Allowed

Boraiah S/O Mukkadi Boraiah v. Obamma W/O Late Boraiah

Karnataka HC8 Mar 2021MSA/33/2014

Case brief

AI extract

What is this about?

This Second Miscellaneous Appeal arises from a lower court order remanding a title suit for retrial after setting aside a trial court dismissal based on Res judicata. The High Court held that the first appellate court was justified in interfering because the former suit was for partition, the current suit was for adverse possession, there were material differences, and the trial court lacked plead

What did the court decide?

The appeal was allowed; the judgment of the First Appellate Court setting aside the trial court order was upheld. The matter was remanded to the trial court to expedite disposal within six months.

Boraiah S/O Mukkadi Boraiah Vs Obamma W/O Late Boraiah — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 08^TH DAY OF MARCH 2021

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BEFORE

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THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA

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MISCELLANEOUS SECOND APPEAL NO.33 OF 2014

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BETWEEN:

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BORAIAH S/O MUKKADI BORAIAH AGED ABOUT 62 YEARS R/O BUDNAHATTY VILLAGE CHALLAKERE TALUK-577522

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2 . BORAMMA

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D/O MUKKADI BORAIAH AGED MAJOR R/O KURININGANAHATTY CHALLAKERE TALUK-577522

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...APPELLANTS

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(BY SRI: R SHASHIDHARA, ADVOCATE)

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AND:

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1 . OBAMMA W/O LATE BORAIAH AGED ABOUT 61 YEARS

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2 . BORAIAH S/O LATE BORAIAH AGED ABOUT 36 YEARS

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3 . CHANNAIAH S/O LATE BORAIAH AGED ABOUT 36 YEARS

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4 . THIPPESWAMY

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S/O LATE BORAIAH AGED ABOUT 33 YEARS ALL ARE R/O BUDNAHATTY VILLAGE, CHALLAKERE TALUK-577522.

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5 . THIPPAMMA D/O LATE CHANNAIAH AGED ABOUT 66 YEARS BARGERAHATTY VILLAGE CHITRADURGA DISTRICT-577501

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6 . OBAMMA D/O LATE CHANNAIAH AGED ABOUT 63 YEARS R/O CHIKKAMMANAHALLY CHALLAKERE TALUK-577522

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7 . BORAMMA D/O LATE CHANNAIAH AGED ABOUT 66 YEARS

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8 . BANGARAIAH S/O LATE CHANNAIAH AGED ABOUT 61 YEARS

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9 . BADA BORAIAH S/O LATE CHANNAIAH AGED ABOUT 51 YEARS

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APPELLANT NO. 7 TO 9 ARE R/O BUDNAHATTY VILLAGE CHALLAKERE TALUK-577522.

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...RESPONDENTS

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(BY SRI: B M SIDDAPPA, ADVOCATE)

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THIS MSA IS FILED UNDER ORDER 43 RULE 1(u) OF CPC, AGAINST THE JUDGMENT & DECREE DATED: 17.03.2014 PASSED IN R.A.NO.30/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHALLAKERE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE

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DATED: 01.10.2013 PASSED IN O.S.14/2011 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, CHALLAKERE, REMANDING THE MATTER BACK TO THE LOWER COURT WITH A DIRECTION TO RE-FRAME ADDITIONAL ISSUE NO.1.

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THIS MSA COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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J U D G M E N T

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Heard learned counsel for the appellants/defendants

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and learned counsel for the respondents/plaintiffs. Perused the records.

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The following substantial question of law arises for consideration in this appeal:-

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“Whether the First Appellate Court was

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justified in remanding the matter to the trial

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court on principle of Res judicata?”

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The appellants were the defendants before the trial

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court in O.S.No.14/2011. Said suit was filed by the plaintiffs

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for a declaration that they have perfected their title to the suit schedule properties by adverse possession in respect of

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half share of the defendants and for consequential

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permanent injunction restraining them from interfering with the suit schedule properties.

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Defendants put forth the defence that the defendants’ father had filed a suit in O.S.No.248/1975 before the Munsiff Court, Chitradurga against the father of the plaintiffs, for partition. In the said suit, defendants’ father contended that the suit schedule properties were the joint family properties, whereas, the plaintiffs’ father claimed that the suit schedule properties were his selfacquired properties. By judgment and decree dated 24.01.1981, the suit was decreed. The plaintiffs’ father filed R.A.No.24/1981 before the learned Civil Judge, Chitradurga and during the pendency of the Regular appeal, he died. The plaintiffs came on record as his legal representatives. R.A.No.24/1981 was dismissed. As against the said judgment, plaintiffs preferred RSA No.727/1991 before this Court, which also came to be dismissed for non-prosecution. The defendants’ father filed FDP No.1/2009 which ultimately came to be allowed.

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Based on these contentions, a preliminary issue

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was raised by the trial court as to:-

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“Whether the suit of the plaintiff hit by principal of res-judicata?”

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Considering the above pleadings and the

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documents produced by the defendants, the trial court dismissed the suit as hit by the principles of Res judicata. The First Appellate Court however has set-aside the order of the trial court and remanded the matter to the trial court with a direction to reframe additional issue No.1 and give opportunity to both the parties to lead evidence and thereafter dispose of the suit in accordance with law.

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After hearing the learned counsel appearing for the appellants and learned counsel for the respondents, I do not find any justifiable reason to interfere with the impugned judgment for the following reasons. viz.,

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i. Undeniably, the suit was filed by the plaintiffs for a declaration that they had perfected

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their right, title and interest over ½ share of the defendant.

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ii) The prayer made in the suit and the issues that would arise for consideration of the trial court are distinct from the issues that were decided in the previous suit in O.S.248/1975.

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iii) The very averments made in the plaint by the plaintiffs and the assertions made by the defendants in their written statement would indicate that the instant suit was for declaration based on adverse possession, whereas the previous suit was one for partition.

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In order to attract section 11 of the Code, the suit or the issue that would arise for consideration of the Court trying the suit should have been directly and substantially in issue in the former suit between the same parties or between parties under whom they or anyone claiming under them, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue

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has been subsequently raised and has been heard and finally decided by such Court.

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In the instant case, the very pleadings of the plaintiffs would indicate that the plaintiffs had sought for a relief of declaration, whereas according to the defendants, the previous suit filed between the parties was one for partition and therefore on the face of it, the doctrine of Res judicata does not apply to the facts of the case.

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That apart the bar of Res judicata is not applicable to the determination of the issue with regard to the title to the property in the later suit.

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Even otherwise, without looking into the pleadings and the issues framed in the previous suit, the trial court could not have proceeded to dismiss the suit on the plea of Res judicata. On perusal of the impugned judgment, I find that in support of the plea of Res judicata, defendants had produced a list of documents, namely, the xerox copies of the judgments in O.S.No.248/1975, R.A.No.24/1981, RSA.No.727/1991 and the order sheet in FDP.No.1/2009.

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Pleadings in the former suit were not produced before the court, as such, there was no material before the Court to arrive at a finding that the issues heard and decided in the former suit are directly and substantially in issue in the present suit. In that view of the matter, the first appellate Court was well justified in setting aside the judgment of the trial court. As a result, the appeal fails and the same is dismissed.

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Liberty is reserved to the defendants to produce relevant documents in support of the contentions urged in the suit.

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Having regard to the contentions urged by the parties, the trial court is directed to expedite the matter and dispose of the suit as expeditiously as possible, within an outer limit of six months from the date of production of certified copy of this judgment.

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*mn/-

Boraiah S/O Mukkadi Boraiah v. Obamma W/O Late Boraiah

Case brief

What is this about?

What did the court decide?

Boraiah S/O Mukkadi Boraiah v. Obamma W/O Late Boraiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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