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Judgment
S.N. Satyanarayana, J.—The plaintiff in O.S. No. 41/2010, on the file of Civil Judge (Jr. Dn.), Kudligi, has come up in this second appeal impugning the concurrent finding of both the Courts below in dismissing her suit for declaration and injunction.
Admittedly the plaintiff herein is wife of one A. Manjunath and the property involved in O.S. No. 41/2010 is the property bearing door No. 45, situated at 5th ward of Hosahalli village, within the registration district of Ballari and sub-registration district of Kudligi, measuring east-west 40 cubits and north-south 30 cubits, bounded by east-Jagalur Kudligi road, west-open space of Giriyappa, north-house of Kadamma and south-open space and with a separate boundary to the open space bounded by east-Jagalur road, west-house of the husband of plaintiff and Rundamma, north-house of Kadamma and south-Government road and market. It is seen that earlier to filing of the present suit in O.S. No. 41/2010, there was one more round of litigation between plaintiff''s husband A. Manjunath as plaintiff in O.S. No. 160/2002, a suit for injunction with reference to the property having very same boundary and in the said suit the defendant is none other than the respondent herein.
It is seen that the respondent herein had filed another suit in O.S. No. 176/2002 against the plaintiff''s husband A. Manjunath, wherein he sought for declaration of his title to property bearing door No. 19 in ward No. 5 of Hosahalli village, which according to him is the open space, which is referred to in this plaint with a separate boundary. It is seen that the suit in O.S. No. 160/2002 and O.S. No. 176/2002, which were filed by A. Manjunath and K. Chandrappa were heard and disposed of by separate judgments on 14.9.2009, wherein the pleadings of both the suits and evidence in both the suits were referred to in both the suits to compare the same. While giving a finding it is seen that in the earlier round of litigation the suit filed by the plaintiff''s husband A. Manjunath in O.S. No. 160/2002 came to be dismissed and against which he did not file any appeal. However the said A. Manjunath, who was defendant in O.S. No. 176/2002 challenged the decreeing of the said suit for the relief of declaration and injunction by filing an appeal in R.A. No. 16/2011, which was dismissed for non prosecution on 9.3.2012. It is also brought to the notice of this Court that subsequently a Miscellaneous Case No. 15/2012 was filed seeking restoration of R.A. No. 16/2011, which came to be dismissed on merits by judgment dated 25.2.2013 and the same was subject matter of MFA No. 21548/2013 filed by A. Manjunath, on the file of this Court which was also dismissed.
When this was the position, it is seen that the finding rendered by the trial Court with reference to property involved in the suit in O.S. No. 176/2002 has reached finality. It is seen that in the meanwhile a gift deed is executed by A. Manjunath in favour of his wife with reference to property No. 45, situated in 5th ward, Hosahalli village of Ballari district. Based on the said gift deed the appellant herein initiated one more round of litigation in O.S. No. 41/2010 for the same relief which was sought by the respondent K. Chandrappa in the suit filed by him in O.S. No. 176/2002.
When the suit summons are served on K. Chandrappa in O.S. No. 41/2002, he filed detailed written statement furnishing copies of the judgment rendered in O.S. No. 160/2002 and as well as O.S. No. 176/2002 and explained to the trial Court that the suit in O.S. No. 41/2010 initiated by the appellant herein is hit by the principles of res-judicata. In view of issues with reference to title and injunction being already framed and decided between the same parties, in respect of the same property, the second round of litigation cannot be permitted in law.
On such defence taken by the respondent herein, the trial Court which had framed in all six issues in O.S. No. 41/2010, took up the 4th issue as preliminary issue and called upon the plaintiff in O.S. No. 41/2010 to address arguments regarding maintainability of the suit. After hearing the counsel for the appellant and as well as the respondent, who are respectively plaintiff and defendant, the trial Court gave a finding on issue No. 4 to the effect that the suit filed in O.S. No. 41/2010 is hit by principles of res-judicata. Therefore the same cannot be permitted to be continued and accordingly dismissed the suit.
It is seen that the appellant herein being aggrieved by the finding of the trial Court on issue No. 4, preferred an appeal in R.A. No. 24/2013, wherein the lower appellate Court after hearing the parties framed the points for consideration. The first point which is with reference to whether the defendant in the original suit prove that the suit in O.S. No. 41/2010 was hit by principles of res-judicata was answered in the affirmative and the second point for consideration with reference to whether any interference is required was answered in the negative and consequently the finding of the trial Court on issue No. 4 is confirmed. As against the concurrent finding of both the Courts below on issue No. 4, this second appeal is filed.
Heard the learned counsel for the appellant and as well as the contesting respondent. Perused the judgment rendered by the lower appellate Court and also the finding rendered by the trial Court on issue No. 4. On going through the same, with reference to the material available on record it is clearly seen that the plaintiff in the original suit, who is appellant herein, is trying to seek very same relief which was considered by the trial Court while deciding O.S. No. 160/2002, which was filed by the husband of appellant and O.S. No. 176/2002 which was filed by the respondent herein.
In the trial Court the case of the appellant herein and her husband is, they are in possession of the suit property in O.S. No. 41/2010 which is also the suit property in O.S. No. 160/2002, which according to them has come to the husband of appellant herein by way of gift from her husband''s grand mother. Though such a plea is taken in O.S. No. 160/2002 and a similar defence in O.S. No. 176/2002, they were not able to establish the same with reference to the measurement and boundary. In fact in the said suit filed in O.S. No. 41/2010 i.e., the second suit they have given two boundaries to the suit schedule property i.e., one for the house and another for the open space and the number which is given to the house is 45 and so far as open space it is bounded to the property without giving any particulars and incidentally the boundaries to that is different. There is total contradiction in pleading and in the prayer. Though they have pleaded ownership to the entire extent of property, they have failed to establish the same.
In that view of the matter, the trial Court having considered the pleading and prayer in the earlier round of litigation and as well as in the present round of litigation commencing in O.S. No. 41/2010 have rightly given a finding that the appellant herein, who is the plaintiff in O.S. No. 41/2010 and her husband who is plaintiff in earlier round of litigation in O.S. No. 160/2002 have not been able to establish their right, title possession to their property bearing No. 45 situated in 5th ward of Hosahalli village, Ballari district and consequently they have failed to succeed in the earlier round of litigation for the relief of injunction and in the present suit for the relief of declaration and injunction against the respondent, who was successful in getting the judgment and decree for declaration and injunction with reference to the property bearing No. 19, 5th ward of Hosahalli village, Ballari district. The boundaries of which are akin to the boundaries referred to the open space in the suit schedule.
In that view of the matter, this Court find no justifiable grounds are made out to admit this appeal to reassess the alleged title and possession of the appellant herein to the suit schedule property in O.S. No. 41/2010 as rightly held by both the Courts below. The same is hit by principles of res-judicata. Accordingly this second appeal is dismissed.