- 1 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 05TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR REGULAR FIRST APPEAL NO.100101 OF 2017 (DEC/INJ) BETWEEN: SHRI ASHOK S/O. JAGANNATH PATIL, AGE: 56 YEARS, OCC: AGRICULTURE, R/O: MANGSULI-591 232, TALUKA: ATHANI, DIST: BELAGAVI. …APPELLANT (BY SRI RAVI S.BALIKAI, ADVOCATE) AND: 1. SHRI BASAGONDA SANGONDA GAVADE, AGE: 46 YEARS, OCC: AGRICULTURE, R/O: SHIVANUR-591234, TALUKA: ATHANI, DIST.: BELAGAVI. SINCE DECEASED BY HIS LR’S. 1A SMT. GANGAVVA W/O. BASAGONDA GAVADE, AGE: 57 YEARS, OCC: HOUSEHOLD WORK, R/O: KIRANGI-591212, TAL.: ATHANI, DIST.: BELAGAVI. 1B SMT. PRATIBHA W/O. SANJAY GAVADE, AGE: 35 YEARS, OCC: HOUSEHOLD WORK, R/O: A/P: ARAG-416401, TAL.: MIRAJI, DIST.: SANGLI, MAHARASHTRA STATE. 1C SHRI AMMANNA S/O. BASAGONDA GAVADE, AGE: 31 YEARS, OCC: AGRICULTURE, R/O: KIRANGI-591212, TAL.: ATHANI, DIST.: BELAGAVI. R Digitally signed by MALLIKARJUN RUDRAYYA KALMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 1D SMT. ASHWINI W/O. MARUTI SHEGUNASHI, AGE: 29 YEARS, OCC: HOUSEHOLD WORK, R/O: HIDKAL-591220, TAL.: GOKAK, DIST.: BELAGAVI. 1E MISS. ASHADEVI D/O. BASAGONDA GAVADE, AGE: 26 YEARS, OCC: HOUSEHOLD WORK, R/O: KIRANGI-591212, TAL.: ATHANI, DIST.: BELAGAVI. 1F SMT. KALAVATI W/O. MAHANTESH GUBAJE, AGE: 24 YEARS, OCC: HOUSEHOLD WORK, R/O: SANKONAHATTI-591304, TAL.: ATHANI, DIST.: BELAGAVI. 1G SHRI MURGESH S/O. BASAGONDA GAVADE, AGE: 22 YEARS, OCC: AGRICULTURE, R/O: KIRANGI-591212, TAL.: ATHANI, DIST.: BELAGAVI. 2. SHRI BALASAB SANGONDA GAVADE, AGE: 41 YEARS, OCC: AGRICULTURE, R/O: SHIVANUR-591 234, TALUKA: ATHANI, DIST: BELAGAVI. 3. SHRI SIDDAPPA SANGONDA GAVADE, AGE: 39 YEARS, OCC: AGRICULTURE, R/O: SHIVANUR-591 234, TALUKA: ATHANI, DIST.: BELAGAVI. 4. SHRI ANNASAB NINGONDA GAVADE, AGE: 36 YEARS, OCC: AGRICULTURE, R/O: SHIVANUR-591 234, TALUKA: ATHANI, DIST: BELAGAVI. 5. SHRI APPASAB NINGONDA GAVADE, AGE: 34 YEARS, OCC: AGRICULTURE, R/O: SHIVANUR-591 234, TALUKA: ATHANI, DIST: BELAGAVI. 6. SHRI ASHOK NINGONDA GAVADE, AGE: 31 YEARS, OCC: AGRICULTURE, R/O: SHIVANUR-591 234, TALUKA: ATHANI, DIST: BELAGAVI. - 3 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 7. SHRI MURASHIDDA KEDARI GAVADE, AGE: 43 YEARS, OCC: AGRICULTURE, R/O: SHIVANUR-591 234, TALUKA: ATHANI, DIST: BELAGAVI. …RESPONDENTS (BY SRI ARAVIND D. KULKARNI, ADVOCATE FOR PROP. R1(A), (B), (C), (E), (F), (G), R2 AND R3; R1 – APPEAL DISMISSED AS ABATED; R1(D) - HELD SUFFICIENT; R4, R5, R6 AND R7 – NOTICE SERVED.) THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE ORDER DATED 15.02.2017 ON ISSUE NO.5 IN O.S.NO.100/2016 AND DECREE PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, ATHANI, DISMISSING THE SUIT BEING BARRED BY RESJUDICATA AND ALLOW THE APPEAL BY REVERSING THE ORDER ON ISSUE NO.5 AND DECREE PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, ATHANI IN 100/2016 AND ETC., THIS REGULAR FIRST APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR) Heard the arguments of learned counsels appearing for both the sides and perused the material placed before the Court. 2. Though the matter is listed for admission, with consent of learned counsels appearing for both the sides, the matter is taken up for final disposal. - 4 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 3. The plaintiff has filed this appeal challenging the order dated 15.02.2017, in O.S.No.100/2016, on the file of Addl. Senior Civil Judge and JMFC, Athani, passed on issue No.5 holding that the suit filed by the plaintiff is hit by principle of res-judicata. 4. For the purpose of convenience and easy reference, ranking of the parties is referred to as per their status before the trial Court. 5. The plaintiff has filed the suit for declaration and consequential relief of injunction against the defendants by taking various contention that the suit property was gifted to him by his grandfather by name Laxmanrao Tatyasab Patil and thus, he became owner of the suit schedule property, but because of the alleged interference by the defendants, the plaintiff has filed suit for declaration and permanent injunction against the defendants. 6. The defendants have entered appearance and filed written statement by contending that Laxmanrao Tatyasab Patil had not executed gift deed in favour of - 5 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 plaintiff and also though it could be held that he has gifted the property in favour of plaintiff, but Laxmanrao was not competent to gift the entire property. Further taken pleading that the defendants herein have filed O.S.No.15/1986 before the Court of Senior Civil Judge, Athani, against the plaintiff and it was decreed in favour of defendants. Therefore, taken pleadings that the concerned suit filed by plaintiff is hit by principles of res-judicata. 7. On the basis of these pleadings of defendants that the suit is hit by principles of res-judicata, the trial Court framed as many as eight issues, out of which issue No.5 was treated as preliminary issue, which reads as under: “Whether the defendants prove that in view of disposal of O.S.No.51/1986 dated 05.06.1990 the present suit is hit by principles of res-judicata?” 8. The trial Court has dismissed the suit while answering issue No.5 that the suit of the plaintiff is hit by principles of res-judicata. - 6 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 9. Being aggrieved by it, the plaintiff has preferred the present appeal and learned counsel for the plaintiff submitted that only on the basis of the pleadings, the trial Court had come to the conclusion that the suit is hit by principles of res-judicata and dismissed the suit, which is not correct approach of the trial Court. Further submitted that the aspect of res-judicata can be considered after receiving evidence from the parties, but taking decision that the suit is hit by res-judicata on the basis of the pleadings is too premature. Therefore, prays to set aside the order and remand the case to the trial Court to consider the matter on all issues framed. 10. In support of his arguments, he places reliance on the decision of he Hon’ble Supreme Court in the case of V.Rajeshwari (Smt.) vs. T.C.Saravanabava, reported in (2004) 1 SCC 151. 11. On the other hand, learned counsel for respondents/defendants justified the order passed by the trial Court and hence prays to dismiss the appeal. - 7 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 12. Having heard the arguments, the following points would arise for consideration in this appeal. “Whether, under the facts and circumstances involved in the case, the trial Court only on the basis of pleadings in written statement, is justified in dismissing the suit while answering issue No.5 holding that the suit is hit by principles of res-judicata and requires interference by this Court?” 13. The plaintiff has filed suit for declaration and permanent injunction by taking various pleadings that the plaintiff’s grandfather by name Laxmanrao Tatyasab Patil had gifted the suit schedule property in favour of the plaintiff. Consequently entries were made in the revenue records. But the defendants caused the alleged interference. Therefore the plaintiff was constrained to file suit. The defendants have entered appearance and filed written statement and it is pleadings that the defendants have filed O.S.No.51/1996 before the Court of Senior Civil Judge, Athani and the said suit was decreed in which the present - 8 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 plaintiff was defendant No.1 and the said judgment and decree has attained finality. Therefore, based on the pleadings, the trial Court has framed issue No.5 and while answering issue No.5, the trial Court dismissed the suit as it is hit by principles of res-judicata. 14. After completion of pleadings by both the parties, the trial Court framed issues. The trial Court has also framed issue No.5 “whether the defendants prove that in view of dismissal of O.S.No.51/1986 dated 05.06.1990, the present suit is hit by principles of res-judicata”. 15. The aspect of the suit is hit by principles of res-judicata is a matter of disputed facts. After completion of pleadings, to decide the suit is hit by the principles of res-judicata, it has to be adjudicated by receiving evidence and it is burden on the defendants to prove that the suit is hit by principles of res-judicata. But in the present case, the trial Court only on the basis of the pleadings in the written statement had come to the conclusion that the suit filed by the plaintiff is hit by principles of res-judicata and dismissed the suit, which is not correct approach of the trial Court. - 9 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 16. Order 14 Rule 2 of CPC requires the Court to answer all the issues in the suit and it may try the issues first the one with regard to jurisdiction and whether the suit is barred by any law. But with regard to the aspect of res-judicata, it should be considered by receiving evidence and it is the burden on the defendant to prove the same. But the trial Court before receiving evidence only on the basis of the pleadings taken in the written statement had come to the conclusion that the suit is hit by principles of res-judicata. Hence it is opposed to the spirit of Order 14 Rule 2 of CPC. Further the Hon’ble Supreme Court in V.Rajeshwari (supra), at paragraph No.13 has held as follows: “13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in syed mohd. Salie Labbai v. Mohd. Hanifa5 the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal6 - 10 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set on create the bar, ought to be brought on record. The plea is basically founded on the identify of the cause of action in the two suits and therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council7pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.” 17. Therefore though the defendants have taken pleading that the suit is hit by principles of res-judicata, that has to be substantiated by producing the judgment and decree on the issue framed in this regard. Then it is burden of defendants to prove that the suit is hit by principles of res-judicata. There are eight explanations to section 11 of CPC in order to say that the suit is hit by principles of res-judicata necessarily for coming to conclusion that the suit is hit by principles of res-judicata. Then evidence shall have to be adduced. But in the present case the trial Court only on the basis of the plea taken in the written statement and that - 11 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 too without perusing the judgment and decree in O.S.No.51/1986 had straightway come to the conclusion that the suit is hit by principles of res-judicata. Therefore the approach of the trial Court is not correct and it is contrary to the principle of law laid down by the Hon’ble Apex Court in the above said decision. Therefore the point raised for consideration in this appeal is answered in the affirmative. Hence, the order requires interference. Hence, I proceed to pass the following: ORDER i) The appeal is allowed. ii) The order dated 15.02.2017, in O.S.No.100/2016, on the file of Addl. Senior Civil Judge and JMFC, Athani, passed on issue No.5 holding that the suit filed by the plaintiff is hit by principle of res-judicata, is hereby set aside. iii) The matter is remanded to the trial Court for fresh disposal of the suit by answering - 12 - NC: 2025:KHC-D:2215 RFA No. 100101 of 2017 on all the issues framed, in accordance with law. iv) No order as to costs. Sd/- (HANCHATE SANJEEVKUMAR) JUDGE MRK CT: UMD. List No.: 1 Sl No.: 11