The principle of res judicata has been codified
under Section 11 of CPC in the following terms:
“11. Res judicata— No Court shall try any
suit or issue in which the matter directly
and substantially in issue has been directly
and substantially in issue in a former suit
between the same parties, or between parties
under whom they or any of them claim,
litigating under the same title, in a Court
competent to try such subsequent suit or the
suit in which such issue has been
subsequently raised, and has been heard and
finally decided by such Court.”
The principle of res judicata is a need of any
judicial system, that is, to give finality to the
judicial decisions of the disputes between parties. It
also aims to prevent multiplicity of proceedings
between the same parties of the same subject matter of
the lis. An issue which was directly and substantially
involved in a former suit between the same parties,
and has been decided and has attained finality cannot
be re-agitated before the courts again by instituting
suit or proceeding by the same parties on the same
subject matter of earlier lis. This court in a catena
of cases has laid down the law relating to the
essential elements that need to be satisfied before a
plea of res judicata can be raised by a party. In the
case of Sheodan Singh v. Daryao Kunwar1 it was held as
under:
“A plain reading of s. 11 shows that to
constitute a matter res judicata, the
following conditions must be satisfied,
namely - (i) The matter directly and
substantially in issue in the subsequent suit
or issue must be the same matter which was
directly and substantially in issue in the
former suit; (ii) The former suit must have
been a suit between the same parties or
between parties under whom they or any of
them claim; (iii) The parties must have
litigated under the same title in the former
suit; (iv) The court which decided the former
suit must be a court competent to try the
subsequent suit or the suit in which such
issue is subsequently raised; and (v) The
matter directly and substantially in issue in
the subsequent suit must have been heard and
1 AIR 1966 SC 1332
finally decided by the Court in the first
suit.”
The above legal principles laid down by this Court
have been reiterated in the case of Syed Mohd. Salie
Labbai & Ors. v. Mohd.Hanifa & Ors2 as under:
“…….it may be necessary to mention that
before a plea of res judicata can be
given effect, the following conditions
must be proved-
(1) that the litigating parties must be
the same;
(2) that the subject-matter of the suit
also must be identical;
(3) that the matter must be finally
decided between the parties; and
(4) that the suit must be decided by a
court of competent jurisdiction.”
13. Thus, for the bar of res judicata to operate in
the subsequent original suit proceedings, the
litigating parties must be the same, and the subject
matter of the suit must also be identical. Further, it
has also been held by this court in the case of Ram
Gobinda v. Bhakta Bala3 that for the bar of res
2 AIR 1976 SC 1569
3 AIR 1971 SC 664
judicata to operate in the subsequent original suit
proceedings, the decision in the former suit must have
been decided on merits on the same substantial
questions both on facts and in law that would arise in
the subsequent original suit.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 8044-8048 OF 2015
(Arising Out of SLP (C) Nos.21561-21565 of 2005)
THE CITY MUNICIPAL COUNCIL BHALKI,
BY ITS CHIEF OFFICER …………APPELLANT
Vs.
GURAPPA (D) BY LRs & ANR. …………RESPONDENTS
Dated;September 29, 2015
V. GOPALA GOWDA, J.
Leave granted in the Special Leave Petitions.
2. The present appeals arise out of the common
impugned judgment and order dated 15.07.2005 passed by
the High Court of Karnataka at Bangalore in Regular
Second Appeal Nos. 1053, 1054, 1055, 1056 and 1057 of
2001, whereby the High Court set aside the judgment
and order dated 22.09.2001 passed by the Additional
District and Sessions Judge, Bidar in RA Nos. 9,
10,11,12 & 13 of 1997.
3. The facts which are required to appreciate the
rival legal contentions urged on behalf of the parties
are stated in brief hereunder:
The plaintiff-deceased respondent no.1 herein
(since died during the pendency of these appeals, is
being represented by his LRs i.e. respondent Nos. 1a
to 1g) had filed a suit O.S. No. 255 of 1984 before
the Additional Civil Judge (Sr. Divn.), Bidar against
the Deputy Commissioner, Bidar for declaration that he
is the owner of the land bearing Sy. No. 183 measuring
1 acre 13 guntas and Sy. No. 184 measuring 4 acres 9
guntas which are arising out of the old Sy. Nos. 249
and 250 situate at Balki and as such sought for a
declaration that they are the owners of the said
property and the assignments of property, if any,
created by the defendants-appellants as ineffective.
The deceased respondent no.1 also sought for
correction to correct the revenue records in respect
of the suit land. The learned Civil Judge dismissed
the said suit on the ground that the
plaintiff-deceased respondent no.1:
“has filed the present suit against the
Deputy Commissioner and the Chief Officer on
some misconception of the fact. If wants to
obtain a effective decree, he has to implead
various persons who are in actual possession
of various portion of the suit land and seek
the effective relief like declaration of
possession etc as the plaintiff has miserably
failed to prove his possession over the suit
property……”
The land in old Sy. Nos. 249 and 250 of Kasba Balki
previously belonged to the ancestors of respondent
no.1 herein, Gurappa (since deceased). The total
extent of this land was 41 acres 18 guntas. Out of the
above land, 20 acres 29 guntas was owned by the first
cousin brother of Gurappa, and he was the owner of the
remaining 20 acres and 29 guntas. Parts of it came to
be acquired by the state government. Ultimately, the
deceased respondent no.1 retained ownership over 5
acres and 22 guntas of land. During the revision of
survey and resettlement of the lands in the village,
the land in the said Sy. Nos. 249 and 250 was divided
into six new Sy. Nos. 179 to 184. It is the case of
the legal heirs of the deceased respondent no.1 that
some discrepancies had crept in while preparing the
new revenue records and that due to the wrong entries,
the names of the owners and their actual possession
did not tally with the survey numbers. The suit land
measuring 4 acres and 9 guntas which belonged to the
deceased respondent no.1 was shown in the name of one
Chaturbhuj Heda and allotted Sy. No.184. Another land
which actually belonged to Chaturbhuj Heda was
allotted Sy. No. 182 and it was shown in the name of
the deceased respondent no.1. Chaturbhuj Heda got his
land surveyed and the Assistant Director of Land
Records (ADLR) directed him to get his name entered in
the RTC of Sy. No. 182, which actually belonged to
him. The revenue records of the suit schedule property
of the deceased respondent no.1, however, remained
uncorrected.
4. The deceased respondent No.1 thereafter filed
Suit No. 39 of 1993 before the Civil Judge, Sr. Div.
at Basavakalyan, herein after called as Civil Judge,
impleading several defendants, and prayed for grant of
the decree of declaration of the title of the
respondents to the suit land, recovery of possession
of the suit land and perpetual injunction restraining
the defendants therein from constructing shops over
the suit land. The learned Civil Judge after examining
the evidence on record decreed the suit in favour of
the deceased respondent no.1, and declared him as the
owner of the suit property. On the issue of the
ownership of the suit property, the learned Civil
Judge held as under:
“PW1 has marked Ex P9 to show that Sy.No
249 and 250 are his ancestral properties.
Ex. P9 is Khasra Patrak. It is for the year
1954-1955. It is maintained as per the
Hyderabad Land Revenue Act 1917. This Act
was repealed on 01.04.1964 and Karnataka
Land Revenue Act 1954 came into effect. In
view of Section 133 KLR Act, there is
presumptive value for the entries of the
RoRs of the land………Ex. P9 unequivocally
shows that the plaintiff and Ghallappa were
joint owners and joint possessors of land
Sy. Nos. 249 and 250 of Kasba Balki.”
Further, the learned Civil Judge also recorded a
finding of fact on appreciation of evidence on record,
that the old Sy. Nos. 249 and 250 were divided into
six new Sy. Nos. (179 to 184) during the revision of
survey and resettlement of land.
The learned Civil Judge further directed the
defendant nos.2-22 therein to put the deceased
respondent no.1 in possession of the suit property. On
the issue of the wrong area being mentioned by the
plaintiff-deceased respondent no.1 in the earlier
suit, the learned Civil Judge held as under:
“Upon perusal of all the records and upon
hearing argument what appears to us is that
1) in his previous suit the plaintiff showed
the area of Sy.No 184 as 6 acres 35 guntas in
his present suit he showed the area of Sy.
No. 184 as 4 acres 09 guntas such error was
due to the mistakes of the revenue
department. Inspite of notice under Ex. P30
D-1 kept mum. Such conduct of D1 was against
the purpose of Section 80 CPC. The purpose of
such notice is to give an opportunity to the
government, reconsider the legal position to
make amends or to settle the claim without
litigation. It was his duty to take steps for
corrections of the entries of revenue
records. He did not do so. Thereby the
plaintiff was led to file the suit mentioning
the incorrect area. It appears the plaintiff
did what he could. If one carefully reads Ex.
P30 he will understand the pain, helpless and
awkward position of the plaintiff. If D1
remained lethargic, if D1 did not do his duty
inspite of notice, if the plaintiff filed a
suit with incorrect available materials of
revenue records, it appears, it would be
unjust to penalize the plaintiff for such an
error on his part. The plaintiff could not
have undertaken by himself the detailed
survey of the concerned land. The plaintiff
himself could have done any of this to set
right the revenue records. Therefore, one has
to believe the plaint allegations, noted
supra.”
The plea of the suit being barred by res judicata was
also raised in the suit proceedings by the defendants
therein. The learned Civil Judge came to the
conclusion on proper appreciation of facts and
evidence on record that the “lis” involved in the
previous suit between the parties was not finally
heard and decided, and was only ‘closed’ for non
availability of necessary and sufficient records and
held as under:
“Therefore I am inclined to hold that the
properties and reliefs in the suit are
different also that the matter in this suit
has not been heard and finally decided in
all its perspectives in the previous suit
(i.e O.S. 255/ 84 C.J Bidar).”
5. Aggrieved, of the judgment and decree passed in
the O.S. No. 39 of 1993 the appellants herein filed
Regular Appeal Nos. 9 of 1997, 10 of 1997, 11 of 1997,
12 of 1997 and 13 of 1997 before the Additional
District and Sessions Judge at Bidar urging various
grounds. The learned Additional District and Sessions
Judge by his judgment and order dated 22.09.2001, set
aside the judgment and order of the Civil Judge,
Bidar. Firstly, it was held that the suit filed by the
deceased respondent no.1 herein was not maintainable,
as the same had been filed without issuing notice to
the appellants herein under Section 80 of Code of
Civil Procedure (hereinafter referred to as “CPC”) and
Section 284(1) of the Karnataka Municipalities Act.
It was further held that the suit is also not
maintainable as it is barred by res judicata. The
learned Additional District and Sessions judge held
that in the instant case, the earlier suit in O.S. No.
255 of 1984 was not dismissed on technical grounds,
but on merits after framing issues and taking into
consideration the evidence of both the parties. The
learned judge also came to the conclusion that the
deceased respondent no.1 herein had not succeeded in
proving his title to the suit land.
6. The deceased respondent no.1 then preferred
Regular Second Appeal Nos. 1053, 1054, 1055, 1056 and
1057 of 2001 before the High Court of Karnataka by
framing certain substantial questions of law. The
learned single judge of the High Court set aside the
judgment and order of the Additional District and
Sessions Judge in the first appeals dated 22.09.2001
referred to supra. On the issue of dismissal of suit
for want of notice, the learned single judge held that
the dismissal of the suit on the technical grounds was
bad in law. The learned single judge also restored the
finding of fact recorded by the learned Civil Judge in
O.S. No. 39 of 1993 that the deceased respondent no.1
herein had succeeded in proving his title and
ownership over the suit property. Further, on the
issue of res judicata, it was observed that to take
the plea of res judicata, one of the ingredients is
that the litigating parties must be the same and that
the subject matter of the suit also must be identical.
The earlier suit was dismissed not on merits but for
want of clarity and for want of necessary parties.
Thus, all the substantial questions of law framed were
answered in favour of the deceased respondent no.1
herein. Aggrieved, the appellant Municipality has
filed these present appeals before us questioning the
correctness of the judgment of the learned single
judge of the Karnataka High Court by raising various
questions of law and urging grounds in support of the
same.
7. We have heard the learned counsel appearing on
behalf of both the parties. On the basis of the
factual evidence on record produced before us and the
circumstances of the case and also in the light of the
rival legal contentions urged by the learned senior
counsel for both the parties, we have broadly framed
the following points which require our attention and
consideration-
1.Whether the suit in O.S. No. 39 of 1993 filed
before the Civil Judge, Bidar was barred by
res judicata?
2.Whether the deceased respondent no.1 has
succeeded in proving his title over the
ownership of the suit property?
3.What order?
Answer to Point No.1
8. The deceased respondent no.1 had filed a suit in
O.S. No. 255 of 1984, which was dismissed. Thereafter,
he filed a suit in O.S. No. 39 of 1993 before the
Civil Judge, Bidar, after impleading certain other
defendants therein and changing the description of the
suit property.
9. Mr. Basava Prabhu S. Patil, learned senior
counsel appearing on behalf of the appellant
Municipality contends that the earlier suit in O.S.
No. 255 of 1984 having been filed by the deceased
respondent no.1 against the same defendants; in
respect of the same subject matter, with the same
allegations and having been decided by a court of
competent jurisdiction, on merits after due
consideration of the extensive evidence led by the
parties, attracts the bar of res judicata and the
subsequent suit in O.S. No. 39 of 1993 was not
maintainable. It is further contended that the suit in
O.S. No. 255 of 1984 was not dismissed on technical
grounds, but the Trial Court gave a well reasoned
order, passed after considering the matter on merits.
The learned senior counsel contended that the Trial
Court had recorded a finding of fact that the land
claimed by the deceased respondent no.1 was not
created out of the land in Sy. Nos. 249 and 250. The
learned senior counsel further contends that the
impleadment of respondent nos.3 to 22 herein in the
subsequent suit O.S. No. 39 of 1993 was not enough to
overcome the bar of res judicata, as they all claimed
title to the suit land through the appellant
Municipality. The learned senior counsel further
contends that the Trial Court had not granted the
liberty to the deceased respondent no.1 to file a
fresh suit, and that since the matter had been decided
on merits, the subsequent suit brought on the same
grounds was not maintainable in law.
10. The learned senior counsel further contends that
the deceased respondent no.1 was barred from seeking
relief in respect of Sy. No. 183 in the subsequent
suit in O.S. No. 39 of 1993 as it was hit by the bar
of Order II Rule 2 of the CPC.
11. Mr. Shekhar Naphade, learned counsel appearing
on behalf of some of the legal heirs of the deceased
respondent no.1, on the other hand contended that the
bar of res judicata does not operate on the subsequent
suit in O.S. No. 39 of 1993 by virtue of the judgment
and order dated 09.01.1986 passed in O.S. No. 255 of
1984 as the earlier suit had been dismissed on the
ground of non-joinder of necessary parties, and the
said order could not be said to operate as res
judicata. He further contended that the suit property
and even the parties involved in the two original
suits are different. The learned senior counsel
further contended that the Trial Court in the order
passed in O.S. No. 255 of 1984 has given liberty to
the deceased respondent no.1 to file a fresh suit, as
the suit was dismissed only on the ground that no
effective relief can be granted. The learned counsel
further contended that the bar of Order II Rule 2 of
the CPC cannot operate against the heirs of the
deceased respondent no.1, as they could not identify
the property due to the mismanaged revenue records,
and thus, they should not be made to suffer for the
same. Mr. K Nagmohan Das, learned senior counsel
appearing on behalf of some of the other legal heirs
of the deceased respondent no.1 argued that the bar of
res judicata does not operate on the suit in O.S. No.
39 of 1993, as the earlier suit cannot be said to have
been dismissed on merits. The learned senior counsel
contends that for the bar of res judicata to operate,
there must have been a final adjudication on
substantial issues between the same parties on the
same subject matter, which was not done in the instant
case.
12. We agree with the contentions advanced by the
learned senior counsel appearing on behalf of the
legal heirs of the deceased respondent no.1.
The principle of res judicata has been codified
under Section 11 of CPC in the following terms:
“11. Res judicata— No Court shall try any
suit or issue in which the matter directly
and substantially in issue has been directly
and substantially in issue in a former suit
between the same parties, or between parties
under whom they or any of them claim,
litigating under the same title, in a Court
competent to try such subsequent suit or the
suit in which such issue has been
subsequently raised, and has been heard and
finally decided by such Court.”
The principle of res judicata is a need of any
judicial system, that is, to give finality to the
judicial decisions of the disputes between parties. It
also aims to prevent multiplicity of proceedings
between the same parties of the same subject matter of
the lis. An issue which was directly and substantially
involved in a former suit between the same parties,
and has been decided and has attained finality cannot
be re-agitated before the courts again by instituting
suit or proceeding by the same parties on the same
subject matter of earlier lis. This court in a catena
of cases has laid down the law relating to the
essential elements that need to be satisfied before a
plea of res judicata can be raised by a party. In the
case of Sheodan Singh v. Daryao Kunwar1 it was held as
under:
“A plain reading of s. 11 shows that to
constitute a matter res judicata, the
following conditions must be satisfied,
namely - (i) The matter directly and
substantially in issue in the subsequent suit
or issue must be the same matter which was
directly and substantially in issue in the
former suit; (ii) The former suit must have
been a suit between the same parties or
between parties under whom they or any of
them claim; (iii) The parties must have
litigated under the same title in the former
suit; (iv) The court which decided the former
suit must be a court competent to try the
subsequent suit or the suit in which such
issue is subsequently raised; and (v) The
matter directly and substantially in issue in
the subsequent suit must have been heard and
1 AIR 1966 SC 1332
finally decided by the Court in the first
suit.”
The above legal principles laid down by this Court
have been reiterated in the case of Syed Mohd. Salie
Labbai & Ors. v. Mohd.Hanifa & Ors2 as under:
“…….it may be necessary to mention that
before a plea of res judicata can be
given effect, the following conditions
must be proved-
(1) that the litigating parties must be
the same;
(2) that the subject-matter of the suit
also must be identical;
(3) that the matter must be finally
decided between the parties; and
(4) that the suit must be decided by a
court of competent jurisdiction.”
13. Thus, for the bar of res judicata to operate in
the subsequent original suit proceedings, the
litigating parties must be the same, and the subject
matter of the suit must also be identical. Further, it
has also been held by this court in the case of Ram
Gobinda v. Bhakta Bala3 that for the bar of res
2 AIR 1976 SC 1569
3 AIR 1971 SC 664
judicata to operate in the subsequent original suit
proceedings, the decision in the former suit must have
been decided on merits on the same substantial
questions both on facts and in law that would arise in
the subsequent original suit.
In the instant case, no doubt the Trial Court in
the suit in O.S. No. 255 of 1984 filed by the deceased
respondent no.1 framed certain issues and even
examined the documents produced by the parties. The
fact which cannot be lost sight of is that ultimately
the learned trial judge came to the following
conclusion:
“For all the reasons mentioned above, I
come to the conclusion that the plaintiff
has failed the present suit against the
Deputy Commissioner and the chief officer
on some mis-conception of fact. If he wants
to obtain an effective decree, he has to
implead various persons who are in actual
possession of various portions of the suit
land and seek the effective relief like
declaration and possession etc as the
plaintiff has miserably failed to prove his
possession over the suit property……”
The prayer in suit in O.S. No. 255 of 1984 was for:
“declaration of title holding that the
illegal and unauthorized assignment if any
created by defendant no.2 shall stand void
ab initio and issue of perpetual
injunction in respect of land Sy.No. 184
measuring 06 acres 35 guntas, situated at
Balki……”
Whereas, the prayer in the suit of O.S. No. 39 of 1993
instituted by the deceased respondent no.1 reads as
under:
“1) Declaration of plaintiff’s title to the
suit land
2) Recovery of possession of the suit land
3) Perpetual injunction, restraining D3 to
D22 from constructing shops over the suit
land.
4) Correction of R.O.Rs”
Thus, it can be seen that neither the parties, nor the
subject matter was the same in the earlier suit O.S.
No. 255 of 1984 and O.S. No. 39 of 1993. It also
becomes crystal clear that the deceased respondent
no.1 herein has availed the indirect liberty granted
by the Additional Civil Judge in O.S. No. 255 of 1984
that
“if he wants to obtain an effective decree,
he has to implead various persons who are
in actual possession of various portions of
the suit land and seek the effective relief
like declaration of possession etc”
14. Since neither the reliefs claimed in the two
suits were identical, nor the parties are the same and
nor could the decision in the first suit said to have
been on merits, it cannot be held in the singular
facts and circumstances that the suit in O.S. No. 39
of 1993 was barred by res judicata as contended by the
learned senior counsel Mr. Basava Prabhu S. Patil.
15. At this stage, we also direct our attention to
the contention raised by Mr. Basava Prabhu S. Patil,
learned senior counsel appearing on behalf of the
appellant Municipality that the suit in O.S. No. 39 of
1993 was not maintainable, as the notice was issued
under Section 80 of CPC in suit O.S. No. 255 of 1984
could not be said to be sufficient notice for the
institution of the suit in O.S. No. 39 of 1993. We
cannot agree with the said contention. The High Court
of Karnataka in the Second Appeal had dismissed the
contention on the ground that the notice issued in the
suit O.S. 255 of 1984 can be said to be constructive
notice. The High Court considered that the object of
the Section is the advance of justice and securing of
public good.
In our opinion, this issue does not arise at all,
as a municipal council is not a public officer, and no
notice is necessary when a suit is filed against a
municipality. Thus, the question of sufficiency of
notice under Section 80 of the CPC does not arise at
all. Further, the issuance of notice under Section
284(1) of the Karnataka Municipalities Act, 1964 also
does not arise for the reason that the dispute between
the parties in the suit in O.S. No. 39 of 1993 does
not attract the above provision of the Act and
therefore, we need not advert to and answer the above
contention.
Answer to Point no.2
16. Mr. Basava Prabhu S. Patil, the learned senior
counsel appearing on behalf of the appellant
Municipality contends that the onus of proving title
to the suit property heavily rests on deceased
respondent no.1, and that the mere failure on part on
the appellant Municipality to establish its title to
the suit schedule property does not entitle the
deceased respondent no.1 to obtain a decree of
declaration, possession and consequential reliefs as
sought for in respect of the suit schedule property in
the original suit proceedings.
The learned senior counsel further contends that
the variation in the extent of land claimed by the
deceased respondent no.1 at different stages, that is
6 acres and 35 guntas in the suit O.S. No. 255 of 1984
and 5 acres and 21 guntas in the suit in O.S. No. 39
of 1993 without any explanation offered by the
deceased respondent no.1 for such variation itself if
indicative of the falsity of the claim of deceased
respondent no.1. The learned senior counsel has
further contended that the entries in the revenue
records in respect of the suit schedule property stand
in the name of one Ghallappa and Chaturbhuj Heda and
thus no presumption from the RTC records as to the
ownership of suit property the deceased respondent
no.1 or his legal heirs can be raised by them. The
learned senior counsel contends that the learned Civil
Judge and the High Court of Karnataka have erred in
coming to the conclusion that the deceased respondent
no.1, has succeeded in establishing his title over the
suit property.
17. On the other hand, Mr. Shekhar Naphade, the
learned counsel appearing on behalf of some of the
legal heirs of the respondent no.1 contends that they
have succeeded in establishing their title of
ownership over the suit property. He has further
contended that the variations in the extent of the
land have only crept in due to the mistake of the
appellant Municipality. The onus was on the
Municipality to maintain the record properly and the
same has not been done in the instant case. The same
cannot be made a ground to disentitle the deceased
respondent no.1, especially in light of the fact that
the Civil Judge in O.S. No. 39 of 1993, on
appreciation of evidence on record recorded the
finding of fact that the deceased respondent no.1 was
the owner of the land bearing Sy. Nos. 249 and 250,
which has been proved by way of the khasra pahni
patrak, produced as Exh. P9 before it. The learned
Civil Judge further examined the document produced as
“Exh. P28”, the map of land bearing Sy. Nos. 179 to
184 of Balki village, and “Exh. P33”, copy of land
revenue receipts in the name of the deceased
respondent no.1 to show that the land revenue tax is
paid by him in respect of land bearing Sy. Nos. 179,
182, 183 for the year 1983-1984.
18. We are unable to agree with the contentions
advanced by the Mr. Basava Prabhu S. Patil learned
senior counsel appearing on behalf of the appellant
Municipality. The learned Civil Judge, Bidar decreedPage 22
CA @ SLP(C) Nos. 21561-21565 of 2005 22
the suit in O.S. No. 39 of 1993 in favour of the legal
heirs of the deceased respondent no.1, which judgment
and order was restored by the Karnataka High Court in
the second appeal, after it was set aside judgment and
order passed in the first appeals. The learned senior
counsel on behalf of the Appellant has not brought to
our attention, any evidence, which can lead us to come
to the conclusion that the learned Civil Judge, Bidar
and the learned judge of the High Court of Karnataka
have erred in decreeing the suit in favour of the
deceased respondent no.1.
19. It is a settled position of law that in a suit
for declaration of title and possession, the onus is
upon the plaintiff to prove his title. Further, not
only is the onus on the plaintiff, he must prove his
title independently, and a decree in his favour cannot
be awarded for the only reason that the defendant has
not been able to prove his title, as held by this
Court in the case of Brahma Nand Puri v. Neki Puri4 as
under:
“………the plaintiff's suit being one for
ejectment he has to succeed or fail on the
file that he establishes and if he cannot
succeed on the strength of his title his
suit must fail notwithstanding that the
4 AIR 1965 SC 1506Page
defendant in possession has no title to
the property………”
The same view has been reiterated by this Court in the
more recent case of R.V.E Venkatachala Gounder v.
Arulmigu Viswesaraswami & V.P. Temple & Anr.5 as
under:
“In a suit for recovery of possession
based on title it is for the plaintiff to
prove his title and satisfy the Court
that he, in law, is entitled to
dispossess the defendant from his
possession over the suit property and for
the possession to be restored with him.
…………In our opinion, in a suit for
possession based on title once the
plaintiff has been able to create a high
degree of probability so as to shift the
onus on the defendant it is for the
defendant to discharge his onus and in
the absence thereof the burden of proof
lying on the plaintiff shall be held to
have been discharged so as to amount to
proof of the plaintiffs title.”
In our opinion, on perusal of the material evidence on
record, the legal heirs of the deceased respondent
no.1 herein have succeeded in establishing their title
to the suit property.
20. The deceased respondent no.1 herein established
before the learned Civil Judge and the High Court of
Karnataka that he was the owner of 20 acres and 29
5 (2003) 8 SCC 752
guntas of land, which formed part of Sy. Nos. 249 and
250 of Balki village. Part of this land was acquired
by the state government for development around the
area, the details of which are as under:
Tahsil office 3 acres 30 guntas
Munsiff court 3 acres 00 guntas
School 4 acres 12 guntas
Hospital 0 acres 30 guntas
Road 1 acres 05 guntas
21. The deceased respondent no. 1 also stated in his
evidence that he had alienated a further 3 acres 03
guntas in favour of Chaturbhuj Heda. Thus, out of his
entire ancestral property, only an area of 5 acres and
22 guntas remained in his ownership. He produced
before the learned Civil Judge the khasra patrak for
the village for the year 1954-55 as Exh. P9. On the
basis of the same, the learned judge rightly came to
the conclusion on facts and evidence on record and
held that the land in Sy. Nos. 249 and 250 was the
ancestral property of the deceased respondent no.1. He
further produced before the court the extract of the
revision survey register as “Exh. P24” and a copy of
the village map as “Exh. P28”. From a perusal of these
two documents, the learned Civil Judge came to the
correct conclusion that it was proved that the old Sy.
Nos. 249 and 250 had become Sy. Nos. 179 to 184. The
learned judge also took into consideration the
documents marked as “Exh. P37” which was the plaint in
the suit O.S. No. 130 of 1980 filed by Chaturbhuj Heda
to get the records of revenue rectified. Sri
Chaturbhuj had admitted in the plaint in that suit
that there was an interchange in the Sy. Nos. 182 and
184 and that he was wrongly shown as the owner of the
land in Sy. No. 184, when infact he was the owner of
the land in Sy. No.182. Thus, the deceased respondent
no.1 has established his title to the suit property.
The learned Civil Judge further observed that the
appellant Municipality has not produced any document
to prove their title to the suit property. Even if it
was their case that the suit property was also
acquired by the state government, it should have
produced the acquisition notifications under Sections
4 and 6 of the Land Acquisition Act of 1894 and award
passed under Section 11 of the Act. The learned Civil
Judge further held that since the appellant
Municipality had denied the title to the deceased
respondent no.1 and his ancestors over the suit
property, there is no question of them having acquired
adverse title over the same. Since the appellant
Municipality had no title over the suit property, it
did not have any right to confer better title upon the
suit schedule property upon the other defendants in
the suit in O.S. No. 39 of 1993. We find no merit in
the claim of the appellant Municipality, as the
reversal of the findings of fact on the relevant
points answered by the High Court in exercise of its
jurisdiction by recording valid and cogent reasons on
the substantial questions are perfectly correct and
there is no miscarriage of justice in the interference
by the High Court in the judgment and order passed by
it in the second appeals.
Answer to Point No.3
22. In view of the reasons mentioned supra, we are of
the view that no error has been committed by the High
Court in setting aside the erroneous findings of the
first appellate court in its judgment and order passed
in the Regular Appeals and restoring the judgment and
order passed by the learned Civil Judge in O.S. No. 39
of 1993. We accordingly dismiss the Civil Appeals.
…………………………………………………J.
[V. GOPALA GOWDA]
…………………………………………………J.
[AMITAVA ROY]
New Delhi,
September 29, 2015
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