ANDANUR KALAMMA AND ORS. versus GANGAMMA (DEAD) BY L.RS. on 6 March 2018

[2018] 3 S.C.R. 177

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 ANDDR. D.Y. CHANDRACHUD, JJ.]

Code of Civil Procedure, 1908:

s.11 – Res judicata – Auction sale of property in questionconfirmed in favour of respondents – Challenged by appellants ina writ petition – High Court dismissed the petition, however,observed that Deputy Commissioner could exercise his suo motu powerto set aside the auction sale as provided in terms of s.177 of MysoreLand Revenue Act – In writ appeal High Court held that the Courtcould not have directed the Deputy Commissioner to exercise thediscretion – Thereafter, revision petition in respect of applicationfiled by appellants for invoking discretion of Deputy Commissionerto set aside the auction, was made subject matter of another writpetition – The issue of tenability of the application u/s. 177 wasnegated by High Court and further affirmed in writ appeal –Subsequent thereto, present suit for declaration of ownership andpossession of the suit property – Dismissed by trial court as well asHigh Court in appeal, on the ground of principles of res judicata –On appeal, held: The entire issue with regard to the confirmation ofauction sale was the subject matter between the same parties inrespect of same land and including same cause of action – Therefore,appellants were rightly non-suited being hit by the principles of resjudicata – Principles of res judicata.

Dismissing the appeals, the Court

HELD: The principle of res judicata as enshrined in Section11 of CPC, is founded on the maxim “Nemo Debet Bis Vexari ProUna Et Eadem Causa”. In the present case, the entire issue withregard to the confirmation of the auction sale and the salecertificate issued in favour of the predecessor of the respondents,was the subject matter before the High Court between the same

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Aparties in respect of the same land and including the cause ofaction. On that finding, the Trial Court as well as the High Courtrightly non-suited the appellants by dismissing the suit filed bythem for declaration of ownership and possession, being hit bythe principles of res judicata. The principle applies on all fours tothe present case. [Paras 27 and 28] [193-B-D]

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Nagabhushanammal v.. C. Chandikeswaralingam(2016) 4 SCC 434 - relied on.

Shirlakoppa Town Municipality v. Sree Sharada RiceMill and Others 1982 (1) KLJ 137 ; U. Nilan v.CKannayyan through LRs. AIR 1999 SC 3750 ; StateBank of Travancore v. Mytheen Kannu Mastan KanjuAIR 1980 Kerala 236 ; Madhavi Amma Bhavani Ammaand others v. Kunjikutty Pillai Meenakshi Pillai andothers 2000 AIR SCW 2432 ; Re: ForwardConstruction Co. and others v. Prabhat MandalD(Regd.), Andheri and Others AIR 1986 SC 391 ; AshokKumar Srivastav v. National Insurance Co. Ltd. AIR1998 SC 2046 ; and Re: Gulabchand Chotalal Parikhv. State of Gujarat AIR 1965 SC 1153 – referred to.

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Case Law Reference

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ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)BY L.RS.

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 423-424 of 2018.

From the Judgment and Orders dated 04.01.2005 and 11.03.2005of 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 4[th] January, 2005 andorder dated 11[th] March, 2005 passed by the learned Single Judge of theHigh Court of Karnataka in RFA No.410/1998 and R.P. No.124/2005,respectively, whereby the learned Single Judge confirmed the judgmentand decree passed by the Trial Court dismissing the suit filed by theappellants on the ground of res judicata and also dismissed the reviewpetition.

2. Appellants in the present appeals are the plaintiffs and therespondents are defendants in the original suit.

3. Briefly stated, Appellant No.1 is the wife of one late Sri AndanurUmapathiyappa and other appellants are his sons and daughter.Respondent No.1 is the wife of one late Sri Belakerappa and the otherrespondents are his sons and daughter.

4. The father of late Sri Andanur Umapathiyappa (late AndanurKotrappa) was a defaulter under the provisions of the Income Tax Actto the extent of Rs.2,600/-. For recovery of arrears of tax, the IncomeTax 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 AndanurUmapathiyappa bearing Sy. No. 63 of Bisaleri Village, Davanagere Taluk,measuring an extent of 23 acres and 15 guntas, was brought to sale forthe recovery of tax dues. The sale was held on 7[th] January, 1966 and thefather of the respondents one Sri late Belekerappa was the highestbidder at Rs.2,600/- and the Assistant Commissioner who had conductedthe auction sale recommended to the Deputy Commissioner Chitradurga, A

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5. The predecessor of the appellants had filed an application on3.2.1966 for setting aside the sale. The Deputy Commissioner, videorder dated 3[rd] May, 1966, however, confirmed the sale. Resultantly, asale certificate was issued sometime in the month of June, 1966 in favourBof late Sri Belekerappa and he was also put in possession of the suitschedule property.

6. Appellants’ predecessor late Sri Andanur Umapathiyappa S/olate Andanur Kotrappa then questioned the order dated 3[rd] May, 1966before the Mysore Appellate Tribunal by filing Appeal No.486/1967C(LR) under Section 49 of the Mysore Land Revenue Act, 1964. Heasserted that without deciding his application for setting aside the saledated 3[rd] February, 1966, the Deputy Commissioner was not justified inpassing a final order to confirm the auction sale. The Tribunal by itsorder dated 27[th] September, 1967 allowed the appeal and set aside thesale, on the ground that under Section 177 of the Karnataka LandDRevenue Act, 1964, the Deputy Commissioner could confirm the saleonly after the application for setting aside the sale is rejected.Accordingly, the Tribunal after setting aside the sale, remanded thematter to the Deputy Commissioner, Chitradurga, to conduct freshenquiry into the allegation made by the appellant in his application datedE3[rd] February,1966 and to dispose of the same in accordance with law.

7. Pursuant to the remand order passed, the petition filed by theappellants’ predecessor was taken up for hearing on 8[th] June, 1969 bythe Deputy Commissioner and since no one appeared, the DeputyCommissioner dismissed the same for non-prosecution. RestorationFapplication filed to restore the said application was also rejected by theDeputy Commissioner.

8. Appellants’ predecessor then carried the matter to the MysoreRevenue Appellate Tribunal by filing an appeal against the orders passedby the Deputy Commissioner, being Appeal No.167/1971. The sameGwas also rejected by an order dated on 13[th] April, 1971 as time barred. Areview petition filed to review the aforesaid order was also rejected bythe Tribunal.

9. Appellants’ predecessor being aggrieved, filed a writ petitionbeing W.P. No.1810/1971 before the High Court of Karnataka. TheHigh Court while rejecting the writ petition by its order dated 23[rd] October,H

1973, however, observed that if for any reason the sale was not yetconfirmed by the Deputy Commissioner, Chitradurga, after the remandorder passed by the Tribunal in appeal No.486/1967 (LR) and if the writpetitioner (predecessor in title of the appellants) deposited the sale amount,then the Deputy Commissioner could exercise his suo-motu power toset aside the sale as provided in proviso to Section 177 of Mysore LandRevenue Act.

10. The respondents in the petition challenged that decision byfiling an appeal before the High Court bearing number W.A. No.152/1973, being aggrieved by certain observations and directions issued bythe learned Single Judge while rejecting the writ petition. The DivisionBench of the High Court after referring to the provisions of Section 177of 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 setaside 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 Benchalso observed that the learned Single Judge while rejecting the petitioncould not have made any further observations or issued any directions inthe writ proceedings. With the aforesaid observations, the Division Benchof the High Court by its order dated 7[th] January, 1975 allowed theappeal.

11. During the pendency of the writ appeal, the predecessor ofthe appellants had made an application before the Deputy Commissioneron 24[th] November, 1973 under Section 177 of the Act, inter alia,requesting the authority to set aside the auction sale held on 7[th] January,1966 as envisaged in the proviso to Section 177 of the Mysore LandRevenue Act. At the first instance, by an order made on 9[th] June, 1975the application was rejected and on an application filed for review of thesaid order, the Deputy Commissioner passed an order on 29[th] September,1975, holding that the review petition was maintainable.

12. The respondents, aggrieved by the aforesaid order of theDeputy Commissioner, filed a revision petition before the KarnatakaAppellate Tribunal being No.304/1973, inter alia, questioning the saidorder on the ground that the Deputy Commissioner had no jurisdictionunder Section 177 of the Act to exercise his suo-motu powers on anapplication filed by a defaulter. The Tribunal initially allowed the petition A

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Aby its order dated 4[th] August, 1978 and on a review petition filed by theappellants being No.27/1978, it allowed the review petition and set asidethe order passed in revision petition No.304/1973. Further, vide orderdated 24[th] March, 1980, the Tribunal directed that the revision petitionbe posted for hearing afresh on merits, and by subsequent order dated30[th] January, 1981 it rejected the revision petition filed by the respondents.B

13. The respondents thereafter filed a writ petition before theHigh Court being No.14012/1981, inter alia, questioning the orders passedby the Tribunal in revision petition No.304/1973 dated 4.8.1978, 24.3.1980and 30.1.1981, respectively. The learned Single Judge of the High Courtby his order dated 31[st] July, 1989 was pleased to set aside theCaforementioned orders passed by the Tribunal in the revision petitionand made an observation that the auction sale had been confirmed longback.

14. Feeling aggrieved, the appellants filed a writ appeal, beingAppeal No.2176/1989. The Division Bench of the High Court by itsDorder dated 8[th] December, 1989 rejected the appeal, holding that theview taken by the learned Single Judge with regard to Section 177 of theKarnataka Land Revenue Act did not call for any interference.

15. Appellants, thereafter, filed a suit being O.S. No.27/1990before the learned Civil Judge (Senior Division), Davanagere, with aEprayer to declare that they are the owners of the suit schedule propertyand also for a direction to the respondents to re-deliver the possession ofthe property. After referring to the earlier proceedings before the DeputyCommissioner, Karnataka Revenue Appellate Tribunal and before theHigh Court, appellants asserted that after disposal of the appeal by theFMysore Appellate Tribunal in appeal No.486/1967 (LR), wherein theconfirmation of sale made by the Deputy Commissioner, Chitradurgawas set aside and the matter was remanded back to the DeputyCommissioner, for fresh disposal in accordance with law, no steps havebeen taken for confirmation of sale and for issue of sale certificate bythe Deputy Commissioner, Chitradurga till date of the suit. Therefore,Gvarious orders passed in different proceedings before the revenueauthorities and the Tribunal will not and cannot affect the right, title andinterest of the appellants in any way in respect of the suit scheduleproperty. The appellants, therefore, asserted that they are the owners ofthe suit schedule property. Appellants also assert that their predecessor,Hduring the pendency of the various proceedings before various forums, had deposited the entire amount due to the Income Tax Departmentand, therefore, the confirmation of the sale subsequent to receipt ofincome tax dues does not arise. Appellants would further assert thatthough the respondents were put in possession of the suit scheduleproperty, under the guise of sale certificate issued by the DeputyCommissioner and since the same had been set aside by the Tribunal inAppeal No.486/1967 (LR), their possession is litigious possession and itwould not give them any right to continue in possession of the suit scheduleproperty. It is their further assertion in the suit that though the appellantsdemanded the respondents to hand over the possession of the suitschedule property, the respondents have refused to do the same andtherefore, appellants were constrained to file the suit for declaration andpossession of the suit schedule property. The cause of action for filingthe suit, according to the appellants, arose on or about 1[st] May, 1990 andalso in July, 1989, when the High Court dismissed the appellants’ WritAppeal No.2176/1989.

16. The respondents resisted the suit. According to them, in viewof the proceedings and the order passed in W.P. No.14012/1981 dated31[st] July, 1989, the averments in the plaint regarding the proceedingsbefore the Deputy Commissioner and before the revenue authoritieshave no consequence at all and by virtue of those orders, the partieshave been restored to the original status quo as on 3[rd] May, 1966 i.e. thedate of confirmation of sale certificate by the Deputy Commissioner,and there is no necessity to grant of fresh sale certificate. Apart fromthe above defence, there is no other defence pleaded by the respondentsin the written statements filed before the trial Court.

17. The Trial Court, based on the pleadings of the parties to thesuit, framed six issues for its consideration, as follows:- “(i) Whether plaintiffs prove that they are the owners entitled forpossession of the suit property?

(ii) Do they further prove that they are entitled for possession ofthe suit property?

(iii) Whether plaintiffs suit is hit by Sec. 11 of CPC as contendedin the written statement?

(iv) Whether defendants are entitled for compensatory costs?(v) Whether the plaintiffs are entitled to the reliefs as prayedfor?

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A(vi) What order or decree?”

18. The Trial Court keeping in view the order passed by the HighCourt 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 saledated 3[rd] June, 1966 is hit by Section 11 of the Code of Civil Procedure.BTo come to this conclusion, the Trial Court has traced the history ofvarious proceedings that were initiated by the appellants’ predecessorbefore the revenue authorities and High Court and then observed that inview of the order passed by the High Court in W.P. No.14012/1981, thesuit is hit by principles of res judicata.

C19. Feeling aggrieved by the judgment and decree passed by thelearned Civil Judge (Senior Division), the appellants filed Regular FirstAppeal No.410 of 1998 before the High Court of Karnataka at Bangalore.The High Court took notice of all the proceedings that culminated withthe dismissal of writ appeal filed by the appellants against the decision ofthe learned Single Judge dated 31[st] July, 1989 in Writ Petition No.14012/D1981, whereby the correctness of all the orders passed by the RevenueAuthorities including the Karnataka Appellate Tribunal were analysedand the plea of the appellants founded on their application dated 24[th]November, 1973 and 9[th] June, 1975 for setting aside the auction salecame to be negatived and which judgment was affirmed by the DivisionEBench of the High Court by dismissing the writ appeal preferred by theappellants. The High Court, taking notice of the decisions in the cases ofShirlakoppa Town Municipality Vs. Sree Sharada Rice Mill andOthers;[1]U. Nilan Vs. Kannayyan through LRs.[2]State Bank ofTravancore Vs. Mytheen Kannu Mastan Kanju;[3]Madhavi AmmaBhavani Amma and others Vs. Kunjikutty Pillai Meenakshi PillaiFand others;[4]Re: Forward Construction Co. and others Vs. PrabhatMandal (Regd.), Andheri and others;[5]Ashok Kumar Srivastav Vs.National Insurance Co. Ltd.;[6] and Re: Gulabchand Chotalal ParikhVs. State of Gujarat;[7] summed up the legal position on the doctrine ofres judicata of triple test requirement regarding the factum of identityGof the parties, cause of action and the subject matter. In other words,1 1982 (1) KLJ 1372 AIR 1999 SC 37503 AIR 1980 Kerala 2364 2000 AIR SCW 2432

5 AIR 1986 SC 391

6 AIR 1998 SC 2046H7 AIR 1965 SC 1153

ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)BY L.RS. [A.M. KHANWILKAR, J.]

any issue that has been raised and decided and which was necessaryfor determining the rights and duties of the parties by a final conclusivejudgment on the merits cannot be re-litigated by the same parties and aparty is precluded from re-litigating the issue that has already beendecided and also an issue which it could and should have brought forwardin the earlier proceedings but chose not to do so. Keeping in view thoseprinciples, the High Court went on to observe as follows:

“31. The triple identity which I have referred to in the earlierparagraphs of my order assumes importance for deciding theissues which I have raised for my consideration. At the costrepetition, let me once again notice the triple requirement forthe doctrine of res judicata to apply. They are, identity of theparties, cause of action and the subject matter. The identityof the parties is not in dispute nor it can be disputed by theplaintiffs. In fact, their father was agitating the auction saleheld and its confirmation before various forums and after hisdeath, the plaintiffs have stepped in to his shows (sic) tocontinue the proceedings till this stage. The secondrequirement is the cause of action. A cause of action comprisesof all the facts and circumstances necessary to give rise tothe relief. Before the revenue authorities, the Tribunal theprimary grievance of the plaintiffs was the conformation ofsale of their immovable property held in a public auction bythe Deputy Commissioner and their illegal dispossession fromthe suit schedule property. Before all the forums, the plaintiffshave lost their case and those others have been confirmed bythis 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 publicauthority and delivery of the possession of the same is notdisturbed by any of the revenue authorities or the Tribunal orby this Court; however the same is also not confirmed by theTribunal pursuant to the remand order passed by the MysoreRevenue Tribunal in the appeal No.486/1967. Thirdly, thesubject matter is the same in all the proceedings, namely, suitschedule property bearing No.63, measuring 23 acres and15 guntas situate at the Bisaleri village, Davanagere district.

32. The doctrine of res judicata would apply in these A

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proceedings, for the reason, the claim in the earlier litigationwas between the same parties, the cause of action and thesubject matter was also the same or identical and by judicialpronouncement by a competent Court the possession of thedefendants is not disturbed. Therefore, plaintiffs are precludedfrom re-litigating an issue that has already been decided.Even otherwise also, the plaintiffs father or at least theplaintiff’s could have brought forward an issue for possessionof the suit schedule property, in the earlier proceedings butchose not to do so and therefore cannot subsequently re-agitatethe issue, which they could have done in the earlierproceedings. Therefore, in my view, the judgment and decreepassed by the learned trial Judge requires to be sustained onthe principles of res judicata, may not be on the ground thatthis Court while disposing of the writ petition No.14012/1989disposed off on 31.07.1989 has observed that the order passedby the Karnataka Appellate Tribunal remanding the matterregarding the confirmation of sale has been set aside by thisCourt. The observations made by this Court is an apparenterror on facts and that could not have been taken note of bythe trial Court, while deciding the lis between the parties andthat in my opinion, being an error on facts could have beenignored by the trial Court.”

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(emphasis supplied)

20. On the aforementioned conclusion reached by the High Court,it proceeded to dismiss the first appeal preferred by the appellants. Theappellants have approached this Court by way of special leave inter aliaFcontending that the issue regarding confirmation of auction sale wasreopened in view of the decision of the Mysore Revenue AppellateTribunal dated 27[th] September, 1967. In absence of confirmation of saleand non-issuance of fresh sale certificate to the respondents, no mannerof right, title or interest or whatsoever over the suit schedule propertyGenured in favour of the respondents. The fact that the respondents’ancestor late Balakerappa was put in possession of the suit scheduleproperty, on the basis of sale certificate and confirmation of sale on3[rd] May, 1966 will not impair the interest of the appellants in any mannernor denude them from pursuing their remedy of restoration ofpossession of the suit property, the ownership whereof remained with H

the appellants. According to the appellants, the High Court as well asthe Trial Court committed manifest error in invoking the principle of resjudicata to non-suit the appellants and dismiss the suit for possession onthe basis of their title and to declare them as owners of the suit property.

21. The respondents, on the other hand, would contend that theTrial Court as well as the High Court had justly rejected the suitpreferred by the appellants as it was hit by the principles of res judicata.The respondents have supported the analysis and conclusion reached bythe Trial Court as well as the High Court in this regard. They pray fordismissal of the appeal being devoid of merits.

22. We have heard Mr. Kashi Vishweshar, learned counselappearing for the appellants land Mr. E.C. Vidya Sagar, learned counselfor the respondents.

23. The factual matrix noticed by the Trial Court and reiteratedby the High Court in the impugned judgment is indisputable. In that, thepredecessor in title of the appellants had committed default in paying taxfor which the suit property was put to auction in which the predecessorin title of the respondents was the highest bidder. The auction sale wasconfirmed by the competent authority. The correctness of theconfirmation of sale without deciding the application for setting aside thesale, preferred by the predecessor of the appellants, was questioned byhim. The matter had reached the High Court by way of Writ PetitionNo.1810/1971, filed by Andanur Umapathiyappa predecessor of theappellants, which was dismissed with the observation that if the writpetitioner was willing to deposit the sale amount, the DeputyCommissioner could exercise his suo motu power to set aside the saidsale as provided in terms of Section 177 of the Mysore Land RevenueAct. This observation, however was assailed by the respondents by wayof Writ Appeal No.152/1973 before the Division Bench. The DivisionBench allowed the said appeal. The relevant extract of the order passedby the Division Bench dated 7[th] January, 1975, having some bearing onthe matter in issue, reads thus:

“The result of the dismissal of the writ petition is that there isno application now pending for setting aside the sale. However,under the proviso, the Deputy Commissioner has the powerto exercise his discretion to set aside the sale subject to suchconditions as he may deem proper, notwithstanding the fact A

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Athat the application made for setting aside the sale has beenrejected. Whether it is a case for setting aside the sale and onwhat conditions the sale should be set-aside are matters whichare within the exclusive discretion of the Deputy Commissioner.This court, in the exercise of its jurisdiction, cannot direct theDeputy Commissioner to exercise the discretion if theBconditions imposed by this Court are satisfied. It is not forthis court to lay down any conditions. That matter should havebeen left open.

Therefore, we allow this appeal and hold that the Writ Petitionshould have been dismissed without making any observationCas to how the discretion under the proviso to Section 177 ofthe Karnataka Land Revenue Act should be exercised. Nocosts.”

With this decision, the issue regarding validity of auction saleDattained finality against the appellants.

24. The matter did not rest at that as the revision petition filed bythe respondents as well as the appellants in relation to application filedby the appellants for invoking the discretion of the DeputyCommissioner to set aside the auction were then made subject matter ofEanother writ petition filed by the respondents, being Writ PetitionNo.14012/1981. The learned Single Judge of the High Court ofKarknataka at Bangalore by judgment dated 31[st] July, 1989 consideredthe tenability of the orders passed by the Revenue Authorities and theAppellate Tribunal, in particular, orders dated 4[th] August, 1978, 24[th]FMarch, 1980 and 31[st] January, 1981. The order dated 31[st] July, 1989passed by the learned Single Judge is, in our opinion, crucial to answerthe issue that arises for our consideration. The order dated 31[st] July,1989 reads thus:

“ORDER

GThis Writ Petition is of the year 1981. I hope by disposing itoff I would have given quietus to a controversy which appearsto have arisen in the year 1966 when the predecessor ininterest of the respondents one Andanur Umapathiyappa lost26 acres of land for having defaulted in payment of incometax arrears for recovery of which sum, lands were sold byHpublic auction and purchased by the contesting respondent who was also placed in possession immediately.

2. It is common ground that the lands have been in possessionof the petitioner since the date of the auction sale andnotwithstanding many endeavours made by the respondentsto wrest it from the petitioner by reason of a charmed life theyhad managed to sustain their holding over the lands.

3. In this last ditch battle for recovery of these lands the pointraised is of the tenability of an application made for settingaside the auction sale by moving the Deputy Commissioner toexercise his suo moto powers under Section 177 of theKarnataka Land Revenue Act, although auction sale havingbeen affirmed long back. That application the DeputyCommissioner disposed off on 9.6.75, for some reasons herejected the same. But the respondents filed anotherapplication on 17.06.1975 to the Deputy Commissionerseeking a review of the earlier order. The DeputyCommissioner having held application to be maintainabledespite opposition by the petitioner a revision petition havingbeen filed from that order before the Karnataka AppellateTribunal, the Deputy Commissioner’s order was in the firstinstance upheld but retracted later on a review petition andan order made dismissing the revision petition. Petitionerschallenge the sad or per (sic) as also the order of the DeputyCommissioner dated 29.09.1975 holding a review petitionbefore him to be maintainable.

4. Sri Gopal who appears for the auction purchaser who isaggrieved by these orders urges that respondents had anyright at all to seek interference by the Deputy Commissionerunder the provisions of section 177 of the land Revenue Act.This Court in G.D. NAVAREKAR Vs. The Mysore RevenueAppellate Tribunal and others (1973 (1) MLJ 331) has settledthe law on the question of exercising of suo moto power by arevenue authority under section 177 with particular referenceto its modality, it says:

‘Suffice it to state that power is to be exercised in the interestof justice and subject to such conditions as the authority maydeem proper and it does not confer a right on the petitioner A

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Ato ask the Assistant Commissioner to invoke the issue.’

5. It was pointed out by this Court in the decision referred tosupra, that no one has a right to move the DeputyCommissioner to exercise his suo moto powers under section177 of the Karnataka Land Revenue Act. In this case reviewBapplication having been disposed off by the DeputyCommissioner on 9.6.1975 may be even for wrong reasonsas pointed out by Mr. Gopal for the petitioner, having becomefinal it seems to me that it was wrong on the part of theappellate Tribunal to have lent support to the application madeby the respondents demanding or seeking exercise of suo motoCpowers by Deputy Commissioner acting under Section 177 ofthe Karnataka Land Revenue Act. Therefore, it seems to meon this short ground the writ petition has to succeed and henceit is I allow this writ petition and quash the impugned orderof the Appellate Tribunal and that of the Deputy CommissionerDAnnexure-C, E and F. No costs.”

25. This decision was challenged by the appellants by way of writappeal before the Division Bench of the High Court which, however,was summarily dismissed vide order dated 8[th] December, 1989, TheEsame reads thus:

“O R D E R

The view taken by the learned Single Judge with regard toSection 177 of the Karnataka Land Revenue Act does not call forinterference. Hence, this Appeal is rejected.”F

With the rejection of this appeal, even the issue of tenability ofapplication under Section 177 of the Act became final against theappellants.

26. After all these proceedings, the appellants resorted to a civilGsuit before the Civil Judge (Senior Division) at Davanagere, being O.S.No.27/90, for declaration of ownership and possession. In the suit, theprincipal issue was that in absence of an order of the competentauthority confirming the auction sale and without issuing fresh salecertificate in favour of the respondents, the respondents or for that mattertheir predecessor in title, had not acquired any right, title or interest orH

ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD)BY L.RS. [A.M. KHANWILKAR, J.]

whatsoever over the suit schedule property. Therefore, thepossession of the suit property given to the predecessor of therespondents was required to be restored in absence of a fresh order ofconfirmation of sale. The argument though attractive at the first blush,has received deep attention not only of the Trial Court but of the HighCourt also, as can be noticed from the analysis in paragraphs 20 and 21of the impugned judgment, which reads thus:

“20. Admittedly, in the present case, the Deputy Commissionerwithout considering the application filed by the defaulter on3.2.1966 had confirmed the auction sale of the immovableproperty on 7.1.1966 on the recommendation made by theAssistant Commissioner in favour of the highest bidder in theauction namely, the father of the defendants late Sribelekerappa. This action of the Deputy Commissioner wastaken exception to by the Mysore Revenue Appellate Tribunalin the appeal filed by the plaintiffs father in appeal No.486/1967 (LR) and the Tribunal by its order had set aside theorder of the confirmation of sale passed by the DeputyCommissioner vide his order dated 3.6.1966 and hadremanded the matter to the Deputy Commissioner to pass freshorder in accordance with law after considering the applicationfiled by the plaintiffs father. On such remand, since plaintiffsfather did not appear before the Deputy Commissioner onthe date fixed for hearing, the Deputy Commissioner hasrejected the application for non-prosecution. The order somade has reached the finality in view of the order made bythis Court in W.P.No.1810/1971 and in W.A. No.152/1973.Even after disposal of all these proceedings, the DeputyCommissioner has not passed any fresh order in confirmingthe sale, pursuant to the remand order passed by the MysoreRevenue Appellate Tribunal made in appeal No.486/1967 (LR)dated 27.9.1967 and further has not issued fresh salecertificate. These factual aspects which is not disputed by thelearned Counsel for appellants would demonstrate that thedefendants are in possession of the suit schedule propertypursuant to order of confirmation of sale passed by the DeputyCommissioner, which had been set aside by the RevenueAppellate Tribunal.

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21. The other proceedings initiated by the father of theplaintiffs is to approach the Deputy Commissioner to set asidethe sale by filing an application under Sec. 177 of the Act.Though, initially the Deputy Commissioner had rejected theapplication as not maintainable before him, on an applicationfiled for review of his order, he had entertained the applicationby observing in his order that an application filed by thedefaulter to initiate suo-motu powers by him under proviso toSection 177 of the Act is maintainable. The correctness orotherwise of this order was questioned by the legalrepresentatives of the late Sri Belekerappa – the defendantsbefore the Revenue Appellate Tribunal in Revision PetitionNo.304/1973 filed under Sec. 56 of the Karnataka LandRevenue Act. The Tribunal by its order dated 30.1.1981 holdsthat the Deputy Commissioner was justified in invoking hispowers under Sec. 177 of the Act on an application filed bythe defaulter to set aside the sale and therefore, has rejectedthe revision petition and have directed the DeputyCommissioner to consider the petition/application filed by thefather of the plaintiffs under Sec.177 of the Act in accordancewith law. It is the correctness or otherwise of this order wasthe subject matter before this Court in W.P. No.14012/1981and this Court while allowing the petition and setting asidethe order passed by the Karnataka Appellate Tribunal inRevision Petition No.304/1973 has made a passing observationto the effect that ‘in this last ditch battle for recovery of theselands, the point raised is of the tenability of an applicationmade for setting aside the auction sale by moving the DeputyCommissioner to exercise his suo-motu powers under Sec.177of the Karnataka Land Revenue Act, although the auctionsale having been confirmed long back.’ It is this observationof the learned Single Judge, which has been confirmed inW.A. No.2176/1989 has weighed the mind of the learned trialJudge to hold that the suit is hit by principles of res judicata.”

27. As is noticed from the judgment of the leaned Single Judge of the High Court in Writ Petition No.14102/1981 dated 31[st] 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 andthe sale certificate issued in favour of the predecessor of the respondents,was the subject matter before the High Court between the same partiesin respect of the same land and including the cause of action. On thatfinding, the Trial Court as well as the High Court non-suited the appellantsby dismissing the suit filed by them for declaration of ownership andpossession, being hit by the principles of res judicata, as can be discernedfrom the discussion in paragraphs 31 and 32 of the impugned judgment,which have been extracted in paragraph 19 of this judgment. We are incomplete agreement with the analysis of facts and the conclusionarrived at by the Trial Court and affirmed by the High Court.

28. For arriving at such conclusion, the Trial Court and High Courthave applied the settled legal position in reference to the decisions ofthis Court as noticed by the High Court in the impugned judgment. Theprinciple of res judicata as enshrined in Section 11 of CPC, is foundedon 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 judicialdecision’.[9] The principle operates as a bar to try the sameissue once over. It aims to prevent multiplicity of proceedingsand accords finality to an issue, which directly andsubstantially had arisen in the former suit between the sameparties or their privies and was decided and has become final,so that the parties are not vexed twice over; vexatious litigationis put an end to and valuable time of the court is saved. (SeeSulochana Amma v. Narayanan Nair.[10])

16. In Jaswant Singh v. Custodian of Evacuee Property[11] thisCourt has laid down a test for determining whether asubsequent suit is barred by res judicata: (SCC p. 657, para 7(2016) 4 SCC 4348 Black ’s Law Dictionary, 8th Edn. 1336-37.

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‘14. … In order that a defence of res judicata may succeedit is necessary to show that not only the cause of actionwas the same but also that the plaintiff had an opportunityof getting the relief which he is now seeking in the formerproceedings. The test is whether the claim in the subsequentsuit or proceedings is in fact founded upon the same causeof action which was the foundation of the former suit orproceedings.’

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17. The expression ‘cause of action’ came to be interpretedby this Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair[31]at para 16. To quote: (SCC p. 286)

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‘16. The expression ‘cause of action’ has acquired ajudicially settled meaning. In the restricted sense, causeof action means the circumstances forming the infractionof the right or the immediate occasion for the action. Inthe wider sense, it means the necessary conditions for themaintenance of the suit, including not only the infractionof the right, but the infraction coupled with the right itself.Compendiously the expression means every fact whichwould 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 distinguishedfrom every piece of evidence which is necessary to proveeach fact, comprises in ‘cause of action’.

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18. In Halsbury’s Laws of England (4th Edn.), the expressionhas been defined as follows:

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‘Cause of action’ has been defined as meaning simply afactual situation the existence of which entitles one personto obtain from the court a remedy against another person.The phrase has been held from earliest time to include everyfact which is material to be proved to entitle the plaintiff tosucceed, and every fact which a defendant would have aright to traverse. ‘Cause of action’ has also been taken tomean that particular act on the part of the defendant whichgives the plaintiff his cause of complaint, or the subject-matter of grievance founding the action, not merely the G

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technical cause of action.”

29. The principle of res judicata applies on all fours to the presentcase as has been rightly held by the Trial Court and affirmed by the HighCourt in the impugned judgment, in particular, in paragraphs 31 and 32thereof, which have been reproduced in paragraph 19 above.

30. We, accordingly, affirm the judgment and orders underappeal and dismiss these appeals being devoid of merit.

31. Accordingly, these appeals are dismissed with costs.

Kalpana K. Tripathy

Appeals dismissed.

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