The First Appellate Court erred in reversing the Trial Court's decree, failing to consider res-judicata and the finality of previous judgments regarding property ownership.

JUDGMENT :

E.S. INDIRESH, J.

This appeal is preferred by defendant, challenging the judgment and decree dated 03.07.2018 in RA No.91/2013 on the file of I Additional District and Sessions Judge, Bagalkote - sitting at Jamakhandi (for short, hereinafter referred to as ‘First Appellate Court’), allowing the appeal and setting aside the judgment and decree dated 28.08.2013 in OS No.3/2011 on the file of Senior Civil Judge and JMFC, Mudhol (for short, hereinafter referred to as ‘Trial Court’), decreeing the suit in part.

2. For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

3. It is the case of the plaintiff that, the plaintiff is the owner in possession of the suit schedule property having purchased the same as per registered sale deed dated 25.07.2003 from Hanamant Gopal Deshpande for consideration of Rs.2,15,000/-. It is stated that the revenue records have been mutated accordingly. It is also stated in the plaint that, the defendant without considering the title of the plaintiff has interfered with the suit schedule property based on the judgment and decree in OS No.171/1996 which came to be dismissed and therefore, sought for relief of declaration with regard to the suit schedule property.

4. On service of notice, the defendant entered appearance and filed detailed written statement stating that suit in OS No.171/1996 was filed seeking partition against the vendor of the plaintiff, which came to be dismissed and same was reversed in RA No.69/1998 and thereafter, same was confirmed in RSA No.1188/2004 and accordingly sought for dismissal of the suit.

5. The Trial Court based on pleadings formulated the issues for its consideration.

6. In order to establish their case, two witnesses were examined by the plaintiff as PW1 and PW2 and 14 documents were marked as Ex.P1 to P14. Defendant has examined one witness as DW1 and got marked a document as Ex.D1.

7. The Trial Court after considering the material on record decreed the suit holding that the plaintiff is entitled for ½ share in suit claim bearing Sy.No.216/3 of Dhawaleshwar village, and dismissed the suit with regard to nullify the registered sale deed dated 25.07.2003. Feeling aggrieved by the same, the plaintiff has preferred RA No.91/2013, and the said appeal was resisted by the defendant. The First Appellate Court after re-appreciating the material on record by its judgment and decree dated 03.07.2018 allowed the appeal. Consequently, held that the plaintiff is absolute owner in possession of the suit schedule property in entirety. Feeling aggrieved by the same, the defendant has preferred this Regular Second Appeal.

8. This Court vide order dated 14.09.2020 formulated the following substantial question of law.

“1) Whether the First Appellate Court was justified in reversing the findings of the Trial Court overlooking the fact that partition which had reached finality operated as res-judicata and purchaser of a divided share was not entitled to seek reopening of partition by way of a suit for declaration and injunction?

2) Whether the First Appellate Court was justified in reversing the findings of the Trial Court without considering the fact that Tahasildar, Mudhol in RTS-SR.No.14/1996-97 has held that suit land is still joint family property and it has not been partitioned in the year 1961 as per certification of M.E. No.666 and that subsequent partition in M.E. No.6043 has been cancelled on 24.10.1997?

3) Whether the First Appellate Court was justified in reversing the findings of the Trial Court without considering the fact that sale transaction is hit by Section 52 of Transfer of Property Act, 1882?”

9. I have heard Smt. Deepa P. Doddatti, learned counsel appearing for the appellant and Sri. Girish A Yadawad, learned counsel appearing for the respondent.

10. Learned counsel appearing for the appellant contended that, the appellant herein has filed OS No.171/1996 against the vendor of the plaintiff seeking relief of partition and sep