S. Veerbhadrappa and Others vs Mrutyunjaya Patil and Others

K.N. Phaneendra, J.—The petitioners who are original defendants in O.S. No. 1/2015 have preferred this civil revision petition challenging the orders passed by the Addl. District Judge, Raichur in R.A. No. 40/2011 dated: 6-10-2012 is before this Court seeking setting aside the said order.

I have heard the arguments of learned counsel for the petitioners and the respondents. Perused the records.

The records disclose that respondent No. 1 Mruthunjaya Patil filed a suit against the present petitioners in O.S. No. 01/2005 for declaration of their ownership and for permanent injunction restraining the defendants from interfering with their possession and enjoyment of the property i.e., land bearing survey No. 1513 totally measuring 04 acres 23 guntas situated at Androon Qilla Raichur.

The defendants in fact appeared before the Court and taken up contention in their written statement, denying the allegations made in the plaint and also taking specific contention that the suit is hit by principles of res judicata by virtue of a decree in O.S. No. 121/1989. The defendant No. 1 has acquired the right title interest over the plot measuring 40 x 40 ft. in land bearing survey No. 1513. Therefore so far as to that extent is concerned the matter is set at rest between the parties in the earlier suit, no suit is maintainable again questioning the said portion of the property, even contending that the said property is included in 4 acres 23 guntas in survey No. 1513.

The trial Court on the basis of the pleadings of the parties has framed as many as six issues and one additional issue:

I am not concerned, so far as other issues are concerned, the additional issue dated: 01-10-2010 was framed by the trial Court in following manner.

"Additional Issue

1) Whether the defendant No. 2 proves that, the suit of the plaintiff is hit by principles of Res-Judicata by virtue of the decree passed in O.S. No. 121/1989?"

Though earlier while framing other issues, Issue No. 4 was framed to the same extent but the said issue was not treated as ''Preliminary Issue'', but subsequently the additional issue was framed deleting issue No. 4 and treated the additional issue as preliminary issue.

The trial Court in fact proceeded to hear the said issue after allowing the application U/Or. 14 Rule 02 of C.P.C. and ultimately came to the conclusion that the entire suit is hit by the principles of Res-judicata and dismissed the suit.

Being felt aggrieved by the Judgment of dismissal of the suit, the plaintiffs have approached the first appellate Court before the Addl. District Judge, Raichur in R.A. No. 40/2011 vide Judgment dated: 06th October 2012. The first appellate Court has passed the Judgment allowing the appeal by setting aside the order passed by the trial Court, on additional issue and remitted the matter to the trial Court for disposal of the case on merits, considering all the other issues including additional issue No. 1. Being aggrieved by the order of the first appellate Court, the present revision petition is preferred by the defendants.

As could be seen from the orders of the trial Court and the first appellate Court, it is clear that the evidence has not been led by the parties on the additional issue and the original decree and the decree passed in O.S. No. 121/1989 has not been marked before the Court and the same has not been compared with the issues framed by the trial Court in this suit as well as with the issues framed in O.S. No. 121/1989. The observation made by the trial Court at page No. 22 of the Judgment, that it is admitted clearly that O.S. No. 121/1989 filed by the defendant No. 2 was only in respect of plot No. 40 X 40 ft. which is part and parcel of the suit schedule property i.e., to say survey No. 1513 measuring 4 acres 23 guntas. The trial Court has observed that whether it is a small portion or big portion it makes no difference. Therefore it held that the suit as liable to be dismissed. The said observation in my opinion is in utter dis-regard to the principles U/Sec. 11 of C.P.C. Sec. 11 of C.P.C. which defines the Res-judicata wherein it is stated that:

"11. Res judicata:- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." The explanations to the section in my opinion is not so relevant for the purpose of this case. The Court has to see that the subject matter between the parties are substantially same and issues are directly and substantially same in the former suit, that means to say in respect of the parties who are litigating in respect of a particular property or particular right and particular subject matter. Whether the survey No. 1513 comprises of this plot 40'' x 40'' as decided in O.S. No. 121/1989 or whether the entire property in the present suit in survey No. 1513 measuring 04 acres 23 guntas was the subject matter in the earlier suit has to be decided by the Court only after going through the contents of the Judgment passed in O.S. No. 121/1989. For that the parties have to adduce evidence and produce the certified copy of the Judgment in O.S. No. 121/1989 and thereafter only in my opinion the Court with all certainty can come to the conclusion whether the subject matter in both the cases are same and thereafter only the Court can give finding whether the suit is hit by principles of Res-judicata.

When the facts are to be decided on the basis of the evidence, merely on the basis of the pleadings of the parties the principles of Res-judicata cannot be decided by the Court. It is worth to refer a decision of Hon''ble Apex Court reported in Madhukar D. Shende Vs. Tarabai Aba Shedage, , wherein the Hon''ble Apex Court has in detail discussed at para No. 4 and laid down the principle that:

"Res judicata is a mixed question of fact and law. This plea has not been raised in the plaint. No submission raising the plea of res judicata was made before any of the courts below or the High Court. Such a plea cannot be permitted to be raised before the Supreme Court for the first time and at the hearing. However, still it cannot be lost sight of that the earlier litigation was between the same parties wherein this very will was relied on by this very plaintiff in support of his title to the property in dispute therein. The plaintiffs right to sue based on this very defendant. These facts and finding are recorded in the previous judgment and have relevance in the present suit. Thus apart from res judicata the judgment given in the earlier suit is a relevant piece of evidence under Sections 11, 13 and 35 of the Evidence Act and has a material bearing on the controversy arising for decision in the present suit. This material aspect has been completely overlooked by the High Court and the courts below. A relevant and material piece of documentary evidence, of undoubted veracity, has been ignored and that is a serious error of law having a vitiating effect on the finding on the most vital issue in the case." On meaningful understanding of the above said observations made by the Court, the principle of Res-judicata has to be raised in the pleadings and issue has to be struck on the basis of the pleadings and parties should be provided with an opportunity to prove that present suit is hit by principles of Res-judicata by producing both oral and documentary evidence, then only the Court may in a position to decide whether the suit is hit by principles of Res-judicata or not. Therefore I am of the opinion that the observations made by the trial Court that Whether it is a small portion or big portion, it makes no difference and principles of Res-judicata can be applied" does not with-stand the judicial scrutiny. Therefore under the above circumstances, when the matter is to be decided on the basis of the facts to be proved on evidence, such issue cannot be treated as a preliminary issue. The trial Court has committed serious error in framing it as preliminary issue and dismissing the suit on that ground itself.

Though the learned counsel appearing for the petitioner tried to persuade me that there is an admission in the affidavit filed by one Jayadev Patil at page No. 4 of the affidavit filed in support of the application U/Sec. 11 R/w Sec. 151 of C.P.C. before the trial Court dated: 08-09-2006. It is said that "the suit property in O.S. No. 121/1989 was a portion of the present suit schedule property, as such principles of Res-judicata apply to the present suit". This particular portion serve two purpose one is admission with regard to previous suit being decided with respect to a portion of the present suit schedule property and admitting that the present suit is not only with regard to the said property but also with respect to property in larger extent. Therefore in my opinion when such being the case an opportunity should have been given to the plaintiff to establish that he is the owner in possession and enjoyment of survey No. 1513 to the extent of 4 acres 23 guntas, if for any reason after the trial, if the Court comes to the conclusion that he is not entitled for any relief to the extent of 40'' x 40'' plot curved in the said survey number, then the trial Court can pass appropriate Judgment so far as this particular portion is concerned, it does not mean to say merely the said portion is part and parcel of survey No. 1513 comprising of 4 acres 23 guntas, the entire suit is liable to be dismissed on the ground of Res-judicata. Therefore I don''t find any strong reasons to interfere with the Judgment of the Addl. District Judge, Raichur in R.A. No. 40/2014 in setting aside the order passed by the trial Court and remitting the matter to the trial Court for fresh disposal after providing opportunity to both the parties, to adduce oral and documentary evidence and to decide the matter on all the issues raised. Hence the revision petition deserves to be dismissed.

Accordingly dismissed.