The principle of res judicata bars litigation on matters already adjudicated, and can be decided as a preliminary issue when sufficient materials exist.

JUDGMENT :

K S HEMALEKHA, J.

The present regular first appeal is preferred by the appellant/plaintiff, assailing the order dated 12.12.2024 passed by the Principal Senior Civil Judge, Kalaburagi (hereinafter referred to as ‘Trial Court’), in OS No.155/2021, whereby the trial Court dismissed the suit on preliminary issue No.4, holding that the suit is barred by principle of res judicata.

2. Brief facts are that, the plaintiff filed the present suit seeking the relief of declaration of title and perpetual injunction against the defendants in respect of the properties mentioned below:

a) Sy.No.124, measuring 28 acres 21 guntas situated at Chinamagera village, Afzalpur taluk, Dist. Gulbarga

b) Sy.No.87/3, measuring 06 acres 24 guntas situated at Melkunda-B village, Tq. & Dist. Gulbarga

c) A house property situated at Chinamgera village, Afzalpur taluk, Dist. Gulbarga

(hereinafter referred to as the ‘suit properties’).

3. The plaintiff averred that Chandappa was the propositus of the joint family and had two wives; Neelamma and Ambawwa (defendant No.1). Defendant No.2 Sharanamma is the daughter of Ambawwa. Neelamma had two sons, namely Bhimashankar (defendant No.3) and Sharanappa (deceased). The plaintiff is the wife of late Sharanappa. Defendant Nos.4 and 5 are the children of the plaintiff and late Sharanappa, while defendant No.6 is the wife of defendant No.4.

4. It is the case of the plaintiff that upon the death of Chandappa and Neelamma, their legal heirs were Sharanappa, Bhimashankar and Ambawwa. It is submitted that a memorandum of partition was executed on 24.06.1987 between Sharanappa, Bhimashankar, and Ambawwa followed by another memorandum of partition executed by Defendant No.1 on 08.02.1993. It is averred that as per the terms of the partition, Sy.No.110 measuring 31 acres 23 guntas was allotted to Bhimashankar and Sharanappa was allotted the suit properties. The deceased son of defendant No.1 was allotted land Sy.No.22 measuring 17 acres 20 guntas and the house bearing No.2-602/2 of Jagath, Kalaburagi and after the demise of the son, defendant Nos.1 and 2 have succeeded to the properties. It is further averred that defendant Nos.1 and 2 had earlier filed suit for partition and separate possession in O.S.No.67/2007 against the plaintiff and other family members. Although the plaintiff was arrayed as defendant and represented in that suit, she did not effectively contest the same due to ignorance and improper legal advise, resulting in the suit being decreed. The plaintiff now asserts that she is the lawful owner and possessor of the suit properties on basis of the valid partition that has taken place between the parties.

5. Defendant Nos.1 and 2 are the contesting defendants and they filed their written statement, inter alia denying the averments of the plaint. They contended that the suit properties in the present case were part of the five properties that was subject matter of a partition and separate possession in O.S.No.67/2007, which had been filed against the plaintiff and others. Out of the five properties in O.S. No.67/2007, three properties correspond to those now claimed in the present suit. The plaintiff herein who was arrayed as defendant took a similar plea of partition being effected on 24.06.1987. The suit in O.S.No.67/2007 on contest was decreed on17.01.2012 by the trial Court. The plaintiff herein along with Bhimsashankar, Chandrashekhar and Sheela filed R.A. No.1/2015 challenging the judgment and decree. The first appellate Court dismissed R.A.No1/2015, thereby confirming the judgment and decree passed in