Dundawwa and Others vs Ramchandra and Others

B.V. Nagarathna, J.—1. The appellants are plaintiffs in O.S. No. 216/2003. They have assailed judgment and decree passed in R.A. No. 205/2008 by the Court of Senior Civil Judge and J.M.F.C., Raibag dated 02.08.2012, by which, order dated 06.06.2015 passed by Additional Civil Judge (Jr. Dn.) and J.M.F.C., Raibag, in O.S. No. 216/2003 has been confirmed.

For the sake of convenience, parties shall be referred to, in terms of their status before the trial Court.

Appellants plaintiffs filed a suit seeking partition and separate possession of half share in suit schedule ''A'' properties i.e., lands bearing R.S. No. 436/6 and 436/2 situated at Raibag and also the relief of permanent injunction against defendants in the suit.

It is the case of plaintiffs that plaintiff No. 1''s husband was addicted to alcohol. Taking advantage of his vices, defendants No. 2 and 3 managed to get their names entered in the revenue records illegally as if there was a transaction by deceased Maruti in favour of defendants No. 2 and 3; those entries were illegal and not binding on plaintiffs. That Maruti died a year prior to filing of the suit. On his death, plaintiffs No. 1 to 3 succeeded as his legal heirs. Defendants No. 2 and 3, on the instigation of defendant No. 4 are obstructing plaintiffs'' peaceful possession and enjoyment. Defendant No. 4 was threatening plaintiffs and denying the legal rights of plaintiffs. Plaintiffs gave an application for getting their names recorded in the record of rights after the death of Maruti. That defendants No. 2 to 4 are in no way concerned with the suit properties, but they are obstructing plaintiffs'' possession of suit properties. The dispute between the parties was referred to the elders of village, but, there was no settlement in the matter. Hence, plaintiffs filed suit seeking half share in the suit schedule properties. Plaintiffs arrayed Ramchandra S/o. Krishna and brother of Narayan and uncle of deceased Maruti as defendant No. 1. Defendants No. 2 to 3 are purchasers of suit schedule lands.

On receipt of suit summons and Court notices from the trial Court, defendants appeared and filed an application under Section 11 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as ''the C.P.C.'' for brevity) contending that suit be dismissed as it was hit by the principles of res judicata. Defendants contended that plaintiffs had earlier filed O.S. No. 91/1985 before the Munsiff Court at Raibag seeking partition and separate possession of their share in the suit properties arraying Maruti and Appasab i.e., son of second wife of Maruti as defendant. The said suit was decreed by judgment and decree dated 30.06.1990. Plaintiffs herein were granted 1/5th share in suit properties, which are none other than the properties which are subject matter of present suit. Therefore, plaintiffs cannot once again maintain another suit by arraying present defendants as parties. It was contended that present suit was hit by the principles of res judicata. Objections were filed to the said application. The trial court, on hearing learned counsel for parties raised the following points for its consideration:

Whether the petitioners proves that O.S. No. 216/2003 is hit by the principles of res judicata?

What order

It answered point No. 1 in the affirmative and dismissed the suit as being hit by the principles of res judicata by order dated 06.06.2005. Being aggrieved by the said order of trial Court, plaintiffs filed R.A. No. 205/2008 before First Appellate Court, which, on hearing the parties framed following points for its consideration:

Whether the trial court has not properly appreciated the proposition of law?

Whether the judgment and decree of the trial court is perverse and illegal?

Whether the judgment and decree under appeal needs modification at the hands of this court?

What order?

It answered points No. 1 to 3 in the negative and dismissed the appeal by confirming the judgment and decree of trial Court. Being aggrieved by the judgment of First Appellate Court dated 02.08.2012 plaintiffs have preferred this second appeal.

I have heard learned counsel for parties and learned counsel for respondent No. 4 and perused the material on record. Appellants'' counsel submitted that both the courts below have not approached the matter in its proper perspective while considering the application filed by defendants invoking Section 11 of C.P.C. He contended that Hon''ble Supreme Court in the case of Syed Mohd. Salie Labbai (dead) by L.Rs. and others versus Mohd. Hanifa (dead) by L.Rs. and others, reported in , AIR 1976 SC 1569, has enunciated the manner in which the application filed under Section 11 of C.P.C. has to be considered before concluding that suit was hit by the principles of res judicata. He contended that parties to the litigation must be same. The subject matter of suit must be identical. That the matter must be finally decided between parties and suit must be decided by the Court of competent jurisdiction.

While drawing my attention to these aspects, he contended that Ramchandra was not a party to earlier proceeding, and therefore, plaintiffs were seeking partition and separate possession of suit schedule properties as Ramchandra had not divided the said properties. He also stated that pursuant to the judgment and decree passed in O.S. No. 91/1985 Final Decree Proceedings were initiated and final decree also has been drawn and parties are in possession and plaintiffs are in possession of their respective shares. But, he contended that plaintiffs right in Ramchandra''s share in suit property was not adjudicated upon in previous suit, and therefore, present suit was filed. That both the Courts below were not right in holding that suit was hit by Section 11 of C.P.C. He submitted that substantial question of law would arise in appeal, which would call for admission of the matter for a detailed hearing.

Per contra, learned counsel for respondent No. 4 supporting the judgment and decree of Court below contended that there is no merit in the appeal. Plaintiffs have no right to seek any share in the properties which have fallen to the share of Ramchandra. That plaintiffs are widow and children of Maruti. They had filed O.S. No. 91/1985 against Maruti and Appasab. Their suit vis-a-vis suit schedule properties were decreed and each one of the plaintiffs was allotted 1/5th share in suit items. Thereafter Final Decree has been drawn in the earlier suit. Ramchandra was not arrayed as defendant in the earlier suit. Neither did the plaintiffs seek any share in Ramchandra''s share of suit properties, therefore, she contended that appeal may be dismissed in limine.

A copy of the judgment in O.S. No. 91/1985 which was adverted to during the course of submissions has been perused by me.

Having heard learned counsel for parties and on perusal of the material on record, it is noted that suit schedule properties are joint family properties. Krishna was the original propositus. He had two sons, namely, Ramchandra and Narayan. They both had half share each in the suit properties, which are joint family properties. Thus Maruti had only half share in all the joint family properties. Maruti is the son of Narayan. His second wife is Dundavva, who is plaintiff No. 1 and their two children are Vasant and Subhash, who are plaintiffs No. 2 and 3 herein. These very plaintiffs had earlier filed O.S. No. 91/1985 before the Munsiff Court, Raibag, arraying Maruti i.e., husband of plaintiff No. 1 and father of plaintiffs No. 2 and 3 herein as defendant No. 1 and Appasab, who is stated to be the son of second wife of Maruti, as defendants. Maruti was stated to be the Karta of the joint family. That suit was contested by defendant No. 1 therein i.e., Maruti by filing written statement. The following issues were raised in that suit.

Whether plaintiffs 1 and 2 prove that they are legal heirs (sons) of defendant No. 1 and plaintiff No. 3 is legally wedded wife of defendant?

Whether plaintiff prove that they each got 1/5th share in suit property?

Whether plaintiff prove that they are the members of joint family of defendants?

Whether defendant proves that this court has jurisdiction to try the suit?

What decree or order?

Evidence was let in by plaintiffs herein in that suit. Trial Court had answered issues No. 1 to 4 in favour of plaintiffs therein, who are also plaintiffs in the present suit and had decreed the suit holding that plaintiffs were entitled to 1/5th share in suit properties by judgment and decree dated 30.06.1990. A direction was given to draw up a preliminary decree. Subsequently, final decree has also been drawn and plaintiffs are in possession of their respective shares.

That being the case, plaintiffs were not entitled to seek any partition from defendant No. 1 herein, i.e., Ramchandra. He does not belong to the branch of Maruti or plaintiffs herein. Ramchandra was not arrayed as a party in O.S. No. 91/1985, precisely for the reason that plaintiffs herein were not entitled to any share in Ramchandra''s share of joint family properties. When the plaintiffs had already filed a suit against Maruti and had succeeded in getting their share allotted, right, title and interest of plaintiffs vis-a-vis suit properties had crystalised in previous suit. Thus, there was no reason for plaintiffs to once again file the present suit i.e., O.S. 216/2003 seeking partition and separate possession as against defendant No. 1 brother of defendant No. 1 in the earlier suit and subsequent purchasers. Trial Court as well as First Appellate Court rightly dismissed the suit by holding that the suit was hit by the principles of res judicata.

In addition, it must be held that suit as against Ramchandra was not maintainable on account of the decree passed in O.S. No. 91/1985 against Maruti as plaintiffs had right, title and interest as legal heirs of Maruti, who was the son of deceased Narayan and Narayan was the brother of Ramchandra. Also the latter was not arrayed as a party in the earlier suit filed in respect of the very same suit schedule property. Thus, the plaintiffs had no claim against defendant No. 1 in the earlier suit. Therefore, for this reason also plaintiffs'' suit had to be dismissed. I do not find any infirmity in the judgment of First Appellate Court or in the order passed by trial Court. No substantial question of law would arise in the appeal. The appeal is dismissed.

Parties to bear their respective costs.