CHIKKAMMA Vs. KEMPEGOWDA AND

JUDGEMENT

(1.) The point for consideration in this appeal is whether the lower Courts were right is dismissing the suit of the plaintiffs on points of law raised in the case. The plaintiffs claim in this suit 'chat the suit property belongs to them after the death of Gowregowda, first plaintiff's husband, the' original owner of the pro perty. They contend that defendant 2 under whom defendant 1 claims the property is not Gowregowda's son. Present defendant 1 had filed O. S. 625 of 40-41 on the file of the Munsiff's Court, Nanjangud against defendant 2 on a hypo thecation deed executed by him. Defendant 2 did not contest that suit, but the plaintiffs in this suit who were impleaded in that suit as defen dants contended as they do now that the suit properties exclusively belonged to them and defen dant 2 who had executed the hypothecation deed, was not the son of Gowregowda, plaintiff 1's hus band, to whom the properties in dispute originally belonged. It was contended by defendant 1 who was the plaintiff in that suit that the hypothecated properties had been divided between the hypothecator Chikkegowda and the plaintiffs in this suit, and as such the latter were bound to discharge that debt. In that case it had also been pleaded that the suit debt had been discharged and the Court held that the discharge as pleaded by the present plaintiffs is true, but it also held that defendant 2 Chikkegowda who was defendant 1 in that case is the son of Gowregowda. In the result the previous suit was dismissed. Disputes continued to arise between the parties and as usual in cases of this kind they ended in proceedings under Section 145, Criminal P. C. As the defendants in this suit have succeeded in those proceedings, the plaintiffs have filed the present suit for possession of the properties from the Receiver appointed in those proceedings and also for recovery of the amount realised by the Receiver by the sale of the produce of the land and deposited in Court. Apart from other pleas it is contended by both the defendants that the question that defendant 2 Chickkegowda is the son of Gowregowda has been decided in the previous suit and it has also been held in that suit that the plaintiffs are parties to the partition and as such the plaintiffs in this suit are barred by principles of 'res judicata' from contending, as they have been now contending, that defendant 2 is not the son of Gowregowda and that they have nothing to do with the partition.

(2.) The learned Munsiff upheld the contention of the defendants and dismissed the suit as barred by principles of 'res judicata'. The learned Subordinate Judge in appeal set aside the finding of the learned Munsiff, on the question of 'res Judicata'. He however held that there were admissions made by the plaintiffs or some of them that defendant 2 was the son of Gowregowda, that in the previous case it had been decided that there was a partition and that as it appears from the copies of documents filed in the case that plaintiff 1 has produced partition deeds for registration, the suit filed without a prayer for cancellation of the partition deed is bad. He upheld the dismissal of the suit on these grounds.

(3.) As regards the first question whether the suit is barred by principles of 'res judicata', it has to be stated that apart from other requirements the points substantially in issue in the two cases must have been finally decided before it could be, held that there is any such par. As observed by Mulla in his Commentary on Section 11, C. P. C. "If the plaint is wholly dismissed, no issue decided against the defendant can operate as 'res judicata' against him in a subsequent suit, for the defendant cannot file an appeal the decree being wholly in his favour". Again as observed in the case reported in --'Scott L. R. Mrs. v. Mohammad Din', ILR (1944) Nag 465 :