Budihal R.B, J. - (1.) THIS regular second appeal is preferred by the appellants -plaintiffs being aggrieved by the judgment and decree of the Civil Judge (Sr. Dn.), Srirangapatna dated 25.11.2005 passed in R.A. No. 20/1998, by which, the judgment and decree dated 24.2.1998 passed in O.S. No. 4/1993 by the Civil Judge (Jr. Dn.), K.R. Pet, dismissing the suit, has been confirmed in the said appeal.
(2.) THE facts leading to the present appeal are that the appellants -plaintiffs filed the suit seeking declaration of title to the suit properties as owners in possession and also for permanent injunction to restrain the defendants, their agents and servants from entering upon and interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule properties. The suit schedule properties are the four items of dry lands as mentioned at Sl. Nos. 1 to 4 in the schedule to the plaint. Further averments in the plaint are that the suit properties have fallen to the share of the plaintiffs in a division which took place about 23 years back between the first plaintiffs husband, the first defendant and his brothers as these properties are ancestral joint family properties and since then, plaintiffs are in possession and enjoyment of the schedule properties as owners without interruption. As the defendants and others gave trouble to the plaintiffs taking advantage of their inabilities and poverty, to enjoy the schedule properties peacefully, plaintiffs have approached an Advocate in the month of November 1979 who has wrongly advised them to file a suit for general partition. Accordingly, they filed the suit in O.S. No. 217/1979 on the file of the Munsiff Court at K.R. Pet and said suit was dismissed, against which, they preferred an appeal in R.A. No. 10/1982 which was dismissed and then they preferred R.S.A. No. 270/1984 before this Court and the same was also dismissed confirming the judgments of both the Courts below. After the dismissal of the said R.S.A. by this Court, the defendants who are inimical with the plaintiffs are trying to interfere and enter upon the plaint schedule properties with an evil intention to knock off the same since the last week of August 1992. The plaintiffs being ladies have no money and men of their own to protect their right irk respect of the suit schedule properties, have filed the suit for the above said reliefs. Defendant Nos. 1, 5 and 6 have filed their written statement contending that the paragraph 1 of the plaint averments that plaintiffs are the owners in possession of the suit schedule properties fallen to their share in the division between the first plaintiffs husband, the first defendant and his other brothers and they are in possession and enjoyment as owners are all false and baseless. It is also false that defendants gave trouble to the plaintiffs as pleaded in plaint paragraph No. 2. The averments that plaintiffs filed suit O.S. 217/1979 then R.A. and R.S.A. is true. Plaintiffs filed the suit by making false allegations to make unlawful gain. Averments in paragraph 3 of the plaint are false and baseless. The genealogy of the family is as shown in paragraph 5 of the written statement. Late Venkataiah and late Chinnaguruvaiah, Sons of Thimmaiah have divided their properties and were living separately enjoying their respective shares. The husband of plaintiff No. 1 namely Thammaiah, predeceased leaving behind him his father, plaintiff No. 1 and his daughter Rathnamma as legal heirs. Plaintiff No. 3 is not the daughter of late Thammaiah. Venkataiah died leaving behind him plaintiffs 1 and 2 as his legal heirs. Since the division of properties taken place during the lifetime of Venkataiah and Chinnaguruvaiah, the question of partition between the plaintiffs husband, the first defendant and his brothers does not arise. First plaintiff has sold some of the properties under two sale deeds dated 26.11.1976 and 6.4.1977. Suit schedule properties are not the properties of the plaintiffs. The schedule properties were not assigned to the share of late Venkataiah. Plaintiffs have deliberately and intentionally given wrong boundaries and are claiming right over them. Schedule properties were the properties of Chinnaguruvaiah. Now the first defendant and his other brothers have divided the properties in question along with other properties and they are enjoying their shares respectively. Items Nos. 2, 3 and 4 of the schedule properties are the self acquired properties of late Chinnaguruvaiah who was also called as Guruvaiah @ Guruvegowda. Defendants are owners in possession and enjoyment of the suit schedule properties. Suit is bad for non -joinder of necessary parties. There is no cause of action to file the suit. Court fee paid on the plaint is insufficient. The properties described in the plaint schedule and in the previous suit O.S. No. 217/1979 are one and the same and between the same parties. Hence, the suit is hit by the principles of res -judicata. The defendants Nos. 2, 3 and 4 have adopted the written statement of defendant 1, 5 and 6 as their written statement by filing the memo dated 12.4.1994.
(3.) ON the basis of the said pleadings, the trial Court has framed the following issues: (i) Whether the plaintiffs prove their title to the suit schedule properties? (ii) Whether the plaintiffs prove their lawful possession over the suit schedule properties as on the date of the suit? (iii) Whether the plaintiffs prove the alleged interference? (iv) Whether the plaintiffs are entitled for the relief of declaration and permanent injunction? (v) What decree or order? Additional Issue: (Iv)(a) Whether the suit is hit by the principles of res -judicata in view of the judgment in O.S. No. 217/1979? After considering the merits of the case, ultimately, the trial Court has dismissed the suit of the plaintiffs.;