JUDGMENT For the sake of convenience, parties would be referred to as per their status before the Trial Court. 2. This is a defendant's appeal. Appellant was defendant in O.S. No. 64 of 2002 before the Civil Judge (Senior Division), KGF. Respondent was the plaintiff. 3. Initially, plaintiff filed the suit in O.S. No. 167 of 1998 before the Civil Judge (Junior Division), KGF for recovery of possession of the suit property from the defendant and for perpetual injunction, to restrain the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property. Originally the suit was filed for bare injunction in O.S. No. 167 of 1998. Later on, the plaintiff filed an application for amendment of plaint and requested the Court to direct the defendant to deliver possession of the suit property on the ground that he has been dispossessed by the defendant during the pendency of the suit. An additional written statement was also filed by the defendant. 4. Pursuant to the amendment to the plaint, the Civil Judge (Junior Division), KGF, raised two issues (1) in regard to Court fee payable by the plaintiff; and (2) the jurisdiction to entertain the suit considering the value of the property. These two issues were tried as preliminary issues. Thereafter, the Court held that it had no pecuniary jurisdiction to entertain the suit. In the circumstances the plaint was ordered to be returned to the plaintiff to re-present the same before the Competent Court. 5. The plaintiff re-presented the plaint before the Civil Judge (Senior Division), KGF and the suit is renumbered as O.S. No. 64 of 2002. The Civil Judge (Senior Division), KGF by order dated 31-7-2002 directed the parties to appear before the Court on 3-8-2002. On 3-8-2002, deficit Court fee of Rs. 6,400/- was paid by the plaintiff and case was adjourned to 30th September, 2002. Therefore, the case was adjourned from time to time to secure the records from Civil Judge (Junior Division), KGF and finally the arguments were heard and judgment was delivered on 15-12-2003 decreeing the suit of the plaintiff. 6. Being aggrieved by the judgment and decree of the Trial Court, the present appeal is filed by the defendant. 7. Therefore, the case was adjourned from time to time to secure the records from Civil Judge (Junior Division), KGF and finally the arguments were heard and judgment was delivered on 15-12-2003 decreeing the suit of the plaintiff. 6. Being aggrieved by the judgment and decree of the Trial Court, the present appeal is filed by the defendant. 7. Though several grounds are urged by the appellant in the appeal memo, at the time of arguments, learned Counsel for the appellants has raised a short and an important question of law in this appeal. According to him, the Trial Court has committed an error in decreeing the suit relying upon the written statement filed by the defendant and the evidence let-in by the parties before the Civil Judge (Junior Division), KGF. According to the learned Counsel for the appellants, when Civil Judge (Junior Division), KGF returned the plaint under Order 7, Rule 10-A of the Code of Civil Procedure, 1908, it was for the Civil Judge (Senior Division), KGF to permit the defendant to file the written statement afresh and after framing of issues, the evidence has to be recorded afresh and judgment has to be passed thereon. The Trial Court without looking into the provisions of Order 7, Rule 10 of the Code of Civil Procedure considered the written statement filed by the defendant before the Civil Judge (Junior Division), KGF and the evidence let-in by the parties before the Civil Judge (Junior Division), decreed the suit of the plaintiff. Therefore, he requests this Court to set aside the judgment and decree of the Trial Court. 8. According to Mr. Ashwathnarayana, learned Counsel for the respondent, the Trial Court has not committed an error in considering the written statement filed by the defendant and the evidence let-in by the parties before the Civil Judge (Junior Division), KGF. According to him, the defendant should have raised the said contention before the Trial Court and having not raised such a contention before the Trial Court, the appellants shall not be permitted to raise the same in the appeal. Therefore, he requests this Court to dismiss the appeal. 9. Mr. Papireddy, learned Counsel for the appellants contends that even if the appellant had not raised such a contention before the Trial Court, it was the duty of the Trial Court to follow the procedure of CPC. Therefore, he requests this Court to dismiss the appeal. 9. Mr. Papireddy, learned Counsel for the appellants contends that even if the appellant had not raised such a contention before the Trial Court, it was the duty of the Trial Court to follow the procedure of CPC. Having not followed the procedure, it could not have passed such a judgment and decree based on the written statement and the evidence recorded by a Court which had no pecuniary jurisdiction to entertain the suit. He further contends that the question now raised by him is a question of law, which can be raised in a first appeal. Therefore, he requests this Court to allow the appeal. 10. Having heard the learned Counsel for the parties, what is to be considered in this appeal is: "Whether the Trial Court is justified in decreeing the suit based on the written statement and the evidence recorded by a Court which had no pecuniary jurisdiction to entertain the suit or whenever a plaint is ordered to be returned to re-present the same before the Competent Court under Order 7, Rule 10-A of the Code of Civil Procedure, the transferee Court can pass a judgment and decree based on the pleadings of the parties and the evidence recorded by the Court which had no jurisdiction to entertain the suit?" 11. Facts of this case are not in dispute. Initially, plaintiff filed the suit in O.S. No. 167 of 1998 before the Civil Judge (Junior Division), KGF. The defendant had filed the written statement, issues were framed and the evidence was also recorded by the Civil Judge (Junior Division), KGF. Thereafter, by an order dated 24-7-2002, the Civil Judge (Junior Division), held that it had no pecuniary jurisdiction to try the suit. Again, on an application filed under Order 7, Rule 10 of the Code of Civil Procedure by the plaintiff, plaint was ordered to be returned to the plaintiff to present the same before the Civil Judge (Senior Division), KGF directing both the parties to appear before the Civil Judge (Junior Division), KGF. It is also not in dispute that the Civil Judge (Senior Division), KGF after receipt of the plaint has not given an opportunity for the defendant to file the 'written statement and did not frame the issues and record and evidence. 12. It is also not in dispute that the Civil Judge (Senior Division), KGF after receipt of the plaint has not given an opportunity for the defendant to file the 'written statement and did not frame the issues and record and evidence. 12. By securing the entire records from Civil Judge (Junior Division), KGF, the Trial Court has heard the learned Counsel for both the parties and relying upon the pleadings and the evidence recorded by the Civil Judge (Junior Division), KGF has decreed the suit, which according to the learned Counsel for the appellants is contrary to the provisions of Order 7, Rule 10 of the Code of Civil Procedure. 13. By reading of Order 7, Rule 10 of the Code of Civil Procedure, it is clear that the Court has directed the plaintiff to re-present the plaint before the proper Court; if the plaintiff is ordered to re-present the plaint before the Court, the office would return only the Court fee, plaint and the suit documents. Even the vakalath filed cannot be returned to the plaintiff; since such vakalath was executed by a party to file the same before the Court which had no jurisdiction to entertain the suit, when such before the case, the Trial Court would not get a jurisdiction to secure the records from the Civil Judge (Junior Division), KGF and to proceed with the case further. 14. When the plaint is ordered to be returned under Order 7, Rule 10 of the Code of Civil Procedure, on re-presentation of the plaint, the Court has to issue summons to the defendant. The issuance of the summons can be dispensed with only if there is an order under Order 7, Rule 10-A of Code of Civil Procedure. In the present case, such an order has been passed by the Civil Judge (Junior Division), KGF. Therefore, the Civil Judge (Senior Division), KGF has to proceed with the suit from the stage of filing written statement. The Civil Judge (Junior Division), which had no jurisdiction to entertain the suit even though had recorded the evidence, the same cannot be made use of by any of the parties before the transferee Court. Therefore, the Civil Judge (Senior Division), KGF has to proceed with the suit from the stage of filing written statement. The Civil Judge (Junior Division), which had no jurisdiction to entertain the suit even though had recorded the evidence, the same cannot be made use of by any of the parties before the transferee Court. Considering the provisions of Order 7, Rule 10 of the Code of Civil Procedure, this Court is of the opinion that the Civil Judge (Senior Division), KGF has committed an error in disposing of the suit relying upon the written statement filed by the defendant and the evidence recorded by a Court which had no jurisdiction to entertain the suit. In the circumstances, the judgment and decree of the Trial Court has to be set aside only on this short ground. 15. In the result, the appeal is allowed. The judgment and decree passed in O.S. No. 64 of 2002 by the Civil Judge (Senior Division), KGF. 2006(6) Kar. L.J. 295 IN THE HIGH COURT OF KARNATAKA AT BANGALORE R. GURURAJAN, J. SRI SADASHIVA MAHAGANAPATID TEMPLE, SURATKAL, MANGALORE, DAKSIDNA KANNADA - Petitioner Versus THE LAND TRIBUNAL, MOODABIDRI, MANGALORE TALUK AND OTHERS - Respondents Writ Petition No. 17426 of 2004 Writ Petition No. 17427 of 2004 Decided on 2nd June, 2006 Cases referred 1. Kiran Singh and Others v. Chaman Paswan and Others, AIR 1954 SC 340 : 1955 SCR 117 , not rel.; 2. Jingra Moolya and Another v. Balakrishna alias Subramanya, 1995(6) Kar. L.J. 449: ILR 1995 Kar. 1825, not rel.; 3. Mathura Prasad Sarjoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoy, AIR 1971 SC 2355 : (1970)1 SCC 613 , not rel.; 4. The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust and Another, AIR 1978 SC 1283 : (1978)3 SCC 119 : 1978-II-LLJ-161 (SC), not rel.; 5. Mahaveer Chambanna Kallimani and Others v. State of Karnataka and Others, 1996(7) Kar. L.J. 699 : ILR 1996 Kar. 3646, not rel.; 6. Ishwardas v. State of Madhya Pradesh and Others, AIR 1979 SC 551 : (1979)4 SCC 163 , rel. on; - 7. Ashok Kumar Srivastav v. National Insurance Company Limited and Others, AIR 1998 SC 2046 , rel. on; 8. M/s. Jain Cloth Stores and Another v. Smt. Narangi Bai and Others, 2004(5) Kar. L.J. 99 : 2004(2) KCCR 1181, rel. on. on; - 7. Ashok Kumar Srivastav v. National Insurance Company Limited and Others, AIR 1998 SC 2046 , rel. on; 8. M/s. Jain Cloth Stores and Another v. Smt. Narangi Bai and Others, 2004(5) Kar. L.J. 99 : 2004(2) KCCR 1181, rel. on. Advocates appeared Sri Pundikai Ishwara Bhat, Advocate for Petitioner common in both petitions; Sri Ramesh B. Aneppanavar, High Court Government Advocate for Respondent-1; Sri B. Ramesh for Sri M.V. Sheshachala, Advocate for Respondent-2. ORDER Sri Sadashiva Mahaganapathi Temple of Suratkal is before me in W.P. No. 17426 of 2004 challenging the order of the Land Tribunal, Mangalore dated 8-2-1977. Petitioner is also challenging the order dated 11-2-2006 passed by the Land Tribunal, Moodabidri and is also assailing the correctness of the order dated 8-2-1977 passed by the Land Tribunal, Mangalore in LRT(2) No. 1379/1976-77. 2. Petitioner-temple is one of the oldest temples and is governed by the provisions or' the Madras Hindu Religious and Charitable Endowments Act, 1951. Petitioner-temple is the absolute owner of the property bearing Sy. No. 141/23 measuring 0.89 acres. The above property has been in actual enjoyment and possession of the petition temple since several decades, including as on 1-3-1974. The land in question is a non-agricultural Punja land. It was never tenanted to any one much less to one Devaki. The second respondent Devaki applied for grant of occupancy rights in respect of a portion of the land bearing Sy. No. 141/27 measuring 0.441/2 acres of land, of which petitioner-temple is not the owner. Second respondent was not a tenant under the petitioner-temple, nor is in possession and cultivation of any portion of the land in question. The Land Tribunal without enquiry has now passed an order dated 8-2-1977. 3. Petitioner states that during the second week of February 2000, the petitioner-temple was surprised to receive notice from the Assistant Director of Land Records, Mangalore that on 23-2-2000 he is going to inspect Survey No. 1.41/23 for the purpose of plotting. Petitioner made enquiries and learnt that the Land Tribunal was pleased to grant occupancy rights in favour of the second respondent as per Annexure-B", Petitioner has challenged the correctness of the said order before this Court in W.P. No. 30365 of 2000. 4. Petitioner made enquiries and learnt that the Land Tribunal was pleased to grant occupancy rights in favour of the second respondent as per Annexure-B", Petitioner has challenged the correctness of the said order before this Court in W.P. No. 30365 of 2000. 4. The Land Tribunal thereafter took up the matter for enquiry in respect of the claim made by one Ramaiah Poojary relating to the portion of W.P. No. 30365 of 2000, measuring 0.14 acre of Suratkal Village. Second respondent filed an impleading application contending that she is the necessary party. Thereafter, the Tribunal refused to interfere with the order dated 8-2-1977 and rejected the claim made by Ramaiah Poojary in terms of Annexure-A. 5. Notice was issued. On receipt of notice, the contesting respondents have chosen to enter appearance. The contesting respondents would say that the order was passed on 8-2-1977 ordering grant of occupancy rights to the extent of 27 cents. Proceedings were initiated by the Tahsildar and Form 10 was granted 9-2-1979. RTC also stood transferred in the name of the second respondent. It is further stated that a writ petition was filed in W.P. No. 30365 of 2000 and this Court rejected the said writ petition in terms of the order dated 19-6-2001. That order becomes final. It is contended that the petition is barred by res judicata and constructive res judicata. The contesting respondents want this petition to be dismissed. 6. W.P. No. 17427 of 2004 is filed by the very temple challenging the order dated 17-2-1977 in terms of Annexure-B in this writ petition. Same facts and same grounds are narrated in this writ petition as well. Contesting respondents have entered appearance and the contesting respondents also would reiterate same objections. In this case also, the contesting respondents would say that the writ petition was filed in W.P. No. 30366 of 2000 challenging the very order dated 17-2-1977. Same came "to be rejected by this Court. It is further stated that the order of the Land Tribunal was given effect to by way of grant of Form 10 and also by effecting revenue entries. It is further contended that the petition is barred by the principles of res judicata and constructive res judicata. The contesting respondents want the petition to be dismissed. 7. Heard the learned Counsel for the parties and perused the material placed on record. 8. It is further contended that the petition is barred by the principles of res judicata and constructive res judicata. The contesting respondents want the petition to be dismissed. 7. Heard the learned Counsel for the parties and perused the material placed on record. 8. Sri Pundikai Ishwara Bhat, learned Counsel for the petitioner would argue that the material facts and material circumstances would show that the Land Tribunal has committed a serious error in ordering grant of lands to the contesting respondents in the case on hand. He would refer to Form 7 and other material documents to say that the Land Tribunal has committed a serious error in granting the land to the contesting respondents. He would also argue that these lands are necessary for the temple in terms of the writ averments. He would also say that the contesting tenant is not entitled for any occupancy rights since land in question is a Punja land. He attacks the order of the Land Tribunal in terms of the ground raised in this petition. 9. Per contra, learned Counsel for the contesting respondents would argue that in terms of the earlier rejection of the writ petition, these petitions cannot be considered by this Court. In reply, Sri Bhat, learned Counsel for the petitioner would argue that the order of the Land Tribunal IS without jurisdiction and hence this Court can certainly consider the case on merits despite earlier order. 10. After hearing, I have carefully perused the material on record. 11. It is seen that the contesting respondent-tenant filed Form 7 and the same has been considered in terms of Annexure-B, dated 17-2-1977. The said order is challenged on several grounds. 12. It is admitted before me that the very orders were challenged by this very temple in W.P. No. 30365 of 2000 and W.P. No. 30366 of 2000. Learned Judge of this Court has chosen to dismiss those petitions not only for delay and latches but also on merits. That order has been passed on 17-7-2001. It has become final. After the orders of the Land Tribunal reaching finality, in the light of the order of this Court, it is not open to the petitioner to challenge the very orders in subsequent writ petitions. That order has been passed on 17-7-2001. It has become final. After the orders of the Land Tribunal reaching finality, in the light of the order of this Court, it is not open to the petitioner to challenge the very orders in subsequent writ petitions. Hence, I am clear in my mind that the present writ petitions are to be rejected solely on the ground of rejection of earlier writ petitions filed by the very petitioner challenging the very orders. 13. However, Sri Bhat, learned Counsel for the petitioner would place before me several judgments to say that the earlier order of the Land Tribunal is a nullity in the eye of law. He relies on Kiran Singh and Others v. Chaman Paswan and Others1, to say that a decree passed without jurisdiction is a nullity. Jingra Moolya and Another v. Balakrishna alias Subramanya2, is a judgment of this Court, in which this Court ruled that the orders without jurisdiction is a nullity and is of no consequences in detennining the rights in respect of the concerned land. Mathura Prasad Sarjoo Jaiswal and Others v. Dossibai N.B. Jeejeebhoi, was pressed into service for the purpose of res judicata. In the said case, the Supreme Court has ruled as follows.- "A question relating to jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of that Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not operate as res judicata". (emphasis supplied) He would also rely on The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust and Another1, to say that dismissal of special leave petition need not necessarily bar entertainment of a writ petition under Article 226 on the same grounds. The Apex Court ruled that the technical rule of res judicata, although a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding. He further relies on a decision of this Court in Mahaveer Chambanna Kallimani and Others v. State of Karnataka and Others2, to say that the res judicata would not apply in such cases. Each one of these cases is not at all applicable to the facts of this case. He further relies on a decision of this Court in Mahaveer Chambanna Kallimani and Others v. State of Karnataka and Others2, to say that the res judicata would not apply in such cases. Each one of these cases is not at all applicable to the facts of this case. In none of these cases, Courts have considered with regard to the second writ petition challenging an order which has been already accepted by this Court in a writ petition filed by the very petitioner. Therefore, none of these judgments would apply to the facts of this case. 14. On the other hand, the Supreme Court has noticed in Ishwardas v. State of Madhya Pradesh and Others3, that "in order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common, and that all that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim". In the case on hand, the issue is the same and it is between the same parties in the light of the earlier writ petitions. The Supreme Court in its later judgment in Ashok Kumar Srivastav v. National Insurance Company Limited and Others4 has ruled that a decision rendered in a writ petition operates as res judicata in subsequent judicial proceedings. 15. This Court in M/s. Jain Cloth Stores and Another v. Smt. Narangi Bai and Others5, has also noticed a ruling of the Supreme Court in 1995 SCR 377 reading as under: "There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing Court even though erroneous is binding on the parties". 16. In the light of the later pronouncement by the Apex Court with regard to constructive res judicata or res judicata, the present case is hit by the said principle. Petitioners having challenged the same earlier and having failed, cannot be permitted to challenge once again by raising different grounds or same grounds in a subsequent litigation. 16. In the light of the later pronouncement by the Apex Court with regard to constructive res judicata or res judicata, the present case is hit by the said principle. Petitioners having challenged the same earlier and having failed, cannot be permitted to challenge once again by raising different grounds or same grounds in a subsequent litigation. Orders have reached finality in terms of the earlier orders. Hence, the argument of the respondent is to be accepted by this Court. 17. Both the orders, in the circumstances, cannot be interfered within the light of the earlier orders passed by this Court in terms of Annexures-R1 and R2. Orders are also given effect to by issuing Form 10 by way of change of revenue entries. Any interference at this stage would unsettle a settled issue. I am not inclined to exercise my discretion in a matter like this. 18. I see from the writ averments that the petitioner has challenged the correctness of the order of Land Tribunal. They have not stated as to what happened to the said writ petitions. It is only after the respondents entered appearance this Court has come to know that the earlier writ petitions were rejected. This Court expect the temple authorities to provide all details to the Court for proper appreciation of the material facts. It is rather unfortunate that a trustee or a temple has not chosen to provide necessary material details at the time of filing of the writ petition. This Court would express its displeasure in the matter. It is seen that the petitioner is fairly aged and that therefore I would leave the matter without any fresh action except expressing my displeasure in the matter. 19. Petitioner has however has chosen to say that this land is being used for annual Utsav of the temple. It is also being used during Anna Santarpane (Public Feeding) during festivals of the temple. If that is so, it is always open to the petitioner to approach the respondents for continuing such usage of the land, if true in terms of paragraph 9 of the writ petition. 20. It is also stated in the writ petitions that the petitioners are aggrieved by the order at Annexure-A. But, surprisingly, Annexure-A is not challenged. If that is so, it is always open to the petitioner to approach the respondents for continuing such usage of the land, if true in terms of paragraph 9 of the writ petition. 20. It is also stated in the writ petitions that the petitioners are aggrieved by the order at Annexure-A. But, surprisingly, Annexure-A is not challenged. Hence, no opinion is expressed on Annexure-A, particularly in the light of another writ petition pending on the file of this Court at the instance of another tenant. 21. Petition stands rejected.