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Mahalingeshwara Devaru and anr. Vs. Seetharama Bhatta and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKarnataka High Court
Decided On
Case NumberRegular Second Appeal No. 712 of 1972
Judge
Reported inAIR1978Kant213; ILR1978KAR1555; 1979(1)KarLJ9
ActsCode of Civil Procedure (CPC), 1908 - Sections 11
AppellantMahalingeshwara Devaru and anr.
RespondentSeetharama Bhatta and anr.
Appellant AdvocatePadubidri Raghavendra Rao, Adv.
Respondent AdvocateB.P. Holla, Adv.
Excerpt:
.....devaru' of havanje village, udupi taluk for declaration of title in respect of the suit a and b schedule properties and for recovery of possession on the ground that the defendant who was an archak of the temple failed to perform 'archaka service' and has no right to remain in possession. both the courts dismissed the suit firstly on the ground that the temple has no right to recover possession from the defendant for his failure to perform 'archaka service' in the temple and secondly on the ground that the decision in a previous litigation o. it seems to me that the plaintiff must fail if the decision of the trial court on the question of res judicata is found to be correct, but, if that finding is not correct, then it may be necessary to go to the legality of the other..........the said properties are comprised in warg nos. 31 and 36. the case of the plaintiff was that the suit properties are 'uttara properties' of the temple and the defendant could remain in possession and take the income thereof so long as he performed poojas in the temple and since he had not performed poojas since 1949-50, he has no right to remain in possession of the temple properties.both the courts dismissed the suit firstly on the ground that the temple has no right to recover possession from the defendant for his failure to perform 'archaka service' in the temple and secondly on the ground that the decision in a previous litigation o. s. no. 12 of 1942 operated as res judicata as between the parties. there are also other grounds held against the plaintiff. it may not be necessary to.....
Judgment:

1. This Second Appeal by the plaintiff is directed against the judgment and decree of the Additional District Judge, South Kanara, in R. A. No. 13 of 1969 affirming the decree in O. S. No. 13 of 1967 on the file of the Principal Civil Judge, Udupi, South Kanara District. The suit was brought by the temple called 'Sree Mahalinge-shwara Devaru' of Havanje village, Udupi Taluk for declaration of title in respect of the suit A and B schedule properties and for recovery of possession on the ground that the defendant who was an Archak of the temple failed to perform 'Archaka service' and has no right to remain in possession. The defendant has not been doing any 'Archaka service' since 1949-50 despite the demand from the temple authorities. The patta of the A Sch. properties stands exclusively in his name and patta of the B Sch. properties stands jointly in the name of the temple and the defendant. The said properties are comprised in Warg Nos. 31 and 36. The case of the plaintiff was that the suit properties are 'Uttara properties' of the temple and the defendant could remain in possession and take the income thereof so long as he performed Poojas in the temple and since he had not performed Poojas since 1949-50, he has no right to remain in possession of the temple properties.

Both the Courts dismissed the suit firstly on the ground that the temple has no right to recover possession from the defendant for his failure to perform 'Archaka service' in the temple and secondly on the ground that the decision in a previous litigation O. S. No. 12 of 1942 operated as res judicata as between the parties. There are also other grounds held against the plaintiff. It may not be necessary to refer to them. It seems to me that the plaintiff must fail if the decision of the trial Court on the question of res judicata is found to be correct, But, if that finding is not correct, then it may be necessary to go to the legality of the other findings recorded by the Courts below. I will, therefore, examine the correctness of the conclusion of the Courts below on the question of res judicata having regard to the decision in O. S. No. 12 of 1942.

2. The facts leading to the institution of O. S. No. 12 of 1942 are these:

Survey No. 87/13 which also belonged to Warg Nos. 31 and 36 was the subject matter of litigation. The present defendant's father Shama Bhatta filed the suit against the said temple contending that that property was his ancestral property and that he was unreasonably dispossessed by the defendants therein. For the temple, it was contended that the property was its 'Uttara property' covered by the Durmuki Chitta 1803; that the defendant was only an Archaka of the temple and he had no title over the property. The trial Court held that it was not the 'Uttara property' of the temple. That decision was affirmed in the appeal by the Subordinate Judge. Ext. D-2 is a certified copy of the judgment of the trial Court and Ext. D-4 is a certified copy of the appeal ate Judgment. The question is whether the finding recorded in the previous suit operates as res judicata in the present suit.

3. The primary test of res Judicata depends upon the identity of title in the two litigations and not the identity of the actual property involved in the two cases. That is the principle engrafted on the general rule of res Judicata by Section 11 of the Code of Civil Procedure. (Smt. Raj Lakshmi Dasi v. Banamali Sen, : [1953]4SCR154 ). Therefore, even if the property involved in the previous suit was different, that cannot be an impediment to invoke the principles of res judicata. It is not in dispute that the properties involved in both the cases having a common title comprised in the same Warg Nos. 31 and 36. Therefore, the finding that the said property was not 'Uttara property' of the temple arrived at in the previous suit must be held to be binding on the parties to the present suit.

4. It was, however, urged by Sri Padubidri Raghavendra Rao, learned counsel for the appellant that the pleadings. of the previous suit were not produced in the present suit and therefore the plea of res judicata cannot be examined. It is true that those pleadings were not produced by the defendant. But the omission to produce the pleadings is not so material in the present case. The judgment's in the previous case contain a summary of those pleadings. The plea of res judicata could also be established on the record of the judgment and decree in the previous suit, and not necessarily on the production of the pleadings. It was, however, urged by Sri Raghavendra Rao that the decision in O. S. No. 12 of the 1942 should not be relied upon in view of the later decision of the Madras High Court in S. A. Nog. 117 to 123 of 1950 which has been produced in the present case as Ext, P. 12, wherein it was held that the properties in the hands of the Archakas were not their absolute properties and ;he deity had the right to the properties in Warg Nos, 31 and 36.

It is true that the decision of the Madras High Court in the aforesaid case, left by itself would have been of great assistance to the case of the plaintiff in the present case. In that case, it was held that the properties in the hands of the Archakas of the temple were not their absolute properties. That decision was based on the agreement termed as 'Taha Karar' entered into between Raghuramacharya representing the branch of Dasa Adiga and others. The predecessors-in-title of the defendant was the 4th party to that document. That document was marked as Ext. D-4 in that suit. The said document has been marked as Ext. P-15 in the present case. The decision of the Madras High Court on the nature of the document may be relevant as a binding precedent. But the decision cannot have the effect of overruling the earlier view taken in O. S. No. 12 of 1942 by the Subordinate Judge. The appeal S. A. Nos. 117 to 123 of 1950 in which the Madras High Court gave its verdict, was not an appeal arising out of O. S. No. 12 of 1942, The principle of res judicata is not affected by a subsequent view taken by a superior Court in any other case. As the Supreme Court ob-served in State of West Bengal v. Hemant Kumar, : 1966CriLJ805 , a wrong decision by a Court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides, Therefore, even if I assume that the decision in O. S. No. 12 of 1942 was a wrong judgment in view of the later judgment of the High Court of Madras in S. A. Nos. 117 to 123 of 1950, the earlier judgment does not render it anytheless final and binding between the parties and its legal effect remains the same whether the reason for the decision was sound or not. Therefore, the said decision of the Madras High Court cannot be pressed into service to nullify the principles of res judicata operating in the present case. In view of the decision in O. S. No. 12 of 1942, it must be stated that the properties in question in the present suit are not 'Uttara properties' of the temple. That is sufficient to dismiss the plaintiffs suit. I, therefore, affirm the judgments of the lower courts on this ground alone without considering the merits of the other questions urged in the appeal.

5. In the result, the appeal fails and is dismissed. But in the circumstances, I make no order as to costs.

6. Appeal dismissed.


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