Bhimappa vs Manappa and Others

S.N. Satyanarayana, J.

The plaintiff in O.S. No. 590/2002 on the file of First Addl. Civil Judge (Jr. Dn.), Dharwad, has come up in this second appeal impugning the divergent finding rendered by the lower appellate Court in R.A. No. 69/2005 and 73/2005 on the file of First Additional Civil Judge (Senior Division), Dharwad.

The brief facts leading to this appeal are as under:

"Plaintiff in the original suit is the appellant herein. The suit filed by him is for the relief of bare injunction with reference to the alleged interference into the suit schedule item Nos. 1 to 4. Admittedly, the suit is filed in respect of 4 items of properties, the first three items are, (1) G.P. No. 211 which consists of a house and back yard, (2) G.P. No. 293/B which is an open site, (3) G.P. No. 293/C is also an open site. It is stated that all these three items are situated in Ward No. 3 in Managundi village, Dharwad Taluk. So far as suit schedule item No. 4 is property bearing G.P. No. 59/B which is a house situated in Ward No. 1, Managundi village, Dharwad Taluk."

It is the case of the plaintiff that defendant Nos. 1 to 4 who are owners of properties situated on Southern side of suit schedule item No. 1, namely, G.P. No. 211, are trying to interfere with his possession and enjoyment of all the four suit properties and as such he has filed the suit for permanent injunction against defendant Nos. 1 to 5. In the said suit defendant Nos. 1 to 5 entered appearance wherein defendant Nos. 1 to 4 claim that they are the owners of G.P. No. 61/1 and 61/2, which according to them, is situated on Southern side of suit schedule item No. 1, namely, G.P. No. 211. So far as other properties in the suit, namely, suit schedule item Nos. 2, 3 and 4 are concerned, defendant Nos. 1 to 4 stated that they have got nothing to do with the suit property and the suit item Nos. 2, 3 and 4 are not even abutting the suit properties and they are unnecessarily included in the suit.

In the written statement of defendant Nos. 1 to 4 they also took up a contention that earlier in the year 1989 there was an attempt on the part of the present plaintiff in trying to encroach into the properties of the defendants, namely, G.P. No. 61/1 and 61/2, which necessitated to them to file a suit for declaration and permanent injunction against the present plaintiff with reference to the suit schedule item No. 211. The said suit came to be decreed in favour of defendant Nos. 1 to 4, who are plaintiffs in O.S. No. 51/1989 and in the said suit also there was an order of injunction against the present plaintiff, who is defendant in the said suit. Therefore, in the present suit in the guise of showing four properties he is reagitating the dispute with reference to the difference between the parties in respect of the suit schedule item No. 1 and the properties of defendant Nos. 1 to 4, namely, G.P. No. 61/1 and 61/2, is sought to be reagitated in this proceedings. Therefore, the present suit is hit by the principles of res judicata.

In the said suit defendant No. 5 is the stepsister of the plaintiff. It is stated that there is a suit pending between herself and the plaintiff with reference to partition of suit schedule properties and she also averred that there is no attempt on her part in trying to disturb his possession or enjoyment since the properties are subjected to partition between herself and the plaintiff, the outcome of the same will decide their respective rights.

In the said suit based on the pleadings the following four issues were framed:

"1) Whether the plaintiff proves his possession and enjoyment of the suit property as on the date of suit?

2) Whether the plaintiff proves that the defendants are causing obstruction to the peaceful possession and enjoyment of the suit properties?

3) Whether the suit is hit by principles of res judicata?

4) Whether the plaintiff is entitled for the reliefs claimed in the above suit?

5) What order or decree?

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In support of the plaint averments, plaintiff adduced evidence as P.W. 1 and he also examined an independent witness by name Shankarappa as P.W. 2 and relied upon the property extracts of all the four items as Ex. P.1 to Ex. P.4 and the certified copy of judgment and decree passed in O.S. No. 318/1988 as Ex. P.5. which was the suit filed by him in respect of G.P. No. 293/B and 293/C in the year 1988 which is decreed in his favour. This was a suit for permanent injunction.

On behalf of the defendants, defendant No. 2 was examined as D.W. 1, defendant No. 3 was examined as D.W. 2 and a private witness by name Dyamappa was examined as D.W. 3. In the said proceedings, the judgment and decree passed in O.S. No. 51/1989 filed by defendant Nos. 1 to 4 was produced and marked as Ex. D.1 and 2 and the judgment and decree passed in R.A. No. 7/1994 was produced and marked as Ex. D.3 and the tax paid receipts in respect of G.P. No. 61 and 61/2 are marked as Ex. D.4 to 13.

The trial Court on appreciation of the pleadings and documents available on record, proceeded to answer issue Nos. 1, 2 and 3 which were framed regarding the possession of the suit property by the plaintiff and the alleged obstruction by defendants, in the affirmative and also the relief sought by him for permanent injunction was also answered in the affirmative. So far as the defence that was taken by the defendant Nos. 1 to 4 regarding res judicata was answered in the negative. Consequently, the suit of the plaintiff was decreed against which it is seen an appeal is filed by defendant No. 5 in R.A. No. 69/2005 and by defendant Nos. 1 to 4 in R.A. No. 73/2005. Both the appeals were clubbed together on the file of Civil Judge (Sr. Dn.) and CJM, Dharwad and the following common points were framed for consideration.

"1) Whether the judgment and decree passed by the trial court calls for interference by this court?

2) What order?

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Thereafter, after hearing the counsel for both the parties the lower appellate Court proceeded to answer the first point for consideration regarding the judgment and decree passed by the trial Court calls for interference, in the affirmative and consequently allowed the appeal filed by defendant Nos. 1 to 5 and dismissed the suit of the plaintiff filed for the relief of permanent injunction.

Being aggrieved by the divergent judgment passed by the lower appellate Court the plaintiff in the original suit has come up in this second appeal contending that the finding of the lower appellate Court in reversing the finding on issue Nos. 1, 2 and 3 in the trial Court is erroneous and that the judgment and decree passed in O.S. No. 51/1989 on the file of Civil Judge (Jr. Dn.) with reference to the property bearing G.P. No. 61/1 and 62/2 has no relevance to the suit properties in the present suit in O.S. No. 590/2002. Therefore, relying upon the said judgment as the conclusive proof of dispute between the parties with reference to G.P. No. 211 is erroneous and treating the said judgment as in res judicata against the plaintiff in respect of the present suit is erroneous.

Heard the learned counsel for appellant for admission, perused the judgments of both the Courts below and also the grounds of appeal in the lower appellate Court and as well as in this Court. On going through the same it is clearly seen that the dispute between the parties, i.e., plaintiff and defendants, is not in respect of suit item Nos. 2, 3 and 4, it is confined to only suit item No. 1, which is bearing G.P. No. 211. According to the plaintiff, the said property consists of a house which is measuring 36x36 ft. and it is having a back yard measuring 130x60 ft. It is the case of the plaintiff that there is interference by the defendant Nos. 1 to 5 with reference to his enjoyment of suit schedule property. Therefore, he is entitled to the relief of permanent injunction. As rightly observed by the lower appellate Court though in the suit there is reference to the disturbance by defendant Nos. 1 to 5 with reference to enjoyment of plaintiff in respect of suit item Nos. 1 to 4, no particulars regarding interference by the plaintiff No. 1 and 4 is explained. So far as the item Nos. 2, 3 and 4 are concerned, the suit averments are totally silent. It is only in respect of suit item No. 1 there is some semblance of pleadings regarding disturbance to his peaceful possession.

If the suit of the plaintiff with reference to item No. 1 is looked into from the judgment in O.S. No. 51/1989 it is clearly seen that defendant Nos. 1 to 4 had filed O.S. No. 51/1989 for the relief of declaration of their title to suit schedule G.P. No. 61/1 and 61/2 in the said suit, vis-�-vis. the property of defendant in the said suit who is plaintiff in the present suit. Admittedly the property of defendant in the said suit is item No. 1 of the present suit, namely, G.P. No. 211, the measurement which is referred to in the written statement in O.S. No. 51/1989 is again the house measuring 36x36 ft. in G.P. No. 211 and also the backyard. With reference to that earlier suit in O.S. No. 51/1989 the trial Court while deciding said suit has gone through the entire litigation in threadbare and has given a finding that the defendant Nos. 1 to 4 herein who are plaintiff Nos. 1 to 4 in O.S. No. 51/89 are the absolute owners in possession and enjoyment of G.P. No. 61/1 and 61/2. It is held that there is in fact disturbance to the possession and enjoyment of the said properties by plaintiff Nos. 1 to 4 who are defendant Nos. 1 to 4.

It is further seen that the judgment and decree passed in O.S. No. 51/1989 is confirmed by the lower appellate Court in R.A. No. 7/95. It is also stated that the concurrent finding of both the Courts below is confirmed in regular second appeal which is filed by the plaintiff herein, in the said proceedings. However, the particulars of regular second appeal is not mentioned which is also not disputed by the plaintiff in this suit. In that view of the matter, a dispute with reference to G.P. No. 211 with the adjoining owners of G.P. No. 61/1 and 61/2 which has reached finality in O.S. No. 51/1989 is sought to be reagitated by including three more properties and trying to show as if this is a different proceedings.

In fact, the trial Court has committed a serious error in holding that the dispute between the parties in the present suit is different from the dispute which is decided in O.S. No. 51/1989 whereas the lower appellate Court while reappreciating the pleadings and evidence has rightly come to the conclusion that the dispute between the parties so far as the enjoyment of the suit schedule item No. 1-G.P. No. 211 is already decided in O.S. No. 51/1989. Therefore, the present suit is hit by the principles of res judicata u/S 11 of the C.P.C. appears to be just and proper.

In that view of the matter, this Court find that as against the divergent finding rendered by the lower appellate Court no grounds are made out to admit this second appeal and the same is required to be rejected. While dismissing the appeal it is clearly observed that the present suit filed in O.S. No. 590/2002 is a mischievous suit which is filed by the plaintiff against the defendant Nos. 1 to 4 only to see that the judgment and decree which is secured by them in O.S. No. 51/1989 which has reached this Court in a second appeal and sought to disturbed in this suit by including other three properties and trying to divert the concentration on G.P. No. 211 and to show that there is a larger issue to be decided in this proceedings by including the other properties.

In that view of the matter while dismissing this second appeal costs are required to be imposed for unnecessarily wasting time of the Court by filing this frivolous suit in O.S. No. 590/2002. Accordingly, the second appeal filed by the plaintiff in O.S. No. 590/2002 is dismissed with costs of Rs. 10,000/- payable at the rate of Rs. 2,000/- to each of the defendants.

It is needless to mention that in the event of costs not paid within a month from this day, defendant Nos. 1 to 5 are entitled to levy execution for recovery of the costs imposed in this proceedings as if it is a money decree.