2020 Supreme(Kar) 123

IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
M. NAGAPRASANNA, J.
Sri. Alisab S/o Davalsab Shaik – Appellant
Versus
Late Tukaram Sidharam Kathave Since Dead by his LRs. Smt. Mangla – Respondent
Regular Second Appeal No. 1077 of 2006
Decided On : 28-02-2020

Headnote:

Civil Procedure Code, 1908 - Order IX - Rule 9 - Possession and enjoyment of suit land - Permanent injunction - Whether plaintiff proves that he is owner of suit land measuring situated at village as described in Para 3 of plaint - Whether plaintiff proves that 1st defendant is in unauthorized occupation of suit land on its northern portion as described in Para No. 4 of plaint - Whether plaintiff proves that he is entitled to get possession of northern portion of suit land from 1st defendant - Whether plaintiff proves that 2nd and 3rd defendants are in unauthorized occupation of eastern portion of guntas of suit land as described in Para No. 4 of plaint - Whether plaintiff proves that he is entitled to get possession of land from 2nd and 3rd defendant - Whether plaintiff proves that he is in peaceful possession and enjoyment of land out of suit land described in Para 3 of plaint as shown in torch map - Plaintiff had filed a suit against defendants for declaration that he is owner of land situated at village and also for recovery of eastern side of suit land from defendants No. 2 and 3 and also for recovery of northern side of suit land from defendant No. 1 - Apart from above plaintiff also sought for permanent injunction restraining defendants from interfering with plaintiff’s possession and enjoyment of suit land - It is his case that in family partition neighboring land fell to share of one who was brother of plaintiff had sold land in favor of defendant No. 2 and defendant No. 3 - Defendants No. 2 and 3 also purchased certain eastern portion of land measuring – Held, Trial Court after considering evidence decreed suit with costs - Trial Court ordered that plaintiff is owner of suit land measuring situated at village with boundaries indicated therein - Further ordered that plaintiff is entitle to get vacant possession of suit northern portion of land from defendant No. 1 and also is entitled to get eastern side north south direction of land from defendant Nos. 2 and 3 - Afore extracted paragraphs of plaint clearly indicates that plaintiff was well aware of sale and had approached authorities and had also caused a legal notice - Later he filed a suit seeking a decree of declaration and permanent injunction and from records it is seen that Trial Court had to dismiss suit for non-prosecution for non-appearance of plaintiff - This fact of dismissal of suit for default is admitted by plaintiff before this Court but justifies filing of present suit on ground that it had nothing to do with earlier suit - But afore extracted paragraphs and prayer would indicate to contrary - But fact remains that plaintiff has not disputed fact of filing its dismissal for default and suppression of same while instituting - A bare reading of prayer in suit instituted by plaintiff in juxtaposition with that of the prayer in suit would in unmistakable terms indicate that they are one and same - But in entire body of plaint plaintiff does not even whisper a word about his instituting of suit with same prayer - Parties in suit are at slight variation but defendant No. 1’s name that he had purchased property from his brother had already been indicated in plaint and even in legal notice that was caused upon defendant No. 1 by plaintiff - Counsel for plaintiff would contend before this Court that it is not hit by principles of res-judicata or under provisions of Order IX Rule 8 or IX Rule 9 of CPC as one of defendants is different from defendant that was in suit and mentions that he need not disclose earlier suit and cannot be non-suited on that ground – Court unable to accept contention of plaintiff that he has no duty to disclose suit that was earlier filed with same cause of action - Present suit was clearly barred under provision of Order IX Rule 9 and Section 11 of CPC as also by principles of constructive res-judicata as suit which was filed was subsequent to sale of property by brother of plaintiff and in favor of defendant No. 1 – Thus law declared by Hon’ble Supreme Court in aforesaid judgment is applicable all fours to case of hand - Thus suit was not even maintainable – Hence any of findings in a suit that was not maintainable will have no bearing in law - In view of above first question of law arising for consideration is answered by holding that second suit with same prayer which was identical to suit having been dismissed second suit with same prayer was clearly hit by Order IX Rule 9 of CPC and principles of res-judicata - Second suit was not maintainable before Trial Court – Since suit itself is held to be not maintainable other issues need not be gone into and order in Regular Appeal affirming findings in suit as a consequence will also be held to be not maintainable - Second appeal is allowed