Andanur Kalamma vs Gangamma (Dead) By Lrs.

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 daughter.

4. 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.2,600/-. 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 3 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 sale.

5. 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 property.

7. 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 non-prosecution. Restoration application filed to restore the said application was also rejected by the Deputy Commissioner.

8. Appellants’ predecessor then carried the matter to the Mysore Revenue Appellate Tribunal by filing an appeal against 5 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 Tribunal.

11. 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 7 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 maintainable.

12. 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 his suo-motu 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 8 January, 1981 it rejected the revision petition filed by the respondents.

32. 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 from re-litigating an issue that has already been decided. Even otherwise also, the plaintiffs father or at least the plaintiff’s 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 subsequently re-agitate 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 Court.” (emphasis supplied) 17

In this case review application having been disposed off by the Deputy Commissioner on 9.6.1975 may be even for wrong reasons as pointed out by Mr. Gopal for the petitioner, having become final it seems to me that it was wrong on the part of the appellate Tribunal to have lent support to the application made by the respondents demanding or seeking exercise of suo moto powers by Deputy Commissioner acting under Section 177 23 of the Karnataka Land Revenue Act. Therefore, it seems to me on this short ground the writ petition has to succeed and hence it is I allow this writ petition and quash the impugned order of the Appellate Tribunal and that of the Deputy Commissioner Annexure-C, E and F. No costs.” (emphasis supplied)

.………………………….CJI.

March 6, 2018.