SANTOSH KUMAR JAIN Vs. D. JAYARAM

JUDGEMENT

(1.) The appeal coming on for admission is heard for final disposal having regard to the facts and circumstances of the case. Accordingly, the appeal is admitted. The short point that arises for consideration is, whether the court below could have dismissed the suit on the ground that it is barred by res judicata while deciding an additional issue, as a preliminary issue. In that, the additional issue was to the following effect:

(2.) The present appellants, who were plaintiffs, had filed the suit against the defendants seeking a declaration that the present appellants are the lawful owners of suit schedule 'A', 'B' and 'C' properties and for a declaration that two sale deeds, dated 30.3.1995, executed by the present respondent Nos.3 to 6 in favour of respondent No.1 and the predecessor of respondent No.2(a) to (e), who are the legal representatives of respondent No.2, are void and for delivery of possession of the suit properties to the plaintiffs and for a permanent injunction restraining the respondents herein from interfering with their possession and enjoyment and other incidental reliefs.

(3.) It was the case of the appellants that, the suit properties were bequeathed in favour of one Muthyswamy @ Muthappa by Chikkamuniswamappa, under a Will dated 23.5.1956. Accordingly, Muthyswamy @ Muthappa became the owner of the entire land in Sy.No.80/1 of Thippasandra village, which includes the suit schedule properties. The contention of the appellants is that, the said Muthappa was married to Smt.Ammayamma and they had two daughters viz., defendants-7 and 8 respondent Nos.7 and 8, herein. Part of Sy.No.80/1 was said to have been acquired by the erstwhile City Improvement Trust Board, the predecessor of the Bangalore Development Authority and that Muthappa had died on 30.7.1985 leaving behind Ammayamma and her two daughters referred to above and that they became the owners of the property by succession in Sy.No.80/1, HAL Sanitary Board Khata No.942/1 and 942/2. It transpires that Ammayamma had filed a suit for permanent injunction against the defendants-3 to 6, who are respondents-3 to 6 herein, in a civil suit in O.S.No.10663/1993 dated 30.9.1995. Ammayamma and her daughters viz., defendants-7 and 8 are said to have approached the plaintiffs in the year 1994 offering to sell the suit schedule properties and executed the sale deeds. However, the khata in respect of the said suit properties stood transferred in favour of defendants -1 and 2 on the basis of the said sale deeds executed by defendants-3 to 6. This, according to the plaintiffs, was impermissible as defendants-3 to 6 had no title to the property. This was on the ground that, Muthappa was never married to Ammayamma and that defendants-7 and 8 could not be their legitimate children. Therefore, the plaintiffs filed the suit seeking various reliefs of declaration and injunction.