Case: Andanur Kalamma &amp; Others Vs. Gangamma (Dead) By L.Rs

3. Briefly stated, Appellant No.1 is the wife of one late Sri Andanur Umapathiyappa and other appellants are his sons and daughter. Respondent No.1 is the wife of one late Sri Belakerappa and the other respondents are his sons and daughter4. The father of late Sri Andanur Umapathiyappa (late Andanur Kotrappa) was a defaulter under the provisions of the Income Tax Act to the extent of Rs.. For recovery of arrears of tax, the Income Tax Department had referred the matter to the Deputy Commissioner, Chitradurga, under Section 158 of the Karnataka Land Revenue Act, 1964 (for short, the Act). The land belonging to late Sri Andanur Umapathiyappa bearing Sy. No. 63 of Bisaleri Village, Davanagere Taluk, measuring an extent of 23 acres and 15 guntas, was brought to sale for the recovery of tax dues. The sale was held on 7th January, 1966 and the father of the respondents one Sri late Belekerappa was the highest bidder at Rs. 2,600/and the Assistant Commissioner who had conducted the auction sale recommended to the Deputy Commissioner Chitradurga, for confirmation of the sale5. The predecessor of the appellants had filed an application on 3.2.1966 for setting aside the sale. The Deputy Commissioner, vide order dated 3rd May, 1966, however, confirmed the sale. Resultantly, a sale certificate was issued sometime in the month of June, 1966 in favour of late Sri Belekerappa and he was also put in possession of the suit schedule property6. Appellants predecessor late Sri Andanur Umapathiyappa S/o late Andanur Kotrappa then questioned the order dated 3rd May, 1966 before the Mysore Appellate Tribunal by filing Appeal No.486/1967 (LR) under Section 49 of the Mysore Land Revenue Act, 1964. He asserted that without deciding his application for setting aside the sale dated 3rd February, 1966, the Deputy Commissioner was not justified in passing a final order to confirm the auction sale. The Tribunal by its order dated 27th September, 1967 allowed the appeal and set aside the sale, on the ground that under Section 177 of the Karnataka Land Revenue Act, 1964, the Deputy Commissioner could confirm the sale only after the application for setting aside the sale is rejected. Accordingly, the Tribunal after setting aside the sale, remanded the matter to the Deputy Commissioner, Chitradurga, to conduct fresh enquiry into the allegation made by the appellant in his application dated 3rd February,1966 and to dispose of the same in accordance with law7. Pursuant to the remand order passed, the petition filed by the appellants predecessor was taken up for hearing on 8th June, 1969 by the Deputy Commissioner and since no one appeared, the Deputy Commissioner dismissed the same for. Restoration application filed to restore the said application was also rejected by the Deputy Commissioner8. Appellants predecessor then carried the matter to the Mysore Revenue Appellate Tribunal by filing an appeal against the orders passed by the Deputy Commissioner, being Appeal No.167/1971. The same was also rejected by an order dated on 13th April, 1971 as time barred. A review petition filed to review the aforesaid order was also rejected by the Tribunal9. Appellants predecessor being aggrieved, filed a writ petition being W.P. No.1810/1971 before the High Court of Karnataka. The High Court while rejecting the writ petition by its order dated 23rd October, 1973, however, observed that if for any reason the sale was not yet confirmed by the Deputy Commissioner, Chitradurga, after the remand order passed by the Tribunal in appeal No.486/1967 (LR) and if the writ petitioner (predecessor in title of the appellants) deposited the sale amount, then the Deputy Commissioner could exercise hisu power to set aside the sale as provided in proviso to Section 177 of Mysore Land Revenue Act10. The respondents in the petition challenged that decision by filing an appeal before the High Court bearing number W.A. No.152/1973, being aggrieved by certain observations and directions issued by the learned Single Judge while rejecting the writ petition. The Division Bench of the High Court after referring to the provisions of Section 177 of the Act observed that in view of the dismissal of the writ petition, there was no application pending for setting aside the sale. Even so, since the Deputy Commissioner was bestowed with discretion to set aside the sale, he could do so on such conditions as he deemed proper, on its own merits and in accordance with the law. The Division Bench also observed that the learned Single Judge while rejecting the petition could not have made any further observations or issued any directions in the writ proceedings. With the aforesaid observations, the Division Bench of the High Court by its order dated 7th January, 1975 allowed the appeal11. During the pendency of the writ appeal, the predecessor of the appellants had made an application before the Deputy Commissioner on 24th November, 1973 under Section 177 of the Act, inter alia, requesting the authority to set aside the auction sale held on 7th January, 1966 as envisaged in the proviso to Section 177 of the Mysore Land Revenue Act. At the first instance, by an order made on 9th June, 1975 the application was rejected and on an application filed for review of the said order, the Deputy Commissioner passed an order on 29th September, 1975, holding that the review petition was maintainable12. The respondents, aggrieved by the aforesaid order of the Deputy Commissioner, filed a revision petition before the Karnataka Appellate Tribunal being No.304/1973, inter alia, questioning the said order on the ground that the Deputy Commissioner had no jurisdiction under Section 177 of the Act to exercise hisu powers on an application filed by a defaulter. The Tribunal initially allowed the petition by its order dated 4th August, 1978 and on a review petition filed by the appellants being No.27/1978, it allowed the review petition and set aside the order passed in revision petition No.304/1973. Further, vide order dated 24th March, 1980, the Tribunal directed that the revision petition be posted for hearing afresh on merits, and by subsequent order dated 30th January, 1981 it rejected the revision petition filed by the respondents13. The respondents thereafter filed a writ petition before the High Court being No.14012/1981, inter alia, questioning the orders passed by the Tribunal in revision petition No.304/1973 dated 4.8.1978, 24.3.1980 and 30.1.1981, respectively. The learned Single Judge of the High Court by his order dated 31st July, 1989 was pleased to set aside the aforementioned orders passed by the Tribunal in the revision petition and made an observation that the auction sale had been confirmed long back14. Feeling aggrieved, the appellants filed a writ appeal, being Appeal No.2176/1989. The Division Bench of the High Court by its order dated 8th December, 1989 rejected the appeal, holding that the view taken by the learned Single Judge with regard to Section 177 of the Karnataka Land Revenue Act did not call for any interference15. Appellants, thereafter, filed a suit being O.S. No.27/1990 before the learned Civil Judge (Senior Division), Davanagere, with a prayer to declare that they are the owners of the suit schedule property and also for a direction to the respondents tor the possession of the property. After referring to the earlier proceedings before the Deputy Commissioner, Karnataka Revenue Appellate Tribunal and before the High Court, appellants asserted that after disposal of the appeal by the Mysore Appellate Tribunal in appeal No.486/1967 (LR), wherein the confirmation of sale made by the Deputy Commissioner, Chitradurga was set aside and the matter was remanded back to the Deputy Commissioner, for fresh disposal in accordance with law, no steps have been taken for confirmation of sale and for issue of sale certificate by the Deputy Commissioner, Chitradurga till date of the suit. Therefore, various orders passed in different proceedings before the revenue authorities and the Tribunal will not and cannot affect the right, title and interest of the appellants in any way in respect of the suit schedule property. The appellants, therefore, asserted that they are the owners of the suit schedule property. Appellants also assert that their predecessor, during the pendency of the various proceedings before various forums, had deposited the entire amount due to the Income Tax Department and, therefore, the confirmation of the sale subsequent to receipt of income tax dues does not arise. Appellants would further assert that though the respondents were put in possession of the suit schedule property, under the guise of sale certificate issued by the Deputy Commissioner and since the same had been set aside by the Tribunal in Appeal No.486/1967 (LR), their possession is litigious possession and it would not give them any right to continue in possession of the suit schedule property. It is their further assertion in the suit that though the appellants demanded the respondents to hand over the possession of the suit schedule property, the respondents have refused to do the same and therefore, appellants were constrained to file the suit for declaration and possession of the suit schedule property. The cause of action for filing the suit, according to the appellants, arose on or about 1st May, 1990 and also in July, 1989, when the High Court dismissed the appellants Writ Appeal No.2176/198916. The respondents resisted the suit. According to them, in view of the proceedings and the order passed in W.P. No.14012/1981 dated 31st July, 1989, the averments in the plaint regarding the proceedings before the Deputy Commissioner and before the revenue authorities have no consequence at all and by virtue of those orders, the parties have been restored to the original status quo as on 3rd May, 1966 i.e. the date of confirmation of sale certificate by the Deputy Commissioner, and there is no necessity to grant of fresh sale certificate. Apart from the above defence, there is no other defence pleaded by the respondents in the written statements filed before the trial Court17. The Trial Court, based on the pleadings of the parties to the suit, framed six issues for its consideration, as follows:(i) Whether plaintiffs prove that they are the owners entitled for possession of the suit property?(ii) Do they further prove that they are entitled for possession of the suit property?(iii) Whether plaintiffs suit is hit by Sec. 11 of CPC as contended in the written statement?(iv) Whether defendants are entitled for compensatory costs?(v) Whether the plaintiffs are entitled to the reliefs as prayed for?(vi) What order or decree?18. The Trial Court keeping in view the order passed by the High Court in Writ Petition No.14012/1981 and in Writ Appeal No.2176/1989, has held that the prayer made in the suit challenging the auction sale dated 3rd June, 1966 is hit by Section 11 of the Code of Civil Procedure. To come to this conclusion, the Trial Court has traced the history of various proceedings that were initiated by the appellants predecessor before the revenue authorities and High Court and then observed that in view of the order passed by the High Court in W.P. No.14012/1981, the suit is hit by principles of res judicata19. Feeling aggrieved by the judgment and decree passed by the learned Civil Judge (Senior Division), the appellants filed Regular First Appeal No.410 of 1998 before the High Court of Karnataka at Bangalore. The High Court took notice of all the proceedings that culminated with the dismissal of writ appeal filed by the appellants against the decision of the learned Single Judge dated 31st July, 1989 in Writ Petition No.14012/1981, whereby the correctness of all the orders passed by the Revenue Authorities including the Karnataka Appellate Tribunal were analysed and the plea of the appellants founded on their application dated 24th November, 1973 and 9th June, 1975 for setting aside the auction sale came to be negatived and which judgment was affirmed by the Division Bench of the High Court by dismissing the writ appeal preferred by the appellants. The High Court, taking notice of the decisions in the cases of Shirlakoppa Town Municipality v. Sree Sharada Rice Mill and Others,U. Nilan v. Kannayyan through LRs.,State Bank of Travancore v. Mytheen Kannu Mastan Kanju,i Amma Bhavani Amma and others v. Kunjikutty Pillai Meenakshi Pillai and others,Re: Forward Construction Co. and others v. Prabhat Mandal (Regd.), Andheri and others,; Ashok Kumar Srivastav v. National Insurance Co. Ltd.,and Re: Gulabchand Chotalal Parikh v. State of Gujarat,summed up the legal position on the doctrine of res judicata of triple test requirement regarding the factum of identity of the parties, cause of action and the subject matter. In other words, any issue that has been raised and decided and which was necessary for determining the rights and duties of the parties by a final conclusive judgment on the merits cannot bed by the same parties and a party is precluded fromg the issue that has already been decided and also an issue which it could and should have brought forward in the earlier proceedings but chose not to do so. Keeping in view those principles, the High Court went on to observe as follows:31. The triple identity which I have referred to in the earlier paragraphs of my order assumes importance for deciding the issues which I have raised for my consideration. At the cost repetition, let me once again notice the triple requirement for the doctrine of res judicata to apply. They are, identity of the parties, cause of action and the subject matter. The identity of the parties is not in dispute nor it can be disputed by the plaintiffs. In fact, their father was agitating the auction sale held and its confirmation before various forums and after his death, the plaintiffs have stepped in to his shows (sic) to continue the proceedings till this stage. The second requirement is the cause of action. A cause of action comprises of all the facts and circumstances necessary to give rise to the relief. Before the revenue authorities, the Tribunal the primary grievance of the plaintiffs was the conformation of sale of their immovable property held in a public auction by the Deputy Commissioner and their illegal dispossession from the suit schedule property. Before all the forums, the plaintiffs have lost their case and those others have been confirmed by this court in the writ petitions and writ appeal filed. Thus the orders passed by the revenue authorities have become final, in the sense, auction of the immovable property by a public authority and delivery of the possession of the same is not disturbed by any of the revenue authorities or the Tribunal or by this Court; however the same is also not confirmed by the Tribunal pursuant to the remand order passed by the Mysore Revenue Tribunal in the appeal No.486/1967. Thirdly, the subject matter is the same in all the proceedings, namely, suit schedule property bearing No.63, measuring 23 acres and 15 guntas situate at the Bisaleri village, Davanagere district32. The doctrine of res judicata would apply in these proceedings, for the reason, the claim in the earlier litigation was between the same parties, the cause of action and the subject matter was also the same or identical and by judicial pronouncement by a competent Court the possession of the defendants is not disturbed. Therefore, plaintiffs are precluded fromg an issue that has already been decided. Even otherwise also, the plaintiffs father or at least the plaintiffs could have brought forward an issue for possession of the suit schedule property, in the earlier proceedings but chose not to do so and therefore cannot subsequentlye the issue, which they could have done in the earlier proceedings. Therefore, in my view, the judgment and decree passed by the learned trial Judge requires to be sustained on the principles of res judicata, may not be on the ground that this Court while disposing of the writ petition No.14012/1989 disposed off on 31.07.1989 has observed that the order passed by the Karnataka Appellate Tribunal remanding the matter regarding the confirmation of sale has been set aside by this Court. The observations made by this Court is an apparent error on facts and that could not have been taken note of by the trial Court, while deciding the lis between the parties and that in my opinion, being an error on facts could have been ignored by the trial Court20. On the aforementioned conclusion reached by the High Court, it proceeded to dismiss the first appeal preferred by the appellants. The appellants have approached this Court by way of special leave inter alia contending that the issue regarding confirmation of auction sale was reopened in view of the decision of the Mysore Revenue Appellate Tribunal dated 27th September, 196723. The factual matrix noticed by the Trial Court and reiterated by the High Court in the impugned judgment is indisputable. In that, the predecessor in title of the appellants had committed default in paying tax for which the suit property was put to auction in which the predecessor in title of the respondents was the highest bidder. The auction sale was confirmed by the competent authority. The correctness of the confirmation of sale without deciding the application for setting aside the sale, preferred by the predecessor of the appellants, was questioned by him. The matter had reached the High Court by way of Writ Petition No.1810/1971, filed by Andanur Umapathiyappa predecessor of the appellants, which was dismissed with the observation that if the writ petitioner was willing to deposit the sale amount, the Deputy Commissioner could exercise his suo motu power to set aside the said sale as provided in terms of Section 177 of the Mysore Land Revenue Act. This observation, however was assailed by the respondents by way of Writ Appeal No.152/1973 before the Division Bench. The Division Bench allowed the said appeal24. The matter did not rest at that as the revision petition filed by the respondents as well as the appellants in relation to application filed by the appellants for invoking the discretion of the Deputy Commissioner to set aside the auction were then made subject matter of another writ petition filed by the respondents, being Writ Petition No.14012/198125. This decision was challenged by the appellants by way of writ appeal before the Division Bench of the High Court which, however, was summarily dismissed vide order dated 8th December, 198926. After all these proceedings, the appellants resorted to a civil suit before the Civil Judge (Senior Division) at Davanagere, being O.S. No.27/90, for declaration of ownership and possession.

Reasoning:
27. As is noticed from the judgment of the leaned Single Judge of the High Court in Writ Petition No.14102/1981 dated 31st July, 1989, reproduced in its entirety in earlier part (paragraph 24) of this judgment, the entire issue with regard to the confirmation of the auction sale and the sale certificate issued in favour of the predecessor of the respondents, was the subject matter before the High Court between the same parties in respect of the same land and including the cause of action. On that finding, the Trial Court as well as the High Courtd the appellants by dismissing the suit filed by them for declaration of ownership and possession, being hit by the principles of res judicata, as can be discerned from the discussion in paragraphs 31 and 32 of the impugned judgment, which have been extracted in paragraph 19 of this judgment. We are in complete agreement with the analysis of facts and the conclusion arrived at by the Trial Court and affirmed by the High Court29. The principle of res judicata applies on all fours to the present case as has been rightly held by the Trial Court and affirmed by the High Court in the impugned judgment, in particular, in paragraphs 31 and 32 thereof, which have been reproduced in paragraph 19 above.