Case: M/S Kaushik Coop.Building Society Vs. N.Parvathamma

t is imperative to record brief facts for the disposal of this case, which are as follows:3.1 One V.R.K. Shastry had purchased the land to an extent of 12 acres 9 guntas out of 16 acres 9 guntas of land in Survey No.129/68 Paiki from one Md. Moulana vide agreement dated 29.12.1963. A suit for specific performance of the said agreement having been dismissed, V.R.K. Shastry filed an appeal before the High Court of Andhra Pradesh which was numbered as CCCA No.14 of 1972. The High Court of Andhra Pradesh while allowing CCCA No.14 of 1972 vide judgment and decree dated 26.10.1976 decreed the suit for specific performance wherein it was held that the suit property was comprised in Survey No.129/68 Paiki and not in Survey Nos.139/51 & 129/52 and is separate and distinct land. It is pertinent to mention here that the defendant died during pendency of suit and his legal representatives were impleaded in the aforesaid suit, who had earlier raised the objection of different survey numbers. Subsequently, the decree in CCCA No.14 of 1972 came to be amended by the High Court and the judgment debtors were directed to execute the sale deed in favour of the decree holder or his nominee3.2 After obtaining the decree V.R.K. Shastry applied for exemption under the ULC Act. The Government of Andhra Pradesh vide G.O.Ms. No.523 dated 26.03.1979 granted exemption in favour of V.R.K. Shastry. Part of said land was purchased by the appellant society and Municipal Corporation of Hyderabad sanctioned layout in File No.45/layout/8/85 in favour of the appellant society for development of 7.00 acres of land out of 12 acres 9 guntas in Survey No.129/68 Paiki. Rest of the portion in the above said decreetal land was assigned to one V. Narsimha Reddy and others under the Assignment Deed dated 15.01.1988. Later, 41 sale deeds were registered in favour of the assignees, after this Court on 12.09.1994 dismissed SLP(C) No.11381/1994 filed by the judgment debtors and upheld the order of the executing court permitting the assignees to obtain registered sale deeds in their favour. The High Court dismissed the appeal being AAO No.2647/1998 vide its order dated 27.10.1998 and the order of the learned executing court attained finality3.3 Between year 1989 and 1996, three different land grabbing cases under the Act were filed in the Special Court against the appellant society by the legal representatives of deceased Md. Moulana, Sai Nagar Housing Co-operative Society and the State of Andhra Pradesh, being LGC No.46/1989, LGC No.29/1992 and LGC No.15/1996 respectively, alleging that the property claimed by the appellant herein was not a part of Survey No.129/68 but that of Survey No.129/51 and 129/52. All the land grabbing cases were dismissed and when a batch of writ petitions were filed in the High Court of Andhra Pradesh, the same were dismissed vide a common judgment dated 01.05.2007 passed by the High Court. The High Court in said common judgment had upheld that the disputed property is part of land in Survey No.129/68 and the same belonged to the appellant society. It is pertinent to mention here that LGC No.15/1996 was dismissed as withdrawn3.4 One K. Balram and few others filed another Land Grabbing Case No.44 of 2000 before the Special Court established under the Act in respect of Land in Survey No.129/52, RS No.327, claiming that he and other members of the Hindu Joint Family, he as the manager, had purchased the disputed property under the registered Sale Deed dated 25.03.1967 from one of the legal representatives of Md. Moulana, namely, Abdul Rub. The above-noted purchaser/ assignee of the land, namely, V. Narsimha Reddy was impleaded in the said case and the applications filed by the said V. Narsimha Reddy and the appellant herein, for quashing of LGC No.44/2000 on the ground of maintainability, were dismissed vide order dated 30.04.20103.5 Being aggrieved the appellant herein and the above named V. Narsimha Reddy filed Writ Petition Nos.11951/2010 and 11869/2010, respectively, before the High Court of Andhra Pradesh for quashing of LGC No.44/2000. The High Court vide impugned common judgment dismissed both the writ petitions and upheld the order passed by the Special Court whereby it was held that LGC No.44/2000 in the Special Court is maintainable. Hence, the present appeals by special leave4. After perusing the entire material placed on record before us, we have noticed that High Court had framed two points for consideration, viz.,a) Whether the Special Court committed any illegality in taking cognizance of the case under Section 8(1) of the Act?b) Whether LGC pending before the Special Court is liable to be rejected by setting aside the common order dated 30.04.2010 passed in I.A Nos.585/2007 and 216/2010 and allowing the said petitions?We have further noticed that the High Court has answered both the above questions in the negative and observed that entire trial has already been completed except the cross-examination of Mandal Revenue Officer in the said pending LGC. It was further observed that whether filing of LGC is barred by res-judicata or constructive res-judicata, is a mixed question of law and fact, which can be decided only on appreciation of evidence led to that effect.

Reasoning:
6. The main point revolves around the principles of res-judicata which is neither against public policy nor res-integra to civil procedure prevailing in our country. The doctrine of res judicata is a wholesome one which is applicable not merely to matters governed by the provisions of the Code of Civil Procedure but to all litigations7. The question of res-judicata is not res integra to our judicial system. The rule of res judicata while founded on ancient precedent is dictated by a wisdom which is for all time and that the application of the rule by the Courts should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law17. Before arriving at the conclusion, we would like to emphasize on the ratio of another judgment of this Court in the case of Ramji Gupta & Anr. v. Gopi Krishan Agrawal (dead) & Ors., 2013(2) R.C.R.(Civil) 898 : 2013(3) Recent Apex Judgments (R.A.J.) 270 : (2013) 9 SCC 438, para 15, which reads as follows:In order to operate as res judicata, the finding must be such that it disposes of a matter that is directly and substantially in issue in the former suit, and that the said issue must have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding a matter which is directly in issue in the case, cannot be made the basis for a plea of res judicata18. We have perused the written notes on arguments of the learned counsels for both the parties and after a punctilious scrutiny of complete record, we are of the considered opinion that it may be true that the Court at initial stage may not enter into the merit of the matter. Its opinion in the nature of things would be a prima facie one. But the Court must also consider that the analogy of res-judicata or of the technical rules of civil procedure is, in cases like the present one, appropriate and the Courts are expected to administer the law so as to effectuate its underlying object. Court shall also bear in mind that the basic character of this principle is public policy and preventive as to give finality to the decision of the Court of competent jurisdiction and prevent further litigation19. In our considered opinion, matter in issue in the pending suit before the learned Special Court in LGC No.44/2000 and previous decided suits is not merely identical but very same. Other ingredients of the principle of res-judicata are also fulfilled. Moreover, once identity of the property and the title thereof is finally adjudicated in CCCA No.14/1972, holding that land is situated in Survey No.129/68 Paiki, it operates as res judicata20. Judged in this background and the principle set out above, the inevitable conclusion is that both the Special Court and the High Court have committed error in not appreciating the fact that orders, judgments and decrees passed in previously decided land grabbing cases have attained finality, wherein it was reiterated many a times that the appellant society i.e. M/s. Kaushik Coop. Building Society is the owner of the suit property which is comprised of Survey No.129/68 and not in Survey No.129/51 or 129/52 (which has been re-numbered as 327). Thus, in our considered opinion, the approach of the High Court in the impugned order seems to be erroneous. Therefore, the question before us is, thus, answered in negative