MAHALINGESHWARA DEVARU Vs. SEETHARAMA BHATTA

JUDGEMENT

(1.) This Second Appeal by the plaintiff is directed against the judgment and decree of the Additional District Judge, South Kanara, in R. A. No. 13 of 1969 affirming the decree in O. S. No. 13 of 1967 on the file of the Principal Civil Judge, Udupi, South Kanara District. The suit was brought by the temple called "Sree Mahalinge-shwara Devaru" of Havanje village, Udupi Taluk for declaration of title in respect of the suit A and B schedule properties and for recovery of possession on the ground that the defendant who was an Archak of the temple failed to perform "Archaka service" and has no right to remain in possession. The defendant has not been doing any "Archaka service" since 1949-50 despite the demand from the temple authorities. The patta of the A Sch. properties stands exclusively in his name and patta of the B Sch. properties stands jointly in the name of the temple and the defendant. The said properties are comprised in Warg Nos. 31 and 36. The case of the plaintiff was that the suit properties are 'Uttara properties' of the temple and the defendant could remain in possession and take the income thereof so long as he performed Poojas in the temple and since he had not performed Poojas since 1949-50, he has no right to remain in possession of the temple properties. Both the Courts dismissed the suit firstly on the ground that the temple has no right to recover possession from the defendant for his failure to perform "Archaka service" in the temple and secondly on the ground that the decision in a previous litigation O. S. No. 12 of 1942 operated as res judicata as between the parties. There are also other grounds held against the plaintiff. It may not be necessary to refer to them. It seems to me that the plaintiff must fail if the decision of the trial Court on the question of res judicata is found to be correct, But, if that finding is not correct, then it may be necessary to go to the legality of the other findings recorded by the Courts below. I will, therefore, examine the correctness of the conclusion of the Courts below on the question of res judicata having regard to the decision in O. S. No. 12 of 1942.

(2.) The facts leading to the institution of O. S. No. 12 of 1942 are these: Survey No. 87/13 which also belonged to Warg Nos. 31 and 36 was the subject matter of litigation. The present defendant's father Shama Bhatta filed the suit against the said temple contending that that property was his ancestral property and that he was unreasonably dispossessed by the defendants therein. For the temple, it was contended that the property was its "Uttara property" covered by the Durmuki Chitta 1803; that the defendant was only an Archaka of the temple and he had no title over the property. The trial Court held that it was not the "Uttara property" of the temple. That decision was affirmed in the appeal by the Subordinate Judge. Ext. D-2 is a certified copy of the judgment of the trial Court and Ext. D-4 is a certified copy of the appell ate Judgment. The question is whether the finding recorded in the previous suit operates as res judicata in the present suit.

(3.) The primary test of res Judicata depends upon the identity of title in the two litigations and not the identity of the actual property involved in the two cases. That is the principle engrafted on the general rule of res Judicata by Section 11 of the Code of Civil Procedure. (Smt. Raj Lakshmi Dasi v. Banamali Sen, AIR1953 SC 33 , [1953 ]4 SCR154 ). Therefore, even if the property involved in the previous suit was different, that cannot be an impediment to invoke the principles of res judicata. It is not in dispute that the properties involved in both the cases having a comomn title comprised in the same Warg Nos. 31 and 36. Therefore, the finding that the said property was not "Uttara property' of the temple arrived at in the previous suit must be held to be binding on the parties to the present suit.