Kashamma and Others vs Hanamantagouda and Others

B.S. Patil, J.—These two appeals arise out of the judgment dated 12th June 2014 passed by the learned Senior Civil Judge, Ramdurg, in O.S. No. 24/2013 thereby dismissing the suit filed by the plaintiffs. Hence, they are heard together and are disposed of by this common judgment.

There is delay of 174 days in filing Regular First Appeal No. 100214/2014. Explanation offered makes out sufficient cause. Hence, delay is condoned. Accordingly, I.A.I/15 is allowed. With the consent of the learned counsel, both these appeals are heard finally.

Appellant in RFA No. 100209/2014 is one Kashamma. She was the 3rd plaintiff in the suit. She has chosen to file a separate appeal aggrieved by the judgment and decree dismissing the suit that was jointly filed by her along with her mother and two brothers. Her brothers (plaintiffs 1 and 2) and mother (plaintiff No. 4/Smt. Basawwa) have filed Regular First Appeal No. 100214/2014.

For the sake of convenience, parties are referred by their rank in the trial Court.

Relevant facts of the case, stated briefly, are that plaintiffs filed the suit against their father Rikanagouda and one Hanamantagouda alleged to be the son of second wife of Rikanagouda seeking a declaration that plaintiffs along with the first defendant--Rikanagouda were only jointly entitled to the suit schedule properties. They also sought for a decree of permanent injunction to restrain the second defendant-Hanamantagouda from interfering with joint enjoyment of the properties by plaintiffs and first defendant.

It was contended by the plaintiffs that plaintiffs 1 to 3 are the children of first defendant. 4th plaintiff being the legally wedded wife of first defendant, it was only plaintiffs 1 to 4 and the first defendant who were jointly entitled to the joint family properties held by the family. They further contended that second defendant is the son of first defendant from the second wife; first defendant had illegally gifted 4 acres of land out of the suit properties to the second defendant in order to deprive the legitimate share of the plaintiffs; first defendant refused to effect partition and allot the legitimate shares of the plaintiffs, therefore, the plaintiffs were constrained to file the suit.

Defendants resisted the suit. It was contended that second defendant was the son of defendant No. 1. Out of love and affection, he had gifted R.Sy. No. 8/2 measuring 4 acres of Rokkadkatti village as per the registered gift deed dated 22/03/1990. 4th plaintiff was residing along with her children in her parents house; during the year 1991, plaintiffs had filed a suit in O.S. No. 23/1991 seeking partition and separate possession wherein these defendants appeared and the said suit ended in a compromise; a compromise decree came to be passed. That being so instead of filing final decree proceedings, the present suit has been filed. They urged that the suit was not maintainable as it was hit by principles of Res-judicata.

On the basis of the pleadings, the trial Court framed several issues including the issues pertaining to the nature of the properties as joint family properties and the obstruction allegedly caused by the second defendant. A legal question regarding bar of second suit in view of the earlier suit which ended in compromise between parties was framed as issue No. 3. An issue regarding non-joinder of necessary parties was also framed as one of the sisters of defendant No. 2 by name Sujata, was not made a party. Trial Court tried issue No. 3, as a preliminary issue and answered the same in the affirmative holding that the suit was not maintainable as it was hit by principles of Res-judicata.

The Contention of the learned counsel for appellant is that as Kashamma-plaintiff No. 3 was not one of the plaintiffs or defendants in the earlier suit, the compromise decree passed in the previous suit was not binding on her and therefore she is entitled to maintain the second suit.

Counsel appearing for the respondents/defendants submits that plaintiffs are guilty of suppressing the previous proceedings in O.S. No. 23/1991 and have failed to make Sujatha as party defendant in the present suit. The present suit is liable to be dismissed not only on the ground of principles of Res-judicata but also for non-joinder of necessary parties.

Having heard the learned counsel for both parties, the points that arise for consideration are:

a. Whether the suit is barred by principles of Res-judicata?

b. Whether the suit is liable to be dismissed for non-joinder of necessary parties?

c. What judgment or order?

Admittedly, present plaintiffs 1 and 2 had filed a suit for partition and separate possession in O.S. No. 23/1991 against present defendants 1 and 2. But plaintiffs 1 and 2 were minors at that time. They were represented by their mother and natural guardian Smt. Basawwa-plaintiff No. 4. The said suit was for partition and separate possession. First defendant in the said suit was none other than their father who is first defendant in the second suit. Plaintiffs had prayed for 2/3rd share in the suit schedule properties. All 5 items of the suit schedule properties, as described in the present plaint, were the suit schedule properties in the previous suit O.S. No. 23/1991. Basawwa-mother of plaintiffs 1 and 2, who is now arrayed as plaintiff No. 4, was also a party in the earlier suit. She was plaintiff No. 3. Neither Kashamma, who is plaintiff No. 3 in the second suit nor Sujatha, another daughter of Rikanagouda, born out of the wedlock between him and Gurubasawwa, were made parties in the earlier suit. Even in the present suit also Sujatha has not been made party by the plaintiffs. The fact remains that out of the entire suit schedule properties measuring 26.13 guntas, plaintiffs 1 and 2 were altogether allotted 15 acres 33 guntas, whereas defendant No. 2 was allotted 9 acres 20 guntas. An extent of 1 acre was allotted to the share of the father of plaintiffs 1 and 2 with a condition that the same shall go to plaintiffs 1 and 2 upon his death. This is how plaintiffs 1 and 2 have got totally 16 acres 23 guntas, whereas second defendant has got 9 acres 20 guntas.

The plaintiffs have become wise, they have now filed another suit in O.S. No. 24/2013 again seeking for partition and separate possession by suppressing the factum of filing of earlier suit, the compromise entered into by them and the compromise decree passed. Plaintiffs 1, 2 and 4 being parties to the earlier suit as plaintiffs, have deliberately suppressed this fact and by roping in their sister Kashamma, who was not a party to the proceedings, have jointly filed the second suit. Even while filing the second suit they have not impleaded Sujatha, who is the daughter of Rikanagouda born out of his wedlock with Gurubasawa. The Trial Court has dismissed the suit holding that it was hit by the principles of Res-judicata.

Section 11 of the Code of Civil Procedure enacts statutory bar for filing a second suit in respect of a matter which was directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, when the issue raised in the former suit had been finally heard and decided by a court of competent jurisdiction.

A perusal of the pleadings, documents, evidence and the judgment on record, makes it clear that Rinkanagouda had two wives-plaintiff No. 4 Smt. Basawwa-first wife and Gurubasawwa (not made as party). From Basawwa-plaintiffs 1 to 3 are born. From the wed lock of Rinkanagouda and Gurubasawwa, defendant No. 2 and Sujatha (not made party) are born. The first suit O.S. No. 23/1991 was between Basawwa and her sons on one hand as plaintiffs against her husband and the son born to Gurubasawwa, the other wife. In effect, the dispute was as regards the share to be given to the two branches claiming to be children of two wives of Rinkanagouda.

Both parties entered into compromise. Sons of Basawwa and son of Gurubasawwa have got the properties divided equally among themselves. They have not earmarked any share to be allotted to their sisters. Basawwa and Gurubasawwa have one daughter each. In O.S. No. 23/1991 a compromise decree was passed on 25/08/1994. The second suit O.S. No. 24/2013 has been filed on 12/07/2013 nearly after 19 years. The conduct of plaintiffs 1, 2 and 4 to re-open the matter by suppressing the previous judgment and decree passed on consent, after a lapse of 19 years is highly depreciable. They cannot be permitted to urge that plaintiffs No. 3--Kashawwa was not a party to the earlier suit and therefore second suit filed by them is not hit by principles of Res-judicata because it is the suit filed by them seeking partition of the family properties. It was for them to array Kashawwa as one of the parties either as plaintiff or as defendant. If Kashawwa was aggrieved by the decree passed and wanted declaration that the same was not binding on her, she ought to have challenged the said decree or filed a separate suit individually arraying her brothers and mother as party defendants and made appropriate allegations against them of depriving her of her share. The fact that she has joined her brothers and mother in filing the second suit seeking for partition, shows that she is in active collusion with them to reagitate the matter which has been concluded 19 years back. If Kashawwa has been deprived of her share, it is open to her to proceed against plaintiffs 1 and 2 to get her legitimate share worked out of the share allotted to plaintiffs 1 and 2. In addition it is to be stated that even in the second suit, plaintiffs have not made Sujatha, daughter of Rinkanagouda born to Gurubasawwa, as one of the party defendants. Therefore second suit is bad for non-joinder of necessary party. We, therefore, answer points 1 and 2 in the affirmative.

During the course of arguments, counsel appearing for defendant No. 2/respondent No. 1 herein submits that out of the share allotted to him, Sujatha would be granted her legitimate share and therefore there is no need to re-open the issue that has been concluded almost two decades back. We find this submission just and proper.

Therefore, we are of the view that the second suit is liable to be dismissed both on the principle of Res-judicata and also for non-joinder of necessary party by making it clear that it would be open for the daughters of Rikanagouda to claim their legitimate share out of the share allotted to their brothers in the previous partition. This, in our view would meet the ends of just and put an end to the long and unnecessary litigation initiated by the parties.

Accordingly, both the appeals are dismissed. No costs.