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2018 Supreme(Kar) 780
IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
H.T. NARENDRA PRASAD, J.
Hanmanthraya S/o Bhimraya – Appellant
Versus
Devikamma W/o Basawaraj – Respondent
MSA No. 1027 of 2013
Decided On : 18-12-2018
For the Appellants : Sri. J. Augustin, Sanjay A. Patil.
For the Respondent: Sri. R.S. Sidhapurkar.
Headnote:
Code of Civil Procedure - Order XIV Rule 2 – Land - Declaration and injunction - Plaintiff is owner of suit land - It is the further case of plaintiff that she has inherited suit lands from her mother - Defendant has no right, title or interest over suit lands - He has illegally dispossessed plaintiff from suit lands and got his name entered into revenue records - Hence, plaintiff has filed O.S against defendant for declaration and injunction - Whether trial Court is justified in holding that suit is barred by principle of res judicata without recording evidence of parties of suit – Held, rule of res judicata does not strike at root of jurisdiction of the Court trying the subsequent suit - It is a rule of estoppel by judgment based on public policy that there should be a finality to litigation and no one should be vexed twice for the same cause - Court view is fortified by judgment of Hon’ble Apex Court judgment in the case of Vaish Aggarwal Panchayat vs. Inder Kumar and Others, AIR 2015 SC 3357 has held as , Res judicata involves mixed question of law and fact, requires not only examination of plaint but also other evidence – It cannot as such be a ground to reject plaint - In view of above, trial Court is not legally justified in dismissing suit without recording evidence of parties in respect of principle of res judicata - First appellate Court has rightly remanded matter to the trial Court for fresh consideration in accordance with law - Therefore, decline to interfere with the judgment and decree of first appellate Court passed - Accordingly, the appeal is dismissed.
1. This appeal is filed by the defendant challenging the judgment and decree dated 14.08.2012 passed by the Senior Civil Judge, Shorapur in R.A. No. 11/2011.
2. The parties are referred to as per their ranking before the Court below.
3. The brief facts of the case are as under:
Plaintiff is the owner of the suit land bearing Sy. Nos. 12/1 and 12/5 measuring 1 acres 38 guntas and 2 acres 12 guntas respectively situated in Sugur villlage of Sorapur taluk. It is the further case of the plaintiff that she has inherited the suit lands from her mother Maremma. Defendant has no right, title or interest over the suit lands. He has illegally dispossessed the plaintiff from suit lands and got his name entered into the revenue records. Hence, the plaintiff has filed O.S. No. 16/2007 against the defendant for declaration and injunction. The same came to be dismissed. Being aggrieved by the same, the plaintiff has filed R.A. No. 3/2018 before the First Appellate Court. The First Appellate Court by its judgment and decree has dismissed the suit and confirmed the judgment and decree passed in O.S. No. 16/2007. The judgment and decree attained finality. Subsequently, the plaintiff has filed this suit against the defendant for possession and injunction.
4. On service of summons, the defendant has filed a detailed written statement denied the entire plaint averments. It is further contended that plaintiff is not an owner of the suit schedule property. Earlier suit filed by the plaintiff in O.S. No. 16/2007 against the defendant for declaration and injunction was dismissed. Hence, the present suit filed by the plaintiff is barred by principle of res judicata. On the basis of the above pleadings, the trial Court framed the following issues:
1. Whether the plaintiff proves that she is the absolute owner of suit property?
2. Whether the plaintiff proves that the mutation of suit property in the name of defendant is illegal?
3. Whether the plaintiff proves the alleged interference by the defendant?
4. Whether the plaintiff is entitled for relief sought as in the pliant?
5. Whether the defendant proves that, his title and possession over the suit property is preferred by way of adverse possession?
6. Whether the suit is barred by limitation?
7. What order or decree?
Additional Issue:
1. Whether the principle of res judicata applies to the suit?
5. The trial Court treated the additional issue as preliminary issue. After hearing the arguments of both sides, the trial Court has dismissed the suit of the plaintiff is barred by principle of res judicata. Being aggrieved by the judgment and decree passed by the trial Court in O.S. No. 164/2009 dated 28.03.2011 the plaintiff has filed appeal in R.A. No. 11/2011 before the Senior Civil Judge, Sorapur. The first appellate Court on the basis of the pleadings of the parties, has framed the following points for consideration:
1. Whether the trial Court is justified in holding that the suit is barred by principle of res judicata without recording the evidence of the parties of the suit?
2. Whether judgment and decree passed by trial Court is sustainable in law?
3. What order?
6. On the basis of the documentary evidence and submission of the counsel for the parties, the appellate Court has allowed the appeal and remitted the matter back to the trial Court for fresh disposal in accordance with law. Being aggrieved by the same, the defendant has filed this miscellaneous second appeal under Order XLIII Rule (1) (u) of CPC challenging the judgment and decree passed by the first appellate Court in R.A. No. 11/2011.
7. Sri J. Augustin, learned counsel for the appellant submits that the plaintiff has earlier filed a suit in O.S. No. 16/2007 for declaration and injunction in respect of very same property between the same parties has been dismissed. Against that he has filed an appeal in R.A. No. 3/2008, same came to be dismissed and attained finality. Now the plaintiff has filed suit for possession and injunction in respect of ver
