C.P.C. – Sec.11 – Resjudicata – suit dismissed – 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 = 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.

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

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.