Sri. B. S. Janakiraman Vs Sri. M. Nagaraja

4 . SRI. B. S. SESHADRIVASAN S/O. LATE SRINIVASA IYENGAR, AGED ABOUT 65 YEARS, QUARTER NO. 68, UPSTAIRS, 1ST MAIN ROAD, MARUTHI EXTENSION, SRIRAMPURAM, BENGALURU-560 021.

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5 . SRI. B. S. SRIDHARA SINCE DEAD BY HIS LRS.,

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(A) SRI. PRASHANTH S/O. LATE B. S. SRIDHARA, AGED ABOUT 37 YEARS,

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(B) SRI. SRIKANTH AGED ABOUT 35 YEARS,

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BOTH ARE RESIDENTS AT NO.136, SATHYANARAYANA LAYOUT, WEST OF CHORD ROAD, MAHALAKSHMIPURAM LAYOUT, BENGALURU-560 086.

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SMT. RAMAMANI. B D/O. B.S. DWARKANATAH, AGED ABOUT 56 YEARS, QUARTER NO. 68, UPSTAIRS, 1^ST MAIN ROAD, MARUTHI EXTENSION, SRIRAMPURAM, BENGALURU-560 021.

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7 . SRI. RAMANATH. B S/O. B. S. DWARKANATH, AGED ABOUT 50 YEARS, QUARTER NO. 68, UPSTAIRS, 1ST MAIN ROAD, MARUTHI EXTENSION, SRIRAMPURAM, BENGALURU-560 021.

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8 . SMT. GODAMANI W/O. T. A. MURALI, AGED ABOUT 58 YEARS, NO.62, 30^TH CROSS, BANASHANKARI II STAGE, BENGALURU-560 050.

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9 . SRI. M. S. K. IYENGAR S/O. SUDARSHANACHAR, AGED ABOUT 65 YEARS, LEELAVATHI EXTENSION, MADDUR,

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MANDYA DISTRICT-571 401.

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10 . SRI. A. C. SRINIVASARAJU S/O. A. M. CHANDRASEKHARA RAJU, AGED ABOUT 68 YEARS, R/AT NO.172/1, SRINIVASA INDUSTRIAL ESTATE, BANNERUGHATTA ROAD, BENGALURU-560 076.

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11 . THE SPECIAL TAHASILDAR ANEKAL TALUK, ANEKAL-562 106, BENGALURU RURAL DISTRICT.

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...RESPONDENTS

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(BY SRI KANTHARAJU H., SR. ADV. FOR SRI RAVI H.K., ADV. FOR R1; SRI KIRAN KUMAR, HCGP FOR R2 & R11; SRI S.R.KAMALACHARAN, ADV., FOR PROPOSED RESPONDENT ON I.A.No.2/2024;

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R6, R8 & R10 ARE SERVED; R3 TO R5 (a & b), R7 & R9 - SERVICE OF NOTICE IS HELD SUFFICIENT V.C.O. DT.21.08.2024)

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THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT, 1961, PRAYING TO SET ASIDE THE ORDER DATED 24.06.2022 PASSED IN W.P. NO.27727/2013 PASSED BY THE LEARNED SINGLE JUDGE AND TO DISMISS THE SAID WRIT PETITION.

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IN CCC No.833/2022:

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BETWEEN:

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SRI M. NAGARAJA S/O LATE MUNINANJAPPA @ NANJAPPA, AGED ABOUT 60 YEARS,

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NO.2, 100 FT. RING ROAD, B.T.M. ROAD, 1^ST STAGE, BENGALURU - 560 029.

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...COMPLAINANT

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(BY SRI MITHUN G.A., ADV.)

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AND:

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1 . VENKATACHALAM SPECIAL TAHASILDAR, ANEKAL TALUK, ANEKAL - 562 106.

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...ACCUSED

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2 . THE STATE OF KARNATAKA THE PRINCIPAL SECRETARY REVENUE DEPARTMENT M.S.BUILDING BENGALURU - 560 001.

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...PROFORMA RESPONDENT

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(BY SRI. KIRAN KUMAR, HCGP FOR PROFORMA R2 & A1)

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THIS CCC IS FILED UNDER SECTIONS 11 AND 12 OF THE CONTEMPTS OF COURTS ACT, 1971, PRAYING TO PUNISH THE ACCUSED FOR SECURING THE PRESENCE OF THE ACCUSED IN PERSON WHO CAUSED BREACH AND VIOLATION OF THE ORDER DATED 24.06.2022 PASSED BY THE SINGLE JUDGE OF THE HIGH COURT IN W.P. NO.27727/2013 (LR) WITHOUT COMPLYING WITH THE ORDER, WHICH IS PUNISHABLE UNDER THE CONTEMPT OF COURTS ACT, 1971.

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THIS WRIT APPEAL AND CCC HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 02.02.2026 AND COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, ANU SIVARAMAN J., PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV JUDGMENT

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(PER: HON'BLE MRS. JUSTICE ANU SIVARAMAN)

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This writ appeal is filed challenging the Order dated 24.06.2022 passed by the learned Single Judge in W.P.No.27727/2013 (LR) and the Contempt of Court Case is filed alleging willful disobedience of the same Order.

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We have heard Shri. D.R. Ravishankar, learned

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senior counsel as instructed by Shri. Sagar G. Nahar, learned advocate appearing for the appellants, Shri. Kantharaju H. learned senior counsel as instructed by Shri H.K. Ravi, learned advocate appearing for respondent No.1, Shri. Kiran Kumar, learned High Court Government Pleader appearing for respondent No.2 and respondent No.11, Shri. S.R. Kamalacharan learned counsel for proposed respondent on I.A.No.2/2024 in W.A.No.943/2022. We have heard Shri. Mithun G.A. learned counsel appearing for the complainant, Shri. Kiran

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Kumar, learned High Court Government Pleader appearing for Proforma respondent No.2 and accused No.1.

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The legal question which arises for consideration in this appeal is whether respondent No.1 herein - Shri. M.Nagaraja, who was a party to earlier rounds of litigation and had specifically acquiesced to the question of tenancy in respect of Sy.No.47 of Lakshmipura Village, Jigani Hobli, Anekal Taluk, measuring 9 acres 9 guntas being reconsidered on merits by the Land Tribunal could have raised a contention that the appellants' claim for tenancy stood rejected in the year 1979 and could not be reagitated.

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The facts of the case are as follows:

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Shri. B.S. Dwarakanath, brother of Shri. B.S. Janakiraman - appellant No.1 herein, had filed Form No.7 in respect of Sy.No.47 of Lakshmipura Village, Jigani Hobli, Anekal Taluk measuring 9 acres 9 guntas claiming occupancy rights before the Land Tribunal. The said claim was rejected by the Land Tribunal by Order dated 19.09.1979 due to the continued absence of Shri. B.S.

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Dwarakanath. The legal representatives of Shri. B.S. Dwarakanath challenged the Order of the Land Tribunal dated 19.09.1979 in W.Ps.No.18484-18490/1990. The Writ Petitions were dismissed on the ground of delay and laches by an Order dated 24.10.1990. Another set of W.Ps.No.25182/1991 and 25184/1991 came to be filed by persons who claimed to be grantees challenging the Order of the Land Tribunal dated 19.09.1979 insofar as it related to the order rejecting the occupancy rights with regard to Sy.No.52 of Lakshmipura Village, Jigani Hobli, Anekal Taluk. This Court by an Order dated 11.12.1997 passed in W.P.No.25182/1991, set aside the Order of the Land Tribunal dated 19.09.1979 in LRF A.T.C. 3317/75-76 and LRF A.T.C. 3498/78-79 and remanded the matter to the Land Tribunal.

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The Land Tribunal passed on order dated 23.04.1999 granting occupancy rights in respect of Sy.No.52. As far as 9 acres and 9 guntas of land in Sy.No.47 is considered, the tenancy applications were rejected and the purchaser of the land and his successor Shri. M.S.K. Iyengar were

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accepted as land owners. It was also found that Shri. B.S. Dwarakanath cannot be considered as a tenant in respect of 11 acres 9 gunats in Sy.No.52 and 9 acres and 9 guntas in Sy.No.47 his Form No.7 application was rejected.

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The legal representatives of Shri. B.S. Dwarakanath filed W.P.No.20505/1999, wherein this Court set aside the Order of the Land Tribunal dated 23.04.1999, insofar as it rejected the claim of Shri. B.S. Dwarakanath over Sy.No.47. This Court considered O.S.No.223/1967 filed by Shri. Sudarshanachar and W.Ps.No.18484-18490/1990 and held that the continued possession of the land as on 01.03.1974 by Shri. B.S. Dwarakanath would make his possession as that of a "deemed tenant." It was held that the Land Tribunal did not consider these factual aspects while adjudicating the claim of Shri. B.S. Dwarakanath. Hence, this Court set aside the said order of the Land Tribunal and remanded the matter for adjudication in respect of Sy.No.47.

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The Order of the learned Single Judge in W.P.No.20505/1999 was taken up in appeal before a

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Division Bench of this Court in W.A.No.988/2007. After impleading the subsequent purchaser, Shri. M. Nagaraja - respondent No.1 herein, the Court by Order dated 28.08.2008 dismissed W.A.No.988/2007, directing the Land Tribunal to consider all the factual and legal aspects of the matter while adjudicating the claim of Shri. B.S. Dwarakanath.

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The Land Tribunal passed an Order on 22.11.2010 granting occupancy rights in favour of Shri. B.S. Dwarakanath in respect of 9 acres 9 guntas of Sy.No.47. This Order was challenged by respondent No.1 herein in W.P.No.39525/2010. The Court by Order dated 13.07.2012 set aside the Land Tribunal's Order dated 22.11.2010 and remitted the matter to the Land Tribunal to re-consider the case of the parties, in accordance with law. Thereafter, the Land Tribunal under Order dated 20.03.2013 granted occupancy rights in favour of Shri. B.S. Dwarakanath's legal representatives after complying with the provisions of Section 48A of the Karnataka Land Reforms Act, 1961.

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Respondent No.1 filed W.P.No.27727/2013 whereby

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this Court by Order dated 24.06.2022 quashed the Land Tribunal's Order dated 30.03.2013 and directed to restore the name of respondent No.1 herein, in the revenue records. The appellants preferred a Review Petition No.639/2022 seeking to review the orders passed in W.P.No.27727/2013 which was dismissed by Order dated 06.09.2022. Aggrieved by the Order in

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W.P.No.27727/2013, the appellants are in appeal before this Court.

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Shri. D.R. Ravishankar, learned Senior Counsel appearing for the appellants contends that the learned Single Judge held that the claim of Shri. B.S. Dwarakanath and his legal representatives, is not maintainable because the Tribunal had rejected his claim by Order dated 19.09.1979. The same Order became final pursuant to the dismissal of the writ petitions in W.Ps.No.1848418490/1990 by an Order dated 24.10.1990. However, in the later rounds of litigation by order dated 20.09.2007 in W.P.No.20505/1999, which was confirmed in

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W.A.No.988/2007, by order dated 28.08.2008 and the later Order dated 13.07.2012 in W.P.No.39525/2010, the claim of Shri. B.S. Dwarakanath and his legal representatives for tenancy and occupancy rights over lands in Sy.No.47, was categorically and comprehensively reopened by this Court with the contesting respondent herein on the party array. Once such reopening had occurred, by competent orders of this Court which were acquiesced to by the contesting respondent and had become final, it was no longer open to the contesting respondent to take a plea of res judicata before the Tribunal or before this Court in the current writ petition.

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It is further contended that the learned Single Judge failed to consider that pursuant to the Order dated 11.12.1997 in W.P.No.25182/1991, the Court remanded the matter to the Land Tribunal wherein the Land Tribunal considered the claim over Sy.No.47. It is stated that no objection for consideration of the said claim was raised by the parties. Therefore, the parties have acquiesced for reconsideration of the claim of legal representatives of

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Shri. B.S. Dwarakanath over the land in Sy.No.47. Therefore, the learned Single Judge in the impugned order has erred in reopening an issue regarding maintainability of the claim to which the parties had acquiesced.

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The learned senior counsel appearing for the appellants has relied on the following decisions:-

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Kurichiyan Chandu v. Kunjuraman Nambiar, reported in 1989 SCC OnLine Ker 467.

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P.C.Ray and Co. (India) Pvt. Ltd. v. Union of India, reported in 1971 SCC OnLine Cal 88.

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The learned Single Judge after consideration of the contentions found that the claim for tenancy raised by Shri. B.S. Dwarakanath in respect of Sy.No.47 stood rejected in the year 1979 itself. The said order was challenged by the legal representatives of Shri. B.S. Dwarakanath, who are the petitioners in W.Ps.No.18484 to 18490/1990. The said writ petitions were also rejected on the ground of delay and laches.

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It is thereafter that W.P.No.20505/1999 was

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filed in the year 1999 by the legal heirs of Shri. B.S.

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Dwarakanath and Annexure - K Order was rendered on 29.01.2007. Respondent No.9 herein (Shri. M.S.K.Iyengar) was respondent No.10 in the said Writ Petition. The plea of tenancy taken up by Shri. B. S. Dwarakanath in respect of Sy.No.47 of Lakshmipura Village was specifically raised therein. The learned Single Judge found that in the absence of plea of Shri. B. S. Dwarakanath that the sale in favour of respondent No.10 was only nominal, the question whether possession remained with Shri. B.S. Dwarakanath, is to be considered. The order of the Land Tribunal was set aside and the matter was remanded for adjudication in respect of Sy.No.47 of Lakshmipura Village. It was specifically stated that all questions are left open for adjudication by the Land Tribunal. Further, it was also recorded that respondent No.10 has sold portion of Sy.No.47. The purchasers were permitted to be impleaded. Thereafter, Writ Appeal No.988/2007 was filed by Shri. M.S.K. Iyengar. Respondent No.1 herein was impleaded as

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respondent No.10 in the said appeal. It is recorded in the judgment passed by the Division Bench on 28.08.2008 in Writ Appeal No.988/2007, that an application under Order XXIII Rule 3 read with Section 151 of the CPC was filed by the appellant conceding the claim of respondent No.1 as tenant in respect of the land in Sy.No.47 measuring 9 acres and 9 guntas. However, noticing that the appellant had sold part of the land in favour of others, the said application was rejected by Order dated 15.04.1998. Thereafter, the purchasers were impleaded. Paragraphs No.4 and 5 of the judgment dated 28.08.2008 passed in W.A.No.988/2007 by the Division Bench, read as follows:-

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"4. Sri.C.B. Srinivasan, learned counsel appearing for the appellant submitted that, the impugned order passed by the learned Single Judge, be allowed to operate, by directing the Land Tribunal to notify the purchasers of the land in Sy. No.47 of Laksmipura Village and proceed for adjudication, by taking into consideration the observations made by the learned Single Judge and to dispose of the claim, in accordance with law.

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5. The learned counsel for respondents No.9 and 10 i.e., the purchasers of the property in Sy. No.47 of Laksmipura Village submitted that respondents 9 and 10 will appear before the Land Tribunal and put forth their

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case and the Tribunal be directed to consider the claims/objections of them, in accordance with law."

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The appeal was accordingly disposed of directing the Land Tribunal to consider all factual and legal aspects of the matter while adjudicating the claim of Shri. B.S.Dwarakanath by taking into consideration the objections of respondents No.9 and 10. The parties were set at liberty to raise all questions for adjudication of the Land Tribunal.

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The matter was considered on merits by the Land Tribunal and it was found that Shri. Dwarakanath was in possession as on the appointed day, that is, 01.03.1974. It is in challenge against these proceedings before the learned Single Judge that respondent No.4 raised a contention that the claim of Shri. B.S. Dwarakanath stood decided by the Order of the Land Tribunal in the year 1979 and confirmed by the rejection of W.Ps.No.18484 to 18490/1990. Though, the learned senior counsel appearing for respondent No.1 contended that the appellants had not brought the rejection of the writ petitions in the year 1990

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to the notice of this Court in the later proceedings, we notice that Shri. Sudarshanachar was the father of Shri. M.S.K. Iyengar and a party to the 1990 writ petitions and it was open to the legal heirs of Shri. Sudarshanachar, who were also parties to the later writ petitions, to have brought this fact to the notice of this Court. Once the question of tenancy raised by Shri. B.S. Dwarakanath was left open to be decided by the Land Tribunal and this was acquiesced by Shri. Sudarshanachar as well as the subsequent purchaser - respondent No.1 herein, we are clear in our mind that the appellants could not have been non-suited on the ground that the earlier proceedings against him stood concluded.

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The learned senior counsel appearing for the appellants have relied on the decisions of the Kerala High Court as well as the Calcutta High Court as to the nature of the principle of res judicata which read as follows:-

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Kurichiyan Chandu v. Kunjuraman Nambiar, reported in 1989 SCC OnLine Ker 467:

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”6. One of us (Balakrishna Menon, J.) in Appi Pennu v. Kalyambi Nanan (1984 K.L.T. 763) stated the principle thus at page 764:

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"It is well settled that the principle of res judicata is only a mode of estoppel to prevent a party bound by an earlier decision of a competent court from raising the same contentions in subsequent proceedings. There is no want of jurisdiction for the reason only of an earlier decision for a court of competent jurisdiction to decide the question raised before it. If a plea of res judicata available to the parties is not raised, it is the duty of the court to decide the question properly brought up for decision by it. If a party entitled to successfully raise a plea of res judicata omits to do so, the court or the Tribunal will be left with no alternative except to decide the question raised before it. If a party without raising a plea of res judicata allows the court or tribunal to decide the question afresh, it is not open to the parties to the subsequent decision to challenge the decision in other independent proceedings as passed without jurisdiction, for the jurisdiction of the court or tribunal to decide the question will not be ousted for the reason of an earlier decision by a competent court or tribunal. The plea that the question raised is covered by an earlier decision of a competent court is also one which might and ought to have been taken by the party who relies on the earlier decision, and if the court decides the question without reference to the earlier decision, the plea of res judicata based on the earlier decision will itself be barred by res judicata in subsequent proceedings between the same parties or their representative in interest.” "

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P.C.Ray and Co. (India) Pvt. Ltd. v. Union of India, reported in 1971 SCC OnLine Cal 88:

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"15. It has been held that the plea of res judicata

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may be waived by a party to a proceeding. In the premises the plea of res judicata can never be a jurisdictional question. For jurisdiction can be conferred neither by waiver nor even by consent of the parties. It has been held by a Division Bench of this Court in Rajani Kumar Mitra v. Ajmaddin Bhuiya reported in AIR 1929 Cal 163 at p. 164 as follows: to wit:—

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“The bar of res judicata is one which does not affect the jurisdiction of the court but is a plea in bar which a party is at liberty to waive. If a party does not put forward his plea of res judicata in a suit he must be taken to have waived it ………………. The party omitting to plead res judicata intentionally invites the court to decide the case on the merits ……………” "

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We are in respectful agreement with the above

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mentioned proposition of law. It is quite clear that res judicata is a principle of Public Policy rather than just a private right. It exists to protect the system from the vagaries of inconsistent verdicts and to provide finality to adjudicated questions between parties. However, it is an

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affirmative defence, even if parties waive the plea of res judicata , the Courts have the power to consider it on their own motion. However, where a party to a proceeding specifically waives the plea of res judicata expressly or by necessary implication, the Court can consider the issue afresh. In case, the Court finds that the re-adjudication is not warranted, it would be open to the Courts to refuse such consideration. However, once the plea of res judicata is waived and the matter is permitted to be considered afresh, the plea cannot be raised at a later point in time when the decision goes against the party who waived the plea.

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Having considered the contentions advanced, we notice that it was a specific case of the appellants before the Land Tribunal as well as before this Court, that Shri. B.S. Dwarakanath is missing since 1977 and that his legal representatives were unaware of the proceedings before the Land Tribunal. The question of possession as a deemed tenant in the year 1974 was clearly left open by this Court in W.P.No.20505/1999 to be considered by the Land

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Tribunal. This was not objected to either by Shri. Sudarshanachar's legal representatives or by respondent No.1, the subsequent purchaser.

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In the above factual matrix, we are of the clear opinion that the finding entered in the year 1979 ex parte as against Shri. B.S. Dwarakanath cannot stand in the way of a consideration of his claim of tenancy on merits. We are clearly of the opinion that the learned Single Judge has gone wrong in accepting the contention that the claim of Shri. B.S. Dwarakanath in respect of Sy.No.47 stood concluded.

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