The principle of res judicata does not apply where a compromise agreement does not create enforceable rights; the plaintiff must establish both title and possession in a suit for recovery of property.

JUDGMENT :

M.G.S. KAMAL, J.

1. The plaintiffs in O.S.No.77/1989 are before this Court, being aggrieved by the judgment and decree dated 05.12.2005 passed in Regular Appeal No.52/2004 on the file of District Judge, Fast Track Court-II, Uttara Kannada, Karwar (for short “the First Appellate Court”) by which the First Appellate Court set aside the Judgment and decree dated 10.10.2000 passed in O.S.No.77/1989 on the file of Civil Judge, (Junior Division), Karwar (for short “the trial Court”).

2. Though the above suit has been filed by the plaintiff against the defendants for recovery of possession of the suit property and for mesne profits, based on the allegation that defendant No.1 and his brother defendant No.2, broke open the lock of the suit property and demanded share in the same, a little back ground of this case is required to be narrated. One Dulba Nilu Chamgar, also known as Borker had four sons viz., 1) Yeshwant, 2) Datta, 3) Ganapati, 4) Tukarama and a daughter Leela.Ganapati is the plaintiff, while the legal representatives of Yeshwant, Datta and Tukaram are the defendants in the present suit and the daughter Leela is the defendant No.14.

3. The property, which is the subject matter of the suit, namely Sy.No.24-B/3 measuring 0-5-0 guntas and Sy.No.24/A measuring 0-2-6 guntas, with a house bearing Karwar Municipal House No.1922 (hereinafter called as ‘suit property’) admittedly belonged to Dulba Nilu Chamgar @ Borker. That upon the demise of Dulba Nilu Chamgar @ Borker, the property was managed and looked after by his eldest son Yeshwant. It appears Ganapati the plaintiff herein had lent a sum of Rs.1,300/- to Yeshwant, purportedly for the welfare of the joint family upon an agreement that the said amount would be returned to Ganapati within a period of five years. Seeking recovery of the said amount, Ganapati the plaintiff herein had filed a suit in O.S.No.103/1973 against his other two brothers viz., Datta and Tukarama, as Yeshwant had passed away by that time. The said suit was dismissed as premature by the Judgement and decree dated 10.10.1976.

4. Being aggrieved, Ganapati preferred a Regular Appeal in R.A.No.74/1976. On 13.09.1977, a compromise was arrived between Ganapati and his other two brothers, Datta and Tukarama. In terms of which, while acknowledging the loan lent by Ganapati, the said Datta and Tukaram purportedly agreed to relinquish their share in the suit property in his favour. Subsequently, defendant No.1 herein Devidas son of Datta filed a suit in O.S.No.57/1982 seeking partition of the suit property. The said suit was dismissed by the Judgement and decree dated 14.07.1988. Being aggrieved, defendant No.1 filed R.A.No.56/1988, while daughter of Yeshwant filed R.A.No.59/1988. However, both appeals were dismissed as withdrawn.

5. Things stood thus, the present suit has been filed by Ganapati, alleging that he had let out a room in favour of defendant No.1-Devidas to look after the suit property. However, defendant No.1 with the aid of his other brothers allegedly broke open the lock and door of the suit property and occupied the entire premises. This gave rise to the cause of action for filing the present suit seeking for possession and mesne profit.

6. Written statements have been filed by defendant Nos.1 and 2, denying the plaint averments and challenging the very maintainability of the suit. It is contended that the plaintiff does not have any legal possession or ownership of the suit property and the