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K v Shivakumar Vs. National Institute of Mental Health and Neuro - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberRFA 337/2008
Judge
AppellantK v Shivakumar
RespondentNational Institute of Mental Health and Neuro
Excerpt:
r in the high court of karnataka at bengaluru dated this the6h day of june2016present the hon’ble mr. justice n.kumar the hon’ble mrs.justice s. sujatha and r.f.a.no.337/2008 k.v.shivakumar s/o k.viswanathaiah setty age:56 years r/at no.3, church street basavanagudi bangalore – 560 004. between :1. 2.3. m/s.archana complex smt.s.gayathri w/o k.v.shivakumar age:48. years r/at no.3, church street basavanagudi bangalore – 560 004. rep. by its managing director sri k.v.shivakumar r/at no.3, church street basavanagudi bangalore – 560 004. smt.s.sunitha w/o b.m.sunil age: major, r/at no.91 railway parallel road kumara park west4 - 2 - bangalore – 560 020. b.m.sunil s/o late b.p.mahabala age: major, r/at no.91 rly parallel road kumara park west bangalore – 560 020. b.m.suhas s/o.....
Judgment:

R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE6H DAY OF JUNE2016PRESENT THE HON’BLE MR. JUSTICE N.KUMAR THE HON’BLE MRS.JUSTICE S. SUJATHA AND R.F.A.No.337/2008 K.V.SHIVAKUMAR S/O K.VISWANATHAIAH SETTY AGE:56 YEARS R/AT NO.3, CHURCH STREET BASAVANAGUDI BANGALORE – 560 004. BETWEEN :

1.

2.

3. M/S.ARCHANA COMPLEX SMT.S.GAYATHRI W/O K.V.SHIVAKUMAR AGE:

48. YEARS R/AT NO.3, CHURCH STREET BASAVANAGUDI BANGALORE – 560 004. REP. BY ITS MANAGING DIRECTOR SRI K.V.SHIVAKUMAR R/AT NO.3, CHURCH STREET BASAVANAGUDI BANGALORE – 560 004. SMT.S.SUNITHA W/O B.M.SUNIL AGE: MAJOR, R/AT NO.91 RAILWAY PARALLEL ROAD KUMARA PARK WEST4 - 2 - BANGALORE – 560 020. B.M.SUNIL S/O LATE B.P.MAHABALA AGE: MAJOR, R/AT NO.91 RLY PARALLEL ROAD KUMARA PARK WEST BANGALORE – 560 020. B.M.SUHAS S/O LATE B.P.MAHABALA AGE: MAJOR, R/AT NO.91 RLY PARALLEL ROAD KUMARA PARK WEST BANGALORE – 560 020.

5. 6.

7. 8.

9.

10. R.SHEKHAR SMT.B.M.SUVARNA W/O LATE B.P.MAHABALA AGE: MAJOR, R/AT NO.91 RLY PARALLEL ROAD KUMARA PARK WEST BANGALORE – 560 020. B.S.MANORANJAN S/O B.V.SUDHAKARA AGE: MAJOR, R/AT NO.72 VASAVI TEMPLE STREET VISHWESHWARAPURAM BANGALORE – 560 004. SMT.S.VASUNDHARA W/O B.V.SUDHAKARA AGE: MAJOR, R/AT NO.72 VASAVI TEMPLE STREET VISWESHWARAPURAM BANGALORE – 560 004. S/O RAMAIAH SETTY AGE: MAJOR, R/AT NO.72 - 3 - VASAVI TEMPLE STREET VISWESHWARAPURAM BANGALORE – 560 004.

11. P.R.ASHWATHANARAYANAN S/O RANGANATHAIAH AGE: MAJOR, NO.12, M.M.LANE, NAGARTHPET BANGALORE – 560 002.

12. T.N.SURESH S/O NARASIMHA GOWDA AGE: MAJOR, NO.3, CHURCH STREET BASAVANAGUDI BANGALORE – 560 004.

13. SMT.MEERA NANDAKUMAR W/O NANDAKUMAR AGE: MAJOR, NO.28, UPSTAIRS EAST CIRCLE ROAD VISHWESHWARAPURAM BANGALORE – 560 004.

14. D.VIJAYARAGHAVAN S/O D.T.L.IYENGAR AGE: MAJOR, NO.869, 20TH MAIN, 32ND CROSS, 8TH BLOCK, JAYANAGAR, BANGALORE – 560 041.

15. B.V.VIJAYA KUMAR S/O B.VENKATACHALAPATHY AGE: MAJOR, NO.102, 3RD MAIN ROAD TATA SILK FARM BANGALORE – 560 004.-. 4 - APPELLANT Nos. 2 TO15ARE REP. BY THEIR P.A. HOLDER APPELLANT No.1 K.V.SHIVAKUMAR ... APPELLANTS (BY SRI UDAYA HOLLA, SR.COUNSEL FOR SRI G.S.BHAT., ADV.) NATIONAL INSTITUTE OF MENTAL HEALTH AND NEURO SCIENCES (DEEMED UNIVERSITY) HOSUR ROAD BANGALORE – 560 029. REP BY ITS REGISTRAR. SMT. RAMAKKA W/O LATE.M.ANNAYYAPPA AGE:

54. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041. AND :

1.

2. 3.

4. SRI A VENKATESH S/O LATE M.ANNAYYAPPA AGE:

51. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041. A.GOVINDAPPA S/O LATE M.ANNAYYAPPA AGE :

49. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041.-. 5 - 5. 6.

7. 8.

9. A.SRINIVASA S/O LATE M.ANNAYYAPPA AGE :

46. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041. A.JAYARAM S/O LATE M.ANNAYYAPPA AGE:

44. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041. A.KRISHNAPPA S/O LATE M.ANNAYYAPPA AGE :

42. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041. A.RAMACHANDRA S/O LATE M.ANNAYYAPPA AGE :

40. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041. A.SHIVAKUMAR S/O LATE M.ANNAYYAPPA AGE :

51. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041.-. 6 - AGE :

64. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041. W/O LATE CHIKADABOVI AGE :

98. YEARS. W/O T SRINIVASA MURTHY AND DAUGHTER OF LATE M.ANNAYYAPPA AGE:

36. YEARS R/AT1031B-C-D40H CROSS, 4TH T BLOCK JAYANAGAR BANGALORE – 560 041.

10. SMT.A.SOWBHAGYAVATHI11 DASAPPA12 SMT.YELLAMMA13 SMT.LAKSHMAMMA14 SMT.T.SHANTHA W/O G.M.VENKATESHAIAH AGE:

44. YEARS R/AT NO.49 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011. W/O LATE T.DASAPPA AGE:

62. YEARS BOTH ARE R/AT NO.49 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011.-. 7 - W/O T.THIMMAIAH AGE : MAJOR, R/AT NO.49 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011. S/O LATE T.DASAPPA AGE :

40. YEARS, R/AT NO.49 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011. S/O LATE.T.DASAPPA AGE:

37. YEARS, R/AT NO.49 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011.

15. P.PADMAMMA16 T.SHANTHARAJU17 T.KRISHNA18 SMT.T.VIJAYA19 SMT.T.MANJULA W/O T.VENKATESH AGE :

34. YEARS, R/AT NO.49 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011. W/O CHANDRA DAN AGE :

32. YEARS R/AT NO.49, 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011.

20. T.SHIVAKUMAR S/O LATE T.DASAPPA AGE :

30. YEARS R/AT NO.49 8TH MAIN ROAD, I BLOCK - 8 - EAST, JAYANAGAR BANGALORE – 560 011. W/O RAJANNA AGE :

28. YEARS R/AT NO.49 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011.

21. SMT.T.NAGARATHNA22 SMT.T.PUSHPA W/O VENKATESH AGE :

26. YEARS R/AT NO.49, 8TH MAIN ROAD, I BLOCK EAST, JAYANAGAR BANGALORE – 560 011. DAUGHTER OF LATE MUNI KOMARAPPA AGE :

69. YEARS R/AT NO.9, 1ST MAIN ROAD BYRASANDRA JAYANAGAR I BLOCK EAST BANGALORE – 560 011.

23. SMT.MUNIYAMMA24 SRI.PILLAIAH S/O LATE MUNI KOMARAPPA AGE : MAJOR R/AT NO.9, 1ST MAIN ROAD BYRASANDRA JAYANAGAR I BLOCK EAST BANGALORE – 560 011. ... RESPONDENTS (BY SRI.D.L.N.RAO, SR. COUNSEL, FOR SRI A.MADHUSUDHAN RAO, ADV., FOR R-1; SRI K.JAYAPRAKASH RAO, ADV., FOR R-2 TO11& 18; SRI A.FEROZE NIZAM, ADV., FOR R-13 AND17 SRI M.D.BASAVANNA, ADV., FOR R-14 & 19; SRI S.M.HEGDE KADARE, ADV., FOR R-15, 16, 21 & 22; - 9 - SRI SHANKARAPPA, ADV., FOR R-20; R-23 AND24SERVED; R-2 TO24ARE LRs OF DECD. R12) - - - THIS RFA IS FILED UNDER SECTION96OF CPC AGAINST THE

JUDGMENT

AND DECREE DATED2401.2008 PASSED IN O.S.No.9155/2004 ON THE FILE OF THE IX ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE, CCH.NO.10, PARTLY DECREEING THE SUIT FOR DECLARATION AND POSSESSION. THIS APPEAL COMING ON FOR HEARING THIS DAY, N.KUMAR J., DELIVERED THE FOLLOWING:

JUDGMENT

This Regular First Appeal is preferred by defendant Nos.22 to 24, 26, 27, 30 to 39 challenging the judgment and decree passed by the trial Court on 24.01.2008 in O.S. No.9155/2004, decreeing the suit of the plaintiff, declaring that the plaintiff is the absolute owner of the ‘B’ schedule property and directing defendant Nos.22 to 39 to deliver the possession of the suit schedule property to the plaintiff.

2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

3. The subject matter of the suit is part and parcel of the land with power house, generator room and watchman - 10 - shed in Sy.Nos.2/2, 2/3, 2/4 and 2/5 forming composite blocks measuring 1 acre 25 guntas, 25 guntas, 24 guntas and 11 guntas in all 3 acres 5 guntas situate at Byrasandra Uttarahalli Hobli, Bengaluru South Taluk which is more particularly described in the schedule to the plaint as schedule ‘B’ and hereinafter referred to as the ‘schedule property’.

4. The plaintiff is National Institute of Mental Health and Neuroscience (deemed university), a society registered under the Karnataka Societies Registration Act, 1960. The Management of the Society vests with the body known as NIMHANS. The Society is funded, financed and controlled by the Central Government as well as the Karnataka State Government. The Society is also recognized as a Deemed University. The main object of the Society is to promote through academic and professional endeavour, growth and development of mental health and neuroscience and allied subjects in consonance with global trends and developments in the field. The plaintiff-institute has been functioning and carrying on its activities in vast area of land - 11 - situated in Lakkasandra, Byrasandra, Bengaluru. The Society i.e. National Institute of Mental Health and Neuroscience situated in Bengaluru was established in the year 1974. The State of Karnataka realizing the need of the plaintiff - institute for expanding its activities agreed to allot an extent of 14 acres of land in the year 1981.

5. The said land allotted to the plaintiff-institute is more fully described in the plaint as ‘A’ schedule property. The order of allotment of land in favour of the plaintiff- institute is produced along with the plaint. The suit pertains to a portion of ‘A’ schedule property measuring about 3.05 acres which is described in the schedule ‘B’ property, the schedule property. A sketch showing ‘A’ schedule property including ‘B’ schedule property is enclosed to the plaint.

6. During the year 1944, the Government of His Highness Maharaja of Mysore proposed to acquire about 32 acres of land for public purpose namely Tuberculosis Sanitarium. In view of the urgency of the matter, the Government also decided to invoke most emergency provision relating to land acquisition. The preliminary - 12 - notification dated 29.09.1944 followed by the final notification dated 29.09.1944 was issued and the same were published in the Gazettee dated 26.10.1944. The notifications dispensed with the requirement of enquiry under Section 5(A) of the Land Acquisition Act. The Deputy Commissioner, Bengaluru District was appointed as Sub- Division Officer to exercise the powers under Section 4(2) and Section 17(4) of the Land Acquisition Act. The lands covered by the preliminary and the final notifications included plaint ‘A’ schedule property comprising of plaint ‘B’ schedule property also.

7. Pursuant to the notifications issued, the Deputy Commissioner Bengaluru District took possession of the entire lands covered by the notifications. The title in the said lands vested in the State Government free from all encumbrances. The right, title and interest of any person if any, in the plaint ‘A’ schedule property stood extinguished and the state Government became the absolute owner of the entire ‘A’ schedule property. The Government passed an award to pay compensation to the interested persons. Four - 13 - of the claimants namely

1) V.N.Muniyamma

2) Chikkamma 3)Krishnamurthy

4) Munivenkatappa not being satisfied with the award, sought reference under Section 18 of the Land Acquisition Act. The sub-ordinate Judge, Bengaluru in the said references in LAC Nos.30/44-45, 31/4-45, 32/41- 45, 33/41-45 enhanced the compensation. The claimants accepted the enhanced compensation amount awarded by the subordinate Judge. The said facts are evident from the entries made in the award statement dated 28.02.1948. The said entries have been made in ordinary course as required by law then in force. A copy of the said award statement was produced along with the plaint.

8. The land acquisition officer also intimated the Sub-Registrar office at Bengaluru Taluk furnishing the particulars of the land acquired and the amount of compensation paid as required by the provisions of law then in force. The statement to that effect is also enclosed. In the relevant survey records also necessary entries have been made recording the change of ownership of the acquired lands including ‘A’ and ‘B’ schedule properties. The - 14 - documents showing the same was enclosed to the plaint. The Government continued to be the absolute owner in possession of the schedule ‘A’ property right from the year 1944 up to the year 1987. The Government having allotted ‘A’ schedule property in favour of the plaintiff in the year 1981, handed over the actual possession of the ‘A’ schedule property to the plaintiff in the year 1987. Thus, the plaintiff became the absolute owner in possession of ‘A’ schedule property in the year 1987. The land in ‘A’ schedule property excluding ‘B’ schedule property has been utilized by the plaintiff for various purposes and it continues to be in possession of the plaintiff without any hindrances from any one.

9. After the plaintiff came into possession of the ‘B’ schedule property, it constructed compound walls on the western and southern side of the ‘B’ schedule property. The eastern side of the compound was constructed by Sanjay Gandhi Hospital. In fact, in ‘B’ schedule property, the plaintiff constructed generator room. Similarly, the transformer supplying electricity to the plaintiff-institute is - 15 - also located in the ‘B’ schedule property and a sketch showing the location is also enclosed to the plaint.

10. Though the plaintiff was in peaceful possession and enjoyment of the ‘B’ schedule properties, suppressing the fact of the acquisition and consequential allotment of the land in favour of the plaintiff-institute, defendant Nos.1 and 12 claiming to be the owners in possession of the ‘B’ schedule property filed a suit in O.S. No.2456/1986 on the file of the Bengaluru City Civil Court for bare injunction against the Government Department and the plaintiff. In the said suit, the relevant documents regarding acquisition of lands by the Government and the consequent loss of title by the predecessors of the defendant Nos.1 and 12 were not produced. In such a situation, the suit was decreed. Though the present plaintiff filed an appeal against the said decree, it was not pursued. The said suit was not defended effectively by the plaintiff with due diligence. It is evident that there was some lapse on the part of the concerned in properly safeguarding the interest of the plaintiff. In fact, the records disclose that though the plaintiff had appealed - 16 - against the decree, the appeal was withdrawn at the instance of the Government. It is obvious that vested interests who were determined to knock of the valuable property of the plaintiff put pressure on the plaintiff to see that in this proceedings the interest of the plaintiff is not protected. The circumstances indicate that the officials in charge of the plaintiff at the relevant time connived with the vested interests in defeating the valuable rights of the plaintiff. Further, the plaintiff was not properly represented in the said suit inasmuch as the institute was represented by the Director whereas under the rules of the institute it is only the Registrar who could represent in any legal proceedings.

11. It is stated that the decree in O.S. No.2456/1986 does not affect the right of the plaintiff in plaint ‘A’ schedule property. In the first place, the suit being one for bare injunction, any finding recorded therein regarding title etc., will not amount to res judicata. Besides, it cannot be said that the property covered by the said suit is identical to that of the plaint ‘B’ schedule property. As can be seen from the relevant records, apart from the fact that the - 17 - extent of the property does not tally, boundaries of the property and in particular southern boundary also do not tally. It is stated that the decree in the said suit was only a paper decree, it has not been acted upon. Evidently the plaintiff therein appeared to have obtained the said decree only for the purpose of alienating the property to 3rd party by showing semblance of right over the property. In any event, after defendant Nos.1 and 12 sold the property in 1995, the decree in question became inoperative.

12. During January 2003, the plaintiff was surprised to find a public notice in Deccan Herald daily dated 15.01.2003 in which the defendant Nos.22 to 39 claimed that they were the owners of the property having purchased the same under different registered sale deeds and that they were in possession of the same. The publication further stated that defendant Nos.22 to 39 were intending to enter into joint venture agreements with M/s. Manikanda Property Development Pvt., Ltd., for construction of Group Housing Apartments. The plaintiff disputed the title and possession, gave a reply to the said public notice and - 18 - the same was published in the Deccan Herald daily dated 27.01.2003. In the said notice, the plaintiff clarified that it was the absolute owner of the property in possession of the same and none else had any right over it. In view of the public notice dated 15.01.2003 and threatened action of the defendants in interfering with the possession of the plaintiff, the plaintiff filed a suit for permanent injunction in O.S. No.2547/2003 on the file of the Bengaluru City Civil Court against the defendant Nos.22, 23 and 24. In the said suit, an application I.A. No.1 was filed for an order of temporary injunction. The Court declined to grant an order of temporary injunction and the same was affirmed by the High Court in MFA No.8594/2003. The High Court was pleased to direct the trial Court to dispose of the suit expeditiously. However, in view of the fact that the suit was for only a bare injunction and to avoid all further controversies and to resolve all further disputes once for all, the plaintiff was advised to file a comprehensive suit based on title and for consequential relief. In the circumstance, the plaintiff was - 19 - constrained to file the present suit for declaration and other consequential relief.

13. In fact, in the plaint, it is averred that the plaintiff decided not to pursue O.S. No.2547/2003 and therefore proposed to withdraw the same. The plaintiff, on enquiry now found that portion of ‘B’ schedule property had been sold by defendant Nos.1 to 21 in favour of the defendant Nos.22 to 39 as per the particulars furnished in para No.13 of the plaint. The said documents have been registered in the office of the Sub-registrar, Jayanagar, Bengaluru. It is submitted that the defendant Nos.1 to 21 do not have any right, title or interest in the plaint ‘B’ schedule property and therefore they could not have conveyed any interest therein in favour of defendant Nos.22 to 39. The said sales are also void, as they contravene the provisions of Karnataka (Restriction on Transfer) Act, 1991. In fact, the activities of defendants are in such a manner as to cast cloud on plaintiff’s title. Notwithstanding the frequent interference with the plaintiff’s possession of ‘B’ schedule property, the plaintiff continued to be in possession - 20 - of ‘B’ schedule property and the defendants are not in possession of the same. However, if for any reason, the Court holds that the defendants or any of them are in possession, the plaintiff sought in the alternative possession in respect of ‘B’ schedule property. Therefore, the plaintiff filed the suit for declaration that it is the absolute owner of the suit property and for a decree of permanent injunction restraining the defendants from interfering with their peaceful possession and enjoyment of the suit schedule property and alternatively if for any reason the Court holds that the plaintiff is not in possession of the suit property, a decree for possession directing defendant Nos.22 to 39 to deliver the possession of the suit ‘B’ schedule property in the plaint.

14. In the schedule ‘A’ to the plaint, the entire particulars of the survey numbers and the extent of lands in all 14 acres allotted to the plaintiff by the Government is set out. As stated earlier, schedule ‘B’ is part of schedule A and it measures only 3 acres 5 guntas which is the subject matter of the suit.-. 21 - 15. After service of summons, all the defendants entered appearance through their counsel and they filed detailed written statements. Defendant Nos. 1 to 4 and 6 to 10 adopted the written statement filed by defendant No.5. The 5th defendant contended that the suit field by the plaintiff seeking decree of declaration, possession and permanent injunction is not maintainable in law. The suit is false, frivolous, vexatious and is a gross abuse of the process of the court. Therefore plaintiff is liable to pay compensatory cost of Rs.50,000/- under Section 35-A of the Code of Civil Procedure.

16. He has stated that the plaintiff had earlier filed a suit in O.S.No.2547/2003 on the file of the Additional City Civil Judge, Bengaluru against the defendant No.22 and others in respect of the plaint schedule property for the relief of injunction claiming that the plaintiffs were already in possession of the suit schedule property. In the said suit, it was alleged that the cause of action for the suit arose on 15.01.2003, 29.01.2003, 16.02.2003 and on 23.03.2003 and - 22 - had sought for interim orders wherein the court was pleased to reject the interim application of the plaintiff by its order dated 21.10.2003. The plaintiff being aggrieved by the said order had preferred MFA No.8594/2003 before this court which also came to be dismissed by the order dated 19.11.2004. Subsequently the plaintiff filed a memo dated 16.12.2004 in O.S.No.2547/2003 for dismissal of the said case and by an order dated 28.01.2005, the said suit came to be dismissed as not pressed.

17. The present suit has been filed on the cause of action dated 15.01.2003, which is similar to the cause of action in O.S.No.2547/2003. Hence the present suit filed by the plaintiff is bad in law and is liable to be dismissed as not maintainable under Order 2 Rule 2 of the Code of Civil Procedure since the plaintiff had neither sought permission to file a fresh suit on the same cause of action nor had sought leave of the court to maintain the present suit. Hence the suit is liable to be dismissed on this preliminary issue of maintainability.-. 23 - 18. The plaintiff herein was earlier a defendant in O.S.No.2456/1986 on the file of the Additional City Civil Judge, Bengaluru City in respect of the plaint schedule property filed by defendant Nos. 1 to 21 for permanent injunction based on lawful possession and legal title. The suit was contested by the plaintiffs. The rival contentions of the parties were placed before the court including the statement of the pleadings were submitted in the form of written statement. After contest, the court was pleased to grant decree by rejecting the claim of ownership of the plaintiff in respect of the schedule property. The said orders have become final and binding on the parties to the suit. The judgment delivered on 17.12.1992 is within the knowledge of the plaintiff. The judgment was delivered more than 12 years ago. The plaintiff has come before the court after a lapse of 12 years. Hence the suit of the plaintiff is also barred by the principles of resjudicata and therefore the suit is liable to be dismissed. The issues in O.S.No.2456/1986 and in the present suit are directly and substantially the same which were in issue in the previous - 24 - suit pertaining to the same schedule property and between the same parties under whom it was litigated and that a court of competent jurisdiction has finally delivered and decided the said issue. Thus the judgment and decree have become final and binding on the parties.

19. Without prejudice to the above contentions, it is stated that the suit of the plaintiff is barred by limitation. The defendant Nos. 1 to 10 along with other co-owners sold the schedule property to various prospective purchasers who in turn sold their right, title and interest in the schedule property under separate sale deeds executed and registered at the office of the Sub-Registrar, Jayanagara, Bengaluru. Hence the plaintiff cannot maintain the present suit. The plaintiff cannot maintain the suit and seek decree of permanent injunction since a decree has already been passed against the plaintiff in O.S.No.2456/1986. The contention of the plaintiff in the present suit that they are in possession of the suit schedule property is denied as absolutely false and the plaintiff is put to strict proof of the same. At no point of time, the plaintiff was in possession of - 25 - any portion of the schedule property. The present owners are in possession and enjoyment of the schedule property and hence the suit of the plaintiff is liable to be dismissed.

20. The suit is not properly valued. The suit being one for the possession, declaration and other consequential injunction is to be valued as per the market value on the date of the presentation of the suit. The market value as on the date of the suit was around Rs.2,000/- per square feet. The court fee paid is insufficient. The plaintiff may be called upon to file fresh valuation statement within a time stipulated by this court, failing which the plaint be rejected under Order 7 Rule 11 of Code of Civil Procedure. The schedule property as described in plaint is 03 acres 05 guntas and is situate within the administrative jurisdiction of the Bangalore City Corporation and the present owners have obtained the katha in their respective names and therefore the plaintiff will have to value the land per square foot. The valuation mentioned in the valuation slip is not correct and is imaginary. The valuation slip is liable to be rejected.-. 26 - 21. The land in Sy. No.2/2, 2/3, 2/4 and 2/5 originally belonged to one Chikkada Bhovi who was a registered kathedar in Kethavaru Register of the year 1901- 02 as kathedar. There was a registered partition dated 15.05.1922 among Chikkada Bhovi and his brothers. After the death of Chikkada Bhovi, the schedule properties came to the share of Smt. Lakshmamma and Smt. Ramakka, the daughters of Chikkada Bhovi. Kathas were transferred. Thereafter, Smt. Ramakka and her family members, Smt. Lakshmamma and her family members executed various sale deeds in favour of the purchasers through valid sale deeds after receiving valuable sale consideration and the same were registered before the Sub-Registrar, Bengaluru. After the sale deeds were executed by Smt. Ramakka and Smt. Lakshmamma and others the katha had been transferred in favour of the purchasers. The question of lawful possession, title were all considered in O.S.No.2456/1986 and the court has given a clear finding, that has become final and binding on the parties.-. 27 - 22. At no point of time, the plaintiff has acquired the land in question since the possession of ‘B’ schedule property continued with the original owners. Thereafter, it was inherited by the legal heirs who in turn sold the same to the present owners. They are in possession and enjoyment of the same. They have been exercising all rights of ownership to the exclusion of everyone including the plaintiff. To show that ‘B’ schedule property was acquired by plaintiff, it has not produced any document i.e., spot inspection report, award showing the acquisition of property and payment towards the award. The plaintiff has not produced any document to show that the award was passed in respect of the schedule ‘B’ property and payment was made to the land owner. What is mentioned in the plaint in regard to award and payment is not in respect of schedule ‘B’ property. But it is for some other property and the documents which are relied on and produced are concocted documents for the purpose of this case which are nothing to do with the claim of the plaintiff. The averments that the State of Karnataka realizing the need of the plaintiff institute - 28 - to expand its activities agreed to allot a land in the year 1981 a portion of ‘A’ schedule property measuring about 03 acres 05 guntas are absolutely false. It is evident from the concluded proceedings in O.S.No.2456/1986 in which the plaintiff herein was the 4th defendant. The plaintiff having lost the legal title/battle in the said suit has been trying to make an attempt to grab the property which does not belong to the plaintiff.

23. The averments made in paragraph Nos. 5, 6, 7 and 8 of the plaint that in the year 1944, the Government of His Highness Maharaja of Mysore had acquired lands for public purpose and the same was published in the Mysore Gazette and etc., are incorrect and unsustainable. The very pleas that these lands in Sy. Nos. 2/2, 2/3, 2/4 and 2/5 had been acquired, that pursuant to the notification in question, the Deputy Commissioner, Bengaluru District, Bengaluru took possession of the entire land, that the State Government became the absolute owner and the Government passed orders awarding compensation to the interested persons etc., are all false statements besides - 29 - misleading and without any substance. These documents which are produced in support of the plaintiff’s claim are concocted documents.

24. The averments made in paragraph No.9 of the plaint that the plaintiff is in possession of the schedule ‘B property and has put up compound wall on Western- Southern side of the schedule ‘B property and the plaintiff has constructed a generator room and the transformer for supply of electricity to the plaintiff is also located in ‘B’ schedule property is not correct. The decree of permanent injunction granted against the plaintiff in the earlier suit is final and binding and that is in existence from 17.12.1992 till date. Therefore, the assertion that the plaintiff is in possession of the ‘B schedule property is untrue and misconceived.

25. The 5th defendant denied all the allegations made in paragraph 10 of the plaint as absolutely false and misconceived. The contention of the plaintiffs that the ‘judgment and decree passed in O.S.No.2546/86 would not - 30 - operate as resjudicata for the reasons set-out in paragraph 11 of the plaint is denied as false. It is contended that plaintiff has no right, title, interest over the “B” schedule property. It is without any basis. Its claim on the property is misleading the public and making false statement in contravention of concluded judicial proceedings. The lawful owners have entered into joint development agreement with M/s Manikanta Property Development P.Ltd. for construction of residential apartments. Defendants have adequately replied to the public notice issued by the plaintiff and the same is published in the Deccan Herald dated 27.01.2003. The contention that the present owners have no manner of right, title or interest in the “B” schedule property is absolutely false. The registered sale deeds are legal documents that had conveyed absolute and clear title from the vendors to the present owners. The present owners are in physical, lawful possession of the “B” schedule property in their own right. There is no cause of action for the suit. The one alleged in paragraph 14 of the plaint, does not survive since the plaintiffs have not reserved their right to maintain - 31 - the present suit in the light of O.S.No.2547/2003 having been dismissed as not pressed and no leave to maintain the present suit has been sought for. Therefore, they sought for dismissal of the suit.

26. Defendant nos.13, 19 and 20 have filed the joint statement. They have pleaded ignorance about the status of the plaintiff, the acquisition proceedings referred to in the plaint and the passing of the award in favour of the claimants. They contend that defendants 11 to 21 are the members of the Hindu Joint Family and defendant no.15 being the senior most male member has been acting as the kartha of the joint family and its property. Sofaras the schedule property is concerned, the same falls within the limits of Bangalore Mahanagara Palike that has issued katha no.49 in favour of the members of the joint family consisting of defendants 11 to 21 after collecting betterment charges. They have been in possession and enjoyment of schedule “B” property. The present number assigned to the said property is 49/1 which is a portion of the property bearing katha no.49 to an extent of 1 acre 17 guntas. That portion - 32 - measuring 1 acre 17 guntas is in possession of the defendants 11 to 21 and at no point of time, they alienated the same in favour of defendants 22 to 39 as alleged. In fact, there is a family deity of defendants 11 to 21 called “Manjunatha Swamy” in the property bearing Sy.No.49/1. The remaining extent of katha no.49 purported to have been alienated in favour of defendants 22 to 39 but, these defendants did not get their due share in the sale proceeds as and such, the sale deeds are void ab-initio.

27. Defendant no.15 in collusion with defendant nos.22 to 39, with malafide intention, fraudulently secured the signatures of these defendants on the sale deeds without their knowledge and without their share of the consideration. The alleged sale deeds, said to have been made in favour of defendant nos.22 to 39 did not create any manner of right, title or interest in favour of defendants 22 to 39. It has not transferred the title in their favour. The said transaction was not a valid transaction. It is not a transaction which took place out of free will and volition of these defendants. These defendants reserve their rights to challenge the said - 33 - sale deeds. Defendants 22 to 39 got the katha of Sy.No.49/1 cancelled from Bangalore Mahanagara Palike in collusion with the concerned officials, without the knowledge and consent of these defendants. The cancellation of the katha of Sy.No.49/1 is illegal and the same is against the procedure laid down for the change of katha. These defendants have got strong objection regarding the cancellation of the same and they have been contemplating separate action in this regard.

28. Defendants 11 to 21 have been in peaceful possession and enjoyment of “B” schedule property measuring 1 acre 17 guntas. The remaining extent of the said property is in possession of defendant nos.22 to 39. The contention of the plaintiff that they have been in possession of the enjoyment of “B” schedule property is false and baseless. When the plaintiff tried to interfere with the possession of the “B” schedule property in or about 1986, defendant no.15 in his capacity as the kartha of the Hindu Undivided Joint Family, filed a suit on behalf of the joint family on the file of the City Civil Court seeking decree of - 34 - permanent injunction in O.S.No.2546/1986. The said suit came to be decreed after contest. In the said suit, defendant no.15 was representing the Hindu Joint Family throughout. The subject matter of O.S.No.2546/1986 is similar to the one in the present suit. In all other aspects, they reiterated the allegations made in the written statement of the 5th defendant.

29. Defendants 22 to 26 have also filed a joint written statement. They also contend that suit is not maintainable. It is hit by the principle of resjudicata. They have referred to the proceedings in O.S.No.2456/1986 and also O.S.No.2547/2003. They also contend the suit is not properly valued, the Court fee paid is insufficient. They contend the land in Sy.Nos.2/2, 2/3, 2/4 and 2/5 originally belonged to one Chikkada Bhovi who was the registered kathedar in Kethavaru register of the year 1901-02. The revenue register from 1905 show Chikkada Bhovi as kathedar. There was a registered partition deed dated 15.05.1982 among Chikkada Bhovi and his brothers. After the death of Chikkada Bhovi – the schedule properties came - 35 - to the share of Smt.Laxmamma and Smt.Ramakka – the daughters of Chikkada Bhovi. The katha of the property was transferred in their names. These defendants and other defendants have purchased the land in the aforesaid Sy.Nos. through valid sale deeds after paying valuable consideration and the same has been registered before the Sub-registrar, Bangalore. In O.S.2456/86 the Court has recorded a finding that defendants 1 and 12 are in lawful possession of the suit schedule properties and granted a decree of permanent injunction and also recorded a finding that the plaintiffs thereon are the owners of the suit schedule properties. These defendants being the successors-in-title by virtue of valid sale deeds in their favour by the plaintiff in the aforesaid suit, also had the benefit of injunction order granted against the present plaintiff in O.S.2456/1986 which has become final. There are totally 26 sale deeds under which these defendants and other defendants purchased schedule “B” properties from Smt.Ramakka and Smt.Laxmamma. The katha has been transferred to their names. Therefore, the plaintiff cannot maintain the present - 36 - suit and they have reiterated the allegations made in the written statement of 5th defendant insofar as the acquisition proceedings are concerned. Thereafter they have proceeded to deny all the allegation parawise and reiterated the stand taken by the 5th defendant in the written statement.

30. Defendants 27, 30 and 31 also filed a joint written statement reiterating the stand taken by the 5th defendant in their written statement. After traversing the averments parawise, they have denied those allegations and request that the suit be dismissed.

31. Similarly defendants 29, 32 and 33 filed a joint statement raising identical pleas which are raised in the earlier written statement. They contend that these defendants and other defendants are absolute owners of the suit schedule properties, having purchased the same after paying valuable consideration and are in peaceful possession and enjoyment of the same. The plaintiff cannot maintain the suit without seeking setting-aside of the same which is - 37 - sold to them. On that ground alone, the suit is not maintainable and is liable to be dismissed.

32. Defendant nos.34, 36, 37 and 39 have filed a separate written statement reiterating the allegations made in the earlier written statement and they also seek for dismissal of the suit.

33. Defendant no.35 has filed a separate statement again reiterating the allegations made in the earlier written statement and seek for dismissal of the suit.

34. Similarly defendant no.38 also has filed a separate written statement taking the very same stand. So also is the stand of defendant nos.40 and 41 who have filed joint written statement.

35. The plaintiff after going through the stand of these defendants, filed a rejoinder to the written statements filed by these defendants. After referring to the stand taken by them in the plaint, they have set-out additional facts. They plead that the entire Sy.No.2/2, in all measuring 3 - 38 - acres 26 guntas which includes 20 guntas of kharab land situated at Byrasandra Village, Uttarahalli Hobli, Bangalore South Taluk was a joint family property of late Patel Muniyappa. There was a registered deed between Patel Muniswamappa, Chikkada Bhovi, Venkatappa @ Katiah and Huchappa. The same was registered in the office of the Sub- Registrar, Bangalore. Under the said partition, each brother got ¼ share in Sy.No.2/2. Subsequent to the partition deed, the elder brother of Chikkada Bhovi viz., Patel Muniswamappa s/o Muniyappa sold his share i.e., 36 guntas which include 6 guntas of Kharab in favour of Chikkada Bhovi under a registered sale deed dated 21.11.1923. Chikkada Bhovi inturn sold the very same land in favour of T.Chikanna under the registered sale deed dated 31.12.1936. Chikkada Bhovi and his 3rd brother acquired the share of his last brother by giving other properties in exchange. Under the said transaction, Chikkada Bhovi acquired 1 acre 12 guntas. Chikkada Bhovi along with his wife and daughters Ramakka and Laxmamma sold the land in favour of Munivenkatappa and the same was registered in - 39 - the office of the Sub-Registrar dated 09.12.1940. Similarly, Venkatappa @ Kataiah sold his share of 1 acre 15 guntas in favour of Akkayyamma w/o Kyalanoor Bachanna under a sale deed dated 27.06.1927. The above said sale deeds clearly establish that the father of defendants 1 and 12 and their uncle have no manner of right, title and interest nor in possession even prior to the acquisition. The defendants have no authority, right, title and interest to question the acquisition. The award was passed and possession was taken. When defendants 1 and 12 and their uncle had already sold prior to 1940, question of their possession and succession after the demise of their father does not arise. Knowing fully well that defendants 1 and 12 are not at all in possession nor they are in any way concerned with the suit land, filed a false and frivolous suit before the Court in O.S.No.2456/1986 and obtained a decree for permanent injunction. They are playing fraud on the Court. When defendants 1 to 21 have no manner of right, title or interest and possession over the suit schedule property, they have no authority to sell the property belonging to the plaintiff to - 40 - defendants 22 to 39. Defendants 22 to 39 will not get any ownership which is against the provisions of Karnataka (Restriction on Transfer) Act, 1991. The plaintiff was able to trace all the above said documents recently. They have obtained the certified copies from the Sub-Registrar and those documents were not available at the time of filing of the suit. Accordingly, the plaintiff prayed for decree as prayed for in the plaint.

36. On the aforesaid pleadings, the trial Court framed as many as 12 issues which are as under:

1. Whether the plaintiff proves that it is the absolute owner of all the suit schedule lands as pleaded in the plaint?.

2. Whether the plaintiff proves that it is in lawful possession and enjoyment of all the suit schedule lands as pleaded in the plaint?.

3. Whether the plaintiff proves that the defendants are illegally interfering with its possession & enjoyment of the suit schedule lands as alleged in the plaint?. - 41 - 4. Whether the defendants prove that the suit is not properly valued and the court fee paid on the plaint is insufficient?.

5. Whether the defendants prove that the suit is barred by principles of res-judicata as contended in their written statements?.

6. Whether the defendants prove that the suit is also barred by law of limitation as contended in their written statements?.

7. Whether the defendants prove that the suit in the present form is not maintainable in law as contended in their written statements?.

8. Whether the defendants prove that suit is also barred in view of the provisions of order 23 Rule1 CPC as contended in their written statements?.

9. Whether the plaintiff proves that it is entitled for the declaration of title to the suit schedule lands as sought for in the suit?.

10. Whether the plaintiff proves that it is entitled for the permanent injunction - 42 - against the defendants as sought for in the suit?.

11. Whether the plaintiff in the alternative proves that it is entitled for the delivery of possession of the suit “B” schedule lands from the defendant Nos.22 to 39 as sought for in the suit?.

12. What order or decree?..

37. The plaintiffs in order to substantiate their claim examined Dr.Nagaraj – the Director of the plaintiff as PW1. They also examined T.Venkatesh – the Assistant Commissioner working in the Bangalore South Sub-Division as PW2. In all, they produced 88 documents which are marked as Exs.P.1 to P.88. On behalf of the defendants Mr.Jayaram – the 5th defendant was examined as DW1. They also examined K.V.Shiva Kumar – 22nd defendant in the case as DW2. They also produced 55 documents which are marked as Exs.D1 to D55.

38. The trial Court on appreciation of the aforesaid oral and documentary evidence on record held that the - 43 - plaintiff had successfully established that it is the absolute owner of the schedule property and defendants 22 to 39 and in particular, 22nd defendant have not established that “B” schedule property belongs to them. The trial Court has recorded a finding that the plaintiff is not in possession of the entire “B” schedule property and in view of the judgment and decree in the earlier suit, it is established that the 22nd defendant is in possession of a portion of “B” schedule property and the plaintiff has not proved that it is in lawful possession of the “B” schedule property in its entirety.

39. On the question of interference by the defendants, it held as both the contesting parties have failed to establish their exclusive possession of the property, the question of interference as pleaded by the parties is not established. It held the suit is properly valued and the Court fee paid is sufficient. It also held that the present suit is not barred by principles of resjudicata, not barred by limitation as contended by the defendants in the written statement. The suit in the present form is maintainable. The suit is not barred in view of the provisions of Order XXIII Rule 1 of CPC - 44 - as contended in the written statement. It held that the plaintiff is entitled to the relief of declaration of title but not entitled to the decree for permanent injunction but granted a decree for delivery of possession of the suit “B” schedule property to the plaintiff from the defendants 22 to 39 as sought for in the plaint. Thus, the suit of the plaintiff was decreed.

40. Aggrieved by the said judgment and decree of the trial Court, it is only defendants 22 to 24, 26, 27, 30 to 39 have preferred this appeal. In other words, this is an appeal preferred by the purchasers of “B” schedule property from the other defendants who claim title to the property.

41. The learned Senior Counsel Sri. Udaya Holla appearing for the appellants/Defendants 22 to 24, 26, 27 and 30-39 submitted as under: [i]. Plaintiff has filed the suit for declaration of title and for possession. Therefore, the burden of proving title in respect of the schedule property is squarely on the plaintiff. The plaintiff relies on an order of allotment - 45 - which was made by the Government after acquiring the land in question. Therefore, in order to succeed in the suit, the plaintiff has to prove that there was a valid acquisition of the schedule land and the Government acquired title to the said land and thereafter the said land has been conveyed to the plaintiff. Award passed in the said acquisition proceedings is not produced, no documents were produced to show possession was taken in terms of the said Award. Until and unless the Award is passed and possession is taken, the right, title and interest of the owner of the land which is acquired do not get extinguished. It is only after passing of an Award and taking of possession, the title vests with the Government. Even if it is established that the Defendants 1 and 12 have no title to the schedule property, that would not enure to the benefit of the plaintiff to confer title on him and therefore he submitted, seen from any angle, the finding recorded by the Trial Court that the plaintiff is the absolute - 46 - owner of the plaint schedule property is contrary to the legal evidence on record and is liable to be set aside. [ii]. Secondly, he contended that the present suit is hit by Order II Rule 2 CPC. [iii]. Thirdly, he contended the suit is also hit by Order 23 Rule 1 (4) CPC, in as much as, when the plaintiff withdrew the earlier suit in OS No.2547/2003, without permission referred to in sub-rule [3]. of Rule 1 of Order 23, the plaintiff is precluded from instituting fresh suit in respect of such subject matter or such part of the claim. [iv]. Fourthly, he contended prior to the filing of the suit by the plaintiff, Defendants 1 and 12 had filed a suit in OS No.2456/1986 against the plaintiff and others seeking the relief of permanent injunction. In the said suit, the Defendants 1 and 12 had categorically denied the title of the plaintiff in respect of the schedule property. The suit was presented on 26.6.1986. In - 47 - view of Article 58 of the Limitation Act, the suit for declaration of title ought to have been filed within three years when the right to sue first accrues. The said suit came to be decreed on 17.12.1992. If that date is taken into consideration, the suit ought to have been filed in the year 1995. Therefore, the suit filed in the year 2003 is clearly barred by law of limitation. [v]. Fifthly, he contended, though earlier suit filed by Defendants 1 and 12 is for bare injunction, the Court went into the question of title of both the parties and recorded a finding that the Defendants 1 and 12 being daughters of Chikkada Bhovi, after his death, have inherited the schedule property and thus they are the owners of the property. It also recorded a finding that when the defendants have taken a contention that the schedule property has been acquired, no material is placed before the court to establish acquisition. The said Judgment and decree has attained finality. Therefore, the present suit for declaration of title is clearly barred by the principles of res judicata.-. 48 - 42. Per contra, Sri. D.L.N. Rao, learned Senior Counsel appearing for the plaintiff contended the Government of Maharaja of Mysore, for the purpose of establishing Tuberculosis Sanitarium- acquired 36 acres of land by invoking emergency provision contained in Section 17 of the Land Acquisition Act. Preliminary Notification and Final Notification were issued simultaneously. Enquiry under Section 5A of the Land Acquisition Act was dispensed with, Award is passed, possession taken. Challenging the Award, the owners of the land sought reference to the civil court which on such reference, enhanced the compensation. One such owner also approached this Court for enhancement and the compensation was enhanced. Sri Chikkada Bhovi and his three brothers who owned the land originally effected partition of all these joint family properties under a registered partition deed dated 10.5.1922 as per Exhibit.P31. After partition Chikkada Bhovi purchased under registered sale deeds, one share from his brother Muniswamappa as per Exhibit.P32. Thereafter, Chikkada Bhovi and other brothers executed registered sale deeds in - 49 - favour of Chikkanna, Akkayamma and Munivenkatappa as per Exhibits.P34, P33 and P44 which are dated 9.12.1940, 31.12.1936 [21.12.1923]., 27.6.1927 respectively. Thus, Chikkada Bhovi ceased to have any interest in those properties which includes the schedule property. When in the year 1944, the acquisition proceedings were initiated, rightly, the name of the purchasers were mentioned in the preliminary notification as their names were reflected in the revenue records on the basis of the title deeds. Therefore, he contends the Defendants 1 and 12 had no title to the property as Chikkada Bhovi, their father himself had lost title to the property on execution of the aforesaid sale deeds. The acquisition proceedings are not challenged by the owners and therefore all these defendants who are strangers to the property on the date of acquisition, have no right to challenge the said acquisition proceedings. The learned trial Judge, on consideration of these material on record, has rightly held that the plaintiff has established title to the property.-. 50 - 43. On the question of the suit being hit by Order II Rule 2 CPC is concerned, he contended that the suit in OS No.2457/2003 is only filed against Defendants 22, 24 and 25 for permanent injunction. It is only when injunction was refused, which order was confirmed by the High Court, the present suit for declaration of title and for injunction or in the alternative for the relief of possession is filed. In the earlier suit, they could not have sought for the relief of possession and therefore Order 2 Rule 2 CPC is not a bar for filing of the present suit.

44. In so far as the suit being hit by Order 23 Rule 1 CPC is concerned, earlier suit was only suit for bare injunction and the bar contained in sub-rule [4]. of Rule 1 of Order 23 is that if suit is withdrawn without leave of the court, the plaintiff is precluded from filing one more suit on the same cause of action for the same relief. In the instant case, the cause of action for the subsequent suit is altogether different and suit is not one for bare injunction. The main relief sought is declaration of title and for - 51 - possession and therefore Order 23 Rule 1[4]. CPC is not a bar.

45. In so far as the plea of res judicata is concerned, the earlier suit is only for bare injunction. The trial court has gone into the question of title incidentally. The title of the schedule property was not substantially an issue in the earlier suit. There is no issue regarding title framed in the said suit. The only issue relevant for the said case was whether the plaintiff proves they are in lawful possession over the suit schedule property on the date of filing of the suit. Therefore, the Judgment and decree passed in OS No.2456/1986 would not operate as res judicata in so far as the present suit is concerned.

46. He further submitted, the present suit is one for declaration of title and for possession and is governed by Article 65 of the Limitation Act. Article 58 of the Limitation Act has no application to the facts of this case and therefore he submits that the Trial Court rightly held suit is not - 52 - barred by limitation. The appeal is liable to be dismissed with costs.

47. In the light of the aforesaid facts and the rival contentions, the points that arise for our consideration in this appeal are as under: [i]. Whether the finding of the Trial Court that the plaintiff has established its title to the plaint schedule property is supported by legal evidence on record?. [ii]. Whether the suit of the plaintiff is hit by Order 2 Rule 2 CPC as contended by the defendants?. [iii]. Whether the suit is hit by Order 23 Rule 1[4]. of CPC as contended by the defendants?. [iv]. Whether the suit of the plaintiff falls within the mischief of principles of res judicata under Section 11 of CPC?. [v]. Whether the suit is barred by time in view of Article 58 of the Limitation Act?. - 53 - POINT NO.[i].: QUESTION OF TITLE48 The learned counsel for the appellant contended that the Plaintiff has filed the suit for declaration of title and for possession. Therefore, the burden of proving title in respect of the schedule property is squarely on the plaintiff. The plaintiff relies on an order of allotment which was made by the Government after acquiring the land in question. Therefore, in order to succeed in the suit, the plaintiff has to prove that there was a valid acquisition of the schedule land and the Government acquired title to the said land and thereafter the said land was conveyed to the plaintiff. The material on record discloses that the plaintiff has produced only a copy of the preliminary notification and final notification. No Award passed in the said acquisition proceedings is produced, no documents were produced to show possession was taken in terms of the said Award. Until and unless the Award is passed and possession is taken, the right, title and interest of the owner of the land which is acquired do not get extinguished. It is only after - 54 - passing of an Award and taking of possession, the title vests with the Government. Therefore, in the first instance, in the absence of those two crucial documents, acquisition is not completed and the Government did not acquire title to the schedule property. Secondly, he contended that even if the Government is held to be the owner of the land, by mere allotment of the said land, land could not be conveyed to the plaintiff. In addition to the same, he pointed out that in the decree passed by the competent court, it is held that the appellants have failed to prove the acquisition. Defendants 1 and 12 are the owners of the schedule property, having inherited the same from their father who was admittedly the owner of the schedule property. Therefore, it was contended that the plaintiff has failed to prove his title to the schedule property. Even if it is established that the Defendants 1 and 12 had no title to the schedule property, that would not enure to the benefit of the plaintiff to confer title on him and therefore he submitted, seen from any angle, the finding recorded by the Trial Court that the plaintiff is the absolute - 55 - owner of the plaint schedule property is contrary to the legal evidence on record and is liable to be set aside.

49. Per contra, Sri. D.L.N. Rao, learned Senior Counsel appearing for the plaintiff contended the Government of Maharaja of Mysore, for the purpose of establishing Tuberculosis Sanitarium- acquired 36 acres of land by invoking emergency provision contained in Section 17 of the Land Acquisition Act. Preliminary Notification and Final Notification were issued simultaneously. Enquiry under Section 5A of the Land Acquisition Act was dispensed with, Award is passed, possession taken. Challenging the Award, the owners of the land sought reference to the civil court which on such reference, enhanced the compensation. One such owner also approached this Court for enhancement and the compensation was enhanced. It is true that the plaintiffs have not produced copy of the Award. They have also not produced the mahazar taking possession. But one has to remember, the acquisition is of the year 1944 and now the plaintiff is called upon to prove the said acquisition in the year 2003. With the lapse of time, in spite - 56 - of the best efforts, the plaintiff could not secure copies of all the documents. All the copies which were made available are produced before the Court. In the Judgment of the High Court, there is a specific reference to the possession of the property being taken immediately, rejecting the request of the claimants for time to deliver possession. The fact that there was a reference and an appeal to the High Court shows that it has to be only against the Award. They have also produced some Award notice. They have summoned the documents from the Assistant Commissioner to show payment of compensation to various claimants including the owners of the land in question and therefore he submits, in the facts of this case, the material on record clearly establishes the acquisition of the land by the Government as contended by the plaintiff. After such acquisition, an extent of 14 acres of land which includes the ‘B’ schedule property has been allotted to the plaintiff in the year 1981. In the year 1987 possession is also delivered. They are all evidenced by the documents produced in that case. Therefore the contention that the plaintiff has failed to prove - 57 - acquisition and mere allotment of the land by the Government to the plaintiff would not confer title on the plaintiff is without any substance.

50. He submitted for a proper appreciation of the title of the plaintiff, certain other undisputed facts which have come on record has to be noticed. Though the defendants are denying acquisition in these proceedings, when Defendants 1 and 12 filed suit in OS No.2456/1986, in the plaint, they clearly set out the particulars of the acquisition. Their contention was in spite of the acquisition, they continued to be in possession of the land. Further, it was contended, father of the Defendants 1 and 12 executed a settlement deed settling the schedule property in favour of Defendant No.12. It is on the basis of the said title and continued possession, the suit was filed for bare injunction. Strangely, six years after filing of the plaint, an amendment application was filed, requesting the court to delete paragraphs 1 to 8 in the original plaint where they had referred to the acquisition and settlement deed. After deletion, they substituted the said deleted portion by - 58 - averring that schedule property belonged to their father, who died intestate and she and Defendant No.1 being daughters inherited the estate of the father and they continued to be in possession of the property after the death of their father and therefore their possession was to be protected. Now, in this case, the settlement deed is produced as Exhibit.P84. Acquisition records are also produced which show suppression of these material evidence by the Defendants 1 and 2 in the said suit. That apart, no documents were produced to show that Chikkada Bhovi was a Member of the joint family which owned the schedule property and other lands on the date of his death. The four brothers effected partition of all these joint family properties under a registered partition deed dated 10.5.1922 as per Exhibit.P31. It is also on record by way of documentary evidence, after partition Chikkada Bhovi purchased under registered sale deeds, one share from his brother Muniswamappa as per Exhibit.P32. Thereafter, Chikkada Bhovi and other brothers executed registered sale deeds in favour of Chikkanna, Akkayamma and Munivenkatappa as per Exhibits.P34, P33 - 59 - and P44 though sale deeds are dated 9.12.1940, 31.12.1936 [21.12.1923]., 27.6.1927. Thus, Chikkada Bhovi ceased to have any interest in those properties which comprise of the schedule property. When in the year 1944, the acquisition proceedings were initiated, rightly, the name of the purchasers were mentioned in the preliminary notification as their names were reflected in the revenue records on the basis of the title deeds. Therefore, he contends the Defendants 1 and 12 had no title to the property as Chikkada Bhovi, their father himself had lost title to the property on execution of the aforesaid sale deeds. The acquisition proceedings are not challenged by the owners and therefore all these defendants who are strangers to the property on the date of acquisition, have no right to challenge the said acquisition proceedings. The learned trial Judge, on consideration of these material on record, has rightly held that the plaintiff has established title to the property.-. 60 - 51. These rival contentions has to be considered in the light of the oral and documentary evidence placed on record by the parties.

52. The material on record discloses that, land bearing Sy. Nos.2/2 measuring 3 acres 26 guntas belonged to Patel Muniyappa, father of Chikkada Bhovi. After his death, his four sons Muniswamappa, Chikkada Bhovi, Venkatappa @ Kataiah and Huchaiah effected a partition of all the family properties under a registered partition deed dated 10.5.1922. As per the said partition deed, the said land was divided into four parts i.e., each getting one-fourth share. Muniswamappa who was owner of 35 guntas approximately sold the same under a registered sale deed dated 21.11.1923 to his brother Chikkada Bhovi as per Exhibit.P32. The last son Huchaiah died issueless and his share approximately measuring 36 guntas was taken over by Chikkada Bhovi and Venkatappa. Venkatappa @ Kataiah sold his portion of about 55 guntas which included the portion which he acquired from his brother Huchaiah in favour of Akkayamma under a registered sale deed dated - 61 - 27.6.1927 as per Exhibit.P44. Chikkada Bhovi had sold the portion of the aforesaid lands which he had purchased from Muniswamappa to one Chikkanna under a registered sale deed dated 31.12.1936 as per Exhibit.P33. Thereafter, old Sy. No.2/2 was phoded into three portions namely 2/3, 2/4 and 2/5. Subsequently, Chikkada Bhovi along with his two wives and the daughters, the Defendants 1 and 12 sold his portion of about 52 guntas which included a portion which he had acquired from his brother Huchaiah to one Munivenkatappa under a registered sale deed dated 9.12.1940 as per Exhibit.P34. The portion of 55 guntas which was sold by Venkatappa @ Kataiah to Akkayamma is allotted Sy. No.2/4 and portion of the land sold by Chikkada Bhovi to Chikkanna was allotted Sy. No.2/3. The land of 52 guntas sold by Chikkada Bhovi to Munivenkatappa on 9.12.1940 was allotted Sy. No.2/5. Thus, Chikkada Bhovi, his brothers, his wives and his daughters lost title in respect of the lands bearing Sy. Nos.2/3, 2/4 and 2/5 in the year 1927, 1936 and 1940 respectively. After the purchase, the - 62 - names of the purchasers were mutated in the revenue records.

53. During the year 1994, the Government of His Highness Maharaja of Mysore proposed to acquire about 32 acres of land which included the ‘A’ schedule property for a public purpose, namely, for the purpose of Tuberculosis Sanitarium. In view of the urgency of the matter, the Government invoked emergency provision under Section 17 of the Land Acquisition Act. The Preliminary Notification dated 29.9.1944 was followed by final Notification dated 29.9.1944 and the same were published in the Mysore Gazette dated 26.10.1944 as per Exhibits.P1 and P2. The Notifications dispensed with requirement of enquiry under Section 5A of the Land Acquisition Act. The Deputy Commissioner, Bangalore District, was appointed as Sub Division Officer to exercise the powers under Section 4[2]. and Section 17[4]. of the Land Acquisition Act. Pursuant to the notification issued, the Deputy Commissioner, Bangalore District took possession of the entire lands covered by the notification and the title in the said land vested in the State - 63 - Government free from all encumbrances. The right, title and interest of any person if any, in respect of the said lands including suit schedule properties got extinguished and the State Government became the absolute owner of ‘A’ schedule property along with other properties which were notified for acquisition. In the said acquisition proceedings, the names of the purchasers were shown as khatedars as well as Anubhavdars as their names were reflected in the revenue records on the date of the notification. Thereafter, the Special Land Acquisition Officer initiated proceedings for the purpose of passing Award in LAC Nos.30, 31, 32 and 33 of 1944-45 in respect of the lands bearing Sy. Nos.2/2, 2/3, 2/4 and 2/5 of Byrasandra Village. After enquiry, the Award came to be passed. Being not satisfied with the Award, some of the claimants sought reference to the Civil Court for enhancement of compensation. The Additional Sub-ordinate Judge, Bangalore, enhanced the compensation in LAC. Misc. Nos.162 and 163 of 1946-47. The claimants, namely, M. Krishnamurthy @ Krishnappa and Munivenkatappa accepted the compensation in so far as Sy. Nos. 2/4 and 2/5 - 64 - of Byrasandra village respectively. The said fact is evidenced by Exhibit.P82 – certified copy of the extract of disposal register of Additional Sub-ordinate Court. In fact, application was made on behalf of the plaintiff to the City Civil Court at Bangalore in LAC No.162/1946-47 requesting for certified copy of the entire order sheet, Judgment, reference of the Government and claim petition by PW.1. An endorsement was issued by the court pleading their inability to furnish those documents as on 4.5.1962 as those documents were destroyed. However, the plaintiffs have produced certified copy of the Judgment of the Division Bench of this Court in Regular Appeal Nos.125, 131 and 132 of 1947-48 decided on 1.4.1949. One such appeal was preferred by Y. Munivenkatappa who was the appellant in R.A. No.132/1947-48, one of the purchasers from Chikkada Bhovi. A perusal of the said Judgment discloses that by Gazette Notification dated 12.10.1944, the lands were notified for acquisition for construction of Tuberculosis Sanitarium. Dealing with the lands of Munivenkatappa in R.A. No.132/1947-48, it is observed that the claim relates to - 65 - payment for loss occasioned by sufficient time not being allowed to remove the seedlings on the land which as agreed to was Rs.1,50,000/-. It is further observed, in spite of express request of the claimant and the opinion of the Superintendent in Exhibit.P40, the Acquisition Officer refused to give him time and possession of the land was taken long before the Award, as admitted by him, and therefore they proceeded to award compensation.

54. The plaintiffs have produced the preliminary notification as per Ex.P1 and final notification as per Ex.P2. Ex.P1 discloses that the lands mentioned in the notification situated in Bangalore South Taluk, Bangalore District are notified for a public purpose to wit for Tuberculosis Sanatorium near Bangalore. The schedule properties are included in the said schedule of the notification. Ex.P2 discloses that under Sub-Section (1) of Section 17 of the Act, the Government directed that the possession of the lands may be taken on the expiry of 15 days from the date of publication of notice mentioned in Section 9 of the Act and the Sub-Division Officer, Bangalore Sub-division, Bangalore - 66 - was appointed to perform the functions of Deputy Commissioner under the Act. The schedule to the said notice includes the schedule property. Ex.P55 is a statement showing the particulars of compensation awarded in respect of the acquisition of lands in Byrasandra, Bangalore South Taluk for the Tuberculosis Sanatorium vide Government order No.P.W.1888-90 dated 29.04.1944. Ex.P56 is the statement showing the particulars of the enhanced compensation payable to the claimants as per orders of Additional Subordinate Judge, Bangalore in respect of the acquisition of lands for Tuberculosis Sanatorium, Bangalore. Ex.P57 is a statement showing the details such as the amount of compensation awarded by the Special Land Acquisition Officer, Bangalore under Section 26 of Regulation VII of 1894, date of Statement PW-1888-90 as 29.04.1944, name of the work for which land has been acquired, i.e., for the Tuberculosis Sanatorium and the date of resolution in the Mysore gazette Part III -1 dated 26.12.1944. Ex.P63 is a copy of the award notice dated 16.7.1945 in respect of Sy. No.2/3 measuring 29 guntas - 67 - issued to Chikkada Bhovi and Chikkanna in LAC No.31/44- 45. Ex.P83 is the order passed by the High Court of Mysore on 1st April, 1949 awarding compensation for destroying the seedlings without giving time for removing the same. Ex.P87, a statement showing the particulars of cases referred to the Sub-Ordinate Judge, Civil Court, Bangalore under Section 18 of the Land Acquisition Act and acquisition of lands in the Tuberculosis Sanatorium, Bangalore. The statements are all summoned from the office of the Assistant Commissioner, Bangalore and produced and marked through P.W.2. In addition to that, we have the admission of the defendant No.12 in the plaint in O.S.No.2456/1986 at Ex.P48. The relevant paras of the plaint are paras 4 and 5. It reads as under:

4. For purposes of constructing Tuberculosis Sanitorium (sic.) the then State of Mysore acquired a portion of the property of the said Chikkada Bhovi, and a notification to that effect was also issued in the Gazette in P.W. No.1888-90, dt. 29.9.1944. (Gazette notification is at Annexure ‘B’). Pursuant to such notification Land Acquisition proceedings in L.A.C.No.33 of 1944- - 68 - 45 (thirty three of fourty four – five) took place and award was passed in respect of the land acquired. The amount so awarded was also came to be paid to Shri. Chikkada Bhovi, the grand father of the plaintiff herein.

5. Thus the property referred in the Schedule below was left over from the Acquisition proceedings as it was not useful for any purpose by any authorities.

55. In other words, the plaintiff on the day he presented the plaint before the Court, in the aforesaid paras 4 and 5, have, in unequivocal terms admitted the initiation of acquisition proceedings, passing of an award and acquiring the lands belonging to Chikkada Bhovi. What was contended in the plaint was, the schedule property was not acquired. It was left over. As set out earlier, an application for amendment was filed seeking deletion of those paras and it was allowed. Subsequently, the plaint was amended substituting new paragraphs. Ex.D12 in the substituted paras at paragraph 5(i) reads as under: “[(i) The fourth defendant has been conferred rights to the extent of only 14 acres of - 69 - land in the area by the Government Order dated 03.04.1981. In the area which is granted in favour of the fourth defendant, the plaint properties is not included. This became very apparent when the entire matter was thoroughly scrutinized and a sketch prepared on 16.04.1984, separately demarcating the plaint properties as belonging to the plaintiffs and separately showing the areas in possession and occupation of the fourth defendant.” Again in para 6 in the middle, it is averred as under: “The plaintiffs submits that as the plaint schedule property, not being the subject matter of any acquisition proceedings and as no notice has been served on her and as no enquiry has been held, the defendants herein, in law, cannot take law to their own hands in committing any acts of illegality. The plaintiff submits that the defendants have absolutely no manner of right, title or interest over the schedule property and even as on today, it is the plaintiff, who is in possession and enjoyment.” 56. Therefore, even after the amendment, the acquisition proceedings are not denied and in fact the right - 70 - of the plaintiff to the extent of 14 acres of land in the area, by the Government order dated 03.04.1981, is admitted. The said Government Order is produced by the plaintiffs in the case as per Ex.P3 which reads as under: “Government are pleased to transfer the land measuring 14.00 acres adjacent to the present family wards of NIMHANS belonging to the SDS Sanatorium, to the NIMHANS, for the construction of OPD Building.

2. Sanction is also accorded to accept the amount already deposited by the NIMHANS towards the construction of staff quarters adjacent to the SDS Sanatorium by the PWD authorities subject to the condition that the area can be handed over to NIMHANS only after alternative quarters are completed. This order issued with the concurrence of the Finance Department vide their U.O. No.FD/864/Exp.III/81 dated 01.04.1981.” 57. The said Government order makes it clear that the Government was pleased to transfer the land measuring 14 acres adjacent to the present family wards of NIMHANS for the construction of OPD Building. Sanction was also - 71 - accorded to accept the amount already deposited by the NIMHANS towards the construction of staff quarters adjacent to SDS Sanatorium by the PWD authorities subject to the condition that the area can be handed over to Nimhans only after alternative quarters are completed. It is also made clear that the order was issued with the concurrence of the Finance Department vide U.O. No.FD/864/Exp.III/81 dated 01.04.1981. In terms of the said Government Order, possession of the 14 acres of land which included Sy. No.2/2 and Sy. No.2/3 of Byrasandra village was handed over to the plaintiff on 19.10.1987 as per Ex.P4, which reads as under: “With reference to the above, subject, I write to report that the land belonging to S.D.S.T.B. Hospital of 14 Acres has been handed over to NIMHANS on 9-10-87 along with sketch. The copy of the sketch shows the details of survey Nos and extent of land handed over is herewith enclosed. This is for your information and further needful in the matter.” - 72 - 58. As is clear from the said letter, possession of this 14 acres of land was handed over to the plaintiff on 09.10.1987 along with the sketch. As stated earlier, 12th defendant, even after amendment of the plaint and after withdrawing the admissions regarding acquisition, had admitted the acquisition proceedings and title of the plaintiff in respect of 14 acres of land in terms of the said Government order.

59. It is contended on behalf of the 12th defendant that, when a land is acquired by the Government for a public purpose, the title of the land vests with the Government only after passing of an award and taking possession. If passing of the award and taking of the possession is not established, the Government would not acquire any title. In this case, as award is not produced, no evidence in produced to show the taking of possession. Even though these acquisition proceedings are true, title is not vested with the Government and the title of the original owner is not extinguished. In support of that case, reliance is placed on para.5 of the judgment of the Apex Court in case of THE SPECIAL LAND - 73 - ACQUISITION OFFICER, BOMBAY AND OTHERS VS. GODREJ AND BOYCE [AIR1987SC2421 where it has been held as under:

5. We are of opinion that the High Court erred in striking down the order under s. 48 and compelling the State Government to acquire the lands of the respondent. Under the scheme of the Act, neither the notification under section 4 nor the declaration under section 6 nor the notice under section 9 is sufficient to divest the original owner of, or other person interested in, the land of his rights therein. Section 16 makes it clear beyond doubt that the title to the land vests in the Government only when possession is taken by the Government. Till that point of time, the land continues to be with the original owner and he is also free (except where there is specific legislation to the contrary) to deal with the land just as he likes, although it may be that on account of the pendency of proceedings for acquisition intending purchasers may be chary of coming near the land. So long as possession is not taken over, the mere fact of a notification under section 4 nor declaration under section 6 having been made does not divest the owner of his rights in respect of the land or relieve him of the duty to take care - 74 - of the land and protect it against encroachments. Again, such a notification does not either confer on the State Govt. any right to interfere with the ownership or other rights in the land or impose on it any duty to remove encroachments therefrom or in any other way safe-guard the interests of the original owner of the land. It is in view of this position, that the owner's interests remain unaffected until possession is taken, that section 48 gives a liberty to the State Government to withdraw from the acquisition at any stage before possession is taken. By such withdrawal no irreparable prejudice is caused to the owner of the land, and if at all he has suffered any damage in consequence of the acquisition proceedings or incurred costs in relation thereto, he will be compensated therefor under s. 48(2). In this view of the matter, it does not matter even if there is lapse of considerable time between the original notification and the withdrawal under section 48 as held in Trustees of Bai Smarth Jain Shvetambar Murtipujak Gyanodhyaya Trust and others v. State of Gujarat and another., AIR1981Gujarat 107. It also follows that the State can be permitted to exercise its power of withdrawal unilaterally and no requirement that the owner of the land should be given an opportunity of being - 75 - heard before doing so should be read into the provision.

60. As is clear from the facts of that case, a notification under Section 4 of the Act was issued in order to accommodate housing scheme of the Maharashtra Housing Board. This was followed by a declaration under Section 6 of the Act. Thereafter, no further proceedings were taken. In that context, it was held that neither the notification under Section 4 nor the declaration under Section 6 nor the notice under Section 9 is sufficient to divest the original owner of, or other person interested in the land of his rights therein. Section 16 of the Act makes it clear beyond doubt that title to the land vests in the Government only when possession is taken by the Government. Till that point of time, the land continues to be with the original owner and he is also free to deal with the land just as he likes.

61. The said judgment has no application to the facts of this case because in pursuance of Sections 4 and 17, further proceedings were initiated, award was passed, - 76 - compensation paid, possession taken and the matter was referred to the Reference Court for enhancement of compensation and compensation was also enhanced. One such claimant approached the High Court pleading that without giving sufficient time to remove the seedling in nursery, possession had been taken thereby causing loss. This case was accepted by the Division Bench of this Court and compensation was awarded. Ex.P55, Ex.P56, Ex.P57, Ex.P63 and Ex.P87 speak about the passing of the award, payment of compensation and enhancement of compensation. The judgment of the Division Bench at Ex.P83 clearly speaks about taking of possession immediately as emergency clause of Section 17 had been invoked. It is true that the copy of the award is not produced. The Mahazar for taking possession is also not produced. Taking advantage of the same, it was contended that acquisition is not complete. The acquisition was of the year 1944. The suit was filed in the year 2003 i.e., nearly 60 years after the acquisition. The evidence of P.W.2 discloses that the records in his office are not intact and therefore, he - 77 - is unable to produce the said records. Insofar as the plaintiff is concerned, it is not a party to the aforesaid proceedings. It is a beneficiary of the acquisition, not immediately after acquisition, but nearly 36 years after the acquisition. In fact the Director of the plaintiff made a sincere attempt to secure the records from the Civil Court, where the proceedings for enhancement were pending. He filed an application on 25.08.2007 as per Ex.P80 seeking for copies of the entire order sheet in LAC Misc. No.162/1946-47, final order, reference to the Government and copy of the petition. Ex.P81 is the endorsement issued by the Civil Court informing him about their inability to furnish the records, as the same were destroyed. It is in this background, we have to see the categorical admission of the 12 defendants in the plaint originally and also after amendment where acquisition proceedings, passing of the award and taking of possession are not denied but admitted in clear terms. On the contrary the case put forth was that the schedule property was not the subject matter of the said acquisition proceedings.-. 78 - 62. The Apex Court in the case of M/s.Jethmull Bhojraj Vs. State of Bihar and others reported in (1972)1 SCC714has held that the Government becomes the owner of the lands notified for acquisition only when the Collector takes possession of those lands either under section 16 or under Section 17(1) of the Act. Further it was held that ordinarily, possession of any land notified for acquisition is taken when the Collector has made an award under Section 11 of the Act and not before it. But an exception is provided under Section 17(1) of the Act. In cases of urgency, if the Government so directs, the Collector may, though no award has been made under Section 11 of the Act, on the expiration of 15 days from the publication of the notices under Section 17(1) of the Act, take possession of any waste or arable land and the land shall thereupon vest absolutely with the Government free from all encumbrances. From this provision, it is plain that the Collector cannot take possession of the land unless the Government directs him to do so. As stated earlier, Ex.P2 which is not in dispute categorically states that under Sub-section (1) of Section 17 - 79 - of the Act, the Government further directs that the possession of the said lands may be taken on the expiry of 15 days from the date of publication of the notice mentioned in Section 9 of the Act. Under Sections 4 and 17 of the Act, the Sub-Division Officer, Bangalore was appointed to perform the functions of the Deputy Commissioner under the Act. Therefore, the requirements of Section 17(1) of the Act had been fully complied with. Emergency clause was invoked for acquiring the land. A direction was issued to take possession within 15 days from the date of publication of the notification. The Division Bench order of this Court clearly demonstrated that the acquisition officer took possession from the claimants rejecting the request for time being granted to remove the seedlings, which gave raise to the claim for damages. Therefore, the aforesaid material evidence produced in the case clearly demonstrates the initiation of acquisition proceedings, taking of possession of the property in terms of Section 17(1) of the Act, passing of the award, referring the matter to the Civil Court for enhancement of compensation and enhancement of - 80 - compensation by the Civil Court and an appeal to the High Court seeking further enhancement, which is also granted by the High Court. Ex.P55, Ex.P56 and Ex.P57 are the statements showing the compensation paid to the claimants, enhancement of compensation when claimants approached the High Court.

63. Therefore, it is clear from the aforesaid evidence on record that the original owner Chikkada Bhovi lost his title to the schedule property, when he executed registered sale deeds on 21.11.1923 as per Ex.P32, on 31.12.1936 as per Ex.P33 and on 09.12.1940 as per Ex.P34 and on 30.06.1927 as per Ex.P44. Ex.P44 was executed by Venkatappa on 27.06.1927 selling his portion of the said survey number. Defendants 1 and 12 have executed the sale deed along with Chikkada Bhovi, their father as per Ex. P34. Thus Chikkada Bhovi, his daughters defendants 1 and 12 and his brothers lost right, title and interest in the schedule property as far as back in the year 1940. Consequently, the purchasers’ names were entered in the Revenue records. In the year 1944, when the acquisition proceedings were - 81 - initiated the names of purchasers were shown as the owners of the land as well as the anubhavadars. As set out above, the purchasers put forth their claim before the Land Acquisition Officer. Award came to be passed, amount is paid and they sought for a reference. Amount was enhanced and again amount was paid. One of them preferred an appeal to the Division Bench of this Court. Appeal was allowed granting higher compensation and thus even the claimants, who are the purchasers from Chikkada Bhovi lost their right, title and interest in the schedule property and the other property, which was notified for acquisition and the Government became the owner. Having pleaded this acquisition initially in the suit and claiming title to this property under a settlement deed said to have been executed by Chikkada Bhovi in favour of his two wives and consequently in favour of 12th defendant, probably when they noticed that the settlement deed did not include the schedule property, six years after the institution of the suit, by an amendment, all these admissions were substituted and a new case was pleaded. The new case pleaded was that - 82 - this property was the property of Chikkada Bhovi. He died leaving behind defendants 1 and 12 as his legal heirs. They continued to be in possession of the property after the death of their father and therefore, they are the owners of the property. The execution of the sale deed as per Ex.P34 by defendants 1 and 12 along with their father was deliberately suppressed.

64. The Trial Court, on appreciation of these documentary evidence has, by a reasoned order held that the case of the plaintiff that the schedule property was the subject matter of acquisition and after such acquisition, the Government handed over them 14 acres of land which includes the schedule property and therefore, they have become the absolute owners of the schedule property. The said finding cannot be found fault with.

65. Probably realizing the futility of this argument, it was argued in the alternative that, if the possession is established, the Government being the owner of the land cannot by a letter of allotment, confer title to the plaintiff as - 83 - has been done in this case by Ex.P3 and Ex.P4. Therefore, it was contended that granting a decree in favour of the plaintiff is illegal.

66. It is an admitted fact that the Government allotted 14 acres of land including the schedule property in favour of the plaintiff by way of Ex.P3. By way of Ex.P4, possession of the land so allotted, is delivered. Now the question is: Whether Ex.P3 and Ex.P4 confer title on the plaintiff and delivery of possession to it?.

67. The argument canvassed is that unless a transfer of an immovable property of the value of more than Rs.100/- is evidenced by a registered instrument, title do not pass. Reliance is placed on Section 17 of the Indian Registration Act. Section 17 of the Indian Registration Act deals with documents of which registration is compulsory. It reads as under:

17. Documents of which registration is compulsory.—(l) The following documents shall be registered, if the property to which they relate - 84 - is situate in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:— (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest (2) Nothing in clauses (b) and (c) of sub-section (l) applies to— (vii) any grant of immovable property by Government; 68. The aforesaid provision makes it clear as to which, are the documents, that shall be registered mandatorily without which, right, title and interest in - 85 - immovable property does not pass. Clause (b) provides that other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Clause (c) provides for non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest. Therefore, if an instrument falls within Clause (b) or (c) and the value of the property so transferred, is more than Rs.100/- such a document shall be registered; otherwise, right, title and interest do not pass. Sub-section (2) of Section 17 of the Act contains some exceptions. One such exception is found in sub-section (2) of Section 17 of the Act as extracted above. It provides that for any grant of immovable property by the Government, nothing in Clause (b) and (c) of Sub-Section (1) applies.-. 86 - 69. Therefore, if the Government were to grant any immovable property to any person, the value of which is more than Rs.100/-, such a grant need not be by way of a registered document. In other words clauses (b) and (c) of Sub-Section (1) have no application to any grant of immovable property by the Government. That explains the reason why when 14 acres of land including the schedule property was given to the plaintiff under Ex.P3 by the Government by way of an allotment, which was in the nature of a gift, that document did not require registration under Section 17(1) of the Act. After granting the land on 09.10.1987, the possession was also delivered. A sketch is enclosed as per Ex.P5.

70. Therefore, the argument that the grant of land by the Government to the plaintiff is itself not evidenced by a registered instrument and plaintiff does not acquire title to the 14 acres of land including the schedule property, is without any substance. The Trial Court, on proper appreciation of the legal evidence on record, after considering all the contentions urged by the defendants in - 87 - the suit and after referring to the statutory provisions governing the issues, has rightly held that the plaintiff has established his right, title and interest over the plaint schedule property and decreed the suit of the plaintiff granting the said declaration. Thus, no fault could be found with the said finding recorded by the Trial Court.

71. The learned counsel for the appellants contended that rightly or wrongly in the suit for injunction, the Court has held that defendants 1 and 12 are the owners of the property having inherited the same from Chikkada Bhovi. The case of acquisition is held to be not proved. The purchasers being bonafide purchasers, acting on the said judgment have purchased the property and are in possession of the property. Though in the present plaint, the plaintiff has pleaded that in the earlier proceedings, the plaintiff was not diligent in prosecuting the matter, there were lapses, collusion and therefore, they suffered a decree. It was contended that unless specific plea of fraud and particulars of fraud are furnished in the plaint and evidence is adduced regarding particulars of fraud, the Court is precluded from - 88 - taking note of those allegations and the decree passed earlier in O.S. No.2456/1986 cannot be ignored. In support of this contention, reliance was placed on the judgment of the Division Bench of the Karnataka High Court in the case of Ranganayakamma and another Vs. K.S.Prakash (Deceased) By L.Rs. and others reported in 2006 (3) Kar.L.J.

177. In this decision, it is held that the plaint only discloses general allegations. Except using the words “fraud” and “misrepresentation”, the plaintiffs have not pleaded as to how fraud was played and misrepresentation occasioned. Order VI Rule 4 of Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision. The plaint averments, do not set out with reasonable precision, the particulars so as to constitute allegations of fraud and misrepresentation. That was a case where the plaintiff specifically pleaded that defendants 1 and 2 obtained partition deed dated 05.08.1983 by playing fraud and therefore, they wanted that partition deed to be set-aside and a decree for partition was passed in accordance with law. If the plaintiff approaches - 89 - the Court seeking for cancellation or avoidance of any instrument on the ground of fraud, as is clear from Order VI Rule 4 of CPC, the particulars of fraud has to be furnished in the pleadings and in support of such pleading, evidence is to be adduced. If these two things are not complied with, the plaintiff is not entitled to a decree. There cannot be any quarrel with the said proposition of law.

72. In the instant case, the plaintiffs have not pleaded that the decree in O.S. No.2456/1986 is obtained by fraud and they did not seek for its cancellation or a declaration that it is not binding on them. What they have said about the said proceedings is contained in paras 10 and 11. A perusal of the aforesaid paragraphs shows that, relevant documents regarding acquisition of lands by the Government and the consequent loss of title by the predecessors of defendants 1 and 12 do not appear to have been produced. Though the suit was decreed and an appeal was filed, the appeal does not appear to have been pursued. The said suit was not defended effectively with due diligence and there was some lapse on the part of the concerned in - 90 - defending the case of the plaintiff-Institute. Though appeal was withdrawn at the instance of the Government, it is obvious that vested interest, which are determined to knock- off the valuable property of the plaintiff had put pressure on the plaintiff to see that its interest should not be protected. This indicates that the officials in charge of the plaintiff at the relevant time connived with the vested interests of the plaintiff. Therefore, they offered an explanation regarding how a decree came to be passed earlier in a suit for bare injunction. They did not seek for cancellation of the decree on the ground of fraud.

73. The Apex Court in the case of Gram Panchayat, Naulakha Vs. Ujagar Singh reported in AIR2000SC3272had an occasion to deal with this issue. It held as under:- 5. We may state that the view taken by the Full Bench of the Punjab & Haryana High Court in Jagar Ram's case [AIR1991Punjay & Haryana 159]. is not correct and in fact, it runs contrary to the provisions of section 44 of the Indian Evidence Act. That section provides that: - 91 - Any party to a suit or proceeding may show that any judgment, order or decree which is relevant under sections 40, 41, 42 and which has been delivered by a Court not competent to deliver it or was obtained by fraud or collusion. (Section 40 refers to the relevances of previous judgments which are pleaded as a bar to a second suit or trial and obviously concerns section 11 CPC).

6. It appears from commentary in Sarkar's Evidence Act (13th Ed., reprint) (at p.

509) on section 44 that it is the view of the Allahabad, Calcutta, Patna, Bombay High Courts that before such a contention is raised in the latter suit or proceeding, it is not necessary to file an independent suit. The passage from Sarkar's Evidence which refers to various decisions reads as follows:

"Under Section 44 a party can, in a collateral proceeding in which fraud may be set up as a defence, show that a decree or order obtained by the opposite party against him was passed by a court without jurisdiction or was obtained by fraud or collusion and it is not necessary to bring an independent suit for setting it aside, Bansi v. Dhapo, [1902]. ILR24 All 242; Rajib v. Lakhan, [1890]. ILR17Cal. 11; Parbati v.-. 92 - Gajraj, AIR (1937) All. 28; Prayag v. Siva, AIR1926Cal. 1; Hare Krishna v. Umesh, AIR (1921) Pat. 193; Aswini v. Banamali, 21 CWN594 Manchharam v. Kalidas, [1895]. ILR19Bom. 821; Ranganath v. Govind, [1904]. ILR28Bom. 639; Jamiruddin v. Khadejanessa, AIR (1929) Cal. 685; Bhagwandas v. Patel & Co., AIR (1940) Bom. 131; Bishunath v. Mirchi, AIR (1955) Pat. 66 and Gurujada Vijaya v. Padmanabham, AIR (1955) AP112" Thus, in order to contend in a later suit or proceeding that an earlier judgment was obtained by collusion, it is not necessary to file an independent suit as stated in Jagar Ram's case for a declaration as to its collusive nature or for setting it aside, as a condition precedent. In our opinion, the above cases cited in Sarkar's Commentary are correctly decided. We do not agree with the decision of the Full Bench of the Punjab & Haryana High Court in Jagar Ram's case. The Full Bench has not referred to section 44 of the Evidence Act not to any other precedents of other Courts or to any basic legal principle.

7. The law in England also appears to be the same, that no independent suit is - 93 - necessary. In Spencer-Bower and Turner on Res Judicata (2nd Ed., 1969) it is stated (para

359) that there are exceptions to the principle of res judicata. If the party setting up res judicata as an estoppel has alleged all the elements of an estoppel (i.e ingredients of res judicata), it is still open to the latter (the opposite party) to defeat the estoppel by setting up and establishing certain affirmative answers. Of these there are four main classes-fraud, cross-estoppel, contract and public policy. The author clearly says that no active proceedings for 'rescission' of the earlier judgment are necessary. They state (para

370) as follows:

"The avoidance of a judicial act on the ground of fraud or collusion is effected not only by active proceedings for rescission........but also by setting up the fraud as a defence to an action on the decision, or as an answer to any case which, whether by way of estoppel or otherwise, depends for its success on the decision being treated as incontrovertible."

Thus, the law is well settled that no independent suit as a condition precedent is necessary.

8. Collusion, say Spencer-Bower and Turner (para 378), is essentially play- acting by - 94 - two or more persons for one common purpose-a concerted performance of a fabula disguised as a judicium-an unreal and fictitious pretence of a contest by confederates whose game is the same. As stated by Lord Selborne LC in Boswell v. Coaks, (1894) 6 Rep. 167, there is no judge; but a person invested with the ensigns of a judicial office, is misemployed in listening to a fictitious cause proposed to him, there is no party litigating.......no real interest brought into question and to use the words of a very sensible civilian on this point, fabula nonjudicium, hoc est; in scena, non in foro, res agitur. That, in our view, is the true meaning of the word 'collusion' as applied to a judicial proceeding.

9. Further property of a public institution cannot be allowed to be jeopardised by persons who, at an earlier point of time, might have represented it and who were expected to effectively defend public interest and community property. Persons representing public bodies are expected to discharge their functions faithfully and in keeping with the trust reposed in them.

10. We may also add one other important reason which frequently arises under section 11 CPC. The earlier suit by the respondent - 95 - against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into nor decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed vs. Musa Dadabhai Ummer, [2000]. 3 SCC350 where this Court, on a detailed consideration of law in India and elsewhere held that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a latter suit or proceedings where title is directly in question, unless it is established that it was 'necessary' in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding of title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case.

74. Therefore, it is clear that without seeking to setting aside a decree passed earlier either on the ground of fraud or collusion, it is open to the party against whom it is pressed into service to point out to the Court that it is obtained by fraud or collusion. In such circumstances, Order VI Rule 4 is not attracted. What is required is the - 96 - material on record should demonstrate to the Court as to how a decree has been obtained by fraud. If the undisputed facts in the case demonstrate the said fact, the Court need not give weightage to such a decree. Even without annulling the decree or declaring that the decree is not binding, the legal effect of a decree could be determined and the case could be decided on merits on the basis of the material produced before the Court.

75. In the instant case, we have set out how Chikkada Bhovi lost title to the property before 1940. If Chikkada Bhovi had no right to the property in the year 1940, his daughters also did not have any right in the property when they filed a suit for injunction in the year 1986. In fact, daughters also have executed the sale deed along with their father as per Ex.P34. In the plaint, they pleaded the acquisition proceedings, admitted acquisition proceedings, passing of an award and taking of possession, but contended that the subject matter of the suit was not the subject matter of acquisition proceedings. They set up a settlement deed claiming title to the property. Thereafter, - 97 - they filed an application for amendment of the pleadings, withdrew all those allegations and substituted a new case. The evidence on record does not disclose why an order allowing such an application, taking away valuable right of the plaintiff was not challenged before this Court. Subsequently, they pleaded title claiming inheritance from Chikkada Bhovi. The defendant No.4 in the said suit who is the plaintiff in this case did not produce these documents, which they have produced in this case, to show that Chikkada Bhovi had no title at all. He had lost title and that the property had been acquired by the Government. They failed to produce the acquisition documents and therefore, the Court was helpless. In the absence of these documents and in the absence of any serious cross-examination of the plaintiff’s witness in the said case, the Court has passed a decree for permanent injunction holding that the plaintiff is in possession. The said finding did not in any way infringe on the title of the plaintiff in this case. In the said proceedings the Court has not declared that the defendants 1 and 2 as owners nor it has declared that the plaintiff has - 98 - no title. The Court is only concerned with who is in possession of the property on the date of the suit. It was only a suit for injunction and not one for title. No question of title was gone into nor decided. Admittedly, no issue regarding title was framed in the said suit. The documents supporting title which were produced in the case was not produced in the earlier suit. The finding on title was only incidental. In fact such a finding was not at all necessary to grant a decree for injunction. It is to be noticed that the plaintiff is a public institution of national importance. The persons who represented the plaintiff in the earlier suit, who were expected to effectively defend public interest and community property have not discharged their duty properly and thus have jeopardized the interest of the plaintiff. The material on record discloses that during earlier proceeding in O.S.No.2456/1986, the officials who were in charge of the plaintiff-Institute were not diligent in defending the suit and they had not produced the documents which showed the title and possession. They did not even challenge the order of allowing the application for amendment when in the process - 99 - the entire nature of the suit was sought to be altered. Though the suit was pending for six long years, after the amendment within a span of five months, decree was obtained and the appeal was filed and withdrawn without any justification. Fortunately PW1 Dr. Nagaraj, the Director of the plaintiff at the time of institution of the present suit, has taken personal interest, collected all the available documents relating to the title of the schedule property from all revenue offices, Sub-Registrar offices and the Court, studied them, and deposed before the Court and produced all the documents and got it marked. Thus he has gone an extra mile and protected the interests of the plaintiff and the public. He has clearly stated about the acquisition proceedings, payment of compensation to claimants, the taking of possession by the Government and allotment of the land to the plaintiff besides delivery of possession. In the process he has clearly exposed the fraud played by the defendants 1 and 12 in obtaining the decree for injunction, and also the latches on the part of the persons in charge of the plaintiff in the earlier suit. The Court cannot be oblivious - 100 - to the aforesaid conduct of the parties and the circumstances under which the decree was passed in the earlier proceedings. The plaintiff being an institution of national importance is catering to the needs of the patients not only in this country but even outside. The suit schedule property is a prime land attached to the institute which is required for expansion programme. Because of this litigation for nearly 35 years they are not able to utilize the land to serve public who are badly in need of medical assistance. The officials in this Institute have taken pains in fighting this litigation. Therefore, seen from any angle we do not see any justification to interfere with the well considered order passed by the Trial Court, on the question of title. Point No.(ii) - Order II Rule 2 CPC76 The learned counsel for the appellant contended that the plaintiff herein had filed a suit in OS No.2547/2003 against Defendants 22, 24 and 25 in the present suit, for the relief of decree for permanent injunction restraining them from interfering with the plaintiff’s peaceful possession and enjoyment of the plaint schedule property. In the plaint, it is - 101 - mentioned that the cause of action for the suit arose on 15.1.2003, 29.1.2003 and 16.2.2003 when public notices were published. A reading of the said public notices show the plaintiff’s title to the schedule property had been denied. Therefore, on the day the suit was filed, the plaintiff was entitled to claim the relief of declaration and injunction. Order II Rule (2) CPC mandates that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Sub-rule [3]. of Rule 2 makes it clear that when a person is entitled to more than one relief in respect of the same cause of action, but if he omits to sue for all such reliefs except with the leave of the Court, he shall not afterwards sue for any relief so omitted. The cause of action in the present suit and the cause of action in the earlier suit was one and the same. The plaintiff when he did not get an order of temporary injunction in the said suit preferred a miscellaneous first appeal to the High Court where also he was not successful. When the High Court directed disposal of the suit expeditiously, he filed a memo in the suit and withdrew the suit. At the time of - 102 - withdrawing the suit, he did not seek leave of the court. Though before withdrawing the suit, he had filed the present suit, the present suit is hit by Order II Rule 2 CPC and the suit ought to have been dismissed on this short ground.

77. Learned counsel for the respondents contended that, the suit in OS No.2457/2003 is only filed against Defendants 22, 24 and 25. The plaintiff was not aware of acquisition of title by the defendants in the suit as the same was not mentioned in the public notice. There was threat of dispossession, alienation and construction over the schedule property. He filed a suit for the relief of injunction. It is only when injunction was refused and which order was confirmed by the High Court, he presented the present suit for declaration of title and for injunction or in the alternative for the relief of possession. As could be seen from the finding recorded by the trial Court, on the question of possession, it is not certain who is in possession of the property and to what extent and the court has held that the plaintiff is not in possession only in respect of a portion of the ‘B’ schedule property on the basis of the decree passed in the earlier suit.-. 103 - Therefore, by way of abundant caution, they have sought for relief of possession. In the earlier suit, they could not have sought for the relief of possession and therefore Order II Rule 2 CPC is not a bar for filing of the present suit.

78. In order to appreciate the rival contentions, it is necessary to look into the statutory provision. Order II Rule 2 reads as under: Suit to include the whole claim- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for - 104 - all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

79. The salutary principle behind Order II Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicated in successive litigations. One of the objects of Order II Rule 2 is to avoid multiplicity of proceedings.

80. Sub-rule (1) to Rule II deals with the frame of the suit and enables the plaintiff to abandon or relinquish a part of his claim before filing his plaint. The provisions of Order II Rule 2 indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, it cannot spilt up the claim so as to omit one part of - 105 - the claim and sue for the other. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the Court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the Court.

81. To constitute a bar to fresh suit under Order II Rule 2(3) CPC, three elements are required to be proved. Firstly, it must be established that the second suit was in respect of the same cause of action as that on which the previous suit was based; Secondly, in respect of that cause of action, the plaintiff is entitled to more than one relief and lastly, that being so, the plaintiff without leave obtained from the Court, omitted to sue for the relief for which the second suit has been filed.

82. The correct test in cases falling under Order II Rule 2, is "whether the claim in the new suit is in fact - 106 - founded upon a cause of action distinct from that which was the foundation for the former suit."

83. "Cause of action" means the bundle of facts which the plaintiff must prove in order to succeed in his action. The cause of action for which the suit was brought means, the cause of action is the cause of action which gives occasion for and forms the foundation of the suit. Generally stated, the cause of action means every fact which is necessary to establish to support a right or obtain judgment. Another shade of meaning is that a cause of action means every fact which will be necessary for the plaintiff to prove (if traversed). The cause of action for the purpose of this Rule means all the essential facts constituting the right of its infringement. In other words, the cause of action consists of all the facts which are essential for the plaintiff to allege and to establish, if denied or controverted, for instance, the bundle of facts which taken with the law applicable to them gives him a right of some relief against the defendant.-. 107 - 84. The burden is on the defendant to establish that the subsequent suit is founded on a cause of action which is identical with that of which the earlier suit was founded. If the cause of action and the relief claimed in the second suit are not the same as the cause of action and relief claimed in the first suit, the second suit is not barred. It is settled law that when the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter.

85. A plea of bar under Order II Rule 2 is a highly technical plea. It tends to defeat justice and to deprive the party of a legitimate right. Therefore, care must be taken to see that complete identity of cause of action is established. It has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. Since the plea of Order II Rule 2, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, - 108 - the cause of action on which the suits are founded, reliefs claimed in both the suits and lastly the legal provisions applicable for grant of reliefs in both the suits. Where the essential requirement for the applicability of Order II Rule 2 viz., the identity of the cause of action in the previous suit and subsequent suit is not established, the subsequent suit cannot be said to be barred by Order II Rule 2 CPC. Besides identity of cause of action, identity of the plaintiff also be looked into to invoke the bar under this Rule. In case of continuous cause of action or recurring cause of action, bar under Order II Rule 2(3) cannot be invoked. In a suit for bare injunction the plaintiff need not prove his title. But, in a suit for possession he has to prove his title, if denied. If the cause enables a man to ask for a larger and wider relief than to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. Where the cause of action for seeking a particular relief is not available to a plaintiff at the time of filing the earlier suit, the bar under Order II Rule 2 is not applicable.-. 109 - 86. The aforesaid provision has been the subject matter of interpretation by various Courts including the Supreme Court. In fact learned senior counsel appearing for both the parties relied on several Judgments. Learned counsel for the appellant relied on the following judgments:

87. The Apex Court in the case of N.V. SRINIVASA MURTHY AND OTHERS Vs. MARIYAMMA [DEAD]. BY PROPOSED LRs and OTHERS’ [AIR2005SC2897, held as under:- 13. In paragraph 11 of the plaint, the plaintiffs have stated that they had earlier instituted original suit No.557 of 1990 seeking permanent injunction against defendants and the said suit was pending when the present suit was filed. Whatever relief the petitioners desired to claim from the civil court on the basis of averment with regard to the registered sale deed of 1953 could and ought to have been claimed in original civil suit No.557 of 1990 which was pending at that time. The second suit claiming indirectly relief of declaration and injunction is apparently barred by Order 2, Rule 2 of the Code of Civil Procedure.-. 110 - 88. The Apex Court in the case of GURUBUX SINGH vs BHOORALAL [AIR1964SC1810 has held as under :- “6. In order that a plea of a bar under 0.

2. r. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential - 111 - reasoning. It is for this reason that we consider that a plea of a bar under 0.

2. r. 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits.

89. The Apex Court in the case of SIDRAMAPPA vs RAJASHETTY AND OTHERS [AIR1970SC1059 has held as under:- 7. The High Court and the trial court proceeded on the erroneous basis that the former suit was a suit for a declaration of the plaintiff’s title to the lands mentioned in Schedule I of the plaint. The requirement of Order 2 Rule 2 Code of Civil Procedure is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. ‘Cause of action’ means the ‘cause of action for which the suit was brought’. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to - 112 - which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings – See Mohd. Hafiz v. Mohd. Zakaria, 49 Ind App 9 = (AIR1922PC23 90. The Apex Court in the case of KUNJAN NAIR SIVARAMAN NAIR vs NARAYANAN NAIR AND OTHERS [AIR2004SC1761 held as under:- “10. Order II Rule 2, sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based. Therefore, there must be identical cause of action in both the suits, to attract the bar of Order II sub- rule (3). The illustrations given under the rule clearly brings out this position. Above is the ambit and scope of the provision as highlighted in Gurbus Singh's case (supra) by the Constitution Bench and in Bengal Waterproof Limited (supra). The salutary principle behind Order II Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and the reliefs for being indicated in successive litigations. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the Court and must claim the whole relief or entire bundle - 113 - of reliefs available to him in respect of that very same cause of action. He will thereafter be precluded from so doing in any subsequent litigation that he may commence if he has not obtained the prior permission of the Court.

91. In Halsbury's Laws of England (Fourth Edition) it has been stated as follows:

"'Cause of action' has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action."

92. The Apex Court in the case of KEWAL SINGH – VS- MT.LAJWANTI [AIR1980SC161 has held as under:- “5. ….A perusal of O.2 R.2 would clearly reveal that this provision applies to cases where - 114 - a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff bases his suit on separate and distinct causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have so relinquished.

93. This Court in the case of NANJEDEVARU vs H.V.RAMA RAO [AIR1959MYSORE173 held as under:- 5. …… It is clear, therefore, that in the earlier Suit, as framed, the plaintiff could not have asked for possession. That relief, in my opinion, the plaintiff was not entitled to in the said suit. But, in this suit, he would be entitled to ask for that relief. In the premises, I hold that Sub-rule (3) of Rule 2 has no application to the present case, the causes of action being different. There was some discussion before me as to the exact meaning of "cause of action."

In my opinion, it is now well established that "cause of action" means the bundle of facts which the plaintiff must prove in order to succeed - 115 - in his action. In the earlier case, one of the facts which the plaintiff had to prove was that he was in possession and therefore was entitled to injunction. In this case, one of the facts which he has to prove is that he is not in possession & therefore he is entitled to possession. This being the position, the cause of action cannot be said to be the same in both cases.

94. This Court in the case of B.SHAMBUMAL GANGARAM AND ANOTHER vs THE STATE BANK OF MYSORE [AIR1971MYSORE156 has held as under:- 36. The defendants, who have raised the plea of bar under Order 2, Rule 2, C. P. C. in order to succeed must make out-- (1) that the present suit was in respect of the same cause of action as that on which O. S. No.19/56 was based; (2) that in respect of the cause of action in that suit the plaintiff was entitled to more than one relief; (3) that the plaintiff without leave obtained from the court, omitted to sue the relief for which the present suit had been filed. Thus, the defendants, in order to succeed, should establish the precise cause of action upon which O. S. No.19/56 was filed and that on which the claim in the present suit is based and they have - 116 - to show that there is identity between the cause of action on which O. S. 19/56 was filed and that on which the claim in the present suit is based. Otherwise, there would be no scope for the application of Order 2, Rule 2, Civil P. C. On a perusal of the pleadings of the previous suit and the present suit and on the facts, we are satisfied that there is no identity of causes of action in the two suits. Therefore, the present suit is not barred under Order 2. Rule 2, C. P. C.

95. The Apex Court in the case of M/S BENGAL WATERPROOF LTD. VS. M/S BOMBAY WATERPROOF MFG. CO. AIR1997SC1398held as under:- 8. As seen earlier, Order 2 Rule 2 sub- rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based and unless there is identity of causes of action in both the suits the bar of Order 2 Rule 2 sub-rule (3) will not get attracted.

20. …… In cases of continuous causes of action or recurring causes of action bar of Order 2 Rule 2 sub-rule (3) cannot be invoked. In this connection it is profitable to have a lock at Section 22 of the Limitation Act, 1963. It lays down that - 117 - `in the case of a continuing breach of contract or in the case of continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues'.

96. The Apex Court in the case of ALKA GUPTA vs NARENDER KUMAR GUPTA [(2010) 10 SCC141 held as under:- 18. Further, while considering whether a second suit by a party is barred by Order 2 Rule 2 of the Code, all that is required to be seen is whether the reliefs claimed in both suits arose from the same cause of action. The court is not expected to go into the merits of the claim and decide the validity of the second claim. The strength of the second case and the conduct of plaintiff are not relevant for deciding whether the second suit is barred by Order 2 Rule 2 of the Code.

97. The Apex Court in the case of RATHNAVATHI AND ANOTHER vs KAVITA GANASHAMDAS [(2015) 5 SCC223 held as under:- - 118 - 26. One of the basic requirements for successfully invoking the plea of Order II Rule 2 of CPC is that the defendant of the second suit must be able to show that the second suit was also in respect of the same cause of action as that on which the previous suit was based. As mentioned supra, since in the case on hand, this basic requirement in relation to cause of action is not made out, the defendants (appellants herein) are not entitled to raise a plea of bar contained in Order II Rule 2 of CPC to successfully non suit the plaintiff from prosecuting her suit for specific performance of the agreement against the defendants.

27. Indeed when the cause of action to claim the respective reliefs were different so also the ingredients for claiming the reliefs, we fail to appreciate as to how a plea of Order II Rule 2 could be allowed to be raised by the defendants and how it was sustainable on such facts.

28. We cannot accept the submission of learned senior counsel for the appellants when she contended that since both the suits were based on identical pleadings and when cause of action to sue for relief of specific performance of agreement was available to the plaintiff prior to - 119 - filing of the first suit, the second suit was hit by bar contained in Order II Rule 2 of CPC.

29. The submission has a fallacy for two basic reasons. Firstly, as held above, cause of action in two suits being different, a suit for specific performance could not have been instituted on the basis of cause of action of the first suit. Secondly, merely because pleadings of both suits were similar to some extent did not give any right to the defendants to raise the plea of bar contained in Order II Rule 2 of CPC. It is the cause of action which is material to determine the applicability of bar under Order II Rule 2 CPC and not merely the pleadings. For these reasons, it was not necessary for plaintiff to obtain any leave from the court as provided in Order II Rule 2 of CPC for filing the second suit.

30. Since the plea of Order II Rule 2, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, reliefs claimed in both the suits and lastly the legal provisions applicable for grant of reliefs in both the suits.” - 120 - 98. The Apex Court in the case of INBASAGARAN AND ANOTHER vs S.NATARAJAN (DEAD) THROUGH LEGAL REPRESENTATIVES [(2015) 11 SCC12 held as under:- 20. Indisputably, cause of action consists of a bundle of facts which will be necessary for the plaintiff to prove in order to get a relief from the Court. However, because the causes of action for the two suits are different and distinct and the evidences to support the relief in the two suits are also different then the provisions of Order 2 Rule 2 CPC will not apply……” 99. In the light of the aforesaid judgments referred to supra and the settled legal position, we have to examine whether the present suit filed is barred under Order II Rule 2 as the plaintiff failed to seek these reliefs in the earlier suit filed.

100. The present plaintiff filed O.S.2547/2003 on 10.04.2003 for a judgment and decree of permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment of the suit - 121 - schedule property. In the said suit, they had arrayed 22nd defendant in the suit as 1st defendant, 25th defendant as 2nd defendant and 24th defendant as 3rd defendant, all persons who claimed to have purchased the “B” schedule property. In the said suit, they have referred to the suit filed by Smt.Laxmamma in O.S.2456/1986 on 26.6.1986. They have also referred to passing of the decree after contest. After referring to the said facts in paragraph 10 of the plaint, it is averred that the plaintiff was surprised to read the public notice published in Deccan Herald dated 15.01.2003 stating that one Manikanda Property Development (P) Ltd. issued a public notice claiming that he is intending to enter into joint venture Memorandum of Understanding for the purpose of construction of residential group housing apartments with the defendants herein calling for objections if any to the above said transaction. The case of the plaintiff was that he gave a suitable reply through its advocate on 23.01.2003 and reply to the public notice dated 15.01.2003 by issuing public notice in Deccan Herald – daily news paper which was published on 27.01.2003. They have also referred to the - 122 - issue of legal notice by the defendants subsequent to the said publications and the receipt of a caveat petition filed by the defendants. They contended that the defendants have no manner of right, title and interest and were never in possession of the suit schedule property at any time. They are trying to interfere with the plaintiff’s peaceful possession of the suit property. Therefore, the plaintiff wanted a decree of permanent injunction restraining them from interfering with the plaintiff’s peaceful possession and enjoyment of the suit schedule property. In paragraph 15 dealing with cause of action, it is averred as under: “The cause of action for the suit arose on 15.01.2003, 29.01.2003 and 16.02.2003 date of public notice and legal notice and subsequently on 23.03.2003 the date on which the defendants trying to obstruct and interfere and attempted to demolish the compound wall and within the jurisdiction of this Hon’ble Court”.

101. Ex.P.25 is the public notice issued on behalf of Manikanda Property Development (P) Ltd informing the public that they are entering into a Joint Venture MOU with - 123 - one K.V.Shivakumar and 18 others undivided share land owners for the purpose of construction of residential group housing apartments at the plaint schedule property. It was informed that any person claiming any right over the said property, may file their written objections to the undersigned within 15 days of the publication. Noticing the said publication, the plaintiffs got a reply to the said public notice duly published in the news paper at Ex.P.26, clearly setting- out the title to the property and contending that the persons mentioned in the public notice as owners have no manner of right, title or interest over the schedule property. The same was also followed by a legal notice through their counsel reiterating what they have stated in the public notice. A reply was sent on behalf of the defendants in the said suit denying the plaintiff’s title without disclosing what is the right the defendants have in the property. In fact, they called upon the plaintiff to withdraw the notice within one week from the date of receipt of the said reply threatening legal action, if it is not done. In fact, they entered a caveat. It is in those circumstances, where the plaintiff was not aware of the - 124 - defendants right in the schedule property and there was a threat of their entering into a joint development agreement, the plaintiff filed the suit for injunction restraining the defendants in the suit from interfering with the plaintiff’s peaceful possession and enjoyment of the schedule property. When the defendants in the suit only denied the right of the plaintiff and they did not state what was their right in the property, the plaintiff being the owner in possession of the property had to protect his possession over the property, as there was an attempt to take up a housing project under a joint venture. Therefore, on the day the said paper publication and the reply were issued, the plaintiff could not have been expected to seek any declaration of title when defendant did not state what their title to the property was or in other words, as they did not put forth any claim for title over the property. There was a threat to the plaintiff’s possession. The plaintiff was justified in bringing a suit for bare injunction. However, in the said suit he also sought an order of temporary injunction. As defendants had entered caveat, application was opposed. After hearing both the - 125 - parties, the application came to be dismissed. Aggrieved by the said order, the plaintiff preferred a Misc. First Appeal in MFA No.8594/2003 in which also they were not able to get an interim order of temporary injunction and the appeal came to be dismissed however, directing the trial Court to dispose off the pending suit expeditiously. Then the plaintiff thought of filing this comprehensive suit for declaration of title and for possession. The cause of action in the suit, as set-out in the plaint is found in paragraphs 12, 13 and 14. After referring to the public notice and the reply notices and to the orders passed on I.A.1 in the suit O.S.2547/2003 it was pleaded that in view of the fact that the said suit was only for bare injunction and to avoid all further controversies and to resolve all further disputes once for all, the plaintiff had been advised to file a comprehensive suit based on title for declaration and for consequential relief. It is also stated at paragraph 13 that the plaintiff on enquiry has now found that portion of the “B” schedule property have been sold by the defendants 1 to 21 in the present suit in favour of defendants 22 to 39 as per the particulars furnished in the - 126 - said paragraph. Thereafter, at paragraph 14 it is stated that the cause of action for the suit arose on 15.01.2003 – the date on which defendants 22 to 39 issued a public notice and subsequently within the jurisdiction of this Court. Therefore, the cause of action in the present suit is when the plaintiff was not able to get an interim order of injunction and the plaintiff came to know that 23 sale deeds to 21 persons have been executed in favour of defendants 22 to 39, the plaintiff was constrained to file the present suit not only against the three defendants in the earlier suit but also against the 2 daughters of Chikkada Bhovi i.e., Smt Ramakka and Smt Laxmamma and their legal heirs as well as the 11th defendant – Yelamma w/o Chikkada Bhovi and defendants 22 to 41 all the purchasers under the aforesaid sale deeds. However, the subject matter of both the suits is one and the same. Relying on the cause of action clause in the plaint in both the suits, it was contended when the cause of action arose in both the suits on 15.01.2003, the second suit is barred. As stated earlier, the phrase ‘cause of action’ means bundle of facts. The cause of action in the earlier suit was, there was a threat - 127 - of construction of housing project in the schedule property by a developer by entering into a joint development agreement with 18 persons. The plaintiff was not made known of what right the builder had, what right the persons with whom he was entering into the said agreement in the schedule property had. When a legal notice was sent, all that has been stated in the reply was the plaintiff had no title referring to the earlier legal proceedings. As the threat was to construct a housing project in the schedule property, the plaintiff rushed to the Court to protect his possession. Though it is mentioned in the cause of action column that the cause of action arose on the day the public notice is published, the cause of action for the suit really is the threat of construction on the schedule property by the builder. When the order of temporary injunction was refused, which order was confirmed by the High Court and in the meanwhile, he came to know the interest of the 18 persons referred to in the earlier public notices when he obtained the certified copies of the 23 sale deeds, then the plaintiff did not want to take chance. He wanted to put an end to all these controversies.-. 128 - Therefore, even before withdrawing the earlier suit, he filed the present comprehensive suit for declaration of title against all the persons who are claiming title to the property i.e., two daughters, wife and their children claiming title from Chikkada Bhovi and the persons who have purchased the said property from Chikkada Bhovi. These persons were not parties in the earlier suit. Subsequently, after filing of the present suit O.S. No.2547/2003 was withdrawn. It is also to be noticed the suit filed by Laxmamma and Ramakka in O.S.No.2456/1986 is decreed restraining the plaintiff from entering upon the schedule property and his decree has attained finality. Though, it was contended the property granted to the plaintiff is different from the schedule property, there is no clear legal evidence on record to show who is in possession of what portion. Therefore, when the suit O.S.2547/2003 was filed, plaintiff was contending that they are in possession of the property.

102. They made an attempt to protect their possession seeking an order of temporary injunction, when it was refused it became evident that the decree in - 129 - O.S.No.2456/1986 is operating against them, and therefore, in the present suit they claim that they are in possession and by way of alternative plea, they have sought for possession. This relief could not have been sought in the earlier suit for injunction where they were seeking to prevent the defendants from entering the property. In a suit for bare injunction the plaintiff need not prove his title. The cause of action for such a suit is the threat of interference of possession. Title need not be established to get the relief of injunction. What has to be proved in a suit for injunction is plaintiff’s lawful possession of the schedule property. In order to look into the nature of possession, title of the property assumes importance, but it is only incidental. Merely because the defendant denies the title of the plaintiff, the plaintiff is under no obligation to seek for declaration of title. If he does not seek such declaration it cannot be said either he has failed to seek such relief or that he has abandoned the said relief. In such a suit if ultimately held he is not in possession and therefore not entitled to the relief of injunction, then if he wants to recover possession he has - 130 - to bring a suit for possession. He will be entitled to possession only if he establishes his title. Then it is obligatory for him to seek the relief of declaration. In which event the cause of action for the suit for possession is altogether different from the suit for injunction. Under these circumstances, the cause of action for the earlier suit and the cause of action for the present suit are totally distinct as in the earlier suit they were under no obligation to seek declaration of title and they could not have even sought for a decree for possession. Thus, the suit filed by them is not hit by order 2 Rule 2 of CPC. The trial court, on a careful consideration of pleadings of both the suits and the other material on record, has rightly held keeping in mind the settled legal position that the suit is not barred under Order 2 Rule 2 of CPC. We do not find any error in the said finding recorded by the trial court. Point No.(iii) - Order 23 Rule 1 of CPC103 The learned senior counsel for the appellant contended that the suit is also hit by Order 23 Rule 1(4) CPC, in as much as, when the plaintiff withdrew the earlier - 131 - suit in OS No.2547/2003, without permission to be taken according to sub-rule [3]. of Rule 1 of Order 23, the plaintiff is precluded from instituting fresh suit in respect of such subject matter or such part of the claim. Therefore, on that ground also, the suit is liable to be dismissed.

104. The learned senior counsel for the respondent contended that in so far as the suit being hit by Order 23 Rule 1 CPC is concerned, earlier suit was only suit for bare injunction and all that the bar contained in sub-rule [4]. of Rule 1 of Order 23 is if suit is withdrawn without leave of the court, the plaintiff is precluded from filing one more suit on the same cause of action for the same relief. In the instant case, the cause of action for the subsequent suit is altogether different and suit is not one for bare injunction. The main relief sought is declaration of title and for possession and therefore Order 23 Rule 1[4]. CPC is not a bar for maintainability of the suit.-. 132 - 105. In order to appreciate this contention, it is necessary to look into the provision. Order 23 Rule 1 of CPC reads as under: “1. Withdrawal of suit or abandonment of part of claim.- (1) At any time after, the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the court is satisfied,— (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, - 133 - it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff— (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” 106. This provision has been subject matter of decision by various Courts including the Apex Court. Counsel for the appellant relied on the following judgments: - 134 - 107. The Apex Court in the case of SARGUJA TRANSPORT SERVICE VS. STATE TRANSPORT APPELLATE TRIBUNAL, M.P. GWALIOR & OTHERS (1987 SCC (CRI)

19) has held as under:

5. In this case we are called upon to consider the effect of the withdrawal of the writ petition filed under Articles 226/227 of the Constitution of India without the permission of the High Court to file a fresh petition. The provisions of the Code of Civil Procedure. 1908 (hereinafter referred to as 'the Code') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal. Prior to its amendment by Act 104 of 1976, rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a suit. namely, (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal was governed by sub-rule (1) thereof as it stood then, which provided that at any time after the institution of - 135 - a suit the plaintiff might, as against all or any of the defendants 'withdraw' his suit or abandon a part of his claim. The second category was governed by sub-rule (2) thereof which provided that where the Court was satisfied (a) that a suit must fail by reason of some formal defect, or (b) that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject- matter of such suit or such part of the claim. Sub-rule (3) of the former rule 1 of order XXIII of the Code provided that where the plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in sub- rule (2) he would be liable to such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Since it was considered that the use of the word 'withdrawal' in relation to both the categories of withdrawals led to confusion, the rule was amended to avoid such confusion. The relevant - 136 - part of rule 1 of Order XXIII of the Code now reads thus:-- "Rule 1. Withdrawal of suit or abandonment of part of claim--(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: **** **** **** (3) Where the Court is satisfied-- (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff-- (a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), - 137 - he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."

6. It may be noted that while in sub- rule (1) of the former rule 1 of Order XXIII of the Code the words 'withdraw his suit' had been used, in sub-rule (1) of the new rule 1 of Order XXIII of the Code, the words 'abandon his suit' are used. The new sub-rule (1) is applicable to a case where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. In the new sub-rule (3) which corresponds to the former sub-rule (2) practically no change is made and under that sub-rule the Court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub- rule (4) of the new rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he - 138 - would be liable for such costs as the Court might award and would also be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub Rule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant - 139 - from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or 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 rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as - 140 - stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court.

108. This Court in the case of SECRETARY, BANGALORE TURF CLUB, BANGALORE & OTHERS vs KISHAN SRIVATSAVA & OTHERS (1996 (2) KAR.L.J.

680) held as under:

28. Ex. D-5 contains the proceedings of the Trial Court and copy of the plaint and application under Section 151 of the Code of Civil Procedure to accord permission to withdraw the said suit. In this suit, the prayer of the plaintiff was-- (a) to declare that the defendants have no jurisdiction to hold any enquiry against the plaintiff regarding the running of the horse at Mysore Race; alternatively, assuming the defendants have the jurisdiction, the enquiry could not be held without providing necessary assistance of the Spokesman; (b) to further restrain the defendants from holding enquiry other than running of the horse Angel of Mercy, Race No.133 held on 20-10-1994 at Mysore - 141 - Race by perpetual injunction. The schedule is shown as proposed enquiry as per the letter of defendant No.3, dated 2-1-1995 to be held on 4- 1-1995 at 6 p.m. at the Stewards Room in BTC, Bangalore. O.S. No.415 was filed on 18-1-1995. The relief was not only as against defendants 1 to 3 in that suit, but the Appeal Board also impleaded as Defendant No.4. The prayer in the suit was-- (a) for a declaration that the order passed by the defendants 1 to 3 dated 8-1-1995 and confirmed by order dated 21-1-1995 passed by the Appeal Board in so far as it pertains to the plaintiff is illegal, void and without jurisdiction; (b) for a permanent injunction restraining the defendants, their officials, agents, servants or any one acting or claiming on their behalf from giving effect to the order dated 8-1-1995 passed by the Stewards of Bangalore Turf Club and confirmed by the order dated 21- 1-1995 passed by the Appeal Board in so far as it pertains to the plaintiff.

31. The part of the claim abandoned by Sri Kishan Srivatsava in O.S. No.86 of 1995 is being genesis of the cause of action claimed in O.S. No.415 of 1995, I am of the clear view that the present suit is not maintainable and hit by - 142 - the principles contained under Order 23, Rule 1 and Rule 4(a) and (b). It is also noticed that the Court was not appraised of the fact of filing of O.S. No.86 of 1995 when the fresh suit was filed. Therefore, the suit O.S. No.415 of 1995 is not maintainable. Hence, 1 hold this point accordingly.

109. This Court in the case of VIMALA VS. NARAYANASWAMY (ILR1995KAR3376 held as under:

5. I do concede that the present suit cannot effectively be termed as a refiling of the earlier one in so far as the cause of action pleaded is slightly dissimilar though it is dangerously close. The mere substantial ground however is that a Court will never shut out a deserving litigant who may have withdrawn the earlier suit for a variety of reasons. The spirit behind the bar enunciated in Order 23 Rule 1 is basically to put a stop to frivolous, wanton and repeated litigations which are vexatious in character. The Case Law as far as this aspect of the matter is concerned has made a lot of headway in recent times and the principle that has effectively emerged is that a fresh proceeding on the same cause of action will be barred on the principle of constructive - 143 - resjudicata provided it is demonstrated that the issue involved has effectively been agitated and decided on the earlier occasion. This has been the crystallization of the Case Law on this point and applying that principle to the present case, to my mind, it would be incorrect to hold that the suit in question was not maintainable.

110. Learned Senior Counsel for the plaintiff-Institute also relied on the following judgments: In the case of GIRDHARI LAL BANSAL VS. THE CHAIRMAN, BHAKRA BEAS MANAGEMENT BOARD, CHANDIGARH AND OTHERS [AIR1985PUNJAB AND HARYANA219 it was held as under:- 4. After hearing the learned counsel for the parties, I give the following issue-wise. Issue No.1. This issue relates to the matter whether the second petition filed by the contractor on the same allegations and for the same relief is barred under O. 23, R. 1(4) of the Civil P. C. or not in view of the fact that the earlier petition was got dismissed as withdrawn.-. 144 - The Court below relied on Teja Singh v. Union Territory of Chandigarh (1981) 1 Serv LR274 (AIR1982Punj & Har 169)(FB) and decided the issue against the contractor and held that the present petition was barred. The learned counsel for the appellant has not challenged the dictum laid down in the aforesaid decision but has argued that on the facts of this case that decision is not applicable because here the second application was filed before the first application was withdrawn and to these facts the provisions of Order 23, C.P.C. are not attracted in view of Ram Mal v. Upendra Dutt, AIR1928Lah 710 and Mangi Lal v. Radha Mohan, AIR1930Lah 599. The earlier application was filed on 6th Oct, 1982 and the present application was fixed on 26th Oct., 1982 and the first application was withdrawn vide order dt. 18-11-1982. The learned counsel for the Board could not show if aforesaid two decisions were ever dissented from or overruled. The aforesaid two Lahore decisions clearly say that if second suit if filed before the first suit is withdrawn then O. 23, C.P.C. is not attracted and the second suit cannot be dismissed under O. 23, R. 1(4) of the Civil P. C. Accordingly, I reverse the decision of the trial - 145 - Court and hold that the present petition was not barred under O. 23, C.P.C.

111. The Apex Court in the case of VALLABH DAS vs DR.MADANLAL AND OTHERS [AIR1970SC9876 held as under:- “5. Rule 1, Order 23, Code of Civil Procedure entitles the courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject- matter that was in litigation in the previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of - 146 - action and the relief claimed in the second suit are the same as in the first suit, it cannot be said that the subject-matter of the second suit is the same as that in the previous suit. Now coming to the case before us in the first suit Dr. Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a trespasser on the basis of his title. In the first suit the cause of action was the division of status between Dr. Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father 'and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr. Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit. It was merely an antecedent even which conferred certain rights on - 147 - him. Mere identity of some of the issues in the two suits do not bring about an identity of the subject matter in the two suits. As observed in Rukma Bai v. Mahadeo Narayan [AIR1917Bom 10 (1)]., the expression "subject matter" in Order 23, Rule 1, Code of Civil Procedure means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject matter" means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. We accept as correct the observations of Wallis C.J.

in Singa Reddi v. Subba Reddi [AIR1917Mad 512]., that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit”.

112. The Punjab High Court in the case of ALLA NAUR SHEIKH MOHD. ISMAIL VS. MOHD. NISA ABDUL REHMAN AND OTHERS [AIR1962PUNJAB50 held as under:- - 148 - 6. The term "subject-matter" occurring in sub-clause (3) of order XXIII, Rule I, Civil Procedure Code, has been held to mean the plaintiff's cause of action for his suit. Consequently, if a plaintiff brings a suit on a different cause of action, even though it may relate to the same property, the same would not be barred under Order XXIII Rule 1(3), Civil Procedure Code, despite the fact, that the first suit was withdrawn without permission to bring a fresh suit, (see in this connection Ali Mohammad v. Karim Bakhsh, AIR1933Lah 943). The question that arises for decision in the present case is whether the second suit of the plaintiff was based on a different cause of action or not. As already mentioned above, the first suit was instituted under Order XX, Rule 13, Civil Procedure Code and the cause of action in that suit was the death of Mohd. Daud, leaving an estate which had to be administered. The cause of action in the present suit is the recovery of the dower debt, which she is entitled to realise as a creditor from the estate left by her husband. In my opinion, the two suits are different in nature and are based on different causes of action. The - 149 - present suit is, consequently, not barred under O. XXIII, Rule 1(3), Civil Procedure Code.

113. In the case of MANGI LAL AND ANOTHER VS. RADHA MOHAN AND ANOTHER [AIR1930LAHORE5992)]. it is held as under:- Order 23, R.1, refers to permission to withdraw a suit with liberty to institute a fresh suit after the first one has been withdrawn. O.23, R.1, cannot be read so as to bar a suit which has already been instituted before the other suit has been abandoned or dismissed. The rule is clear and can only be applied to suits instituted after the withdrawal or abandonment of previous suits.

114. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The spirit - 150 - behind the bar enunciated in Order 23 Rule 1 is basically to put a stop to frivolous, wanton and repeated litigations which are vexatious in character. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII.

115. This provision confers a right to the plaintiff either to abandon his suit or to withdraw the suit instituted by him. Withdrawal of the suit is dealt with under sub-rule (3) of Rule 1 of Order 23 CPC. It provides for withdrawal of the suit when the suit must fail by reason of formal defects or when there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim. However, if the conditions stipulated in sub- rule (3) of Rule 1 is satisfied, the plaintiff may seek - 151 - permission to withdraw from such suit and the Court may grant liberty to institute a fresh suit. Sub-rule (4) provides that when the plaintiff abandons the suit or withdraws the suit without the permission of the Court, then he is precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. This bar applies only if the plaintiff wants to bring a fresh suit in respect of the same subject matter which was the subject matter in the earlier suit. This provision has no application if the subject matter of the earlier suit and the subsequent suit are different. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or 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 - 152 - finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit. or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the Court. Where a plaintiff withdraws from a suit without the permission of the Court, he is precluded from instituting a fresh suit in respect of the same subject matter and against the same defendant.

116. The expression "subject-matter" is not defined in the Civil Procedure Code. The term "subject-matter" occurring in sub-clause (3) of order XXIII, Rule I, Civil Procedure Code, has been held to mean the plaintiff's cause of action for his suit. It means the series of acts or transactions alleged to exist giving rise to the relief claimed. In other words "subject matter" means the bundle of facts - 153 - which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter as the first suit. Consequently, if a plaintiff brings a suit on a different cause of action, even though it may relate to the same property, the same would not be barred under Order XXIII Rule 1(3), Civil Procedure Code, despite the fact, that the first suit was withdrawn without permission to bring a fresh suit.Where the party wants to file a suit on the basis of a cause of action different from the previous suit, the question of obtaining leave of the Court does not arise.

117. The suit O.S. 2457/2003 is filed for a decree of permanent injunction restraining the defendants from interfering with the plaintiff’s possession and enjoyment of the suit schedule property. The cause of action for the said suit was a threat of interference by way of putting up construction of the plaint schedule property by taking up a - 154 - housing project under a joint venture. The cause of action for the present suit is the denial of plaintiff’s title and a finding in the earlier proceedings that plaintiff is not in possession. Therefore, the plaintiff was constrained to file the present suit for declaration of title and for possession. Therefore, the subject matter of both the suits are totally different. The cause of action for both the suits are totally different. Even though the plaintiff withdrew the earlier suit without seeking leave of the Court to file a fresh suit and in fact filed the present suit during the pendency of the earlier suit, the bar contained in Order XXIII Rule 1(4) of CPC is not attracted to the present suit. Therefore, the present suit is not hit by Order XXIII Rule 1 (4) CPC as contended by the defendants. There is no merit in the said contention and the trial Court was justified in holding that the bar contained in Order XXIII Rule 1 (4) is not attracted to the present suit. POINT No.(IV) - RES JUDICATA118 Learned counsel for the appellant contended though earlier suit filed by Defendants 1 and 12 is for bare injunction, the Court went into the question of title of both - 155 - the parties and after recording a finding that the Defendants 1 and 12 being daughters of Chikkada Bhovi, after his death, have inherited the schedule property held that they are the owners of the property. It also has recorded a finding, when the defendants have taken a contention that the schedule property has been acquired, no material is placed before the court to establish acquisition. The said Judgment and decree has attained finality. Therefore, it is not a case where the question of title was gone into incidentally. The question of title was substantially in issue and only after recording a finding on title, the court granted a decree for permanent injunction and therefore the said Judgment and decree between the same parties in respect of the schedule property having attained finality, the present suit for declaration of title is clearly barred by the principles of res judicata.

119. Per contra, learned Counsel for the respondents submitted that the earlier suit is only for bare injunction. It is true that the trial court has gone into the question of title. But, as it is clear from the Judgment in the said case, at paragraph-10, the intention of the court is clear. It is stated - 156 - that in the suit for permanent injunction, it is the duty of the plaintiff to establish his/her lawful possession over the suit schedule property. Incidentally, the court has to examine title over the suit schedule property. Therefore, the court has looked into the title of the suit schedule property only incidentally. The title of the schedule property was not substantially in issue in the earlier suit. There is no issue regarding title framed in the said suit. The only issue relevant for the said case was whether the plaintiff would prove their lawful possession over the suit schedule property on the date of filing of the suit. Therefore, the Judgment and decree passed in OS No.2456/1986 would not operate as res judicata in so far as the present suit is concerned.

120. Section 11 of the CPC reads as under: “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 - 157 - has been subsequently raised, and has been heard and finally decided by such Court.

121. Strong reliance was placed by the learned counsel for the appellant on the judgment of the Apex Court in the case of SULOCHANA AMMA VS. NARAYANAN NAIR [(1994) 2 SCC14 where it was held as under:

9. ….. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. ……… Therefore, even the decree founded on equitable relief in which the issue was directly and substantially in issue and decided, and attained finality, would operate as res judicata in a subsequent suit based on title where the same issue directly and substantially arises between the parties …..”.

122. Relying on this observation it was contended that, though in the earlier suit O.S. No.2456/1986 no issue - 158 - was raised regarding title of the plaintiff to the schedule property, in view of the rival contentions and the evidence on record, the Court had categorically recorded a finding that the suit schedule properties originally belonged to late Chikkada Bhovi and the plaintiffs had succeeded to the suit schedule properties after the death of Chikkada Bhovi and also held that as the defendants had failed to prove the acquisition of the land in question, the finding would operate as res judicata in the present suit as the title of the plaintiff was directly and substantially arose in the previous suit.

123. In order to attract the bar under Section 11 of CPC, the matter directly and substantially in issue in a prior litigation and decided against a party then the decision in the said case would operate as res judicata in a subsequent proceeding. The finding on an issue collateral or incidental to substantive issue does not operate as res judicata when such an issue becomes a substantial issue in a subsequent suit. In order to find out what was the subject matter of the earlier suit and what is the subject matter of the present suit one has to examine the plaint, the written statement, the - 159 - issues and the judgment. It is only then the principles underlying Section 11 can be deciphered.

124. The plaintiff in this suit was the 4th defendant in the said suit. Defendants 1 and 12 in the present suit were the plaintiffs in the earlier suit. In the present suit there are in all 41 defendants including defendants 1 and 12. No doubt the other defendants are claiming title to the property in question under registered sale deeds executed in their favour by defendants 1 and 12. The issues framed in the earlier suit O.S. No.2456/1986 are as under :- 1. Whether the plaintiffs prove that they are in lawful possession over the suit property on the date of filing of the suit?.

2. Whether the suit property has been acquired by the defendants?.

3. Whether the alleged interference is true?.

4. Whether the suit is not maintainable without issuing notice under Section 80 CPC?.

5. Whether the plaintiffs are entitled to permanent injunction as prayed for?. - 160 - 125. The issues framed in the present suit are as under:- 1. Whether the plaintiff proves that it is the absolute owner of all the suit schedule lands as pleaded in the plaint?.

2. Whether the plaintiff proves that it is in lawful possession and enjoyment of all the suit schedule lands as pleaded in the plaint?.

3. Whether the plaintiff proves that the defendants are illegally interfering with its possession and enjoyment of the suit schedule lands as alleged in the plaint?.

4. Whether the defendants prove that the suit is not properly valued and the court fee paid on the plaint is insufficient?.

5. Whether the defendants prove that the suit is barred by principles of res-judicata as contended in their written statements?.

6. Whether the defendants prove that the suit is also barred by law of limitation as contended in their written statements?. - 161 - 7. Whether the defendants prove that the suit in the present form is not maintainable in law as contended in their written statements?.

8. Whether the defendants prove that the suit is also barred in view of the provisions of Order 23 Rule 1 CPC as contended in their written statements?.

9. Whether the plaintiff proves that it is entitled for the declaration of title to the suit schedule lands as sought for in the suit?.

10. Whether the plaintiff proves that it is entitled for the permanent injunction against the defendants as sought for in the suit?.

11. Whether the plaintiff in the alternative proves that it is entitled for the delivery of possession of the suit “B” schedule lands from the defendant Nos.22 to 39 as sought for in the suit?.

12. What order or decree?.

126. The prayer in the earlier suit was a judgment and decree against the defendants for permanent injunction restraining the defendants, their officials, subordinates, - 162 - representatives or anybody claiming under them from interfering with the peaceful possession and enjoyment of the plaint schedule property by the plaintiffs and for costs of the suit. The relief claimed in the present suit is (a) for a declaration that the plaintiff is the absolute owner of the suit land (b) for a permanent injunction restraining the defendants from interfering with the plaintiff’s peaceful possession and enjoyment in the suit schedule property (c) alternatively, if for any reasons the Court holds that the plaintiff is not in possession of the property, direct the defendants 22 to 39 to deliver the possession of the suit (b) schedule property to the plaintiff and for costs of the suit.

127. As could be seen from the issues framed in the suit in the earlier suit, there was no issue framed regarding plaintiff’s title to the suit schedule property. In fact, the plaintiff did not seek any declaration of title to the property.-. 163 - The suit was also not valued for the purpose of declaration. It is in this context we have to see what is the finding recorded by the trial Court in the earlier suit. In para 9 of the judgment in O.S. No.2456/1986 answering issue No.1 the Court observed that, this issue relates to the plaintiff’s lawful possession over the suit property on the date of filing of the suit. Thereafter, it has set out the rival contentions. In para 10 it has observed as under : - “In a suit for permanent injunction, it is the duty of the plaintiff to establish his or her lawful possession over the suit schedule property. Incidentally, the Court has to examine the title over the suit schedule property.” 128. Thereafter, it has referred to Kethawar register extracts marked as Exs. P3 and P4 and the RTC extracts produced by the plaintiff and came to the conclusion that the plaintiffs being the daughters of late Chikkada Bhovi have succeeded to the properties. It considered Exs.P1 to P23, Kandayam paid receipts and held the said receipts related to the suit schedule properties. On that basis it - 164 - recorded a finding that the schedule properties originally belonged to Late Chikkada Bhovi and the plaintiffs succeeded to the suit schedule properties after the death of Chikkada Bhovi. It discussed about the discrepancy in the survey number, extent of the land, and the subject matter of acquisition proceedings and recorded a finding that though the land was acquired by the Government and 14 acres adjacent to the present wall of Nimhans building was transferred to Nimhans, the order did not show in which of the survey numbers the said 14 acres of land was situated. There was also no mention of boundaries to the said 14 acres of land. It proceeded to hold that the suit schedule properties were distinct properties which were not handed over to defendant no.4 in the said suit for extension of the hospital. The defendants had not produced any notification as required under Section 4 (1) or Section 6 (1) or the award proceedings to show that the said lands were acquired by the Government for the purpose of extension of Sanitorium building. Ultimately, it concluded that the plaintiffs had satisfactorily proved that they had been in lawful possession - 165 - over the suit schedule property as on the date of the suit. Therefore, the question whether the plaintiffs are the owner of the schedule property was not substantially in issue and was not gone into and no finding is recorded. Similarly, the question whether the defendants are the owners of the schedule property was not in issue and was not gone into and no finding was recorded.

129. The question in the present suit is whether the plaintiff-Institute has title to the schedule property. In the earlier suit, the question was whether the plaintiffs were in lawful possession of the property. Neither the title of the plaintiffs in the earlier suit nor the title of the plaintiff in the present suit were directly and substantially in issue in the earlier suit as it was a suit for bare injunction. The only issue which arose for consideration was whether the plaintiff was in lawful possession of the property or not?. In order to answer that issue, as observed by the trial Court, it went into the question of title incidentally to record a finding that as Chikkada Bhovi was admittedly the owner of the property and after his death, his two daughters inherited the - 166 - property. The question whether Chikkada Bhovi was the owner of the properties on the date of acquisition, whether these properties were subject matter of acquisition and whether the properties which were acquired were allotted in favour of the plaintiff in the present suit conferring title and whether the acquiring authority took possession of the property from the owner and after the acquisition proceedings, whether the title ownership stood extinguished and the Government became the absolute owner and the Government conveyed valid title to the plaintiffs were not decided in the earlier proceedings as the said question did not arise for consideration. In order to find out whether the plaintiff was in lawful possession or not, it was unnecessary for the Court to record a finding regarding title of the plaintiff to the property. It is settled law that if a person who having no title to the property is in lawful possession, he is entitled to a decree of permanent injunction restraining the third parties and even the true owner from interfering with his possession except in the manner known to law. Therefore, the finding recorded by the trial court that the judgment and - 167 - decree passed in the earlier proceeding i.e. O.S.No.2456/1986 would not operate as res judicata in the subsequent suit filed for declaration of title and for possession cannot be found fault with.

130. So one thing is certain from the aforesaid findings. The title of the suit schedule property was not directly and substantially in issue in the earlier suit. It was incidentally gone into as is clear from the express words set out above. In this background, it is necessary to look into the judgment of the Apex Court in the case of SAJJADANASHIN SAYED MD. B.E.EDR. vs. MUSA DADABHAI UMMER [AIR2000SC1238 where after considering the aforesaid Sulochana Amma’s case, it was held as under:- 12. It will be noticed that the words used in Section 11 CPC are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only 'collaterally or incidentally' in issue and - 168 - decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.

14. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression 'collaterally or incidentally' in issue implies that there is another matter which is 'directly and substantially' in issue ( Mulla, CPC15h Ed., p.104). Difficulty in distinguishing whether a matter was directly in issue or collaterally or incidentally in issue and tests laid down in various Courts:

18. In India, Mulla has referred to similar tests (Mulla, 15th Ed.p.104). The learned author says: A matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter 'directly and substantially' in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was 'directly and substantially' in issue and it may also be possible that it was only collaterally or incidentally in - 169 - issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls?. One test is that if the issue was 'necessary' to be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. (Mulla, p.104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue ( Ishwar Singh Vs. Sarwan Singh: AIR1965SC948Mohd.S.Labbai Vs. Mohd. Hanifa: AIR1965SC1569. We are of the view that the above summary in Mulla is a correct statement of the law.

25. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma Vs. Narayanan Nair ( 1994 (2) SCC14, this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Selliamman Ayyanarn Uthiva Somasundareswarar Temple vs. Rajanga (AIR1965Madras

355) held ( see - 170 - para 8 therein) that the previous suit was only for injunction relating to the crops. May be, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum( Vol.50, para 735, page

229) where a similar aspect in regard to findings on possession and - 171 - incidental findings on title were dealt with. It is stated:

"Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title".

131. From the aforesaid judgment of the Apex Court, it is clear that, as in Sulochana Amma’s case the finding as to possession was substantially rested on title upon which a finding was felt necessary, the law laid down is correct. In the instant case, the finding as to possession was not substantially rested on title. As could be seen from the discussion, admittedly the father was the owner and the plaintiffs are his daughters and, therefore, on his death the daughters succeeded to the property. As all the revenue records stood in their name the court held that the plaintiffs were in possession of the property on the date of the suit.-. 172 - 132. The question as to who was the owner of the schedule property on the date of death of Chikkada Bhovi was not in issue in the earlier suit, and it was not decided. Defendants 1 and 12 no doubt are the daughters of Chikkada Bhovi. But only if his father was the owner of the property on the date of his death, the daughters could have inherited the property. The daughter succeeding to the property of the father is a question of law, which cannot be disputed. But, as a matter of fact, the daughters would succeed to the property of the father, if the father owned the property on the date of his death. It is a question of fact. The said issue of fact was not the subject matter of earlier suit. No finding is recorded on the said question of fact. No title deeds were produced in the said suit to prove their title.

133. Therefore, the judgment of the Apex Court in Sulochana Amma’s case is of no assistance. However, as held by the aforesaid judgment in Sajjadanashin if a matter was only 'collaterally or incidentally' in issue and decided in an earlier proceeding, the finding therein would not - 173 - ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. In order to decide whether the plaintiff on the date of the suit was in lawful possession of the property to be entitled to a decree for permanent injunction, it was not necessary for the Court to decide the question of title. Therefore, the learned trial Judge rightly observed that, incidentally the Court has to examine the title over the suit schedule property as it is the duty of the plaintiffs to establish his or her lawful possession over the suit schedule property. The said finding cannot be construed as finding on plaintiff’s title in anyway.

134. The Apex Court in the case of CITY MUNICIPAL COUNCIL BHALKI BY ITS CHIEF OFFICER vs GURAPPA (DEAD) BY LEGAL REPRESENTATIVES AND ANOTHER (2016) 2 SCC200held as under:- 18. 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 - 174 - and substantially involved in a former suit between the same parties, and has been decided and has attained finality cannot be reagitated before the courts again by instituting suit or proceeding by the same parties on the same subject-matter of earlier lis.

21. 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 Ram Gobinda Dawan V. Bhaktabala [(1971) 1 SCC387 that for the bar of res 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.” 135. From the aforesaid discussion it is clear that, the doctrine of res judicata is in the interest of public at large and a finality should be attached to the binding decisions pronounced by Courts of competent jurisdiction. It is also in the public interest that individuals should not be vexed - 175 - twice over with the same kind of litigation. The principle of res judicata though technical in nature, is founded on considerations of public policy. Where title to the property is the basis of the right of possession, the decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment. But, where the question of right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title. From the foregoing discussion it can be said that finding of the Court in the previous suit would not operate as res judicata in a susbequent comprehensive suit for declaration of title and for delivery of possession of such property. In that view of the matter, the learned trial Judge after taking into consideration the entire pleadings, the evidence on record, the issues involved in both these cases and the law on the point, rightly held the plea of res judicata raised in these proceedings is without any substance.-. 176 - Point No.5 :- Limitation 136. The learned counsel for the appellant contended that prior to filing of the suit by the plaintiff, Defendants 1 and 12 had filed a suit in OS No.2456/1986 against the plaintiff and others seeking the relief of permanent injunction. In the said suit, the Defendants 1 and 12 had categorically denied the title of the plaintiff in respect of the schedule property. The suit was presented on 26.6.1986. In view of Article 58 of the Limitation Act, the suit for declaration of title ought to have been filed within three years when the right to sue first accrues. The said suit came to be decreed on 17.12.1992. If that date is taken into consideration, the suit ought to have been filed in the year 1995. Therefore, the suit filed in the year 2003 is clearly barred by law of limitation.

137. The learned counsel for the respondent contended that the present suit is one for declaration of title and for possession and is governed by Article 65 of the Limitation Act. Article 58 of the Limitation Act has no application to the facts of this case and therefore he submits - 177 - that the Trial Court rightly held suit is not barred by limitation. Therefore, he submitted, seen from any angle, there is no merit in any of the submissions made on behalf of the appellants and the appeal is liable to be dismissed with costs.

138. In the trial court, the contention of the defendants was that the suit is filed beyond 12 years and therefore the suit is barred by time. The trial court has pointed out that the suit O.S.No.2456/1986 having been decreed on 17.12.1992, the present suit filed on 13.12.2004 is well within time even if 3 days of leap year is added. In this appeal, the said finding is not assailed, nor any argument was canvassed.

139. In this appeal, it is contended that Article 58 of the Limitation Act is attracted and the suit filed beyond 3 years of date of denial of title is clearly barred by time. Elaborating this contention, learned Senior Counsel contended that the suit O.S.No.2456/1986 was filed on 26.6.1986. In the plaint, the plaintiffs have categorically - 178 - denied the title of the defendants to the plaint schedule property and therefore the time for seeking the relief of declaration starts from 26.6.1986 and the suit is barred by time. Even if it is held that it is only after the decree was passed on 27.10.1982, the limitation begins to run, then also the suit is barred by limitation. In support of this contention, he relied on Article 58 which reads as under:

58. To obtain any other declaration. Three years When the right to sue first accrues.

140. He also relied on the following judgments: The Supreme Court in the case of KHATRI HOTELS PRIVATE LIMITED AND ANOTHER vs UNION OF INDIA AND ANOTHER [(2011) 9 SCC126 held as under :- “30. While enacting Article 58 of the 1963 Act, the legislature has designedly made a departure from the language of Article 120 of the 1908 Act. The word `first' has been used between the words `sue' and `accrued'. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues.-. 179 - To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued.

141. The Apex Court in the case of Mst. RUKHMABAI vs LAXMINARAYAN AND OTHERS [AIR1960SC335 has held as under:- “33. The legal position may be briefly stated thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.” 142. Per contra, learned Senior Counsel appearing for the plaintiff contended that the present suit is for declaration - 180 - of title and for possession and therefore it is Article 65 which is applicable and Article 58 has no application. In support of his contention, he relied on the judgment in the case of C.NATRAJAN vs ASHIM BAI AND ANOTHER [2007 AIR SCW6953 where the Apex Court has held as under:- “13. If the plaintiff is to be granted a relief of recovery of possession, the suit could be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. In the suit has been filed for possession, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.” 143. Therefore, the controversy in this appeal is whether Article 58 is attracted or Article 65 is attracted to the present suit.

144. Articles 56 and 57 of the Act of 1963 specifically provides time limit for suits for filing declaration under various circumstances. However, Article 58 is a general - 181 - article governing all suits for declaration that are not covered by any of the other Articles in the Act of 1963. In terms of Article 58, the period of three years is to be counted from the date when ‘the right to sue first accrues’. Article 58 applies to suit to obtain declaratory relief. Article 58 applies only to cases where declaration simpliciter is sought, that is without any further relief. The question “when a right to sue will accrue in such cases?.” is not one easy of an answer. To certain extent it will depend upon the facts and circumstances of each case. It is generally agreed that the right to sue accrues when the right in respect of which the declaration is sought is denied or challenged. A mere denial is, however, not sufficient to furnish a cause of action. There must be some other act accompanying the denial. A distinction has to be drawn between a mere denial of right or ineffective or innocuous threat to the plaintiff’s right on the one hand and a clear and unequivocal threat or infringement of the right asserted by the plaintiff on the other. It is only the latter which would set on start of limitation under Article 58.-. 182 - 145. Article 58 applies to suit to obtain declaratory relief. But it may not be applied to a suit where in addition to the declaratory relief, there are other reliefs like injunction or partition or possession etc. When the plaintiff seeks further relief than a mere declaration, the relief of declaration is only an ancillary one and the suit would be governed for such further relief. The plaint as a whole has to be examined to see whether the relief is declaration properly so-called or whether the relief for declaration is an unnecessary claim. If on such determination it is found that the suit is in effect one for possession against a party in possession adversely to the plaintiff, then Article 58 would not be attracted to the suit. If on the contrary, on examining the plaint, the relief other than the relief of declaration is found to be unnecessary, superfluous or premature, such a suit will be a suit for declaration only attracting Article 58. When a suit is filed based on title, but claiming declaration of title to the suit property with consequential relief of possession, Article 65 would apply and Article 58 would have no application. Where the suit was filed not only for - 183 - declaration but also for possession, the prescribed period of Limitation is 12 years.

146. Therefore, in the instant case, the plaintiff is seeking the relief of declaration and as also seeking the relief of possession. As it is clear from the facts set out above, even at the earliest point of time, the defendants 1 & 12 herein admitted the acquisition proceedings, grant of 14 acres of land to the plaintiff and in fact contended that the plaint schedule property is not included in 14 acres of land. Even in the subsequent amendment carried out in the earlier proceedings, they admitted the grant of 14 acres of land to the plaintiff. In other words, at no point of time, the grant of 14 acres of land to the plaintiff by the Government was in dispute. The dispute is as to whether 14 acres of land includes the plaint schedule property. Therefore, it is the identity of the property which was in dispute. Even in the subsequent proceeding, the dispute was with reference to the identity. The main relief sought in the present suit is possession. In order to get possession they had to seek declaration because incidentally their title to the property - 184 - within 14 acres is denied. Therefore, the main relief to which the plaintiff is entitled is possession. As the suit is for possession based on title, Article 65 of the Limitation Act is applicable and not Article 58 as contended by the learned counsel for the appellants. Therefore, the suit for declaration of title and for possession is not barred by limitation and it is filed within 12 years from the date of passing of the decree in the earlier suit for injunction.

147. In view of the aforesaid discussion, we do not find any merit in this appeal. Accordingly, we pass the following order : - Appeal is dismissed. Parties to bear their own costs. Sd/- JUDGE Sd/- JUDGE Bs/bsv/an/brn/sps/ckl/hkh.


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