1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 423-424 OF 2018
(Arising out of SLP (Civil) Nos.9728-9729 of 2005)
ANDANUR KALAMMA AND ORS. …..Appellant(s)
:Versus:
GANGAMMA (DEAD) BY L.RS. ....Respondent(s)
J U D G M E N T
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
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
3
respondents one Sri late Belekerappa was the highest bidder
at Rs.2,600/- and the Assistant Commissioner who had
conducted the auction sale recommended to the Deputy
Commissioner Chitradurga, for confirmation of the sale.
5. The predecessor of the appellants had filed an application
on 3.2.1966 for setting aside the sale. The Deputy
Commissioner, vide order dated 3rd May, 1966, however,
confirmed the sale. Resultantly, a sale certificate was issued
sometime in the month of June, 1966 in favour of late Sri
Belekerappa and he was also put in possession of the suit
schedule property.
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
4
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
5
the orders passed by the Deputy Commissioner, being Appeal
No.167/1971. The same was also rejected by an order dated
on 13th April, 1971 as time barred. A review petition filed to
review the aforesaid order was also rejected by the Tribunal.
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, 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
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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
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first instance, by an order made on 9th June, 1975 the
application was rejected and on an application filed for review
of the said order, the Deputy Commissioner passed an order
on 29th September, 1975, holding that the review petition was
maintainable.
12. The respondents, aggrieved by the aforesaid order of the
Deputy Commissioner, filed a revision petition before the
Karnataka Appellate Tribunal being No.304/1973, inter alia,
questioning the said order on the ground that the Deputy
Commissioner had no jurisdiction under Section 177 of the
Act to exercise his suo-motu powers on an application filed by
a defaulter. The Tribunal initially allowed the petition by its
order dated 4th August, 1978 and on a review petition filed by
the appellants being No.27/1978, it allowed the review petition
and set aside the order passed in revision petition
No.304/1973. Further, vide order dated 24th March, 1980, the
Tribunal directed that the revision petition be posted for
hearing afresh on merits, and by subsequent order dated 30th
8
January, 1981 it rejected the revision petition filed by the
respondents.
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.
9
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
10
suit schedule property. Appellants also assert that their
predecessor, during the pendency of the various proceedings
before various forums, 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
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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?
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(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?
(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.
13
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
1
1982 (1) KLJ 137
2
AIR 1999 SC 3750
14
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, 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
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
15
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
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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 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)
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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 nonissuance
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 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
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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
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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 that the
20
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
21
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 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
22
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 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
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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
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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 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
25
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 nonprosecution.
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.
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
26
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 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
27
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
8
(2016) 4 SCC 434
28
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 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 Nair12 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
9
Black’s Law Dictionary, 8th Edn., 1336-37.
10
(1994) 2 SCC 14
11
(1985) 3 SCC 648
12 (2004) 3 SCC 277
29
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 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
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.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
March 6, 2018.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 423-424 OF 2018
(Arising out of SLP (Civil) Nos.9728-9729 of 2005)
ANDANUR KALAMMA AND ORS. …..Appellant(s)
:Versus:
GANGAMMA (DEAD) BY L.RS. ....Respondent(s)
J U D G M E N T
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
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
3
respondents one Sri late Belekerappa was the highest bidder
at Rs.2,600/- and the Assistant Commissioner who had
conducted the auction sale recommended to the Deputy
Commissioner Chitradurga, for confirmation of the sale.
5. The predecessor of the appellants had filed an application
on 3.2.1966 for setting aside the sale. The Deputy
Commissioner, vide order dated 3rd May, 1966, however,
confirmed the sale. Resultantly, a sale certificate was issued
sometime in the month of June, 1966 in favour of late Sri
Belekerappa and he was also put in possession of the suit
schedule property.
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
4
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
5
the orders passed by the Deputy Commissioner, being Appeal
No.167/1971. The same was also rejected by an order dated
on 13th April, 1971 as time barred. A review petition filed to
review the aforesaid order was also rejected by the Tribunal.
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, 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
6
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
7
first instance, by an order made on 9th June, 1975 the
application was rejected and on an application filed for review
of the said order, the Deputy Commissioner passed an order
on 29th September, 1975, holding that the review petition was
maintainable.
12. The respondents, aggrieved by the aforesaid order of the
Deputy Commissioner, filed a revision petition before the
Karnataka Appellate Tribunal being No.304/1973, inter alia,
questioning the said order on the ground that the Deputy
Commissioner had no jurisdiction under Section 177 of the
Act to exercise his suo-motu powers on an application filed by
a defaulter. The Tribunal initially allowed the petition by its
order dated 4th August, 1978 and on a review petition filed by
the appellants being No.27/1978, it allowed the review petition
and set aside the order passed in revision petition
No.304/1973. Further, vide order dated 24th March, 1980, the
Tribunal directed that the revision petition be posted for
hearing afresh on merits, and by subsequent order dated 30th
8
January, 1981 it rejected the revision petition filed by the
respondents.
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.
9
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
10
suit schedule property. Appellants also assert that their
predecessor, during the pendency of the various proceedings
before various forums, 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
11
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?
12
(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?
(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.
13
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
1
1982 (1) KLJ 137
2
AIR 1999 SC 3750
14
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, 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
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
15
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
16
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 proceedings, for the reason, the claim in the
earlier litigation was between the same parties, the
cause of action and the subject matter was also the
same or identical and by judicial pronouncement by
a competent Court the possession of the defendants
is not disturbed. Therefore, plaintiffs are precluded
from re-litigating an issue that has already been
decided. Even otherwise also, the plaintiffs father
or at least the plaintiff’s could have brought
forward an issue for possession of the suit schedule
property, in the earlier proceedings but chose not to
do so and therefore cannot subsequently re-agitate
the issue, which they could have done in the earlier
proceedings. Therefore, in my view, the judgment and
decree passed by the learned trial Judge requires to be
sustained on the principles of res judicata, may not be on
the ground that this Court while disposing of the writ
petition No.14012/1989 disposed off on 31.07.1989 has
observed that the order passed by the Karnataka
Appellate Tribunal remanding the matter regarding the
confirmation of sale has been set aside by this Court. The
observations made by this Court is an apparent error on
facts and that could not have been taken note of by the
trial Court, while deciding the lis between the parties and
that in my opinion, being an error on facts could have
been ignored by the trial Court.”
(emphasis supplied)
17
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 nonissuance
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 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
18
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
19
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 that the
20
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
21
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 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
22
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 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
23
of the Karnataka Land Revenue Act. Therefore, it
seems to me on this short ground the writ petition
has to succeed and hence it is I allow this writ
petition and quash the impugned order of the
Appellate Tribunal and that of the Deputy
Commissioner Annexure-C, E and F. No costs.”
(emphasis supplied)
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
24
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 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
25
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 nonprosecution.
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.
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
26
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 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
27
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
8
(2016) 4 SCC 434
28
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 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 Nair12 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
9
Black’s Law Dictionary, 8th Edn., 1336-37.
10
(1994) 2 SCC 14
11
(1985) 3 SCC 648
12 (2004) 3 SCC 277
29
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 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
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.
.………………………….CJI.
(Dipak Misra)
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
March 6, 2018.
