Sir Srinivasa and Others vs C. Muninarayanappa and Others

This appeal has been preferred by the plaintiffs/appellants against the judgment and decree of the II Additional Civil Judge (Sr.Dn.,), Bangalore District, Bangalore, In O.S. 495/2005, whereby the trial Court has dismissed the suit on 25.7.2007, on the ground of the same is barred by principles of Res judicata.

For the sake of convenience, the parties will be referred to, with reference to their ranks in the trial Court.

The question which needs to be decided in this appeal is, whether the trial Court was justified in holding that, the decree passed in O.S. 213/1995 in favour of 4th defendant - Smt. C. Munlyamma, against 1st defendant - Sri C. Muninarayanappa, would operate as Res judicata In the subsequently filed suit of the palintiffs'' against the defendants?

Section 11 of the CPC (for short ''CPC''), reads as follows:

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.

Careful examination of the provisions contained u/s 11 CPC, indicates that in order to constitute Res judicata, the following conditions must be satisfied:

(i) There must be 2 suits - one former suit and the other subsequent suit;

(ii) The Court which decided the former suit must be competent to try the subsequent suit;

(iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits;

(iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit;

(v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits;

(vi) The parties in both the suits must have litigated under the same title.

The plaintiffs have filed OS. No. 495/2005 against the defendants in the trial Court for judgment and decree of partition and separate possession of their 6/14th share in the suit schedule properties on the ground that the same were owned by late Munishamappa of Doddathoguru, Begur Hobli and they are having undivided share in the properties. According to them, said Munishamappa had 2 sons, namely, Muniyellappa and Chikkabbaiah. Muniyellappa has left 2 sons and 5 daughters i.e., defendants 2, 3, 5 to 9 and 10 in the suit and Chikkabbaiah has left a son and a daughter who are the defendants 1 and 4. Plaintiffs are the children of 1st defendant � C. Muninarayanappa, son of Chikkabbaiah. They have contended that themselves and defendants 1 to 3 and 4 constitute a Hindu joint family and the suit schedule properties are the joint family properties and the members of the joint family are in joint possession and enjoyment after the death of late Munisharnappa. The plaintiffs contend that the suit properties are the joint family undivided properties. They have claimed that 1st defendant was married to one Smt. Rajamma, who died - and thereafter, their father is emotionally disturbed and became completely dependent on their cousins. Children of Muniyallappa''s branch, started claiming in 2005 that they will soon oust the appellants from the suit schedule properties and when they made enquiries, they were assured that they will get their due shares when the properties are divided and when they Insisted, the defendants disclosed that, 4th defendant C. Muniyamma had filed a suit against 1st defendant for partition, but defendants 2, 3 and 10 are supporting 1st defendant and share was not given and when they made further enquiries, they came to know that 4th defendant had filed a suit for partition in O.S. 213/1995 against 1st defendant and defendants 2, 3 and 10 because of the control and domain exercised against their father, he did not defend properly O.S. 213/1995 or take care of the interest of undivided shares of the appellants and under those circumstances O.S. 213/1995 came to be decreed and the 1st defendant was made to file R.A. 10/1996, which also came to be dismissed and the 4th defendant was able to get a decree for partition of 1/4th share in the properties and also filed FDP 33/2001.

The suit has been contested by 4th defendant, inter alia contending that, the suit is barred by principles of Res judicata since there is already a decree for partition in OS.213/1995 which was confirmed In RA.10/1996 and upheld in RSA 572/2005. Issues were framed by the trial Court. 4th defendant had also filed I.A.7 under Order 7 Rule 11(a) and (d) CPC to reject the plaint, as the suit has no tenable cause of action, in view of the fact that plaintiffs are claiming rights only through 1st defendant their father, who has already suffered decree for partition in OS. 213/1995. The trial Court by the impugned judgment and decree has held that the suit is barred by principles of Res judicata and has dismissed the same. It has also allowed I.A. 7 holding that the suit has no cause of action In view of the judgment and decree passed in OS. 213/1995, affirmed in RA. 10/1996 and upheld in RSA 572/2005 and that the suit is not maintainable for want of cause of action.

OS. 213/1995 had been filed by the 4th defendant against the 1st defendant stating that he is her elder brother and their parents are no more, his 1st marriage was performed on 18.4.1971 and the 2nd marriage was performed in 1983 and she got married on 18.6.1978. The suit schedule properties were acquired by her father in a partition between their brothers and was thus, their ancestral property; that her father had promised during his lifetime that he would give half share in the suit schedule properties to her, that even though defendant promised to give the share, he failed to comply and refused to give her share and hence she filed the suit for judgment and decree to declare that she is entitled to half share in the suit properties. The said suit was contested by the defendant (1th respondent herein). Trial Court had framed the following issues;

(1) Whether the plaintiff proves that she got half share In the suit schedule property?

(2) Whether the plaintiff proves that she is entitled to partition and separate possession of her share in the suit schedule property?

(3) Whether the defendant proves that the Court fee paid is insufficient?

(4) Whether plaintiff proves that she is entitled to an enquiry for future mesne profits?

(5) What order or decree?

After trial, considering the record of case, O.S. 213/1995 was decreed holding that the plaintiff is entitled to partition and separate possession in the suit schedule property. The decree was questioned by the defendant in the said suit by filing RA. 10/1996, inter alia contending that, the suit was bad for nonjoinder of necessary parties, non inclusion of the joint family properties, the suit schedule properties were not devolved and fall to the share of the father of plaintiff, female member lacks the legal right to file a suit for partition, she was only entitled to right of residence in a dwelling house and on other grounds. The appellate Court after considering the appeal, dismissed the appeal with costs, confirming the judgment decree passed by the that Court. Challenging the said decrees, 1st defendant had filed RSA 572/2005 by raising the following substantial questions of law for consideration:

a) Whether the lower Courts were right in law in decreeing the respondent''s suit for 1/4th share in the suit schedule properties with impleading all the relevant, necessary parties who have vested undivided shares like the appellant''s cousins, their children and the appellant''s sons and daughter who are all unmarried?

b) Whether courts below were right in decreeing the plaintiff''s suit for 1/4th share even though she was married long back and was not in joint possession of the suit schedule properties as on the date of the suit without valuing the suit for payment of court fee u/s 35(1) of the Karnataka Court Fees and Suits Valuation Act?

c) Whether the plaintiff''s suit is maintainable as a female claimant for partition including dwelling house when other coparceners are jointly living?

d) Whether the plaintiff was entitled to share in the properties when the plaintiff ceased to be a member of the joint family on her marriage even during the lifetime of her father?

e) Whether the impugned judgment and decree is sustainable in law?

The said second appeal, after hearing was dismissed holding that, no substantial question of law arises for determination. Thus the decree for partition passed in OS.213/1995 has attained finality, as per judgment and decree dated 30.8.1996. During the pendency of RA. 10/1996 in the first appellate Court, the plaintiffs herein have filed the present suit i.e., OS.495/2005, for partition and separate possession of the suit schedule properties.

Keeping the aforesaid facts and record in mind, we will now proceed to deal with the question of Res judicata, as raised in the trial Court. In our view, the decree passed in OS.213/1995, affirmed in RA.10/1996 and RSA 572/2005, during the pendency of the subsequent suit, operates as Res judicata in the subsequent suit.

Learned Sr. Counsel Sri. M.S. Padmarajaiah appearing for the appellants contended that, the decree passed in OS. 213/1995 and confirmed in the appeals, would not operate as res judicata because In order to constitute res judicata within the meaning of Section 11 of CPC, the conditions stipulated therein have to be satisfied, which according to the learned Sr. counsel, on the admitted facts of the present suit, were not satisfied. He contended that on the admitted facts of the present suit, conditions noticed herein earlier, has not been satisfied. He contended that plaintiffs were not made parties in the earlier suit, thus had no opportunity to contest the suit and hence the decree passed in OS. 213/1995 does not bind the plaintiffs.

The contentions of learned Sr. counsel for the appellants were contested by Sri. V. Vijayashekara Gowda, learned Counsel for caveator/4th defendant. He contended that all the conditions to constitute res judicata have been satisfied and therefore the decree passed in OS.213/1995 and affirmed In the appeals, would operate as res judicata in the present suit filed by the plaintiffs. He made submissions in support of the impugned judgment and decree.

We have perused the record and examined the contentions raised by the learned Counsel for the parties. Considering the admitted facts and the present case and the other materials on record, we are unable to agree with the contentions urged the learned Sr. counsel for the appellants. In our view, the judgment and decree passed in OS. 213/1995 and affirmed in the appeals, would operate as res judicata in the present suit filed by the plaintiffs/appellants, as all the conditions indicated herein earlier, are duly satisfied in the present suit.

From the record, it is dear that there are two suits - one former suit, O.S. 213/1995 and the other subsequent suit, O.S. 495/2005.

O.S. 213/1995 was instituted by 4th defendant against 1st defendant in the Court of the Civil Judge (Sr. Dn.,), Bangalore Rural District, Bangalore and O.S. 495/2005 was instituted by the appellants in the same Court i.e., Civil Judge (Sr.Dn.,), Bangalore Rural District, Bangalore. It is not in dispute that the Court which had decided O.S.213/1995, was competent to try the said suit and also in view of the fact that, O.S.495/2005 was also instituted in the same Court, which is competent to try the suit.

The claim made in both the suits i.e., O.S.213/1995 and O.S.495/2005 is for partition and separate possession of the suit properties. The matter which is actually and substantially In issue in substantially In issue in the earlier suit, OS.213/1995, which was heard and finally decided.

The matter directly and substantially in issue In the present case is for partition and separate possession of the plaintiffs'' share in the suit schedule properties. 4th defendant, Smt. C. Muniyamma, had filed OS.213/1995 against her brother, the 1st defendant Sri. C. Muninarayanappa, i.e., father of plaintiffs herein, for partition and separate possession of her share in the suit schedule property. OS.213/1995 was tried and finally decided on merit and the decree passed therein has also been affirmed by the appellate Courts. The matter directly and substantially in issue in the present suit has already been heard and finally decided by the competent Court in the former suit I.e., OS.213/1995.

OS.213/1995 was filed by Smt. C. Muniyamma, respondent 4 herein, against her brother Sri. C. Muninarayanappa, respondent 1 herein. Plaintiffs herein are the children of 1st defendant Sri. C. Muninarayanappa.

The plaintiffs claim their right and entitlement to the share In the suit schedule properties through their father, the 1st defendant. 4th defendant had Instituted OS.213/1995 for partition against her brother the 1st defendant and her claim was based on, they being the children of late Chikkabbaiah, i.e., the grand father of plaintiffs herein. The claim of the plaintiffs is also as they being the grand children of late Chikkabbaiah. Thus, the parties to the suit and under whom they claim, are the same in both the suits i.e., OS. 213/1995 and OS.495/2005.

Though learned Sr.counsel for the appellants contended that the present appellants/plaintiffs were not parties to OS.213/1995 and as such condition (v) is not satisfied, we do not find merit in the contention, in view of the fact that, the claim of the appellants/plaintiffs is through their father i.e., 1st defendant/1th respondent, who was a party to OS.213/1995, wherein he suffered the decree for partition of the estate left by his father Sri. Chikkabbaiah, which decree he challenged in RA. 10/1996.

In the said appeal he had raised the plea of nonjoinder of parties including nonjoinder of his sons i.e., the present plaintiffs and the said contention did not find acceptance in the appellate Court. It was during the pendency of the said appeal, the appellants had filed the present suit. After RA. 10/1996 was dismissed, the plaintiffs'' father i.e., defendant in OS.213/1995 filed RSA 572/2005, also raising a substantial question of law of nonjoinder of necessary parties Including his sons i.e., the present appellants/plaintiffs. The said second appeal, as already noticed, was dismissed. Hence the contention raised by learned Sr. counsel is devoid of merit. The decree passed against the plaintiffs'' father Sri. C. Muninarayanappa is binding on the appellants. Therefore, we hold that appellants are bound by the judgment and decree passed in OS.213/1995 and hence, the principles of Res judicata is attracted.

The claim made, both in OS.213/1995 and OS.495/2005 by the parties to the suits, are by virtue of they being the successors to the estate left by late Chikkabbaiah. The parties in both the suits have litigated under the same title i.e., the suit schedule properties having been left by their predecessor Chikkabbaiah. Though in O.S.495/2005 larger extent of very same items of properties has been shown in the plaint schedule, than those shown and decreed In O.S.213/1995, 4th defendant is not making any claim to the suit property as shown in O.S.495/2005. In our view, the impleading additional defendants and showing of the larger extent in O.S.495/2005, Is with a scheme and design to over come the applicability of principles of Res judicata i.e., the decree passed in O.S.213/1995. It is useful to refer to the decision of Hon''ble Apex Court in the case of K. Ethirajan v. V. Lakshmi and Ors. reported in AIR 2003 SC 4295, wherein considering a similar contention, it has been held as follows:

Learned Counsel appearing for the respondents in his reply to the plea based on res judicata and estoppel contended that if at all the judgments in the earlier suits (Exts. A-22 and A-23) can be held to operate as res judicata between the parties, it would be operative only in respect of a portion of the suit property measuring 37'' x 20'' with superstructure thereon which alone was the subject-matter of dispute in the earlier suit.

The above contention advanced in reply of the learned Counsel appearing for the respondents, cannot be accepted. In the earlier suit, deceased - M. Gurunathan sought eviction of deceased - K. Ethirajan from a portion of the suit property by claiming exclusive title to the whole property involved in the present suit. The case of deceased - K. Ethirajan in that suit was of adverse possession and alternatively co-ownership on the basis of joint patta (Ex. A-7). Looking to the pleadings of the parties in that suit (copies of which are placed before us in additional paper-book), the ground urged by the respondent that in the earlier litigation, claim of exclusive ownership set up by deceased - M. Gurunathan was restricted only to a portion of the whole property involved in this suit, does not appear acceptable. On the basis of pleadings of the earlier suit. We find that the issue directly Involved was claim of exclusive ownership of deceased - M. Gurunathan to the whole property left behind by the deceased - Gangammal although eviction was sought of the defendant from a particular portion of the land on which he had built a hut for residence. The suit was resisted by deceased - K. Ethirajan claiming adverse possession and alternatively as co-owner on the basis of joint patta (Ex.A-7).

It is true that joint patta (Ex.A-7) granted by Settlement Authorities in proceedings under the Act of 1948 cannot itself be a source of title of claim ownership and right of partition but as has been found by the trial Court and the first appellate Court, the plaintiffs claim for partition Is not based on joint patta (Ex.A-7) alone but judgments rendered between same parties (Exs. A-22 and A-23) in the previous suit and appeal, have also been relied wherein the claim of the present plaintiff to remain in possession of the suit property without any Interference by deceased - M. Gurunathan and now his LRs had been crystallised by decree of dismissal of suit for eviction against him. Based on the judgment in the previous litigation an indefeasible right to continue to occupy the suit property as owner had been created in favour of the present plaintiff and the said judgment has attained finality between the same parties and their LRs.

The argument that principle of res judicata cannot apply because in the previous suit only a part of the property was involved when in the subsequent suit the whole property is the subject-matter cannot be accepted. The principle of res judicata u/s 11 of the CPC is attracted where issues directly and substantially involved between the same parties in the previous and subsequent suit are the same - may be - in the previous suit only a part of the property was involved when in the subsequent suit, the whole property is the subject-matter.

(Bold is by us for emphasis)

In the case of U.P. State Road Transport Corporation Vs. State of U.P. and Another, , considering the principles of res judicata, Hon''ble Apex Court has held as follows:

The principle of res judicata is based on the need of giving a finality to judicial decisions. The principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of Section 11 of CPC in this respect.

In the case of Escorts Farms Ltd., Previously known as Escorts Farms (Ramgarh) Ltd. Vs. The Commissioner, Kumanon Division, Nainital, U.P. and Others, , with regard to the meaning and effect of res judicata it has been held as follows:

Res judicata is a plea available in civil proceedings In accordance with Section 11 of the Code of Civil Procedure. It is a doctrine applied to give finality to ''lis'' in original or appellate proceedings. The doctrine in substance means that an issue or a point decided and attaining finality should not be allowed to be reopened and re-agitated twice over. The literal meaning of res is ''everything that may form an object of rights and includes an object, subject-matter or status'' and res judicata literally means: a matter adjudged: a thing judicially acted upon or decided: a thing or matter settled by judgment. Section 11 of CPC engrafts this doctrine with a purpose that ''a final judgment rendered by a Court of competent jurisdiction on the merits Is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action Involving the same claim, demand or cause of action.'' (See : Black''s Law Dictionary at pages 1304-1305).

The further contention of the plaintiffs/appellants is that, though the same property (lesser extent) which is the subject matter of the present suit was also the subject matter of partition in O.S.213/1995, the decree which has been passed in that suit is not binding on them since they were not impleaded in O.S.213/1995 and hence, the decree passed in O.S.213/1995 and affirmed in the appeals by the appellate Courts must be ignored and cannot operate as res judicata. In our view, there is no merit In the contention. 1st defendant C. Muninarayanappa is the father of the appellants. He was the defendant in O.S.213/1995. After decree for partition was passed against him, he challenged the same in R.A.10/1996 and later on in RSA 572/2005, which were dismissed. Appellants'' father allowed the said decrees to become final. The said decree which has been affirmed in the appeals, has not been challenged by the appellants'' father, i.e., 1st respondent herein, or the appellants. Hence, the decree passed in O.S.213/1995, the earlier suit, cannot be disowned by the appellants by filing the subsequent suit. The decree passed in O.S.213/1995, is therefore, binding on the appellants as well and it cannot be ignored or considered as invalid on account of the appellants being not parties to it, though their father was a party to the decree and filed the appeal and second appeal raising the same question of not impleading the appellants herein and he did not succeed.

In the case of Lal Chand (Dead) by Lrs. and Others Vs. Radha Krishan, , has held as follows:

The principle of Res Judicata is conceived in the larger public Interest which requires that all litigation must, sooner than later, come to an end. The principle is also founded on equity, justice and good conscience which require that a party which has once succeeded on an Issue should not be permitted to be harassed by a multiplicity of proceedings Involving determination of the same issue.

The appellants are nothing but harassing the 4th respondent, after their father, the 1st respondent has suffered the decree for partition of the estate left by the propositus Sri Chikkabbaiah. Respondent 4, who has succeeded on the issue of partition and separate share in O.S.213/1995, in our view, should not be permitted to be harassed by a multiplicity of proceedings involving determination of the same issue in the present suit, which was instituted by the plaintiffs. There is conflict of interest between the co-defendants i.e., the 1st defendant and the 4th defendant. It is necessary to decide the conflict, In order to give relief if any, to the appellants. The question between the co-defendants/co-respondents must be finally decided, which has already been decided in O.s.213/1995. Hence, the doctrine of constructive res judicata under explanation IV of Section 11 of CPC, is attracted.

In the background of the above facts, since the appellants are litigating for share under the same title which their father, 1st respondent C. Muninarayanappa, had in the suit property litigated against 4th defendant Smt. C. Muniyamma and the decree for partition and separate possession has come to be passed and affirmed, the subsequent suit filed by appellants is hit by the principles of constructive res judicata. The suit filed by appellants being without a cause of action, has been rightly dismissed by the trial Court by allowing I.A.7 and also in answering issue No. 4. The suit of the plaintiffs is abuse of process of law, frivolous and vexatious and has been rightly been nipped in the bud on account of the bar of principles of res judicata.

For the foregoing discussion and reasons, we hold that by virtue of the decree passed in OS.213/1995 i.e., in the former suit, the subsequent suit filed by appellants i.e., OS.495/2005 is his by principles of res judicata.

No other ground was canvassed by the learned Sr. counsel for the appellants, for consideration.

In the result, we do not find any merit in this appeal. The appeal is dismissed. With costs. Advocates fee fixed at Rs. 5,000/-.