ANDANUR KALAMMA AND ORS. versus GANGAMMA (DEAD) BY L.RS.
[2018] 3 S.C.R. 177, Supreme Court of India, 2018
Outcome: Dismissed (Dismissed)
Segment: Issues
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ANDANUR KALAMMA AND ORS.
  v.
  GANGAMMA (DEAD) BY L.RS.
  (Civil Appeal Nos. 423-424 of 2018)
MARCH 06, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Code of Civil Procedure, 1908:
s.11 – Res judicata – Auction sale of property in question
confirmed in favour of respondents – Challenged by appellants in
a writ petition – High  Court dismissed the petition, however,
observed that Deputy Commissioner could exercise his suo motu power
to set aside the auction sale as provided in terms of s.177 of Mysore
Land Revenue Act – In writ appeal High Court held that the Court
could not have directed the Deputy Commissioner to exercise the
discretion – Thereafter, revision petition in respect of application
filed by appellants for invoking discretion of Deputy Commissioner
to set aside the auction, was made subject matter of another writ
petition – The issue of tenability of the application u/s. 177 was
negated by High Court and further affirmed in writ appeal –
Subsequent thereto, present suit for declaration of ownership and
possession of the suit property – Dismissed by trial court as well as
High Court in appeal, on the ground of principles of res judicata –
On appeal, held: The entire issue with regard to the confirmation of
auction sale was the subject matter between the same parties in
respect of same land and including same cause of action – Therefore,
appellants were rightly non-suited being hit by the principles of res
judicata –
Principles of res judicata.
Dismissing the appeals, the Court
HELD:  The principle of res judicata as enshrined in Section
11 of CPC, is founded on the maxim “Nemo Debet Bis Vexari Pro
Una Et Eadem Causa”. In the present case, 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
  [2018]  3 S.C.R. 177
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parties in respect of the same land and including the cause of
action. On that finding, the Trial Court as well as the High Court
rightly non-suited the appellants by dismissing the suit filed by
them for declaration of ownership and possession, being hit by
the principles of res judicata. The principle applies on all fours to
the present case. [Paras 27 and 28] [193-B-D]
Nagabhushanammal v.. C. Chandikeswaralingam
(2016) 4 SCC 434 - relied on.
Shirlakoppa Town Municipality v. Sree Sharada Rice
Mill and Others 1982 (1) KLJ 137 ; U. Nilan v.
Kannayyan through LRs. AIR 1999 SC 3750 ; State
Bank of Travancore v. Mytheen Kannu Mastan Kanju
AIR 1980 Kerala 236 ; Madhavi Amma Bhavani Amma
and others v. Kunjikutty Pillai Meenakshi Pillai and
others 2000 AIR SCW 2432 ;  Re: Forward
Construction Co. and others v. Prabhat Mandal
(Regd.), Andheri and Others AIR 1986 SC 391 ; Ashok
Kumar Srivastav v. National Insurance Co. Ltd. AIR
1998 SC 2046 ; and Re: Gulabchand Chotalal Parikh
v. State of Gujarat AIR 1965 SC 1153 – referred to.
Case Law Reference
1982 (1) KLJ 137
referred to
Para 19
AIR 1999 SC 3750
referred to
Para 19
AIR 1980 Kerala 236
referred to
Para 19
2000 AIR SCW 2432
referred to
Para 19
AIR 1986 SC 391
referred to
Para 19
AIR 1998 SC 2046
referred to
Para 19
AIR 1965 SC 1153
referred to
Para 19
(2016) 4 SCC 434         relied on
Para 28
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CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 423-
424 of 2018.
From the Judgment and Orders dated 04.01.2005 and 11.03.2005
of the High Court of Karnataka in RFA No. 410 of 1998 and R. P.
No. 124 of 2005 respectively.
Kashi Vishweshwar, Ms. A, Sumathi, Advs for the Appellants.
E. C. Vidya Sagar, Adv for the Respondents.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. These appeals, by special leave,
are directed against the judgment and order dated 4th January, 2005 and
order dated 11th March, 2005 passed by the learned Single Judge of the
High Court of Karnataka in RFA No.410/1998 and R.P. No.124/2005,
respectively, whereby the learned Single Judge confirmed the judgment
and decree passed by the Trial Court dismissing the suit filed by the
appellants on the ground of res judicata and also dismissed the review
petition.
2. Appellants in the present appeals are the plaintiffs and the
respondents are defendants in the original suit.
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 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,
ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)
BY L.RS.
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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.
6. 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 law.
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 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.
9. 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,
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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 his suo-motu  power to
set aside the sale as provided in proviso to Section 177 of Mysore Land
Revenue Act.
10. 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
appeal.
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 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
ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)
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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 respondents.
13. 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
back.
14. 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 interference.
15. 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 to re-deliver 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,
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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.2176/1989.
 16. 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 Court.
17. 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?
ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)
BY L.RS. [A.M. KHANWILKAR, J.]
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(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 judicata.
19. 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 Vs. Sree Sharada Rice Mill and
Others;1 U. Nilan Vs. Kannayyan through LRs.2 State Bank of
Travancore Vs. Mytheen Kannu Mastan Kanju;3 Madhavi Amma
Bhavani Amma and others Vs. Kunjikutty Pillai Meenakshi Pillai
and others;4 Re: Forward Construction Co. and others Vs. Prabhat
Mandal (Regd.), Andheri and others;5 Ashok Kumar Srivastav Vs.
National Insurance Co. Ltd.;6 and Re: Gulabchand Chotalal Parikh
Vs. State of Gujarat;7  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,
1 1982 (1) KLJ 137
2  AIR 1999 SC 3750
3  AIR 1980 Kerala 236
4 2000 AIR SCW 2432
5 AIR 1986 SC 391
6 AIR 1998 SC 2046
7 AIR 1965 SC 1153
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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 be re-litigated by the same parties and a
party is precluded from re-litigating 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 district.
32. The doctrine of res judicata would apply in these
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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)
20. 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, 1967. In absence of confirmation of sale
and non-issuance of fresh sale certificate to the respondents, no manner
of right, title or interest or whatsoever over the suit schedule property
enured in favour of the respondents. The fact that the respondents’
ancestor late Balakerappa was put in possession of the suit schedule
property, on the basis of sale certificate and confirmation of sale on
3rd May, 1966 will not impair the interest of the appellants in any manner
nor denude them from pursuing their remedy of restoration of
possession of the suit property, the ownership whereof remained with
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the appellants. According to the appellants, the High Court as well as
the Trial Court committed manifest error in invoking the principle of res
judicata to non-suit the appellants and dismiss the suit for possession on
the basis of their title and to declare them as owners of the suit property.
21. The respondents, on the other hand, would contend that the
Trial Court as well as the High Court had justly rejected the suit
preferred by the appellants as it was hit by the principles of res judicata.
The respondents have supported the analysis and conclusion reached by
the Trial Court as well as the High Court in this regard.  They pray for
dismissal of the appeal being devoid of merits.
22. We have heard Mr. Kashi Vishweshar, learned counsel
appearing for the appellants land Mr. E.C. Vidya Sagar, learned counsel
for the respondents.
23. 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 appeal. The relevant extract of the order passed
by the Division Bench dated 7th January, 1975, having some bearing on
the matter in issue, reads thus:
“The result of the dismissal of the writ petition is that there is
no application now pending for setting aside the sale. However,
under the proviso, the Deputy Commissioner has the power
to exercise his discretion to set aside the sale subject to such
conditions as he may deem proper, notwithstanding the fact
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that the application made for setting aside the sale has been
rejected. Whether it is a case for setting aside the sale and on
what conditions the sale should be set-aside are matters which
are within the exclusive discretion of the Deputy Commissioner.
This court, in the exercise of its jurisdiction, cannot direct the
Deputy Commissioner to exercise the discretion if the
conditions imposed by this Court are satisfied. It is not for
this court to lay down any conditions. That matter should have
been left open.
Therefore, we allow this appeal and hold that the Writ Petition
should have been dismissed without making any observation
as to how the discretion under the proviso to Section 177 of
the Karnataka Land Revenue Act should be exercised. No
costs.”
  (emphasis supplied)
With this decision, the issue regarding validity of auction sale
attained finality against the appellants.
24. 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.14012/1981. The learned Single Judge of the High Court of
Karknataka at Bangalore by judgment dated 31st July, 1989 considered
the tenability of the orders passed by the Revenue Authorities and the
Appellate Tribunal, in particular, orders dated 4th August, 1978, 24th
March, 1980 and 31st January, 1981. The order dated 31st July, 1989
passed by the learned Single Judge is, in our opinion, crucial to answer
the issue that arises for our consideration. The order dated 31st July,
1989 reads thus:
           “ORDER
This Writ Petition is of the year 1981. I hope by disposing it
off I would have given quietus to a controversy which appears
to have arisen in the year 1966 when the predecessor in
interest of the respondents one Andanur Umapathiyappa lost
26 acres of land for having defaulted in payment of income
tax arrears for recovery of which sum, lands were sold by
public auction and purchased by the contesting respondent
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who was also placed in possession immediately.
2. It is common ground that the lands have been in possession
of the petitioner since the date of the auction sale and
notwithstanding many endeavours made by the respondents
to wrest it from the petitioner by reason of a charmed life they
had managed to sustain their holding over the lands.
3. In this last ditch battle for recovery of these lands the point
raised is of the tenability of an application made for setting
aside the auction sale by moving the Deputy Commissioner to
exercise his suo moto powers under Section 177 of the
Karnataka Land Revenue Act, although auction sale having
been affirmed long back. That application the Deputy
Commissioner disposed off on 9.6.75, for some reasons he
rejected the same. But the respondents filed another
application on 17.06.1975 to the Deputy Commissioner
seeking a review of the earlier order. The Deputy
Commissioner having held application to be maintainable
despite opposition by the petitioner a revision petition having
been filed from that order before the Karnataka Appellate
Tribunal, the Deputy Commissioner’s order was in the first
instance upheld but retracted later on a review petition and
an order made dismissing the revision petition. Petitioners
challenge the sad or per (sic) as also the order of the Deputy
Commissioner dated 29.09.1975 holding a review petition
before him to be maintainable.
4. Sri Gopal who appears for the auction purchaser who is
aggrieved by these orders urges that respondents had any
right at all to seek interference by the Deputy Commissioner
under the provisions of section 177 of the land Revenue Act.
This Court in G.D. NAVAREKAR Vs. The Mysore Revenue
Appellate Tribunal and others (1973 (1) MLJ 331) has settled
the law on the question of exercising of suo moto power by a
revenue authority under section 177 with particular reference
to its modality, it says:
‘Suffice it to state that power is to be exercised in the interest
of justice and subject to such conditions as the authority may
deem proper and it does not confer a right on the petitioner
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to ask the Assistant Commissioner to invoke the issue.’
5. It was pointed out by this Court in the decision referred to
supra, that no one has a right to move the Deputy
Commissioner to exercise his suo moto powers under section
177 of the Karnataka Land Revenue Act. 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 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)
25. 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, 1989, The
same reads thus:
“O R D E R
The view taken by the learned Single Judge with regard to
Section 177 of the Karnataka Land Revenue Act does not call for
interference. Hence, this Appeal is rejected.”
With the rejection of this appeal, even the issue
of tenability of
application under Section 177 of the Act became final against the
appellants.
26. 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.  In the suit, the
principal issue was that in absence of an order of the competent
authority confirming the auction sale and without issuing fresh sale
certificate in favour of the respondents, the respondents or for that matter
their predecessor in title, had not acquired any right, title or interest or
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whatsoever over the suit schedule property.  Therefore, the
possession of the suit property given to the predecessor of the
respondents was required to be restored in absence of a fresh order of
confirmation of sale. The argument though attractive at the first blush,
has received deep attention not only of the Trial Court but of the High
Court also, as can be noticed from the analysis in paragraphs 20 and 21
of the impugned judgment, which reads thus:
“20. Admittedly, in the present case, the Deputy Commissioner
without considering the application filed by the defaulter on
3.2.1966 had confirmed the auction sale of the immovable
property on 7.1.1966 on the recommendation made by the
Assistant Commissioner in favour of the highest bidder in the
auction namely, the father of the defendants late Sri
belekerappa. This action of the Deputy Commissioner was
taken exception to by the Mysore Revenue Appellate Tribunal
in the appeal filed by the plaintiffs father in appeal No.486/
1967 (LR) and the Tribunal by its order had set aside the
order of the confirmation of sale passed by the Deputy
Commissioner vide his order dated 3.6.1966 and had
remanded the matter to the Deputy Commissioner to pass fresh
order in accordance with law after considering the application
filed by the plaintiffs father. On such remand, since plaintiffs
father did not appear before the Deputy Commissioner on
the date fixed for hearing, the Deputy Commissioner has
rejected the application
for non-prosecution. The order so
made has reached the finality in view of the order made by
this Court in W.P.No.1810/1971 and in W.A. No.152/1973.
Even after disposal of all these proceedings, the Deputy
Commissioner has not passed any fresh order in confirming
the sale, pursuant to the remand order passed by the Mysore
Revenue Appellate Tribunal made in appeal No.486/1967 (LR)
dated 27.9.1967 and further has not issued fresh sale
certificate. These factual aspects which is not disputed by the
learned Counsel for appellants would demonstrate that the
defendants are in possession of the suit schedule property
pursuant to order of confirmation of sale passed by the Deputy
Commissioner, which had been set aside by the Revenue
Appellate Tribunal.
ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)
BY L.RS. [A.M. KHANWILKAR, J.]
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21. The other proceedings initiated by the father of the
plaintiffs is to approach the Deputy Commissioner to set aside
the sale by filing an application under Sec. 177 of the Act.
Though, initially the Deputy Commissioner had rejected the
application as not maintainable before him, on an application
filed for review of his order, he had entertained the application
by observing in his order that an application filed by the
defaulter to initiate suo-motu powers by him under proviso to
Section 177 of the Act is maintainable. The correctness or
otherwise of this order was questioned by the legal
representatives of the late Sri Belekerappa – the defendants
before the Revenue Appellate Tribunal in Revision Petition
No.304/1973 filed under Sec. 56 of the Karnataka Land
Revenue Act. The Tribunal by its order dated 30.1.1981 holds
that the Deputy Commissioner was justified in invoking his
powers under Sec. 177 of the Act on an application filed by
the defaulter to set aside the sale and therefore, has rejected
the revision petition and have directed the Deputy
Commissioner to consider the petition/application filed by the
father of the plaintiffs under Sec.177 of the Act in accordance
with law. It is the correctness or otherwise of this order was
the subject matter before this Court in W.P. No.14012/1981
and this Court while allowing the petition and setting aside
the order passed by the Karnataka Appellate Tribunal in
Revision Petition No.304/1973 has made a passing observation
to the effect that ‘in this last ditch battle for recovery of these
lands, the point raised is of the tenability of an application
made for setting aside the auction sale by moving the Deputy
Commissioner to exercise his suo-motu powers under Sec.177
of the Karnataka Land Revenue Act, although the auction
sale having been confirmed long back.’ It is this observation
of the learned Single Judge, which has been confirmed in
W.A. No.2176/1989 has weighed the mind of the learned trial
Judge to hold that the suit is hit by principles of res judicata.”
  (emphasis supplied)
27.  As is noticed from the judgment of the leaned Single Judge of
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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 Court non-suited 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 Court.
28. For arriving at such conclusion, the Trial Court and High Court
have applied the settled legal position in reference to the decisions of
this Court as noticed by the High Court in the impugned judgment. The
principle of res judicata as enshrined in Section 11 of CPC, is founded
on the maxim “Nemo Debet Bis Vexari Pro Una Et Eadem Causa”.
In a  recent decision in the case of Nagabhushanammal Vs. C.
Chandikeswaralingam,8 this Court observed thus:
“15. ‘Res judicata’ literally means a ‘thing adjudicated’ or
‘an issue that has been definitively
settled by judicial
decision’.9 The principle operates as a bar to try the same
issue once over. It aims to prevent multiplicity of proceedings
and accords finality to an issue, which directly and
substantially had arisen in the former suit between the same
parties or their privies and was decided and has become final,
so that the parties are not vexed twice over; vexatious litigation
is put an end to and valuable time of the court is saved. (See
Sulochana Amma v. Narayanan Nair.10)
16. In Jaswant Singh v. Custodian of Evacuee Property11 this
Court has laid down a test for determining whether a
subsequent suit is barred by res judicata: (SCC p. 657, para
7(2016) 4 SCC 434
8 Black ’s Law Dictionary, 8th Edn. 1336-37.
9 (1994) 2  SCC 14
10 (1985) 3 SCC 648
11 (2004) 3 SCC 277
ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)
BY L.RS. [A.M. KHANWILKAR, J.]
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14)
‘14. … In order that a defence of res judicata may succeed
it is necessary to show that not only the cause of action
was the same but also that the plaintiff had an opportunity
of getting the relief which he is now seeking in the former
proceedings. The test is whether the claim in the subsequent
suit or proceedings is in fact founded upon the same cause
of action which was the foundation of the former suit or
proceedings.’
17. The expression ‘cause of action’ came to be interpreted
by this Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair31
at para 16. To quote: (SCC p. 286)
‘16. The expression ‘cause of action’ has acquired a
judicially settled meaning. In the restricted sense, cause
of action means the circumstances forming the infraction
of the right or the immediate occasion for the action. In
the wider sense, it means the necessary conditions for the
maintenance of the suit, including not only the infraction
of the right, but the infraction coupled with the right itself.
Compendiously the expression means every fact which
would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the court.
Every fact which is necessary to be proved, as distinguished
from every piece of evidence which is necessary to prove
each fact, comprises in ‘cause of action’.
18. In Halsbury’s Laws of England (4th Edn.), the expression
has been defined 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

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technical cause of action.”
29.  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.
30.  We, accordingly, affirm the judgment and orders under
appeal and dismiss these appeals being devoid of merit.
31. Accordingly, these appeals are dismissed with costs.
Kalpana K. Tripathy
                            Appeals dismissed.
ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)
BY L.RS. [A.M. KHANWILKAR, J.]