Haveri2
and to confirm the judgment and decree dated 27.1.2007 passed
in O.S. No.56/1986 by the Addl. Civil Judge (Sr.Dn.) and JMFC.,
Haveri.
hereinafter referred to as 'CPC'
hereinafter 'first appellate Court'
2. The parties will be referred to as per their rank before
the Trial Court for the sake of convenience.
3. Before noticing the facts of the case, it is relevant to
note the genealogy which is as follows:
GENEALOGY
Basavanneppa (died on 22-5-1978)
|
____________________________________________________________
| | | |
Veerappa (D5) Tirakavva (D1) Gouravva (D2) Dyamavva(Died)
| |
Puttavva (Wife) (P4) Mallikarjun (D3)
| Parameshwarappa (D4)
Puttappa (P1)
Basappa (P2)
Mahadevakka (P3)
4. Plaintiff Nos.1, 2 and 3 are the children of Plaintiff No.4
(Smt. Puttavva - Mother) and Defendant No.5 ( Shri Veerappa -
father). The relevant facts leading to the present appeal are that
Defendant No.5-Veerappa relinquished his share in respect of the
suit property vide Relinquishment Deed dated 03.06.1959
(erroneously mentioned as 22.7.1986 in the issues framed by
Trial Court) in favour of his father Shri.Basavanneppa. Plaintiff
No.4 - Puttavva wife of Veerappa filed a suit in O.S. No.56/1969
for partition and separate possession as a guardian of her children
against Veerappa and her father in law - Basavanneppa and also
questioned the Relinquishment Deed dated 03.06.1959 executed
by her husband - Veerappa. The said suit was dismissed on
31.03.1973. Being aggrieved, the plaintiffs preferred R.A.
No.21/1973. By judgment and decree dated 28.07.1975, the said
appeal was allowed and the matter was remanded to the Trial
Court. Being aggrieved, Basavanneppa preferred MSA
No.208/1975 which was allowed by this Court with a direction to
the first appellate Court to frame an additional issue and call for a
finding from the Trial Court after providing an opportunity to the
parties.
5. In the meantime, Basavanneappa executed a
registered Will dated 15.12.1976 (Ex.D2 in OS No.56/1986)
bequeathing the property to his daughters. Thereafter,
Basavanneppa died on 22.05.1978 during the pendency of R.A.
No.21/1973 and his daughters i.e., Tirakavva (Defendant No.1)
and Gouravva (Defendant No.2) and the children of another
daughter Dyamavva i.e., Mallikarjun (Defendant No.3) and
Parameshwrappa (Defendant No.4) were brought on record as the
legal heirs of said Basavaneppa. Thereafter, the plaintiffs filed
I.A.No.12 for amendment of the plaint and I.A.No.13 for
production of additional evidence in R.A. No.21/1973, wherein the
amendment that was sought was, that after the death of
Basavanneppa their shares have been increased and it is a
subsequent event. The said applications were allowed. However,
by judgment and decree dated 22.04.1983, R.A. No.21/1973 was
dismissed. Being aggrieved, the Plaintiffs preferred RSA
No.696/1983 which was dismissed on 15.07.1984.
6. Thereafter, the Plaintiffs filed O.S. No. 56/1986 for
partition and separate possession claiming 5/8th share in the suit
schedule properties. The Trial Court framed 13 issues and
recorded the evidence of the parties. Issues No.1 framed was
'whether the suit is barred by res judicata in view of the decision
in O.S. No.56/1969?'. The Trial Court by its judgment and decree
dated 27.1.2007 answered the said issue in favour of the
defendants that the suit was barred by res judicata and as such
the other issues do not survive for and consideration. Being
aggrieved, the Plaintiffs preferred R.A. No.12/2007. The first
appellate Court by judgment and decree dated 25.10.2018
allowed the appeal and remanded the matter to the Trial Court to
decide the suit on merits and give finding on all the issues.
Being aggrieved the present Miscellaneous Second Appeal is filed.
7. Sri N.P. Vivek Mehta, learned counsel appearing for the
appellants vehemently contended that the plaintiffs having
claimed a share in the properties, consequent to the death of
Basavanneppa during the pendency of R.A. No.21/1973 and the
present defendant Nos.1 to 4 having been bought on record as
legal heirs of Basavanneppa, and the same having been
adjudicated upon on its merits and the decision having attained
finality with the dismissal of RSA No.696/1983, it was not open to
the Plaintiffs to once again file a suit in O.S. No.56/1986 claiming
for a share in the properties of Basavanneppa. That Veerappa not
having challenged the Will of Basavanneppa, it is not open to the
present plaintiffs to challenge the same. He further submitted
that the Trial Court has adequately appreciated the matter in
question and dismissed the suit on the ground of res judicata,
which has been erroneously interfered with by the first appellate
Court. He refers to the sequence of events in details and submits
that the suit of the plaintiff is liable to be dismissed as per the
judgment of the Trial Court as being barred by res judicata and
the question of the matter being remanded for adjudication of
other issues does not arise. Hence, he seeks for setting aside of
the order of remand passed by the fist Appellate Court and
affirming the judgment and decree passed by the Trial Court.
8. Per contra, learned counsel Shri Rohit S. Patil,
appearing for Respondent Nos.1 to 3 - plaintiffs submits that the
Plaintiffs are entitled for a share in the properties of
Basavanneppa. That the subject matter of the suit in O.S.
No.56/1969 which attained finality by dismissal of RSA
No.696/1983 was with regard to the share of the Veerappa and
hence, the Plaintiffs were entitled to maintain the subsequent suit
in O.S. No.56/1986. That the Trial Court had erroneously
dismissed the suit as being barred by res judicata and the same
has been rightly interfered with by the first appellate Court. That
the claim of the plaintiffs is required to be adjudicated upon its
merits. Hence, he seeks for dismissal of the above appeal.
9. The submissions of both the learned counsel have been
considered and the material on record including the records of the
Trial Court and the first appellate Court have been perused. The
question that arises for consideration is, whether the first
appellate Court was justified in setting aside the judgment and
decree of the Trial Court and remanding the matter to the Trial
Court to decide issue Nos.2 to 13?
10. The suit in OS No.56/1969 was filed by the plaintiffs
claiming for a share in the properties of Veerappa, who was the
father of plaintiff Nos.1 to 3 and husband of plaintiff No.4 in the
said suit. It was also sought that the Relinquishment Deed dated
03.06.1959 is not binding on the plaintiffs. The said Veerappa was
arrayed as defendant No.2 and his father Basavenneppa was
arrayed as defendant No.1 in the said suit. In the said suit,
defendant No.2 - Veerappa remained ex parte and defendant
No.1 - Basavenneppa contested the said suit. It was specifically
contended that Veerappa had executed a registered
Relinquishment Deed on 03.6.1959 relinquishing his rights in the
suit properties in favour of Basavanneppa and hence, the plaintiffs
did not have any right in the suit property. In the said suit, the
Trial Court framed the following issues:
i) "Whether plaintiffs prove the correctness of the
genealogy?
ii) Whether the plaintiffs and defendants constitute the
members of the joint un-divided family?
iii) Whether the suit properties are the joint family
properties of the plaintiffs and the defendants?
iv) Whether plaintiffs are entitled to the partition and
possession sought?
v) Whether plaintiff No.3 is entitled to the maintenance
and marriage expenses?
vi) Are plaintiffs entitled to the mesne profits claimed?
vii) What decree or order?"
11. The Trial Court recorded a finding that the
Relinquishment Deed dated 03.6.1959 was executed before the
children of Veerappa i.e., plaintiff Nos.1 to 3 were born and
hence, Veerappa having relinquished his co-parcenary prior to the
birth of his children, they did not have right in the suit properties.
Hence, the suit of the plaintiffs in OS No.56/1969 was dismissed
by the Trial Court vide judgment and decree dated 31.1.1973
(Ex.D9).
12. Being aggrieved, the plaintiffs preferred RA
No.21/1973. The first appellate vide its judgment dated
28.7.1975 allowed the appeal and remanded the matter to the
Trial Court to permit the plaintiffs to amend the plaint, defendant
No.1 to file additional written statement and to allow plaintiff No.1
to produce the Birth Certificate and give an opportunity to both
the parties to lead further evidence and dispose of the case
according to law. Being aggrieved, MSA No.208/1975 was
preferred and this Court allowed the appeal and directed the first
appellate Court to frame an issue on Ex.D2(in OS No.56/1969)
and to call for a finding on it from the Trial Court. Accordingly,
the first appellate Court framed an issue on Ex.D2(in OS
No.56/1969) on 7.3.1977 as follows:
"Whether the plff. proves that the relinquishment of the
share of deft.2 in favour of deft.1 as per Ex.D.2 is fraudulent
and ostensible and not meant to be acted upon and so not
binding upon the plffs.?"
13. Consequent to the framing of the said issue, the
matter was sent to the Trial Court and evidence was adduced.
The Trial Court recorded a finding on the said issue in the
affirmative on 22.4.1978 and sent the finding to the first appellate
Court. The respondents in the said appeal have filed their
objections to the said finding. Further, during the pendency of the
said appeal, the first defendant - Basavanneppa died on
22.5.1978. The daughters of Basavanneppa namely, Tirakavva
(defendant No.1), Gouravva (defendant No.2) and the children of
the other daughter Dyamavva namely, Mallikarjun and
Parameshwarappa (defendant Nos.3 and 4) were brought on
record as the legal representatives of deceased Basavanneppa
pursuant to the order dated 8.1.1979 passed on IA.No.6 in RA
No.21/1973. Subsequently, the plaintiffs in the said appeal filed
IA.No.12 for amendment of the plaint and IA.No.13 for production
of additional evidence. The first appellate Court framed the
following points for consideration:
i) "Whether the finding on the additional issue that, the
relinquishment under Ex.D2 is fraudulent, ostensible,
and not meant to be acted upon and so not binding
upon the plffs., is not proper and correct?
ii) Whether the plffs.-appellants can be allowed to amend
the plaint, and produce additional evidence?
iii) What order?"
(emphasis supplied)
14. Subsequently, the first appellate Court dismissed the
appeal of the plaintiffs and passed the following:
"For the reasons discussed above, the objections of the
respondents to the finding of the lower court on the
additional issues is upheld. The finding of the lower court
is reversed. The appellants have failed to prove that Ex.P5
pertains to plaintiff No.1 Puttappa Chiknandi and he was
born at the time of the execution of the relinquishment
deed on 3.6.1959. They have also failed to prove that, it is
fraudulent and ostensible deed, not intended to be acted
upon. There are no sufficient grounds to interfere with the
judgment and decree of the lower court. IA.Nos.12 and
13, are allowed, subject to the reversal of the finding on
the point No.1, as it is the amendment is not necessary.
The appeal is dismissed with costs."
(emphasis supplied)
15. The plaintiffs preferred RSA No.696/1983. This Court
by judgment and decree dated 15.7.1984 dismissed the said
appeal. After disposal of RSA No.696/1983, the plaintiffs filed the
present suit in OS No.56/1986 for partition and separate
possession and claimed 5/8th share. In the said suit, it is the
specific contention of the plaintiffs that they are entitled to a
share in the properties of Basavanneppa and they dispute the Will
executed by Basavanneppa. The daughters of Basavanneppa
namely, Tirakavva, Gouravva were arrayed as defendant Nos.1
and 2 and the children of the other daughter Dyamavva namely,
Mallikarjun and Parameshwarappa were arrayed as defendant
Nos.3 and 4. Defendant No.5 is Veerappa, the father of defendant
Nos.1 to 3. The other defendants in the said suit are the
subsequent purchasers of the suit properties. Defendant Nos.1
and 2 entered appearance and filed a written statement and
defendant Nos.3 and 4 have also entered appearance and filed a
separate written statement. The Trial Court, based on the
pleadings of the parties framed the following issues:
"1. Whether the defendants prove that the plff's suit is
bared by res-judicata in view of the decision in O.S.
56/69 on the file of the Munsiff, Haveri and R.A. 21/73
dated 22.4.83 on the file of Civil Judge, Haveri and RSA
No.696/83 dated 15.7.84?
2. Whether defendants 1 to 4 prove that the deceased
Basavanneppa has executed a Will on 15.12.1976 and is
it his last and valid Will as alleged in para 5 of the Written
Statement of defendants 1 to 4?
3. Whether the defendants prove that the decree in
O.S.39/70 on the file of Munsiff, Haveri and the dismissal
of RSA.193/75 and the execution of the said decree by
the defendant No.6 in Ex.Case 25/1981 is binding on the
plffs as contended in para 6 and 16 of written statement?
4. Whether defendant No.6 further proves that he has
validly relinquished his rights over the said property in
favour of defendant No.7 as alleged in para 6 of the
written statement?
5. Whether det.No.6 proves that he has become owner of
suit 1(A) property (RS.No.242/1+2) by virtue of the
alleged sale by the deceased Basavanneppa as stated in
para 17 of the written statement?
6. Whether the decrees in O.S.59/70 and RSA 195/1975
are binding on the piffs. who were not parties to the said
proceedings?
7. Whether the decree in O.S.39/70 and RSA.No.193/75
were obtained fradulently and collusively by deft.No.6 and
deceased Basavanneppa and hence, not binding on the
plaintiffs?
8. Whether the sale of suit 1(A) property of defendant
No.6 is hit by the doctrine of champerty and maintainence
etc and for other reasons as contended in para No.12(a)
to 12(e) of plaint and therefore the sale is against public
яте policy and void U/s.23 of the contract Act?
9. Whether plaintiffs prove that deft. No.5 has
relinquished his share in the suit property by virtue of a
registered relinquishment deed dt.22.7.1986 in favour of
plaintiff No.1?
10. Whether court fee paid is proper?
11. Whether the plaintiffs are entitled to partition and
separate possession of 5/8th share in the suit properties?
12. Whether the plaintiffs are entitled for permanent
injunction as prayed for?
13. What decree or order?"
16. Plaintiff No.1 was examined as PW.1. Exs.P1 to P5
were marked in evidence. Defendant No.2 was examined as
DW.1; the Sub Registrar, Haveri was examined as DW.2; a
witness to the Will has been examined as DW.3; and defendant
No.3 was examined as DW.4. Exs.D1 to D29 were marked in
evidence. The Trial Court by its judgment and decree dated
27.1.2007 answered issue No.1 in the affirmative that the suit is
hit by the doctrine of res judicata. Since issue No.1 was answered
in the affirmative, issue Nos.2 to 9 were held as not arising for
consideration and hence, the suit was dismissed with costs. Being
aggrieved, the plaintiffs preferred RA No.12/2007. The first
appellate Court, by its judgment and decree dated 25.10.2018
allowed the appeal and passed the following order:
"The appeal filed by appellants U/s.96 r/w Order 41 rule 1
of CPC is hereby allowed against respondents.
The judgment and decree passed on issue No.1 dtd.
27.01.2007 in OS No.56/1986 by learned Addl.Sr.Civil
Judge, Haveri is hereby set aside.
The suit is remanded back to its original position. It is
directed to lower Court to decide suit on merits, by giving
finding on all issues framed in it as per mandate of Order
20 rule 5 of CPC. It is one of the oldest suit. It is directed
to lower court to decide suit expeditiously.
Under circumstances of case, parties shall bear their own
costs.
Send lower court records along with copy of this judgment
forthwith."
17. It is relevant to note that in OS No.56/1969 the claim
of the plaintiffs was with regard to the share of Veerappa who is
the father of the plaintiff Nos.1 to 3 and husband of plaintiff No.4.
Veerappa was arrayed as defendant No.1 and his father
Basavanneppa as defendant No.2. Defendant No.1 remained ex
parte and the said suit was contested by defendant No.2 -
Basavanneppa, wherein a specific contention was taken that since
Veerappa had executed a registered Relinquishment Deed dated
03.06.1959 even prior to the birth of plaintiff Nos.1 to 3, the suit
properties had ceased to be co-parcenery properties and the
plaintiffs did not have any right to the suit properties. The said
claim of the defendants was accepted and the suit of the plaintiffs
was dismissed. Being aggrieved, the plaintiffs preferred RA
No.21/1973.
18. It is further forthcoming that Basavanneppa executed a
registered Will dated 15.12.1976 bequeathing the property in
favour of his daughters. The said Basavanneppa died on
25.2.1978 during the pendency of RA No.21/1973. The daughters
namely, Tirakavva and Gouravva (defendant Nos.1 and 2) and the
children of the other daughter Dyamavva i.e., Mallikarjun and
Parameshwarappa (defendant Nos.3 and 4) came on record as
legal representatives of deceased Basavanneppa by virtue of the
order passed on IA.No.6 dated 8.1.1979 in RA No.21/1973.
Subsequently, the plaintiffs filed IA.No.12 for amendment of the
plaint and IA.No.13 for production of additional evidence, which
was allowed along with the main judgment dated 22.4.1983
passed in RA No.21/1973. Further, the first appellate Court
answered the points for consideration and upheld the dismissal of
the suit in OS No.56/1969, which was affirmed by this Court in
RSA No.696/1983. Subsequently, the plaintiffs have filed the
present suit in OS No.56/1986 claiming for a share in the
properties of Basavanneppa. It is the specific contention of
defendant Nos.1 to 4 that deceased Basavanneppa executed a Will
on 15.12.1976, by virtue of which the said defendants assert
right, title and interest in the suit properties. Having regard to
the pleadings of the parties, the Trial Court has framed issue No.2
and the burden has been cast on defendant Nos.1 to 4 to prove
the due execution of the Will.
19. Having regard to the aforementioned, it is relevant to
note that due execution of the Will dated 15.12.1976 was not the
subject matter of consideration in the earlier round of litigation
and no issue was framed with regard to due execution of the Will
dated 15.12.1976 in RA No.21/1973.
20. It is relevant to note that the father of plaintiff Nos.1 to
3 i.e., Veerappa has been arrayed as defendant No.5 in the suit
and respondent No.5 in RA No.12/2007. However, the counsel for
the appellants filed IA.No.1 in RA No.12/2007 on 14.11.2007
under Order XXII Rule 2 read with Section 151 of the CPC to
delete respondent No.5 (defendant No.5) in the cause title since
respondent No.5 is deceased. In the affidavit filed in support of
the application, it is stated that the whereabouts of respondent
No.5 is not known since from last 15 to 16 years. Vide order
dated 28.11.2007 the first appellate Court has ordered that the
whereabouts of respondent No.5-Veerappa (who was arrayed as
defendant No.5 in the suit) are not known for more than 7 years
and his legal heirs i.e., respondent Nos.8 and 9 and appellants are
already on record. Hence, permission was granted to delete the
name of respondent No.5 - Veerappa from the cause title of the
appeal memo.
21. The learned counsel for the appellants would
vehemently contend that having regard to Explanations 4 and 5 of
Section 11 of the CPC, the suit of the plaintiffs is hit by res
judicata.
22. It is relevant to notice Section 11 of the CPC and the
relevant Explanations therein are 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.
Explanation 1....
Explanation 2.....
Explanation 3. The matter above referred to
must in the former suit have been alleged by
one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation 4. Any matter which might and
ought to have been made ground of defence
or attack in such former suit shall be deemed
to have been a matter directly and
substantially in issue in such suit.
Explanation 5. Any relief claimed in the plaint,
which is not expressly granted by the
decree, shall for the purposes of this section,
be deemed to have been refused.
Explanation 6 .......
Explanation 7 .......
Explanation 8........"
23. In this context, as noticed earlier, the subject matter of
consideration in the earlier suit was with regard to the claim of the
plaintiffs as being the legal heirs of Veerappa in the coparcenary
property. The said claim was opposed by the father of Veerappa
namely, Basavanneppa on the ground that Veerappa had
executed a registered Relinquishment Deed dated 03.06.1959.
That consequent to the death of Basavanneppa during the
pendency of RA No.21/1973 his daughters namely, Tirakavva,
Gouravva and the children of another daughter Dyamavva came
on record claiming under the Will dated 15.12.1976 executed by
Basavanneppa. It is undisputed that there was no adjudication in
RA No.21/1973 as to whether the Will dated 15.12.1976 was
validly executed by Basavanneppa. Further, the scope of the
earlier round of litigation was with regard to the entitlement of the
plaintiffs in coparcenary property claiming as legal heirs of
Veerappa. Hence, the scope of the earlier suit is completely
different from the scope of the present suit.
24. It is relevant to note the judgments referred by the
learned counsel for the respondents:
i) The Hon'ble Supreme Court in the case of Raman Nair
Gopalan Nair v. Lekshmi Amma bharathi Amma3
while considering the aspect of res judicata has held as
follows:
"7. If a party who acquires a fresh right during the
pendency of the suit wants to claim a relief in the
suit on the basis of that right he will have to seek an
1951 SCC OnLine Ker 126
amendment of the pleading and the Court is not
bound to allow the amendment. Therefore it cannot
be said that a party is bound in law to put forward a
claim in a suit on the basis of a right acquired by him
during the pendency of the suit. We are therefore of
opinion that the claim based on the revenue sale was
not one which the 70th defendant was bound to put
forward in the suit. The plea of his assignee cannot
therefore be said to be barred by 'res judicata'. With
regard to the third point, namely whether the Court
executing the decree is competent to go behind the
decree, we are of opinion that so long as the claim is
not barred by 'res judicata' the Court is competent to
go into the question under Section 47 of the CPC. If
a party to the decree can file a fresh suit on the
basis of a right acquired by him during the pendency
of the suit the Court executing the decree can treat a
proceeding under S. 47 as a suit and grant
appropriate relief to the party. The lower Court was
therefore competent to consider the claim put
forward by the assignee of the 70th defendant and
grant him appropriate relief."
(emphasis supplied)
ii) A Division Bench of Madras High Court in the case of
Kokila v. Rajabathar4 while considering the aspect of
res judicata, considering the scope of Explanation 4 of
Section 11 of the CPC has held as follows:
We respectfully agree with this statement of the rule. As
we have already mentioned, the joining of the plea of
illegitimacy would have certainly led to confusion or
embarrassment in the prior suit and therefore we
cannot say that the ground of illegitimate sonship was a
AIR 1957 Mad 470
matter which ought to have been made a ground of
attack in the former suit. We therefore agree with
Subba Rao J. that the suit is not barred by res judioata,
and on the same reasoning by O. 2, R. 2, C.P.C. We
may also add that the cause of action of the present suit
which is based on the plaintiff being the illegitimate son
is not the same as the cause of action on which the
prior suit was based, namely, that the plaintiff was the
legitimate son of Munuswami."
(emphasis supplied)
iii) In the case of Erach Boman Khavar v. Tukaram
Shridhar Bhat5 the Hon'ble Supreme Court considering
the aspect of res judicata has 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 involved must
have been decided at earlier stage of the same
litigation."
(emphasis supplied)
25. The Trial Court consequent to the pleadings of the
parties, framed 13 issues. Issue No.1 was with regard to res
judicata which is as follows:
(2013) 15 SCC 655
1. Whether the Defendants prove that the
plaintiff's suit is barred by res judicata in view of the
decision in O.S. No.56/69 on the file of the Munsiff,
Haveri and R.A. No.21/73 dt. 22.04.1983 on the file
of Civil Judge, Haveri and RSA No.696/83 dtd.
15.07.84?
26. While considering issue No.1, the trial Court had
recorded the following findings:
(i) The Plaintiffs in the present suit are the plaintiffs
in O.S. No.56/1969. The Defendant Nos.1 to 4 were
the Defendants who are brought on record after the
death of Basavanneppa who was the Defendant in the
said suit and Defendant No.5 was also Defendant in
the earlier suit.
(ii) O.S. No.56/1969 was suit for partition wherein
the plaintiffs claimed 3/8th share. In the present suit
for partition, the plaintiffs have claimed 5/8th shares
in the suit properties.
(iii) In O.S. No.56/1969, the suit properties were
R.S. No.242/1+2 measuring 15 acres situated at
Hombaradi Village, Haveri Taluk and house property
with backyard bearing VPC No.41 of Hombaradi
Village Haveri. In the present suit also it is the same
suit property.
(iv) As could be seen from the plaint in O.S.
No.56/1969 (Ex.D6), the Plaintiffs have contended the
suit properties were the joint family properties of
Veerappa and his father Basavanneppa. That the said
Veerappa who is the father of Plaintiff Nos.1 to 3 and
husband of plaintiff No.4 were addicted to bad habits
and he is not looking after his minor children and wife
and had not made any provision for their
maintenance. That Relinquishment Deed executed by
Veerappa on 03.06.1959 in favour of his father
Basavanneppa was illegal, null and void and not
binding on the plaintiffs. That it was the contention of
the Defendants in the Written Statement filed in the
said suit (Ex.D7) that Veerappa has relinquished his
share in favour of his father vide Relinquishment Deed
dated 03.06.1959 and after the Plaintiff Nos.1 to 3
were born, they do not have any right over the suit
properties.
(v) It is the contention of the Plaintiffs in the
present suit that the suit properties are the joint
family properties and the alleged Relinquishment
Deed dated 03.06.1959 executed by Veerappa in
favour of his father Basavanneppa is illegal, null and
void and not binding on the Plaintiffs. It is also
alleged that Will dated 15.12.1976 executed by
Basavanneppa in favour of Defendant No.4 is null and
void and not binding on the plaintiffs and the said
Basavanneppa was not in a position to execute the
Will.
(vi) It is forthcoming from the order passed in RSA
No.193/1975 (Ex.D5) that the present Plaintiff had
filed I.A. No.5 in the said second appeal to be added
as respondents. That it was contended in the affidavit
that Basavanneppa who was the grand father of the
applicants was the Manager of the joint family and
that the relinquishment made by Veerappa is not
binding. That the claim made by the daughters of
Basavanneppa viz., Tirakavva and Gouravva and the
sons of another deceased daughter Smt. Dyamavva
under the Will of Basavanneppa is not liable to be
granted as the Will is not genuine. The said
contentions have been put forth in the present suit
also. However, the High Court dismissed IA No.5.
(vii) The present Defendant Nos.1 to 4 were brought
on record as the legal heirs of Basavanneppa in RSA
No.193/1975.
(viii) It is seen from the Judgment and decree
passed in O.S. No.56/1969 (Ex.D9) that the suit was
dismissed holding that Veerappa had relinquished his
share in favour of his father under the Relinquishment
Deed dated 03.06.1959 which was valid and he has
executed the same before the birth of his children and
they had no right in the properties. The said finding
was affirmed in R.A. No.21/1973 (the judgment of
which is marked as Ex.D11) and RSA No.193/1975
(the judgment of which is marked as Ex.D4) which
has become final and conclusive.
(ix) The parties in O.S. No.56/1969 and RSA
No.193/1975 and the present suit properties in all the
suits are the same and the real question in
controversy between the parties in O.S. NO.56/1969
and RSA No.193/1975 and the present suit are the
same.
(x) The order passed by the High Court in RSA
No.193/1975 holding that that the present
Defendants was the only legal representatives of
Basavanneppa is also final and conclusive and now
the Plaintiffs cannot be permitted to challenge said
orders under the guise of filing the present suit.
27. The first appellate Court while considering the Appeal
filed by the Plaintiffs framed the following points for consideration:
i) "Whether judgment passed by Court below on issue
No.1 itself is proper and correct without considering
other issues based on evidence?
ii) Whether impugned judgment challenged under this
appeal is perverse, capricious and liable for interference
by this Court?
iii) What Order?"
28. While considering point Nos.1 and 2, the following
findings were recorded:
i) Point of res judicata is a mixed question of law
and fact cannot be decided as a preliminary issue
alone, when other material and important triable
issues are available in O.S. No.56/1986.
ii) In O.S. No.56/1969, it has been clearly upheld
that the father of the Plaintiff Veerappa has
relinquished his right in favour of his father
Basavanneppa. The said judgment has attained
finality and there is no concept of joint family. The
Plaintiffs have no remedy against Defendants for
partition or any maintenance. The remedy of the
Plaintiffs after the demise of Basavanneppa is to be
succeeded as his legal heirs which question is raised
and pleaded in O.S. No.56/1986. Hence, this Court
is of the opinion that the issues involved in O.S.
No.56/1969 and O.S. No.56/1986 are totally
different.
iii) Parties in the earlier suit and parties in the later
suit are not same. Right on property was co-
ownership in the previous suit, subsequently in the
later suit right on property are different. Hence, res
judicata is not applicable. Judgment given only
dealing with the plea of res judicata is not tenable
and the same is to be decided along with the main
and issue regarding res judicata should not be tried
as a preliminary issue. Therefore, reasoning and
finding of the Trial Court only on issue No.1 is bad in
law.
29. In view of the discussion made above, it is clear that
there has been no adjudication with regard to the Will dated
15.12.1976 (Ex.D2 in OS No.56/1986) executed by
Basavanneppa. Further, in the earlier round of litigation, the
question that arose for consideration was the entitlement of the
plaintiffs in the property of Veerappa. The entitlement of the
plaintiffs, if any, in the property of Basavanneppa inherited by him
has not been adjudicated upon.
30. It is the vehement contention of the learned counsel
for the appellants that Veerappa had vide letter (Ex.D22) had not
disputed and accepted the Will of Basavanneppa and the only
other person who could contest the Will having not chosen to
contest the same, the suit of the plaintiffs is liable to be
dismissed. However, as noticed above, the entitlement of the
plaintiffs, if any, in the property of Basavanneppa which was
inherited by him is required to be adjudicated upon. Hence, the
said letter (Ex.D22) by Veerappa will not aid the case of the
appellants.
31. Having regard to the discussion made above and the
evidence having been adduced by the plaintiffs on all the issues,
the Trial Court erred only in answering issue No.1 in the
affirmative and holding that the suit is barred by res judicata. The
first appellate court was justified in setting aside the judgment
and decree of the Trial Court and remanding the matter to the
Trial Court to decided issue Nos.2 to 13. Hence, the question
framed for consideration is answered in the affirmative.
32. In view of the aforementioned, the following:
ORDER
i) The above appeal is dismissed;
ii) The judgment and decree dated 25.10.2018 passed in
R.A. No.12/2007 by the I Addl. District and Sessions
Judge, Haveri, is affirmed.
No costs.
Sd/-
JUDGE
Bs/nd
