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IN THE HIGH COURT OF CIRCUIT BENCH AT DHARWAD

DATED THIS THE 14 TH DAY OF AUGUST 2013

PRESENT

THE HON’BLE MR.JUSTICE N.KUMAR

AND

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

RFA NO.4001/2013

BETWEEN:

1. GADIGEVVA W/O GURUSIDDAYYA JANGAM, AGE: 70 YEARS, OCC: HOUSEHOLD WORK, R/O: GOJAGE, TQ & DIST: .

2. KASHAVVA W/O SHIVALINGAYYA HIREMATH, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: , TQ & DIST: BELGAUM.

3. AKKAVVA W/O BASAYYA HIREMATH,. AGE: 50 YEARS, OCC: HOUSEHOLD WORK,. R/O: GOJAGE, TQ & DIST: BELGAUM.

4. SHEKHAVVA W/O SHIVANAND HIREMATH @ MATHAD, AGE: 45 YEARS, OCC: HOUSEHOLD WORK,. R/O: GOJAGE, TQ & DIST: BELGAUM. …APPELLANTS (BY SRI. S.L. MATTI FOR SRI. JAGADISH PATIL, ADV.)

A N D : : 2 :

1. GOURAVVA W/O RACHAYYA JANGAM, AGE: 58YEARS, OCC: HOUSEHOLD WORK, R/O: GOJAGE, TQ & DIST: BELGAUM.

2. SHOBHA W/O SHIVANAND SWAMI @ HIREMATH, AGE:56 YEARS, OCC: HOUSEHOLD WORK, R/O: MANAGAON, TQ: CHANDAGAD, DIST: KOLHAPUR.

3. MALLAVVA W/O SHANKARAYYA MATHAPATI, AGE: 58 YEARS, OCC: HOUSEHOLD WORK, R/O: TQ: , DIST: BELGAUM.

4. ANNAPURNA W/O SADANAND HIREMATH, AGE: 55 YEARS, OCC: HOUSEHOLD WORK, R/O: DHANGAR GALLI, , DIST: BELGAUM.

5. SAVITRI W/O SHANKAR HIREMATH, AGE: 54 YEARS, OCC: HOUSEHOLD WORK, R/O: MARUTI GALLI, GOJAGE, TQ & DIST: BELGAUM.

6. IRAYYA S/O APPAYYA JANGAM, AGE: 51 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

7. SHANTAVVA W/O BABU JANGAM, SINCE DECEASED L RS ALREADY ON RECORD,

8. PATRAYYA S/O BABU JANGAM, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

9. GANGARAM S/O BABU JANGAM, SINCE DECEASED L RS ALREADY ON RECORD, : 3 :

10. NAGO S/O BABU JANGAM, AGE: 24 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

11. BALAYYA S/O GURUSIDDAYYA JANGAM, AGE: 20 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

12. ANANDAYYA S/O GURUSIDDAYYA JANGAM, AGE: 22 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

13. SHATTU S/O LAXMAN SULEGAKAR, AGE: 21 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

14. APPAJI S/O LAXMAN SULEGAKAR, AGE: 20 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

15. KALLAPPA S/O OMANNA BAMANE, AGE: 45 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

16. BHAVAKU S/O OMANNA BAMANE, AGE: 44 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM.

17. HIREMANI S/O OMANNA BAMANE, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ & DIST: BELGAUM. : 4 :

18. SIDDAPPA S/O ADIVEPPA DHANGAR @ KURUBAR, AGE: 48 YEARS, OCC: AGRICULTURE, R/O: UCHGAON, TQ & DIST: BELGAUM.

19. SHATTU S/O MALLU BHADANGE, AGE 48, OCC: AGRICULTURE R/O: , TQ & DIST: BELGAUM.

20. SRI LAXMAN S/O MALLU BAHANDAGE, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: BEKKINAKERI, TQ & DIST: BELGAUM.

21. LAXMAN, S/O SHATTUPPA HONGEKAR AGE: 45 YEARS, OCC: AGRICULTURE, R/O: GOJAGE, TQ. AND DIST. BELGAUM. .. RESPONDENTS

THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 21/09/2012 PASSED IN O.S.NO.219/2006 ON THE FILE OF THE I ADDL. SENIOR CIVIL JDUGE BELGAUM DISMISSING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION

THIS RFA COMING ON FOR ADMISSION THIS DAY, N.KUMAR, J, DELIVERED THE FOLLOWING:

JUDGMENT

This is a plaintiffs’ appeal against the judgment and decree passed by the trial Court dismissing the suit for re- opening of the partition. : 5 :

2. For the purpose of convenience, the parties

would be referred to as they are referred to in the original suit.

3. The subject matter of the suit are agricultural lands which are more particularly described in Schedule “A” and house properties more particularly described in

Schedule “B”(for short hereinafter referred to as “schedule property”). Schedule “C” attached to the plaint gives the genealogy of the family.

4. One Rachayya was the propositus of the family who died prior to 1956. He had 3 sons by name Balayya, Appayya and Kallayya. Balayya died without any issues. Appayya

Rachayya Jangam died on 25/03/1957 leaving behind three sons namely Rachayya, Irapaya and Babu. Babu died leaving behind defendant Nos.7 to 10 as his heirs.

Rachayya, s/o Appayya Jangam died on 07/01/1999 leaving behind defendant Nos.1 to 5 as his legal heirs. Kallayya had only one son by name Gurusiddayya. Gurusiddaya died on

12/07/1994 leaving behind plaintiff Nos.1 to 4 and : 6 :

defendant Nos.11 and 12 as his heirs. Defendants filed

O.S.No.213/1980 for partition and separate possession of their share in the joint family properties. The grievance of the plaintiffs is that they did not include all the joint family properties in the suit with some fraudulent intention of screening some of the joint family properties from the Court and avoiding to give legitimate share to Gurusiddaiah.

Gurusiddaiah on his part was labouring under an impression that there was already a partition in the family and therefore the plaintiffs were not entitled to bring the suit for partition again. Thus Gurusiddaiah, the only defendant in the suit litigated on the incorrect basis which has led to a decree awarding half share to the defendants in the properties which were included in the suit leaving other properties which were willfully and fraudulently screened from the Court by not including them in the suit schedule.

This had lead to failure of justice and denial of legitimate

share to the defendant. The defendant in the suit died

during the pendency of the matter at a very late stage when

the present plaintiffs had no opportunity of filing any : 7 :

additional written statement or brining it to the notice of the

Court and seeking any relief. The plaintiffs have thus suffered a decree and a final decree in FDP No.11/1994. The said decree and final decree have resulted in denial of legitimate share to the plaintiffs in the joint family estate and therefore the plaintiffs are constrained to file a suit for re- opening of partition effected as per the decree in

O.S.No.213/1980 in FDP No.11/1994 to award the plaintiffs the legitimate share in the suit schedule properties.

5. During the life time of Gurusiddayya, he has

effected some alienations to meet the legal necessities of the

family and the alienees are in actual possession and

enjoyment of the properties purchased by them. The said

alienees are impleaded as parties to this suit as defendants

13 to 21. Since all the joint family properties were not

included in the suit schedule in suit O.S.No.213/1980, the

suit was bad in law and the decree obtained therein as a

result of fraud and misrepresentation committed by the

defendants(plaintiffs in the earlier suit). The plaintiffs have a

right to reopen the partition and seek a lawful partition : 8 :

again. Therefore, the plaintiffs preferred a suit for awarding half share to the plaintiffs in the suit schedule properties by re-opening partition, to award mesne profits and costs.

6. After service of summons, the defendants

entered appearance. 6 th defendant filed a detailed written statement traversing all the allegations in the plaint. It was contended that the present suit is hit by principles of res-

judicata under Section 11 of the Code of Civil Procedure in view of the decree drawn in O.S.No.213/1980 in respect of the suit schedule A and B properties between the same parties and therefore, he sought for dismissal of the suit.

Secondly it was contended that the suit is barred by limitation because O.S.No.213/1980 came to be decided and a decree came to be drawn on 23/02/1984. The present defendant Nos.11 and 12 had filed O.S.No.841/1991 for the relief of partition and separate possession and the same came to be dismissed on 21/03/1996. The present defendants 11 and 12 filed one more suit in O.S.No.22/2001 in the Court of Principal Civil Judge(senior Division),

Belgaum, for the relief of partition and separate possession. : 9 :

It also came to be dismissed on 14/06/2005. Thus, the present suit is hopelessly time-barred and it is liable to be dismissed. Thirdly, it was contended that the present suit is also hit by the provisions of Order II Rule 2 of the Code of

Civil Procedure. The plaintiffs have no locus standi to institute second suit for partition and separate possession in respect of the same subject mater and between the same parties. There is severance of status between the plaintiffs and the defendants and therefore, the plaintiffs and defendants are no more the members of hindu undivided family and hence the present suit for partition and separate possession is not maintainable. They are also not in joint possession of the suit properties. Therefore, the present suit is not properly valued for the purpose of Court fee and

jurisdiction and they are required to pay court fee on the actual market value. The description of the schedule A and

B in the plaint are vague and bald. Some of the properties

were also not available as on the date of the suit. Therefore, the plaintiffs are put to strict proof of the said allegations.

They also do not admit the correctness of the pedigree shown : 10 :

in Schedule “C”. They admit the relationship set out in the plaint. It is their specific case that late Rachayya, Babu and defendant No.6 had instituted O.S.No.213/1980 for the relief of partition and separate possession of their half share in the suit schedule “A” and “B” properties as against late

Gurusiddayya in the Court of Munsiff at Belgaum. It is false to contend that the said suit did not contain all the joint family properties, to deprive of the alleged rights of late

Gurusiddaya. It is false to contend that late Gurusiddayya

was under the impression that there was already a partition in the family and there was no necessity to file a suit for partition and separate possession in O.S.No.213/1980. It is false to contend that late Gurusiddayya defended the said suit on the basis of incorrect information and false to contend that the plaintiffs in O.S.No.213/1980 obtained a fraudulent decree as against late Gurusiddayya. Late

Gurusiddayya during his life time hotly contested the suit

O.S.No.213/1980 and suit came to be decreed on

22/03/1984. Late Sri. Gurusiddayya preferred R.A.

No.57/1984 in the Court of II Additional Civil Judge(Senior : 11 :

Division), Belgaum, against late Shri Rachayya Babu and defendant No.6. After contesting, the appeal came to be dismissed on 19/01/1991. The second appeal preferred against the said judgment and decree also came to be dismissed by this Court at the time of admission itself. Thus, the decree passed in the said proceedings are fully binding on the present plaintiffs. Thereafter, the final decree proceeding in FDP 11/1994 was initiated before the IV Addl.

Civil Judge(Junior Division), Belgaum. That proceedings

were also contested by late Gurusiddayya. The matter was

referred to the Deputy Commissioner to effect partition and

to prepare Watap Takta through his subordinates. The same

was challenged by the plaintiffs and defendants 11 and 12

by preferring an appeal before the Karnataka Appellate

Tribunal which came to be dismissed and final decree came

to be drawn and therefore it was contended it is not open to

the plaintiff to re-agitate the matter, at any rate, the Court

shall not try the very same suit as it is hit by Section 11 of

the Code of Civil Procedure. Purchasers from the parties : 12 :

have also filed written statement contested the claim of the plaintiffs.

7. On the aforesaid pleadings, the trial Court framed 6 issues and one additional issue which are as under:

Issues:

1. Whether the plaintiffs prove that the suit properties are joint family properties and they constitute a joint family with defendants NO.1 to 12? 2. Whether plaintiffs prove that the plaintiff in O.S.No.213/1980 did not incurred all the joint family properties and decree in said suit is a result of fraud and misrepresentation? 3. Whether plaintiffs prove that the partition is to be prepared and that they are entitled for share in the suit properties? If so, what is extent of their share and in which properties? 4. Whether defendant NO.18 proves that, there was oral partition among plaintiffs, defendant NO.11 and 12 and defendant Nos.11 and 12 were the absolute owners of southern half portion of R.S.no.180/2 of Gojage village measuring 5.15 A and he has purchased that portion under a : 13 :

registered sale deed on 8/6/1998 for a valuable consideration to the knowledge of plaintiffs? 5. Whether the plaintiffs are entitled for a decree? 6. What decree or order?

Addl. Issue: Whether defendant NO.6 proves that plaintiffs are estopped form claiming of suit property?

8. The plaintiffs in order to substantiate their claim examined first plaintiff Gurusiddaya as PW-1 and produced

34 documents which are marked as Ex.P-1 to P-34. On behalf of the defendant, 6 th defendant was examined as DW-

1 and defendant No.21 was also examined as DW-2. They produced 26 documents which are marked as Ex.D-1 to D-

26.

9. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs have miserably failed to prove that the suit properties are joint family properties and they constitute the joint family with defendants 1 to 12. It further held that the plaintiffs have failed to prove that in O.S.No.213/1980 all : 14 :

the joint family properties are not included and therefore the decree in the said suit is the result of fraud and misrepresentation. The plaintiffs have failed to show their right to partition and separate possession. Defendant No.18 has also failed to prove the oral partition pleaded between the parties. Defendant No.6 has proved that the plaintiffs are estopped from claiming suit property. Therefore, the trial

Court dismissed the suit of the plaintiffs.

10. Aggrieved by the said judgment and decree, plaintiffs have preferred this appeal.

11. Learned counsel for the appellant assailing the impugned judgment and decree contended that in the earlier suit, 5 items of the joint family were not included for partition. Therefore, the decree for partition passed is vitiated and therefore a case for reopening of the partition is made out by the plaintiffs which is not properly appreciated by the trial Court. Secondly, he contended that the suit filed by the plaintiffs earlier was hit by Order II Rule 3 of the CPC

which also has not been properly appreciated by the trial : 15 :

Court. Doctrine of res-judicata is not applicable because 5 items of the properties were not the subject matter of the earlier suit and therefore he submits that a case for interference is made out.

12. Per contra, learned counsel for the respondents submits that after the death of Gurusiddayya, the present plaintiffs were impleaded as parties to the earliere proceedings. They contested the matter. They lost the battle and it is thereafter, they have filed this present suit and therefore the suit is not maintainable on the ground of resjudicata and constructive res judicata.

13. In the light of the aforesaid facts and rival contentions, the point that arises for our consideration is:

Whether the suit of the plaintiffs is hit by doctrine of resjudicata and as constructive resjudicata?

14. The facts are not in dispute. The relationship

between the parties are admitted. The properties which are

the subject matter of suit are all ancestral properties/joint : 16 :

family properties. After the death of the propositus, there

was no partition in the family. Therefore, the suit for partition came to be filed by present defendant No.6,

Rachayya and Babu. Initially in the said suit, the plaintiffs branch was represented by Gurusiddayya. He contested the matter. After contesting, decree for partition came to be passed giving each of the family ½ share. The said decree

was the subject matter of the regular appeal which came to be dismissed. Gurusiddayya prosecuted the appeal which came to be dismissed on merits. Against the said appeal, he preferred a Regular Second Appeal which came to be dismissed at the stage of admission. Thereafter, final decree proceedings are initiated. It is during the pendency of the final decree proceedings, Gurusiddayya died. Plaintiffs were brought on record as the legal heirs. They contested the matter. After contest, the trial Court referred the matter to the Deputy Commissioner for effecting partition in respect of the agricultural lands. The Deputy Commissioner has prepared Watap Takta. The same was challenged by the plaintiffs by preferring an appeal before the Karnataka : 17 :

Appellate Tribunal which came to be dismissed. It is submitted by the learned counsel for the respondent against the said order, the plaintiffs preferred a writ petition before this court which came to be allowed. The said order was challenged by 6 th defendant by preferring a Writ Appeal

which came to be allowed, order of the learned Single Judge

was set aside and order of the Appellate Tribunal was affirmed on 18.01.2005. Therefore, the final decree came to be passed in terms of the preliminary decree passed in the earlier suit. As submitted by the plaintiffs herein, if 5 items of the property which was ancestral property were not included in the earlier suit, Gurusiddayya had the opportunity either to include those properties or seek a share or to contend that the suit of the plaintiffs is liable to be dismissed as not maintainable as it does not include all the joint family properties. This defence which was available to him which he did not take up. It is that defence which

was available to Gurusiddayya which he did not putforth in

the earlier proceedings which is sought to be putforth in the : 18 :

present suit by the plaintiffs. Explanation 4 to Section 11 of the CPC which deals with res judicata reads as under:

“Explanation IV: -Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”

Therefore it is clear the plea which is now raised by the plaintiffs though available but was not raised by them. The effect is it shall be deemed to have been a matter directly and substantially in issue in the earlier suit and the earlier suit has been heard and finally decided. The said judgment operates as constructive res judicata in the present suit.

Therefore, that plea is not available to the plaintiffs in the present suit.

15. In so far as the contention that the suit is hit by

Order 2 Rule 3 is concerned that was an attack which was available to Gurusiddayya in the Regular Appeal and in the

Regular Second Appeal. In the first place, he did not raise such a defence. Even otherwise, the trial court judgment : 19 :

has been affirmed by both the appellate courts and therefore that point cannot be re-agitated before this court as that is also deemed to have been directly and substantially issue in earlier suit and it has been held against Gurusiddayya.

Further, it was contended in the earlier suit, the plaintiffs did not seek the permission of the court to file a suit for partial partition. In the absence of such permission being sought for and granted, the subsequent suit is not maintainable. Order 2 Rule 3 is a defence which is available to the defendant. There is no compulsion for the plaintiffs to seek the permission of the court. If they do not seek permission, they are precluded from filing one more suit in respect of the properties which are not included in the suit or the relief which they did not seek in the earlier suit. More over, this proceeds as an assumption that the earlier suit for partial partition was not maintainable. The effect of filing a suit for partition without including some properties and on such defence being taken, suit may be dismissed and if such a defence is not taken and thereafter the suit is decreed in respect of the other properties, one more suit for partition is : 20 :

not maintainable. But that is not a plea which is available to the plaintiffs in the suit as the earlier suit has been heard and finally decided.

16. In so far as the contention that Gurusiddayya did not have a clear picture about his rights and he did not properly defend the suit is concerned, he has suffered a decree which has attained finality. That cannot be a ground for re-opening a partition decree which is passed by competent court and which has attained finality. That is not a plea which is available to the plaintiffs. If they want to attack the decree that cannot be a ground for re-opening of a partition. Therefore, the trial court on careful consideration of the material on record has rightly dismissed the suit of the plaintiffs as meritless. We do not find any justification to interfere with the well-considered order. Hence, no merit.

Dismissed.

SD/- JUDGE

SD/- JUDGE Kmv