Dismissed

Smt. Savitramma P v. Sri Balkrishna Bhat Jannu Since Dead by Lrs Smt Prema Bai

Karnataka HC19 Dec 2023RSA/1981/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a Regular Second Appeal filed by a plaintiff challenging concurrent judgments of lower courts that rejected her suit for declaration of title and perpetual injunction. The appeal failed on grounds of res judicata and limitation.

What did the court decide?

The Regular Second Appeal is dismissed; the Regular Second Appeal is dismissed.; I.A.No.2/2023 is rejected.; All pending applications are disposed of.

Smt. Savitramma P Vs Sri Balkrishna Bhat Jannu Since… — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:46318 RSA No. 1981 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1981 OF 2023 (DEC/INJ)

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BETWEEN:

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SMT. SAVITRAMMA P, W/O LATE PAKKIRAPPA, AGED ABOUT 73 YEARS, RESIDING AT NO. 604/60, SRI. YELUKOTI NILAY, LENIN NAGARA, NITTUVALLI NEW EXTENSION, DAVANAGERE - 577 004.

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…APPELLANT

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(BY SRI. VAIBHAV RAVI MALIMATH, ADVOCATE)

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AND:

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SRI. BALKRISHNA BHAT JANNU , SINCE DEAD BY LRS,

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Digitally signed by SUCHITRA M J Location: HIGH COURT OF KARNATAKA

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1(A) SMT. PREMA BAI, W/O BALKRISHNA BHAT JANNU, AGED ABOUT 74 YEARS,

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1(B). SRI. RAGAVENDRA B BHAT, S/O BHALKRISHNA BHAT JANNU, AGED ABOUT 46 YEARS,

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1(C). SRI. SUDHINDRA B BHAT, S/O BALKRISHNA BHAT JANNU, MAJOR, BUSINESS

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RESPONDENTS NO.1(A) TO (C) ARE RESIDING AT: NO.698, MANDIPET, DAVANAGERE - 577 001.

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1(D). SMT. SAROJA, W/O VENKATESH R RAIKAR, D/O BALKRISHNA BHAT JANNU, AGED ABOUT 52 YEARS, RESIDING AT: VIDYANAGAR, NEAR GOVERNMENT HOSPITAL, HARIHARA.

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1(E). SMT. ANITHA, W/O NAGESH G. REVENKAR, D/O LATE BALKRISHNA BHAT JANNU, AGED ABOUT 51 YEARS, RESIDING AT NO. P91, 4TH MAIN, 3RD CROSS, NAGAPPA BLOCK, BENGALURU.

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1(F). SMT. VIJAYA,

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W/O MANJUNATHA, D/O BALKRISHNA BHAT JANNU, AGED ABOUT 52 YEARS, RESIDING AT NO. 693/5, MANDIPET, DAVANAGERE - 577 001.

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1(G). SMT. MAMATHA S. VARNEKAR, W/O SATHISH T. VENKATESH, D/O LATE BALKRISHNA BHAT JANNU, AGED ABOUT 46 YEARS, RESIDING AT NALAVAD GALLI, GADAG

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 12.09.2023 PASSED IN RA NO.35/2022 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, DAVANAGERE, DISMISSING THE APPEAL AND

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CONFIRMING THE JUDGMENT AND DECREE DATED 05.02.2022 PASSED IN OS NO.40/2013 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, DAVANAGERE.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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The captioned second appeal is filed by the unsuccessful plaintiff, who has questioned the concurrent judgment of the Courts below, wherein the plaintiff's suit seeking relief of declaration of title and perpetual injunction is rejected.

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For the sake of brevity, the rank of the parties

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are referred as they are ranked before the Trial Court.

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3. Facts leading to the case are as under:

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The plaintiff has instituted the present suit by contending that her husband has purchased the suit schedule property under registered sale deeds dated 05.06.1978 and 12.08.1982. The present suit is filed alleging that the father of the defendant instituted a suit against her husband seeking relief of declaration and

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injunction in O.S.No.73/1995. The plaintiff's grievance is that her husband was addicted to vices and therefore, managed to secure a decree in O.S.No.73/1995. The plaintiff contended that her husband, without producing the title deed, also did not choose to file a written statement in O.S.No.73/1995 and this was on account of her husband's arrogant nature, carelessness and recklessness in not assisting the advocate who appeared on behalf of the plaintiff. On this set of pleadings, the present suit is filed seeking relief of declaration and injunction.

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The defendants, on receipt of summons, tendered appearance, filed written statement and stoutly denied the entire averments made in the plaint. The defendants specifically pleaded that there is no cause of action for the plaintiff to file the present suit. Placing reliance on a decree passed in O.S.No.73/1995, the defendants claim that their father's title over the suit schedule property is given a quietus in view of the decree

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passed in O.S.No.73/1995. The defendants contended that the decree passed in O.S.No.73/1995 is confirmed by this Court in RSA.No.117/2003 and therefore, resisting the suit on the ground that the present suit is hit by the principles of resjudicata, sought for dismissal of the suit.

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Plaintiff and defendants to substantiate their respective claims have let in oral and documentary evidence.

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The Trial Court, having taken cognizance of the judgment rendered in O.S.No.73/1995, answered issue Nos.1 and 2 in the negative. However, while answering issue No.5 in the Affirmative, the Trial Court held that the suit is barred by limitation.

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Feeling aggrieved by the judgment and decree of the Trial Court, plaintiff preferred an appeal before the appellate Court. The Appellate Court, as a final fact-finding authority, has independently assessed the entire material on record. The Appellate Court, while taking cognizance of the judgment rendered in O.S.No.73/1995, vide Ex.P.24,

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was of the view that the father of the defendant was held to be the absolute owner and the husband of the plaintiff,

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who was arrayed as defendant, was called upon to hand over vacant possession. The Appellate Court also found that plaintiff in cross-examination has admitted the fact that the father of defendants, by name Balakrishna Bhat Jannu, has filed suit in O.S.No.73/1995 and relief of mandatory injunction was granted in an earlier suit calling upon defendant No.2 to vacate the suit property. The Appellate Court also found that P.W.1 has admitted that defendant No.2 in said suit is her husband. She had further admitted that she had knowledge of the filing of O.S.No.73/1995 and she also had knowledge that her husband appeared in the said suit and failed to contest the suit by filing a written statement. It is in this background, the Appellate Court was also of the view that the present suit is clearly barred by limitation as per Article 58 of the Limitation Act. At paragraph 33 of the judgment, the Appellate Court has taken cognizance of the fact that the plaintiff has admitted that she is aware of the decree

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passed in O.S.No.73/1995 as well as the order passed in Ex.P.No.55/2005 dated 08.01.2010. It is in this background, the Appellate Court was also of the view that the present suit, filed in 2013, is barred by limitation. These concurrent judgments are under challenge by the plaintiff.

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Heard learned counsel appearing for the

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plaintiff. Perused the concurrent findings of the Courts below.

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On examining the findings recorded by both the

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Courts, the Trial Court answered issue No.2 in the negative and held that the present suit is not hit by the principles of resjudicata. The Appellate Court, while entertaining the appeal filed by the plaintiff, has examined the materials relating to issue No.2. The Appellate Court, while taking cognizance of the decree passed in O.S.No.73/1995, however, as a final fact-finding authority, has reversed the findings recorded on issue No.2 and held that the present suit filed by the plaintiff seeking relief of

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declaration and injunction is hit by the principles of resjudicata as the decree passed in O.S.No.73/1995 against the plaintiff's husband has attained finality.

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While examining the limitation in paragraph No.33, the Appellate Court has rightly concurred with the findings and conclusions recorded by the Trial Court. Having taken cognizance of the fact that the present plaintiff was aware of the decree passed in O.S.No.73/1995 and was also aware of the order passed in Ex.P.No.55/2005, the Appellate Court was also of the view that the present suit filed on 10.01.2013 is barred by limitation.

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On examining the pleadings, though learned counsel appearing for plaintiff has tried to persuade this Court by contending that the sale transactions on which defendants father is asserting title are fraudulent documents, I am of the view that there is absolutely no foundation in the plaint regarding the fraudulent documents on which the defendants father had filed a suit

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in O.S.No.73/1995. Paragraph No.4 of the plaint in O.S.No.40/2013 would chinch the controversy insofar as alleged fraud is concerned. I deem it fit to cull out paragraph No.4 of the plaint, which reads as follows:

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"That the defendants father by name Sri. Balkrishna Bhat Jannu had filed the O.S.No.73/1995 against the plaitniff's husband with seeking the relief of Declaration Possession with Mandatory injunction of the questioned suit schedule property along with the adjacent of the suit schedule property as Nituvalli Village of Re.S.No.51. Plat No.57, 58, and 59 to the extent of 40 x 90 feet with producing the document as Pahnies of the said case by the Plaintiff, playing fraud and with misleading the court and due to the plaintiff's husband weakness got the decree against the plaintiff's husband in that case that the plaintiff's husband did not produced the title deeds of the suit schedule property and also did not filed his written statement in O.S.No.73/1995 due to the arrogance nature, careless of the property matter, not assisted to the advocate who has appeared on behalf of the plaintiff's husband. Therefore that the Hon'ble court has accepted the recorders which are produce by the plaintiff and decreed the suit as sought by the plaintiff."

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On examining paragraph No.4 of the plaint, it can be gathered that the plaintiff has a grievance against her husband, who failed to contest the earlier suit. In the absence of a foundation and specific pleadings in regard to the fraudulent title documents of defendants, the Trial Court has rightly not framed any issues. If defendants father was declared to be the absolute owner in the previous round of litigation and the said decree has attained finality in view of the dismissal of the second appeal in RSA.No.117/2003, the present suit is clearly hit by the doctrine of res judicata and the provisions of Section 11 are clearly attracted, and therefore, the plaintiff's suit is liable to be dismissed.

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Section 11 of the Civil Procedure Code, 1908 embodies the principle of res judicata , according to this provision, if the subject-matter that was previously adjudicated upon becomes an incidental matter in subsequent legal proceedings, the earlier decision will be binding and prevent the parties from raising contrary

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arguments or pleadings. If a matter has been conclusively determined in a prior case, it cannot be re-litigated in subsequent suits between the same parties. The doctrine of res judicata is procedural in nature, distinguishing it from substantive law. It aims to promote finality and certainty in legal disputes, preventing endless litigation on the same issues. Res judicata acts as a safeguard against the abuse of legal processes and ensures the stability of judicial decisions. The application of res judicata involves a combination of legal and factual considerations. The bar imposed by res judicata not only extends to the specific decision but also encompasses all facts and circumstances that were essential in arriving at that decision. This includes all necessary steps taken in the earlier case to establish the foundation for the judgment. This rule is grounded in the principles of justice, equity, and good conscience.

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In the previous round of litigation, the defendants’ father is declared to be the absolute owner in

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O.S.No.73/1995. The plaintiff is quite aware of the judgment rendered in O.S.No.73/1995. It is also borne out from the records that plaintiff is not asserting independent title, but is tracing her title through her husband. Therefore, she has no locus as there is no independent right.

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The significance of these findings rendered in earlier suit will not only impact upon the litigants involved in the antecedent litigation but extends its authoritative reach to encompass their successors-in- interest. The solemnity and gravity of a Court's pronouncement imbue it with a character of irrefutable evidentiary value, rendering it binding upon the parties and their progeny in subsequent legal contests. The Courts, as custodians of justice, are entrusted with the duty to safeguard the sanctity of prior adjudications, fostering a legal landscape characterized by coherence and consistency. This obligation serves not merely as a legal formality but as an indispensable mechanism to fortify the edifice of justice,

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wherein the echoes of past pronouncements resonate with authoritative import, guiding the trajectory of legal deliberations.

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Be that as it may. Both the Courts have concurrently held that the present suit is also liable to be dismissed on the ground of limitation. If the plaintiff was aware of previous proceedings and the same was successfully elicited in a cross-examination in a suit filed in 2013, even otherwise barred by limitation. The judgment cited by the learned counsel appearing for the plaintiff in the case of R.Uniikrishnan and Another vs. V.K.Mahanudevan and others reported in (2014) 4

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SCC 434 is not applicable to present case on hand.

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Therefore, no substantial question of law would arise for consideration. The regular second appeal is devoid of merits and accordingly stands dismissed .

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In the light of the findings recorded by this Court on merits, though I have given my anxious consideration to the documents relied on by the appellant-plaintiff, these

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additional documents cannot be looked into. This is Court is also satisfied that these documents which are now sought to be produced by way of additional document have no relevancy. These documents are also not required to be looked into to do substantial justice. Accordingly, I.A.No.2/2023 is rejected.

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The Registry shall forthwith return all the original documents after securing photo copies of the same.

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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hdk

Smt. Savitramma P v. Sri Balkrishna Bhat Jannu Since Dead by Lrs Smt Prema Bai

Case brief

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Smt. Savitramma P v. Sri Balkrishna Bhat Jannu Since Dead by Lrs Smt Prema Bai

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