Gurappa v. State Of Karnataka

JUDGMENT

Huluvadi G. Ramesh, J.:— These second appeals have been filed by the plaintiff/appellant being aggrieved by the order dated 22.9.2001 passed by the lower appellate Court in RA No. 9/1997 setting aside the judgment and decree dated 14.10.1997 passed by the trial Court in O.S no. 39/1993 and dismissing the suit of the plaintiff.

2. The plaintiff had filed a suit for declaration that he is the owner of the lands bearing Sy. No. 183 measuring 1 acre 13 guntas and Sy. No. 184 measuring 4 acres 9 guntas which are arising out of the old survey numbers 249 and 250 situate at Bhalki and as such sought for a declaration that the plaintiff is the owner of the said property and the assignments, if any created by defendant No. 2-Municipality to other defendants viz., 3 to 22 as ineffectivte and also sought for correction to correct the records in respect of the suit lands.

3. On the other hand it is contended that defendant No. 2 Municipality is the owner of the suit property and it is in continuous possession of the same to the knowledge of the plaintiff. The different portions of the suit property is assigned to various defendants viz., defendant Nos. 3 to 22 and they have put up the temporary structures in Sy. No. 184 Earlier, the property was utilised by the private transporters for more than 20 years and defendant No. 2 and the plaintiff were never in possession for more than 40 years and that the suit was barred by limitation and sought for dismissal of the suit. It is also contended that the original suit filed by the plaintiff in O.S No. 255/84 before the learned Civil Judge, Bidar was dismissed, therefore, it operates as resjudicata. Based on the pleadings, the trial Court raised about 5 issues and 6 additional issues. Thereafter it has decreed the suit of the plaintiff declaring that the plaintiff is the owner of the suit property. It further held that the plaintiff be put in possession of the property after eviction of other defendants and also perpetual injunction was issued restraining the further construction of the suit properties.

4. Being aggrieved by the said order, appeal was preferred before the Addl. District Judge, Bidar. By order dated 22.9.2001, the learned District Judge has allowed the several appeals filed by the Municipality, Bhalki and other lease holders. The lower Appellate Court has reversed the finding of the trial court and thereby set aside the judgment and decree passed on O.s No. 39/1993. Hence this second appeal.

5. At the time of admission, the following 7 substantial questions of law were raised by order dated 4.2.2003:

i) whether the First Appellate court has failed to give due weight to the public documents on record and ignored the admission of the defendant No. 2 and has committed serious error by holding that the appellant is not the owner of the suit land and thereby has erroneously dismissed the suit of the appellant?

ii) Whether the alleged assignments made by the Town Municipal Council (defendant No. 2) in favour of defendants 3 to 22 are valid and binding upon the appellant?

iii) Whether the finding of the First Appellate Court that the suit is hit by principle of res judicata and dismissal of the suit on that ground is legal and sustainable in law and on facts of the case?

iv) Whether the dismissal of the suit, despite notice under Section 80 Code of Civil Procedure (EX.P30) is legal?

v) Whether the dismissal of the suit against defendants 3 to 22 for want of notice under Section 80 Code of Civil Procedure is legal?

vi) Whether firstling of the 1st Appellate Court that the suit is not maintainable for non-joinder of plaintiff-appellant's brother Prabanna and one Chaturbhuj as parties, is legal in the absence of any plea of the defendants and issue on that point?

vii) whether the first appellate court is legally right and justified in reversing the judgment and decree of the trial Court and dismissal of the suit?

6. Heard the learned counsel for the respective parties on the substantial questions of law raised.

7. It is the submission of the learned counsel appearing for the appellants that the trial Court has rightly declared that plaintiff is one of the owner of the suit property. The earlier suit filed by the plaintiff was dismissed. There was an observation by the trial Court in the earlier judgment that the suit is bad for non-joinder of necessary parties. He therefore submitted that in the earlier suit filed, there was a defect and the subsequent suit was filed which is to be treated as one filed as per the observation made in the order of the trial Court in the earlier suit thereby it gives liberty to file and the question of limitation does not arise. Further, it is submitted that when it is observed that there is non-joinder of necessary parties and the parties to the subsequent suit are not the same, it has to be held that the res-judicata does not operate. Further learned counsel appearing for the appellant also submitted that in the earlier suit, it was observed that there was no proper identification of the property and as such clarification was sought for. Subsequently the suit was filed in respect of some properties but it has covered all the necessary parties for the purpose of proper adjudication. It is admitted that the property in sy. No. 184 belong to him although the suit was filed by one Chaturbhuj against the plaintiff claiming that the property in Sy. No. 182 belongs to him and not 184. But, there is no such declaration in the suit filed by him. There is an admission by the said Chaturbhuj that the property in Sy. No. 182 belongs to as such he is not a necessary party. Further it is submitted that Sy. No. 184 is shown as the property belonging to Chaturbhuj in the revenue records and 182 belongs to this present plaintiff. As such, he argued that Chaturbhuj did not dispute the ownership as to Sy. No. 184 as belonging to the plaintiff.

8. Learned counsel for the appellant has relied upon several rulings in support of his arguments.

9. On behalf of the respondents, the Government pleader appearing for R-1 has submitted that there is no notice as contemplated under Section 80 of Code of Civil Procedure issued by the Government and the suit is barred by limitation and res-judicata.

10. Learned counsel appearing for the other respondents who are having lease-hold rights in respect of the suit property have submitted that the suit is not maintainable as barred by limitation and res-judicata. It is further submitted that on the suit properties belonging to the Bhalki Municipality, plaintiff has no right and accordingly sought for dismissal of the appeal.

11. It would be appropriate to deal with all the substantial questions of law together and to answer the same. The suit lands are said to be situated in the heart of Bhalki Town and several buildings have come up around the suit lands. The considerable portion of the plaintiff's share was acquired by the State for establishment of various Government offices like Tahasildar office, Munsiff Court, Government School, Government Hospital, etc.,. According to the plaintiff, that he has got 1 acre 13 guntas in survey no. 183, and 4 acres 9 guntas in survey No. 184 after acquisition of the remaining property by the Government in those survey numbers to a larger extent. The original survey numbers are said to be 249 and 250, which were subsequently renumbered on division as survey Nos. 179 to 184. Originally it was measuring about 41 acres is guntas belonging to ancestors of the plaintiff and thereafter, plaintiff and his cousin Ghalappa succeeded to the land. According to the plaintiff himself, out of 20 acres 29 guntas, about 15 acres 7 guntas was acquired by the Government which is inclusive of sale of property to one Chathurbuja to the extent of 3 acres 9 guntas.

12. The plaintiff said to have filed a suit originally against the defendant Nos. 1 and 2 in O.S No. 255/1984 for declaration of his title to the land in survey No. 184 stating that it is measuring 6 acres 25 guntas situated at Bhalki village and also for declaration that assignment: made by the defendant No. 2 in favour of other persons unauthorisedly and for perpatual injunction. The said O.S was dismissed on 9.1.1986 Thereafter another suit in connection with this case was filed on 8.9.1988 after dismissal of O.S No. 255/1984, However, it is not in dispute that there was a notice issued to defendants 1 and 2 before filing of O.S No. 355/1984, Ex.P30 is said to be the notice issued by the plaintiffs in favour of defendant Nos. 1 and 2 much prior to the filing of the O.S No. 255/1984. After dismissal of the said suit in the year 1988, O.S No. 380/1988 was filed before the civil Judge, Bidar, wherein on the point of jurisdiction, after establishment of new Court at Basavakalyan, the said matter came to be transferred and it was renumbered as O.S No. 39/1993. However, it appears the plaintiff has not issued notice prior to the filing of the present suit in question. The notice was issued as early as in the year 1984. In so far as issuance of notice by the plaintiffs is concerned, it is the contention of the plaintiffs that the notice earlier issued in the year 1984 will be construed a notice in respect of present suit in question. According the appellants, the second defendant is the Chief Officer of the Bhalki Municipality. It is their case that as per Section 284 of the Karnataka Municipality Act, no suit shall be instituted against the Municipal Council without issuance of notice of 60 days and also explaining the nature of relief sought for and other particulars. Further while dealing with this aspect, it is also argued by the learned Counsel for the appellant that the suit in question is not hit by the principles of resjudicata. Although original suit filed by him in O.S No. 255/1984 is disposed of and the present suit is filed subsequently in the year 1988, though it involves some of the aspects and relief sought for in the earlier claim, I propose to answer these points together. In O.S No. 255/1984, totally 5 issues were raised. The main issue was that whether the plaintiff proves that the suit land is created out of land in survey Nos. 249 and 250 of Bhalki village. After considering the admission of the parties and avidence, the trial Court in the said suit has come to the conclusion that the description of the suit land and its identity is not properly proved by the plaintiff.

13. The other three issues raised are in respect of the sketch filed by the plaintiff as to whether the plaintiff has proved that defendants have encroached upon the suit land and to what extent, and whether the plaintiff is entitled for injunction and declaration. What is being noticed in paragraph No. 22 of the said order of the trial Court dated 9.1.1986 that the plaintiff has filed a suit against the Deputy commissioner and Chief Officer under misconception of facts. If he wants to obtain a effective decree, he has to implead various persons who are in actual possession of various parts of the suit land and seek a effective relief like declaration and possession and also having found that the evidence which led in by the plaintiff was contrary to the entry found in the document produced by the plaintiff, stating that there is no proper identification of the property, and for want of nacassary partitioners declaration and injunction was refused. Mainly for want of identity and also for not bringing the necessary parties on record, and original suit filed by the plaintiff was dismissed. so, that is the sum and substance of the order passed in original suit preferred by the plaintiff earlier. The finding given by the trial Court in the earlier suit filed by the plaintiff does not operates resjudicata. The second suit was filed in respect of same relief, after impleading several other persons who are required and who are said to be in possession of the suit properties. In this regard learned Counsel for the plaintiff has relied upon a ruling reported in AIR 1966 SC 1322 in the case of shaodan Singh v. Daryao Kunwar. In the above said decision, the Apex court referring to section 91 of Code of Civil Procedure has held as follows:

“In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff's appearance, or on the ground of non-joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff to produce probate or letters of administration or succession certificate when the same is required by law to antitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit”

14. The reading of the above ratio is indicative of the fact that there is a suit dismissed for non-joinder of parties or on the ground that the suit was badly framed or on the ground of technical mistake. While dismissing the original suit filed by the plaintiffs in O.S No. 255/1984, the trial Court has refused the relief on the ground that the suit was filed under misconception and effactive order cannot be passed in the absence of impleading necessary parties whs ars in actual possession of the suit property etc. As such, the plaintiff is not entitled for declaration and injunction. In view of the ratioa laid down by the Apex Court as noted above, earlier suit which was filed by the plaintiffs although seeking for declaration, the same is held to be not operative as resjudicata and in the subsequent suit filed although remedy sought for is same, the same was not accepted or considered on merits in the earlier suit for want of necessary parties. Thus, the substantial question of law No. 3 has to be answered in favour of the plaintiff.

15. In so far as issuance of legal and necessary notice is concerned, according to the plaintiff, there was a notice being issued as early as in the year 1984 at the time of filing of original suit No. 255/1984 and since the said suit was dismissed on technicality and the claim of the plaintiff was not considered, the subsequent suit filed seeking for the same relief, after bringing the necessary parties on record and thereafter O.s No. 800/1988 was filed. According to the plaintiff, the earlier notice issued to the defendants 1 and 2 who are the Deputy Commissioner and Chief Officer of Bhalki Town Municipality in O.S No. 255/1984 itself is the suit notice to them in the present suit and there is no need of second notice. It is argued by the learned Counsel for the plaintiff that no such notice is necessary. In that regard, he has relied upon a ruling reported in air 1972 SC 2510, in the case of Devi Singh v. Municipal Corporation, Hyderabad corporation, Hyderabad, wherein it is held thus:

“Where in a suit for injunction against a Municipality restraining it from interfering with plaintiff's peaceful enjoyment and possession of the Bazar in suit, the whole controversy was whether the Bazar was the property of the plaintiff and was in his possession at the time of the institution of the suit, no notice of suit under S.447 is necessary as the suit had nothing to do with any act done or purported to be done in pursuance of axecution or intended execution of any provision of the corporation Act.”

16. Further, the learned Counsel for the appellant also relied upon a ruling reported in AIR 1984 SC 1043, in the case of Bihari chowdhary v. State of Bihar, wherein it is held that in so far as notice under Section 80 of Code of Civil Procedure, there clearly a public purpose underlying the mandatory provision contained in the section insisting on the issuance of notice setting out the particulars of the proposed suit and giving two months' time to Government or a Public Officer before a suit can be instituted against them. The object of the section is the advancement of justice and securing of public good by avoidance of unnecessary litigation. It is seen that issuance of notice as early as in the year 1984 is undis puted fact to both the defendants 1 and 2. The earlier suit was dismissed for non-compliance on technicality. The second suit was filed on the same cause of action within four years of time of disposal of the earlier suit. Even the ruling of the Apex Court in respect of Hyderabad Municipality also indicative of the fact that no such notice is necessary as the suit had nothing to do with the any act to be done or purported to be done. Similarly in the instant case, the plaintiff is seeking only for declaration and possession and for rectififcation in respect of suit properties and not under any provisions of the Municipality Act. Further more there was said to be a notice issued much prior to the filing of the suit as early in the year 1984, which may be said to be a constructive notice. As such, the suit cannot be held to be bad for want of notice either under Section 80 of Code of Civil Procedure or under the provisions of the Municipality Act.

17. The learned Counsel appearing for the Municipality although has, relied upon several rulings of the Apex Court regarding interpretation of section 11 of code of civil Procedure, resjudicata and also regarding mandatory notice, having regard to the factual position and issuance of notice as early as in the year 1984, it can held to be sufficient notice and as such ruling relied upon by the learned counsel are of no help to stand thare contention that the suit is barbed for want of notice. So, in view of the above discussion, I may have to held that the question No. 4 framed in favour of the plaintiff/appellant and also dismissal of the suit on technicality in the lower appellate court may also held to be bad while answering the same in favour of the appellant.

18. one more substantial question of law arises as to whether the suit is bad for non-joinder of brother of the plaintiff by name Papanna and Chathurbuja as parties.

19. It is the case of the plaintiff himself that the plaintiff is the exclusive owner of the suit property and in the share between himself and his cousin brother, ha got 20 acres 29 guntas in the old survey Nos. 249 and 250 which was subsequently renumbered as survey No. 179 to 184. In the present suit what the plaintiff seeking the relief is to declare him as the owner of the suit property not against his brother Papanna, but it is against the Corporation and other defendants who are in the alleged occupation of the suit property. Under such circumstances, when he has not disputed the ownership of Papanna, suit can be maintainable, one more aspact is regarding dispute as to the rectification of survey No. 184 with 182. According to the plaintiff, the extent of property available in survey No. 184 belongs to him and that Chathurbuja's property ought to have been survey No. 182, instead by a wrong entry the survey No. 184 is assigned to Chathurbuja and 182 to the plaintiff. Of course it is undisputed fact that Chathurbhuj himself said to have filed suit seeking for a declaration that the property in survey No. 182 belongs to him and not 184. In that view of the matter, when Chathurbuja had only claimed his ownership in respect of survey No. 182 and not 184 and the revenue entry made by oversight or mistake of fact, under such circumstances, when Chathurbuja has disputed his claim over 184, he may not be a necessary party for the present suit. However, if there is any dispute raised as to survey No. 182 and 184 between the plaintiff and Chathurbuja, it may be a separate aspect and that would be dealt elsewhere at the instance of either of the parties. However, it is the submission of the learned Counsel for the plaintiff/appellant that he had requested the revenue authorities to correct the entries by way of rectification in the place of survey No. 182 as 184 and also it is the case of the Chathurbhuj a that his property is 182 and not 184. Under such circumstances, Chathurbhuja is not a necessary party for the case on hand. Even otherwise, substantial question of law has to be answered in favour of the appellant, Further the finding of the Lower Appellate Court in that regsrd has to be reversed. Accordingly, it is reversed.

20. The next aspect is with regard to the ownership of the property of the plaintiff is concerned and documents produced by him and also admission of the defendant No. 2. According to tha plaintiff, after acquisition and alienation of share in the ancestral property, an area of 4 acres 9 guntas in survey No. 184 and area of 1 acre 13 guntas in survey No. 183 remaining with the ownership of the plaintiff. The plaintiff shown to have produced survey map, wherein six survey numbers are said to have been created out of old survey numbers 249 and 250. The said map was issued by the Asst. Director of Land Records. Ex.P9 is said to be Kasrapathra for the year 1954 and 55 maintained as per Hyderabad Land Revenue Act, which was repealed on 1.4.64 As par the said document to the extent of 27 acres 8 guntas in survey No. 249, and to the extent of 14 acres 10 guntas in survey No. 250, shown in the name of Ghalappa as pattadar and the plaintiff as the hissedar of both survey numbers. So as observed by the trial Court, plaintiff and Galappa are the joint owners and in joint possession of two survey numbers. So at an undisputed point of time, as noticed by the trial court, these two properties are standing in the name of plaintiff and no evidence was let in by the defendants to prove the contrary. Galappa is none other than the cousin brother of the plaintiff as per the genealogy. Although it appears there is an error committed by the P.W.1/plaintiff in his evidence as to the extent of mentioning of land, that cannot be added to the advantage of the defendants and the document was available in that regard. Even it appears that in support of the case of the plaintiff two more witnesses who are age old persons and residents of Bhalki. and also P.W.3, President of Bhalki Municipality were examined and it has come in the evidence that the survey Nos. 249 and 250 are the ancestral properties belonging to the family of the plaintiff. Even it is the case of the plaintiff that some extant of property was acquired by the Government for establishment of Government offices and othar purpose. It appears there is also alienation of a portion of the property in favour of one Chathurbuja and also according to the plaintiff, survey No. 249 and 250 were renumbarad as 179 to 184 after division. Therefor, EX.P24, 28, 30, 35, and 41 are shown to foe the copy of the revision settlement, Tonch map, copy of the notice, copy of vasul baqi register, and copy of panchanama conducted by Taluka surveyor in the year 1976-77 respectively. There is documentary evidence on behalf of the plaintiff to prove that survey Nos. 249 and 250 originally belonging to him and they are renumbered as survey Nos. 179 to 184. As claimed by tha plaintiff, survey No. 183 and 184 are formed out of 249 and 250. Also it is the own case of the plaintiff that soma mistake had crept in while marking survey numbers instead 184 as 182 and also there was sufficient evidence let in by the plaintiff to prove his ownership of the property in survey Nos. 182 and 184. As such, the trial Court appears to have observed that the plaintiff is right in claiming title in respect of survey No. 184 although it stands in the name of Chathurbuja and the said Chathurbuja himself had filed a suit in O.S No. 130/80 before the Civil Court, Bidar, claiming his title as property survey No. 182 and not 184.

21. Further, it is noticed that on behalf of the defendant No. 2, no documentary evidence is produced in support of the claim of the suit property, as also rightly observed by the Trial Court and the Chief Officer of the T.M.C, Bhalki, examined as DW1. It is noted in his avidence that property in Sy. No. 183 and 184 are Patta lands and also having regard to the question posed to him, the Chief Officer submitted that Sy. No. 183 belongs to the appellant-plaintiff and Sy. No. 184 entered into the name of one Chaturbhuj and that there are entries to that effect in the R.T.C and also in the Assessment Register at T.M.C, Bhalki. Sy. No. 183 and 184 are not mentioned in Municipal assessment register, because they are agricultural lands and there is also an admission to the effect that the T.M.C, Bhalki, has not filed any document to show that there is lease in respect of defendants Nos. 3 to 22 and the T.M.C, Bhalki and it is also admitted that the T.M.C, Bhalki had not filed any document to show that the Shikshakara Bhavan is situated in the suit land. There is an admission on the part of the Chief Officer of defendant No. 2, to that effect no such document is available with respect to suit schedule properties and also no such antries are made in the assessment register of the Municipality.

22. It appears that the lower Appellate Court, ignoring those aspects, tried to hold as otherwise and also on the ground that the suit is barred by limitation and the defendants acquired right by adverse possession. Even it appears that as per the admission of DW1, the properties in Sy. No. 183 and 184 are agricultural lands. So, it is enough to conclude that admittedly, Sy. No. 183 is said to be in the name of the plaintiff and Sy. No. 184, in the name of Chaturbhuj. It is the case of one Mr. Chaturbhuj that Sy. No. 182 belongs to him and not Sy. No. 184. On the other hand, it is the case of the plaintiff that by mistake, Sy. No. 182 is entered to his name, instead of Sy. No. 184. Such being the position, as being held by the Trial Court, there is sufficient record to hold that the plaintiff is having title to the suit schedule properties.

23. It appears, although the defendants denied the title of the plaintiff, they could not produce any document to that effect, as rightly noticed by the Trial Court. It appears that a spall extent of land is shown to be allotted to defendant No. 12 on 20.09.1982 for a price of Rs. 251/-, which is said to be an unregistered document. However, challenging the right and possession of this defendant, the plaintiff filed a suit as early as in the year 1984. The plaintiff's right or ownership to the property should be acceptad by the defendants and thereafter, they must have been in possession openly to the knowledge of the plaintiff, adverse to the interest of the plaintiff and then only they would be able to establish adverse possession. when the defendants have denied the rights of the plaintiff at any stretch of the imagination, they cannot set up claim of adverse possession.

24. Apart from the fact that earlier, the suit schedule property was said to be occupied by transport services upto the year 1975 or so and treated as a private bus stand, though it belongs to the plaintiff. It appears that as per the evidence of the plaintiff, the suit land was utilised by the private buses, which started during the year 1975 and the place was used as service stand and wherein one of the witnesses also deposed that he used to park the vehicle in the land, with the permission of the plaintiff and also the private Services were also running from 1975 to 1985. At that time, there ware no shops or ‘Shikshakara Bhavana’ in the suit land and the bus stand was extended upto 4 to 5 acres.

25. I am going through the evidence on record, the Trial court had appreciated the fact that earlier, the lands were utilised by the private bus services with the permission of the plaintiff and thereafter, it was in illegal occupation of the defendants and a suit was filed by the plaintiff in the year 1984. Although the plaintiff has filed the suit in the year 1984, to cure the defect, he has filed the suit once again in the year 1988. But however, on going through the evidence on record and also the documents available and nature of evidence, the Trial Court hag rightly held that the suit property belongs to the ownership of the plaintiff. It appears that there is no such document availabla by the T.M.C, Bhalki, to show that the property belongs to it so as to assign the sams to the other defendants. Such an assignment to other defendants Nos. 3 to 22 by the 2nd defendant-T.M.C, Bhalki, was without any title or right over the same.

26. As such, the substantial question of law raised to bs held in favour of the plaintiff and thereby holding that the lower Appellate court has committed an error in reversing the Trial Court order and also that the plaintiff is not the awner of the suit lands and also the substantial question of law has to be held in favour of the appellant. The assignment by the T.M.C, Bhalki, in favour of defendants Nos. 3 to 22 are not valid and are not binding upon the plaintiff. Even it is pertinent to note that the T.M.C, Bhalki, has no material to show that this land is also part of it by way of acquisition. No material is produced to prove the same. The lower Appellate court on certain presumption and assumption show to have committed serious error in holding that the plaintiff has not established his right, insofar as possession of the properties concerned. It appears that respondent No. 23 was subsequently said to have filed R.A No. 13/1997 and that was also clubbed along with other R.As filed and he was not party to the proceedings. However, in a common order passed by the lower Appellate Court, the appeal of respondent No. 23 was also allowed and the finding in the above aspect also will be binding on respondent No. 23. It appears that respondent No. 23 Was neither party to the suit filed by the plaintiff, nor he has led any evidence to show his right by filing the appeal. However, in the instant case, as it is observed, error is committed by the lower Appellate court, in reversing the order of the Trial Court and the same is not binding on respondent No. 23, who also preferred an appeal in R.A No. 13/1997.

27. So as to the lower Appellate Court having rightly noticed that none of the witnesses were examined by the defendants in their evidence and have stated that they are in adverse possession of the portion of the plot formed in the suit land to the knowledge of the plaintiff, openly and continuously and without interruption and thereby they have perfected their title to the said plots. So, the Trial Court and the lower Appellate Court have rightly come to the conclusion that the plaintiff and defendants Nos. 2 to 22 have failed to establish any adverse possession to the interest of the plaintiff. As such, this aspect of adverse possession is rightly indicated by the Trial Court and the lower Appellate court.

28. However, on the point of limitation, the lower Appellate Court has come to a right conslusion that the suit is not barred by limitation.

29. The finding of the lower Appellate Court that the suit is bad for want of notice and is not in conformity with the established principles and also contrary to the evidence on record. Since it is erroneous, it requires to be set aside. Similarly, the lower Appellate court has committed an error holding that the suit is barred by principles of res judicata, holding that the judgment and decree passed in O.S No. 255/1984 by the Civil Judge, Bidar, operates as res judicata on the subsequent suits filed by the plaintiff. As noted above, all the parties were not brought on record, in the earlier suit filed and the lower Appellate Court failed to note the same. In such circumstances, as rightly quoted by the learned counsel for the appellant, the judgment reported in AIR 1966 SC 1882 clearly apply to the case on hand and also it is noticed that as has been held in AIR 1976 SC 1569 to take the plea of res judicata, one of the ingredients is the litigating parties must be the same and that the subject matter of the suitalso must be identical. The earlier suit was dismissed not on merits but for want of clarity and for want of necessary parties.

30. In view of the over all discussion made above, all the substantial questions of lav are answered in favour of the plaintiff. The finding of the lower Appellate Court, with respect to the point of res judicata and also for want of notice to defendant No. 2 has to be reversed and also on other aspects, which are against the plaintiff-appellant. Accordingly it is reversed.

31. Therefore, all the appeals are allowed. This order will be binding on the impleading applicants-respondents Nos. 23 and 24. Cross objections filed by respondents Nos. 23 and 24 are dismissed. Howaver, respondent-Municipality is at liberty to take over the suit land under due process of law by ascertaining as to what exact area is remining in the suit land belongs to appellant. Parties to bear their own costs. Learned HCGP is permitted to file his memo of appearance, within three weeks.