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2013 DIGILAW 740 (KAR)

Santosh Kumar Jain v. D. JayaRam

2013-07-01

ANAND BYRAREDDY

body2013
Judgment :- 1. The appeal coming on for admission is heard for final disposal having regard to the fact and circumstance of the case. Accordingly, the appeal is admitted. The short point that arise for consideration is, whether the court below could have dismissed the suit on the ground that it is barred by res judicata while deciding an additional issue, as a preliminary issues. In that, the additional issue was to the following effect: “W hether the suit of the plaintiffs is barred by the principle of Resjudicata, as contended by the defendants?” 2. The present appellants, who were plaintiffs, had filed the suit against the defendants seeking a declaration that the present appellants are the lawful owners of suit schedule ‘A’, ‘B’ and ‘C’ properties and for a declaration that two sale deeds, dated 30.3.1995, executed by the present respondent Nos.3 to 6 in favour of respondent No.1 and the predecessor of respondent No.2 (a) to (e), who are the legal representatives of respondents No.2, are void and for delivery of possession of the suit properties to the plaintiffs and for a permanent injunction restraining the respondents herein from interfering with their possession and enjoyment and other incidental reliefs. 3. It was the case of the appellants that, the suit properties were bequeathed in favour of one Muthyswamy @ Muthappa by Chikkamuniswamappa, under a will dated 23.5.1956. Accordingly, Muthyswamy @ Muthappa became the owner of the entire land in Sy.No.80/1 of Thippasandra village, which includes the suit schedule properties. The contention of the appellants is that, the said Muthappa was married to Smt.Ammayamma and they had two daughters Viz., defendants-7 and 8-respondents Nos.7 and 8, herein. Part of Sy.No.80/1 was said to have been acquired by the erstwhile City Improvement Trust Board, the predecessor of the Bangalore Development Authority and that Muthappa had died on 30.7.1985 leaving behind Ammayamma and her two daughters referred to above that they become the owners of the property by succession in Sy.No.80/1, Hall Sanitary Board Khata No.942/1 and 942/2. It transpires that Ammayamma had filed a suit for permanent injunction against the defendants-3 to 6, who are respondents-3 to 6 herein, in a civil suit in O.S.No.10663/1993 dated 30.9.1995. Ammayamma and her daughter viz., defendants-7 and 8 are said to have approached the plaintiffs in the year 1994 offering to sell the suit schedule properties and executed the sale deeds. Ammayamma and her daughter viz., defendants-7 and 8 are said to have approached the plaintiffs in the year 1994 offering to sell the suit schedule properties and executed the sale deeds. However, the khata in respect of the said suit properties stood transferred in favour of defendants-1 and 2 on the basis of the said sale deeds executed by defendants-3 to 6. This, according to the plaintiffs, was impermissible as defendants-3 to 6 had no title to the property. This was on the ground that, Muthappa was never married to Ammayamma and that defendants-7 and 8 could not be their legitimate children. Therefore, the plaintiffs filed the suit seeking various reliefs of declaration and injunction. 4. Defendants-1 and 2 had contested the suit by filing a detailed written statement and it was reiterated that Muthappa and Ammayamma were never married and defendant Nos.7 and 8 were not their legitimate children. 5. On the other hand, it was asserted that, Muthappa was unmarried and that he had executed a will in favour of defendant Nos.3 to 6, as Muthappa was the maternal uncle of defendants-3 to 6. According to his will, they have succeeded to the property and they have sold the property in favour of defendants-1 and 2 under a registered sale deed dated 30.3.1995. It was further pointed out that, insofar as the civil suit in O.S.No.10663/1993 is concerned, the same had been granted exparte and the fifth defendant had filed a miscellaneous case seeking to have the exparte decree set aside, which was dismissed. An appeal was filed against the said dismissal before this Court, in M.F.A.No.1375/1997 and the appeal was allowed and the exparte decree was set aside and the matter was remanded to the trial court. Thereafter the suit was contested in O.S.No.10663/1993 and one of the issues that arose was that, whether Ammayamma and her daughters were the lawful owners of the suit schedule properties and whether they were in possession of the suit properties. The issue in that regard was decided against Ammayamma and her daughters and the suit was dismissed by a judgment dated 5.12.2001. Thereafter an appeal having been filed was pending consideration. The issue in that regard was decided against Ammayamma and her daughters and the suit was dismissed by a judgment dated 5.12.2001. Thereafter an appeal having been filed was pending consideration. At that point of time, the present suit was decided holding that the suit was barred by res judicata in that, the title of Ammayamma and her daughter having been raised as an issue in O.S.No.10663/1993 and having been answered against them, they would have no say insofar as title is concerned in the present suit. Accordingly, it was held that the suit was barred by res judicata as the plaintiffs in the suit are claiming under Ammayamma and on that short ground the trial court has rendered the judgment holding that the suit is barred by res judicata and accordingly, has dismissed the suit. It is this judgment and decree, which is challenged in this appeal. 6. The learned Counsel for the appellants would submit that a question arises as to whether the suit could have been decided on a preliminary issue without the suit being tried even insofar as that issue, as to whether the suit was barred by res judicata is concerned. In this regard, he would place reliance on a judgment of the Supreme Court in the case of vs. Rajeshwari (Smt) -VS- T.C. Saravanabava ( (2004) 1 SCC 551 ). W hile indication the method to be followed in deciding the Question of res Judicata, the Supreme Court has laid down certain guidelines. Particular attention is drawn to paragraphs-11 and 13 wherein it was pointed out that, the plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. The emphasis the learned Counsel would lay is on the opinion expressed, that it should be tried. In that, whatever the facts alleged are since the decision on such plea of res judicata would give a finality, it is of utmost importance that the facts alleged ought to be proved in applying the said principle. In the present case on hand, the appellants were not parties to the earlier suit filed for injunction by Ammayamma in O.S.No.10663/1993. In that, whatever the facts alleged are since the decision on such plea of res judicata would give a finality, it is of utmost importance that the facts alleged ought to be proved in applying the said principle. In the present case on hand, the appellants were not parties to the earlier suit filed for injunction by Ammayamma in O.S.No.10663/1993. There was a denial of relationship of Ammayamma and Muthappa, who were the parents of the vendors of the present appellants, since the present appellants claimed under Ammayamma and her suit in O.S.No.10663/1993 having been decided dismissing the same. In the said suit, there was an issue whether the plaintiffs therein proved title to the property and it was held that Ammayamma had not proved title to the property because she was not in a position to establish that she was married to Muthappa. In other words, the court below has examined the documents that were produced to dislodge the claim of title of Ammayamma and in this regard, a Survivorship certificate pertaining to Muthappa having been produced to indicate that the plaintiffs were not shown as being related to Muthappa and on that footing, the court having arrived at a conclusion that the plaintiffs could not claim under Muthappa and hence, having held that the plaintiffs therein were not entitled for the relief of injunction and the suit having been dismissed, the said decree and judgment having been set up in the present suit filed by the plaintiffs herein, who had purchased the property from Ammayamma and her daughters – defendants-7 and 8 as legal representatives of Muthappa, and the same having been held against the plaintiffs, the learned Counsel submits that, it result in a miscarriage of justice. 7. As held by the Supreme Court, that in a given case, the production of only copy of the judgment in a previous suit is received in proof of a plea of res judicata and if that judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. 7. As held by the Supreme Court, that in a given case, the production of only copy of the judgment in a previous suit is received in proof of a plea of res judicata and if that judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. It is also pointed out in Syed Mohd.Salie Labbai -vs- Mohd.Hanifa ( (1976) 4 SCC 780 ), that the basic method to decide a question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh –vs-Bhooralal ( AIR 1964 SC 1810 ), had placed on a par the plea of res judicata and the plea of estoppels under Order II Rule 2 of the Code of Civil procedure and held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Hence, the learned Counsel would submit that the plaintiffs – appellants herein having purchased the suit properties under sale deeds, which are set up by the plaintiffs, could not have been negated merely on an incidental findings as to there being no marital relationship between Muthappa and Ammayamma, and by deduction, to hold that Ammayamma and her daughters could not claim as legal representatives of Muthappa. And further, that the plaintiffs in the present suit could not claim under the legal representatives of Muthappa and having thus concluded and decided the suit would amount to short-circuiting the entire procedure and proceedings to decide the case merely on the basis of a copy of the judgment that was produced by the defendants and hence, he would submit that it is a fit case which ought to be remanded straightaway and there is no need for any elaborate hearing in the present appeal. 8. While the same is strongly opposed by the learned counsel appearing for the respondents to contend that, the facts would clearly establish that, Ammayamma and her daughters had no title to the property and their suit for injunction having been dismissed on that ground, the plaintiffs claiming under Ammayamma and her daughters are twice removed from setting up title over the property and hence, the court below having proceeded to hold that the finding in the injunction suit having attained finality, it was not open for the present plaintiffs claiming under Ammayamma and her daughters, to file a fresh suit as it were. The learned Counsel places reliance on a judgment of the Supreme Court in the case of Annaimuthu Thevar (Dead) By LRs. –vs-Alagammal and Others ( (2005) 6 SCC 202 ). However, the law laid down therein is with reference to the facts of that case and would not directly apply to the present circumstances, as set out in the present case on hand. Therefore, given the state of the law insofar as the method to be followed in deciding the question of res judicata, there could be no doubt in that, it is quite possible that in a given case the judgment in a previous suit between the same parties, would be sufficient for the court to decide the question whether the later suit is barred by res judicata, if the judgment contains exhaustive and in requisite details the statement of Pleadings and the issues which could be taken as enough proof of the plea of res judicata. In another given case it may be necessary for the parties to tender evidence as regards the facts to be proved in claiming the plea of res judicata. The present case on hand would fall under the latter category. In another given case it may be necessary for the parties to tender evidence as regards the facts to be proved in claiming the plea of res judicata. The present case on hand would fall under the latter category. In that, it would be necessary notwithstanding the claim that Ammayamma and her daughters having been denied the relief of injunction and that having attained finality, the same would be binding on the present plaintiffs and therefore, their claim to title and possession would be barred by res judicata may not be entirely tenable. Insofar as the earlier suit filed by Ammayamma and her daughters for permanent injunction, is concerned, even if there was an issue as regards the claim to title and a summary findings that, Muthappa’s survivorship certificate did not indicate that they were the relatives of Muthappa and accordingly, they could not establish title to the property, would conclusively determine the question, was also to be examined by the trial court by bringing those documents on record, if it was necessary to rely only on that circumstance to hold that the suit was barred by res judicata. 9. As rightly contended by the learned Counsel for the appellants, the manner in which the finding had attained finality is also under serious suspicion. The appeal filed against the decree passed in O.S.No.10663/1993 was pending in appeal before this Court in R.F.A.No.10028/2002 and it is only after the dismissal of the present suit, that appeal was unceremoniously withdrawn in the year 2012 and therefore, giving room for doubt as to the motives behind such withdrawal. Therefore, unless there is determination and findings arrived at on the basis of material that was relevant and as is produced before the court, it would leave scope for speculation, as both the plaintiffs and the defendants are claiming under their respective sale deeds. There has to be a full-fledged trial even insofar as the plea of res judicata is concerned. In this background, therefore, in the opinion of this court, though it was entirely in the discretion of the trial court to frame a preliminary issue, as to whether the suit was barred by res judicata, the method adopted in deciding the same was not the appropriate approach. In this background, therefore, in the opinion of this court, though it was entirely in the discretion of the trial court to frame a preliminary issue, as to whether the suit was barred by res judicata, the method adopted in deciding the same was not the appropriate approach. Therefore, the judgment under challenge is set aside and the matter is remanded to the trial court to be decided from the stage of framing the preliminary issue, as to whether the suit of the plaintiffs was barred by res judicata and to record the evidence of the parties with reference to the said issue and thereafter to decide the issue one way or the other and proceed in accordance with law. Having regard to the fact that the proceedings and the dispute dates back to two decades, the trial court directed to expedite the consideration of the matter and dispose of the same early, in any event within six months from the date receipt of a certified copy of this judgment. The parties shall appear before the trial court on 22-7-2013, without any further notice from the trial court. The appellants are entitled to refund of the court fee in view of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1959. The office to remit the record to the trial Court forthwith.