Plaintiffs' suit for 1/4th share in occupancy-rights properties was dismissed as barred by res judicata based on a final Land Tribunal order; the first appellate court remanded for trial. In second appeal, this Court held the Tribunal's final finding binds the plaintiffs, restored the trial court's dismissal decree.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 25TH DAY OF SEPTEMBER 2024 BEFORE
THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR MISCELLANEOUS SECOND APPEAL NO. 100105 OF 2018
BETWEEN:
SMT.ZULEKHABI W/O. DIWANSAB ALUR, SINCE DECEASED BY HER L.R’S
YASHAVANT NARAYANKAR
Location: HIGH COURT OF KARNATAKA
SMT. FATHIMABI W/O. BABULALASAB BALUR, DIED BEFORE THE LOWER APPELLATE COURT, (NO.LRS. ARE BROUGHT ON RECORD)
BASHEER AHMED S/O. BABULALASAB BALUR, SINCE DECEASED REP. BY HIS LRS.
AGE: 52 YEARS, OCC: AGRICULTURE, R/O: MAINALLI, TQ: MUNDAGOD, DIST: UTTARAKANNADA.
…PETITIONERS
(BY SRI. SRINAND A. PACHHAPURE AND SMT. PALLAVI S. PACHHAPURE, ADVOCATES)
AND:
SMT. BIBIJAN W/O. CHAMANSAB SIDENUR, SINCE DECEASED BY HER L.R’S
AGE: 67 YEARS, OCC: HOUSEHOLD WORK, R/O: AKKIALUR, TQ: HANGAL, DIST: HAVERI-581104.
SMT. FAZALLUNNISSA W/O. MOHAMMEDSAB HONKAAN, SINCE DECEASED BY HER L.R’S
SINCE DECEASED REP BY HIS LRS
R/O: AKKIALUR, TQ: HANGAL,
DIST: HAVERI-581104.
DIST: HAVERI-581104.
…RESPONDENTS
(BY SRI . S N BANAKAR ADV FOR R1(A), R2, R3(A) TO R3(C) AND R4 TO R6 V/O DTD: 8/11/2022 APPEAL AGAINST R1 STANDS ABATED; R7, R8, R9, R10, R11, R12, R13, R14 ARE SERVED; R15 SERVICE HELD SUFFICIENT; R16, R17 AND R18 ARE SERVED; R19-HELD SUFFICIENT)
THIS MSA IS FILED UNDER ORDER 43 RULE 1(U) READ WITH SECTION 151 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.11.2018, IN R.A. NO.76/2016 PASSED BY THE I ADDL. DISTRICT & SESSIONS JUDGE, HAVERI MAY KINDLY BE SET ASIDE AND THE JUDGMENT AND DECREE DATED 11.07.2016, IN O.S. NO.18/2013 PASSED BY THE COURT OF SENIOR CIVIL JUDGE & JMFC., HANGAL MAY KINDLY BE RESTORED, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR ADMISSON THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
This appeal is filed praying to set aside the judgment and decree dated 22.11.2018 passed in RA No.76/2016 by the I Additional District and Sessions Judge, Haveri and restore the judgment and decree dated 11.07.2016 passed in O.S.No.18/2013 by the Senior Civil Judge and JMFC, Hangal.
04 sons continued in possession and cultivation of suit properties as tenants. After coming into force of the Land Reforms Act, Gudusab on behalf of joint family had filed Form No.7 on 14.08.1974 before the Land Tribunal, Hangal seeking occupancy right in respect of suit properties. Accordingly, the Land Tribunal has granted occupancy rights jointly to all the brothers of Gudusab. Challenging the said order Gudusab had preferred W.P.No.18524/1982 before this Court. This Court has remanded the matter to the Land Tribunal with a direction to dispose off case a fresh. The Land Tribunal after recording statement of Gudusab has granted occupancy rights in favour of Gudusab in respect of suit properties. Plaintiffs being legal heirs of deceased Nannesab have challenged the order of the Land Tribunal before this Court by filing writ petition. The said writ petition came to be dismissed by this Court by order dated 04.08.1999. Plaintiffs contended that there was no partition in respect of suit properties and they are tenants in common to suit properties. With this, they prayed for grant of their share
in suit properties by partition. The said suit is contested by defendants. Defendants contended that suit properties were granted to Gudusab in his individual capacity rejecting claims of his other brothers. The said order has been challenged by the brothers of Gudusab before this Court in Writ Petition No.26922/1999 and same came to be dismissed on 04.08.1999. They contended that the Land Tribunal had jurisdiction to consider the said aspect and order of the Land Tribunal has become final. Therefore, the suit of plaintiffs is hit by principles of resjudicata. Taking into consideration of pleadings of both parties the trial Court has framed issues and out of them the trial Court has taken issue No.4 as preliminary issue. The said issue is
“Whether defendants Nos.1 to 9 prove
that suit is hit by principles of res-judicata and time barred”
answered the said issue No.4 in the affirmative and dismissed the suit of plaintiffs holding that the finding of the Land Tribunal dated 06.07.1999 operate as resjudicata to the plaintiffs suit. The said order on preliminary issue passed by the trial Court has been challenged by plaintiffs in RA No.76/2016 before the I Additional District and Sessions Judge, Haveri. The Appellate Court after hearing both parties has allowed the appeal and set aside the order passed by the trial Court and remanded the matter to the trial Court for deciding the suit on merits. The said judgment passed by the Appellate Court has been challenged in the present appeal.
tenants has been rejected by the tribunal and upon by this Court in writ petition. The said order of the Land Tribunal has become final. The land Tribunal has jurisdiction to decide with regard to who is the tenant of properties for considering the grant of occupancy rights. The said order of the Land Tribunal is binding on the brothers of Gudusab and their legal heirs. As the said aspect has been decided by the Land Tribunal in the present suit seeking partition of same properties is hit by principles of res-judicata. On that point learned counsel has relied upon the decision of the Division Bench of this Court in the case of Bhimappa
Bharama Kiranagi @ Pujeri and others Vs Sangappa Bharma Kiranagi @ Pujeri and others1 . She contends that the issue of res-judicata does not involved disputed question of fact nor a mixed question of law or fact and therefore, it can be determined as preliminary issue. On that point she placed reliance on the decision of the Hon’ble Apex Court in the case of Jamia Masjid Vs
1 In RFA No.1157/2003 A/w RFA No.1037/2004 decided on 25.05.2010
K.V Rudrappa2 . She contends that former action must
have been rendered by a Court or tribunal of competent jurisdiction. It is, however, essential that there should have been a judicial determination of rights in controversy with a final decision. On that point she placed reliance on the decision of the Hon’ble Apex Court in the case of
Daryao and Ors Vs The State of U.P and Ors3 . With this, she prayed to allow the appeal and set aside the judgment passed by the Appellate Court and restore the order passed by the Trial Court.
2 Reported in AIR Online 2021 SC 763.
3 Reported in AIR 1961 SC 1457
4 Reported in AIR 1972 BOMBAY 228
reliance on the decision of Kerala High Court in the case of Thiruvambadi Rubber Co.Ltd Vs. N.K. Damodaran Nair and Others5 . He has substantiated the reasons assigned by the trial Court. With this, he prayed for dismissal of the appeal.
5 Reported in AIR 1984 Kerala 191
06.07.1999 operate as res-judicata to the suit filed by plaintiffs.
9. In Bhimappa Bharama Kiranagi(Supra) the
Division Bench has observed thus
”8. Following the said decision, the Full Bench of this Court, in the case of Sri. Parushuram Nemani Kuduchakar and others Vs. Smt. Shantabai Ramachandra Kuduchakar and others reported in ILR 2004 KAR 3355 held as under in para 28.
The legal position that emerges from the said provisions, decisions and discussion be stated as under:
(i) The Tribunal alone has the exclusive jurisdiction to decide the question whether a person is a tenant or not of the land in question and the civil Court has no jurisdiction or power to decide the same.
(ii) If a rival claim is made before Land Reforms Tribunal one party contending that the tenancy rights exclusively belongs to himself and another contending that tenancy rights belonging to the joint family and therefore all of them are entitled to grant occupancy rights, the Tribunal
has the jurisdiction to go into the question whether tenancy rights claimed belongs exclusively to one of the member of the joint family or it belongs to the joint family, as it is incidential and necessary to decide the question of grant of occupancy rights.
(iii) If before grant of occupancy rights the Tribunal adjudicates the rival claims and holds that the tenancy pleaded exclusively belongs to the applicant in whose favour the occupancy right is granted and it does not belong to the joint family, the parties have to challenge the said order under the provisions of the Land Reforms Act only and the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition.
(iv) If tenancy is not disputed or rival claim by members of the joint family are not put forth and agitated, after grant of occupancy rights by the Tribunal. Civil Court can entertain a suit for partition in respect of such property, decide whether such property is a joint family property or the separate property of the applicant to whom the occupancy right is granted, and grant a decree for partition.
(v) If the question of tenancy belonging to the joint family is raised before the Land Tribunal and the tribunal does not decide the said question one way or other and leaves it to be decided by Civil Court; Civil Court is not precluded from going into the said question after the tenancy rights has been granted in favour of one of the cliamants, while considering the relief of partition.
(vi) The Civil Court alone has the jurisdiction to entertain a suit for partition and to grant the relief of partition and the Tribunal has no jurisdiction to entertain and grant a decree for partition.
Court has the jurisdiction to decide the said question. In either of the form the said question has to be decided.
The grant of occupancy rights has been adjudicated by the tribunal and holds that the tenancy pleaded exclusively belongs to the Gudusab in whose favour the occupancy right is granted and it does not belong to his joint family. The said order of the Land Tribunal has to be challenged by the aggrieved parties. Plaintiffs who are aggrieved by the said order have challenged the order of the Land Tribunal before this Court. This Court has dismissed the writ petition filed by plaintiffs. Therefore, the Civil Court has no jurisdiction to sit in judgment over the said decision of the Land Tribunal nor can ignore the said finding and record a finding contrary to the one recorded by the Tribunal in a suit for partition. Brothers of Gudusab and their legal heirs have kept quite having suffered the order of the Land Tribunal and this Court for more than 10 years and they filed suit for partition.
must have been rendered by a Court or Tribunal of competent jurisdiction and it is, however, essential there should have been a judicial determination of rights in controversy with a final decision thereon. In the case on hand the Land Tribunal is having competent jurisdiction to decide the grant of occupancy rights and who is / are tenants. Jurisdiction of Civil Court is barred in those matters. Learned counsel for respondents would contend that the issue of res- judicata cannot be tried as preliminary issue as it involves mixed question of law requiring evidence. There is decision of the Land Tribunal which has become final binding on the parties. The finding of the Land Tribunal requires to be considered to apply principles of res –judicata. No questions require to be determined except the finding of the Land Tribunal. The Hon’ble Apex Court in the case of Jamia Masjid (Supra) has held that “the plea of res judicata may in an appropriate case be determined as a preliminary issue when neither a disputed question of fact nor a mixed question of law or fact has to be adjudicated for resolving
it. Considering the said aspect the issue of res –judicata does not require recording of evidence in the case on hand.
passed by the Appellate Court requires to set aside and judgment and decree passed by the trial Court requires to be affirmed.
ORDER
i) The appeal is allowed.
ii) The impugned judgment and decree dated 22.11.2018 passed in RA No.76/2016 by the I Additional District and Sessions Judge, Haveri is set aside. Consequently, the judgment and decree dated 11.07.2016 passed in O.S.No.18/2013 by the Senior Civil Judge and JMFC, Hangal is restored.
Sd/(SHIVASHANKAR AMARANNAVAR) JUDGE
DSP CT:ANB List No.: 1 Sl No.: 52
2 issues framed by the court
Whether the Land Tribunal's order granting occupancy rights exclusively to Gudusab operates as res judicata against the plaintiffs' suit for partition.
Whether the plea of res judicata could be decided as a preliminary issue without recording evidence.
Colour shows how this judgement treated each authority
Bhimappa Bharama Kiranagi @ Pujeri vs Sangappa Bharma Kiranagi @ PujeriRelied on¶9
In RFA No.1157/2003 A/w RFA No.1037/2004 decided on 25.05.2010
Jamia Masjid vs K.V RudrappaApplied¶10
AIR Online 2021 SC 763 · Who else cites this
Daryao and Ors vs The State of U.P and OrsApplied¶10
AIR 1961 SC 1457 · Who else cites this
Nagnath Tatya Halge vs Kishan Tatya HalgeReferred¶6
AIR 1972 BOMBAY 228 · Who else cites this
Thiruvambadi Rubber Co. Ltd vs N.K. Damodaran Nair and OthersReferred¶6
AIR 1984 Kerala 191 · Who else cites this
2 provisions across 1 enactments
Smt. Zulekhabi (since deceased by her LRs)
Mukhtyrahamed s/o Diwansab Balur
Smt. Fathimabi w/o Babulalasab Balur (deceased, no LRs on record)
Basheer Ahmed s/o Babulalasab Balur (since deceased rep. by his LRs)
Smt. Huranbi w/o Madarsab Tatti (since deceased rep. by her LRs)
Smt. Bibijan w/o Chamansab Sidenur (since deceased by her LRs) and others
Shivashankar Amaranannavar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
