Karnataka High Court
Ulaveppa S/O Veerabhadrappa Topagi vs Smt Shankravva W/O Irappa Uppin on 6 June, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
-1-
NC: 2024:KHC-D:7552
CRP No. 100129 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO.100129/2023
BETWEEN:
ULAVEPPA S/O. VEERABHADRAPPA TOPAGI,
AGE: 45 YEARS, OCC: AGRICULTURE,
R/O: SHIRABADAGI VILLAGE,
TQ: SAVANUR, DIST: HAVERI - 581 118.
...PETITIONER
(BY SRI N.H.PATIL, S.A.MULLUR,
AND NIRMALA B.G., ADVOCATES)
AND:
1. SMT. SHANKRAVVA W/O. IRAPPA UPPIN,
AGE: 57 YEARS, OCC: HOUSEHOLD.
2. GANGAPPA S/O. IRAPPA UPPIN,
AGE: 43 YEARS, OCC: AGARICULTURE.
3. MAHADEVAPPA S/O. IRAPPA UPPIN,
AGE: 31 YEARS, OCC: AGARICULTURE.
Digitally signed
by V N BADIGER
Location: High 4. SHIVAPPA S/O. MAHADEVAPPA UPPIN,
Court of
Karnataka AGE: 67 YEARS, OCC: AGRICULTURE.
ALL ARE R/O: SHIRABADAGI VILLAGE,
TQ: SAVANUR, DIST: HAVERI - 581 118.
...RESPONDENTS
(BY SRI OMKAR L. DESAI AND MALA BHUTE,
ADVOCATE FOR R1, R3 AND R4;
NOTICE TO R2 IS SERVED)
THIS CRP IS FILED UNDER SEC. 115 OF CPC, 1908, PRAYING
TO, ALLOW THE REVISION PETITION BY SETTING ASIDE THE
IMPUGNED ORDER DATED 23.02.2023 PASSED BY CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS, SAVANUR IN OS NO. 45/2016
VIDE ANNEXURE-A AND CONSEQUENTLY THE ISSUE NO. 5 IN OS
NO. 45/2016 PENDING ON THE FILED OF CIVIL JUDGE AND
-2-
NC: 2024:KHC-D:7552
CRP No. 100129 of 2023
JUDICIAL MAGISTRATE FIRST CLASS, SANVANUR BE HELD IN
AFFIRMATIVE AND ETC.,
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This revision petition is filed by the Defendant No.1 in
O.S.No.45/2016 aggrieved by the order dated 23.02.2023
passed on issue No.5 framed in the said suit treating the
same as a preliminary issue, declining accept the
contention of the petitioner herein that the suit is hit by
principles of res-judicata.
2. Learned counsel for the petitioner reiterating
the grounds urged in the memorandum of petition submits
that one Mahadevappa Irappa Uppin and Shivappa
Mahadevappa Uppin who are the Respondent Nos.3 and 4
in the present proceedings had filed a suit in
O.S.No.74/2007 against the petitioner herein for relief of
possession and injunction. After the trial, it was held that
though the respondents were the owners of the property
they had not proved the encroachment by the petitioner
NC: 2024:KHC-D:7552
herein. Accordingly, the said suit in O.S.No.74/2007 was
dismissed.
3. Learned counsel for the petitioner further
submits that, despite dismissal of the said suit, the
present suit in O.S.No.45/2016 is filed by the very same
plaintiffs against the petitioner herein seeking relief of
declaration and injunction in respect to the suit schedule
properties. He further submits that the properties subject
matter of both the suits are one and the same.
4. Learned counsel for the petitioner further
submits that the petitioner herein had filed written
statement contending that the suit is barred by principles
of res-judicata as such the same was not maintainable. He
further submits that though the petitioner had furnished
the pleadings of the previous suit and the judgment
passed therein, the Trial Court has not taken the same
into consideration while passing the impugned order.
Hence, this petition.
5. Learned counsel for the respondents on the
other hand justifying the impound order pass by the Trial
NC: 2024:KHC-D:7552
Court submits that issue of res-judicata is a mixed
question of facts and law, and the same needs to be
adverted during the trial which principle of law has been
taken note of by the Trial Court while passing the
impugned order warranting no interference.
6. Heard and perused the records.
7. It appears based on the pleadings, the Trial
Court had framed seven issues. Issue No.5 reads as
under;
"5. Whether the defendant proves that
the suit of the plaintiffs is hit by the Principles
of Resjudicata?"
8. The petitioner herein had filed I.A.No.5 under
Order XIV Rule 2 of Code of Civil Procedure, 1908 (for
short, hereinafter referred to as 'CPC'), seeking treating of
the said issue No.5 as a preliminary issue. Accordingly, the
said application was allowed and the Trial Court had taken
up issue No.5 treating it as a preliminary issue. The Trial
Court taking note of the pleadings, reliefs sought and the
outcome of the proceedings in the earlier suit in
NC: 2024:KHC-D:7552
O.S.No.74/2007 and the pleadings and the relief sought in
the present suit, has come to the conclusion that in the
earlier suit of the plaintiff was dismissed as the plaintiff
had not proved the allegation of encroachment of property
made by the defendant, though it was held that the
plaintiff to be the owner of the property. The Trial Court
has found subsequent to dismissal of the suit in
O.S.No.74/2007, the defendant had allegedly obtained the
revenue records in his name, which incident had given
raise to a cause of action for the subsequent suit to be
filed by the plaintiff seeking relief of declaration of his title.
9. Thus, the Trial Court after having adverted to
the material placed on record has come to the conclusion
that the cause of action in the earlier suit is different and
distinct from the subsequent suit. However, the Trial Court
has also observed that the issue of res-judicata has to be
addressed in this case only after the trial and accordingly
held that the suit is maintainable in its present manner.
NC: 2024:KHC-D:7552
10. This Court do not see any reason for interfering
with the order passed by the Trial Court as the same does
not suffer from any illegality or irregularity.
11. Accordingly, petition is dismissed.
12. In view of disposal of the revision petition,
pending applications, if any, does not survive
consideration.
SD/-
JUDGE
SMM/CT-ASC
