Andanur Kalamma and Ors. v. Gangamma (dead) by L.RS.

A. M. KHANWILKAR, J. 1. These appeals, by special leave, are directed against the judgment and order dated 4 th January, 2005 and order dated 11 th March, 2005 passed by the learned Single Judge of the High Court of Karnataka in RFA No.410/1998 and R.P. No.124/2005, respectively, whereby the learned Single Judge confirmed the judgment and decree passed by the Trial Court dismissing the suit fi led by the appellants on the ground of res judicata and also dismissed the review petition. 2. Appellants in the present appeals are the plaintiffs a nd the respondents are defendants in the original suit. 3.Briefly stated, Appellant No.1 is the wife of one late Sri Andanur Umapathiyappa and other appellants are his sons and daughter. Respondent No.1 is the wife of one late Sri Belakerappa and the other respondents are his sons and daughter. 4. The father of late Sri Andanur Umapathiyappa (late Andanur Kotrappa) was a defaulter under the provisions of the Income Tax Act to the extent of Rs.2,600/-. For recovery of arrears of ta x, the Income Tax Department had referred the matter to the Deputy Comm issioner, Chitradurga, under Section 158 of the Karnataka Land Revenue Act, 1964 (for short, “the Act”). The land belonging to late Sri Andanur Umapathiyappa bearing Sy. No. 63 of Bisaleri Village, Davanagere Taluk, measuring an extent of 23 acres and 15 guntas, was brought to sale for the recovery of tax dues. The sale was held on 7 th January, 1966 and the father of the respondents one Sri late Belekerappa was t he highest bidder at Rs.2,600/- and the Assistant Commissioner who had conducted the auction sale recommended to the Deputy Commissioner Chitradurga, ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. for confirmation of the sale. 5. The predecessor of the appellants had filed an application on 3.2.1966 for setting aside the sale. The Deputy Commissioner, vide order dated 3 rd May, 1966, however, confirmed the sale. Resultantly, a sale certificate was issued sometime in the month of June, 1966 in favour of late Sri Belekerappa and he was also put in possession of the suit schedule property. 6. Appellants’ predecessor late Sri Andanur Umapathiyappa S/o late Andanur Kotrappa then questioned the order dated 3 rd May, 1966 before the Mysore Appellate Tribunal by filing Appeal No.486/1967 (LR) under Section 49 of the Mysore Land Revenue Act, 1964. He asserted that without deciding his application for setting aside the sale dated 3 rd February, 1966, the Deputy Commissioner was not justified in passing a final order to confirm the auction sale. The Tri bunal by its order dated 27 th September, 1967 allowed the appeal and set aside the sale, on the ground that under Section 177 of the Kar nataka Land Revenue Act, 1964, the Deputy Commissioner could confirm the sal e only after the application for setting aside the sa le is rejected. Accordingly, the Tribunal after setting aside the sale, re manded the matter to the Deputy Commissioner, Chitradurga, to con duct fresh enquiry into the allegation made by the appellant in his application dated 3rd February,1966 and to dispose of the same in accordance with law. 7. Pursuant to the remand order passed, the petition filed by the appellants’ predecessor was taken up for hearing on 8 th June, 1969 by the Deputy Commissioner and since no one appeared, the Deputy Commissioner dismissed the same for non-prosecution. Restor ation application filed to restore the said application was also rejected by the Deputy Commissioner. 8. Appellants’ predecessor then carried the matter to the Mysore Revenue Appellate Tribunal by filing an appeal against the orders passed by the Deputy Commissioner, being Appeal No.167/1971. The same was also rejected by an order dated on 13 th April, 1971 as time barred. A review petition filed to review the aforesaid order was also rejected by the Tribunal. 9. Appellants’ predecessor being aggrieved, filed a writ petition being W.P. No.1810/1971 before the High Court of Karnataka. The High Court while rejecting the writ petition by its order dated 23 rd October, 181 1973, however, observed that if for any reason the sale was not yet confirmed by the Deputy Commissioner, Chitradurga, after the remand order passed by the Tribunal in appeal No.486/1967 (LR) and if the writ petitioner (predecessor in title of the appellants) deposited the sale amount, then the Deputy Commissioner could exercise his suo-motu powe r to set aside the sale as provided in proviso to Section 177 of Mysore Land Revenue Act. 10. The respondents in the petition challenged that decision by filing an appeal before the High Court bearing number W.A. No.1 52/ 1973, being aggrieved by certain observations and directions issued by the learned Single Judge while rejecting the writ petition. The Division Bench of the High Court after referring to the provisions of Section 177 of the Act observed that in view of the dismissal of the wri t petition, there was no application pending for setting aside the sale . Even so, since the Deputy Commissioner was bestowed with discretion t o set aside the sale, he could do so on such conditions as he deemed proper, on its own merits and in accordance with the law. The Division Bench also observed that the learned Single Judge while rejecting the petition could not have made any further observations or issued any directions in the writ proceedings. With the aforesaid observations, the Division Bench of the High Court by its order dated 7 th January, 1975 allowed the appeal. 11. During the pendency of the writ appeal, the predecessor of the appellants had made an application before the Deputy Commissioner on 24 th November, 1973 under Section 177 of the Act, inter alia, requesting the authority to set aside the auction sale held on 7 th January, 1966 as envisaged in the proviso to Section 177 of the Mysor e Land Revenue Act. At the first instance, by an order made on 9 th June, 1975 the application was rejected and on an application filed for review of the said order, the Deputy Commissioner passed an order on 29 th September, 1975, holding that the review petition was maintainable. 12. The respondents, aggrieved by the aforesaid order of th e Deputy Commissioner, filed a revision petition before the Karna taka Appellate Tribunal being No.304/1973, inter alia, questioning the said order on the ground that the Deputy Commissioner had no jurisdiction under Section 177 of the Act to exercise his suo-motu power s on an application filed by a defaulter. The Tribunal initially allowed the petition ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. [A.M. KHANWILKAR, J.] by its order dated 4 th August, 1978 and on a review petition filed by the appellants being No.27/1978, it allowed the review petition and set aside the order passed in revision petition No.304/1973. Further, vide or der dated 24 th March, 1980, the Tribunal directed that the revision petition be posted for hearing afresh on merits, and by subsequent order dated 30 th January, 1981 it rejected the revision petition filed by the respondents. 13. The respondents thereafter filed a writ petition befor e the High Court being No.14012/1981, inter alia, questioning the orders passed by the Tribunal in revision petition No.304/1973 dated 4.8.1978, 24.3.1980 and 30.1.1981, respectively. The learned Single Judge of the High Court by his order dated 31 st July, 1989 was pleased to set aside the aforementioned orders passed by the Tribunal in the revision petition and made an observation that the auction sale had been confirmed long back. 14. Feeling aggrieved, the appellants filed a writ appeal , being Appeal No.2176/1989. The Division Bench of the High Court by its order dated 8 th December, 1989 rejected the appeal, holding that the view taken by the learned Single Judge with regard to Section 177 of the Karnataka Land Revenue Act did not call for any interference. 15. Appellants, thereafter, filed a suit being O.S. No.27/1 990 before the learned Civil Judge (Senior Division), Davanag ere, with a prayer to declare that they are the owners of the suit schedule property and also for a direction to the respondents to re-deliver the possession of the property. After referring to the earlier proceedings before the Deputy Commissioner, Karnataka Revenue Appellate Tribunal and before the High Court, appellants asserted that after disposal of the appeal by the Mysore Appellate Tribunal in appeal No.486/1967 (LR), wherein the confirmation of sale made by the Deputy Commissioner, Chit radurga was set aside and the matter was remanded back to t he Deputy Commissioner, for fresh disposal in accordance with law, no steps have been taken for confirmation of sale and for issue of sale c ertificate by the Deputy Commissioner, Chitradurga till date of the suit. Therefore, various orders passed in different proceedings before the revenue authorities and the Tribunal will not and cannot affect the right, title and interest of the appellants in any way in respect of the sui t schedule property. The appellants, therefore, asserted that they are the owners of the suit schedule property. Appellants also assert that their predecessor, during the pendency of the various proceedings before various forums, 183 had deposited the entire amount due to the Income Tax Department and, therefore, the confirmation of the sale subsequent to rec eipt of income tax dues does not arise. Appellants would further asse rt that though the respondents were put in possession of the suit sche dule property, under the guise of sale certificate issue d by the Deputy Commissioner and since the same had been set aside by the Tribunal in Appeal No.486/1967 (LR), their possession is litigious possession and it would not give them any right to continue in possession of the suit schedule property. It is their further assertion in the suit that though the appellants demanded the respondents to hand over the possession of the suit schedule property, the respondents have refused to do the same a nd therefore, appellants were constrained to file the suit for declaration and possession of the suit schedule property. The cause of action for filing the suit, according to the appellants, arose on or about 1 st May, 1990 and also in July, 1989, when the High Court dismissed the appellants’ Writ Appeal No.2176/1989. 16.The respondents resisted the suit. According to them, in view of the proceedings and the order passed in W.P. No.14012/1981 dated 31 st July, 1989, the averments in the plaint regarding the procee dings before the Deputy Commissioner and before the revenue aut horities have no consequence at all and by virtue of those orders, the p arties have been restored to the original status quo as on 3 rd May, 1966 i.e. the date of confirmation of sale certificate by the Deputy Com missioner, and there is no necessity to grant of fresh sale certificat e. Apart from the above defence, there is no other defence pleaded by the respondents in the written statements filed before the trial Court. 17. The Trial Court, based on the pleadings of the parties to the suit, framed six issues for its consideration, as follows:- “(i) Whether plaintiffs prove that they are the owners entitled for possession of the suit property? (ii) Do they further prove that they are entitled for possession of the suit property? (iii) Whether plaintiffs suit is hit by Sec. 11 of CPC as contended in the written statement? (iv) Whether defendants are entitled for compensatory costs? (v) Whether the plaintiffs are entitled to the reliefs as prayed for? ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. [A.M. KHANWILKAR, J.] (vi) What order or decree?” 18.The Trial Court keeping in view the order passed by the High Court in Writ Petition No.14012/1981 and in Writ Appeal No.2176/1989, has held that the prayer made in the suit challenging the a uction sale dated 3 rd June, 1966 is hit by Section 11 of the Code of Civil Procedure. To come to this conclusion, the Trial Court has traced the history of various proceedings that were initiated by the appellants’ predecessor before the revenue authorities and High Court and then observed that in view of the order passed by the High Court in W.P. No.14012/1981, the suit is hit by principles of res judicata . 19. Feeling aggrieved by the judgment and decree passed by the learned Civil Judge (Senior Division), the appellants filed Regular First Appeal No.410 of 1998 before the High Court of Karnataka at Bangalore. The High Court took notice of all the proceedings that culminated with the dismissal of writ appeal filed by the appellants against the decision of the learned Single Judge dated 31 st July, 1989 in Writ Petition No.14012/ 1981, whereby the correctness of all the orders passed by the Revenue Authorities including the Karnataka Appellate Tribunal were analysed and the plea of the appellants founded on their application date d 24 th November, 1973 and 9 th June, 1975 for setting aside the auction sale came to be negatived and which judgment was affirmed by the Division Bench of the High Court by dismissing the writ appeal preferred by the appellants. The High Court, taking notice of the decisions in the cases of Shirlakoppa Town Municipality Vs. Sree Sharada Rice Mill and Others ;1 U. Nilan Vs. Kannayyan through LRs. 2 State Bank of Travancore Vs. Mytheen Kannu Mastan Kanju ;3 Madhavi Amma Bhavani Amma and others Vs. Kunjikutty Pillai Meenakshi Pi llai and others ;4 Re: Forward Construction Co. and others Vs. Prabhat Mandal (Regd.), Andheri and others ;5 Ashok Kumar Srivastav Vs. National Insurance Co. Ltd.;6 and Re: Gulabchand Chotalal Parikh Vs. State of Gujarat;7 summed up the legal position on the doctrine of res judicata of triple test requirement regarding the factum of ident ity of the parties, cause of action and the subject matter. In ot her words, 1 1982 (1) KLJ 137 2 AIR 1999 SC 3750 3 AIR 1980 Kerala 236 4 2000 AIR SCW 2432 5 AIR 1986 SC 391 6 AIR 1998 SC 2046 7 AIR 1965 SC 1153 185 any issue that has been raised and decided and which was nece ssary for determining the rights and duties of the parties by a final conclusive judgment on the merits cannot be re-litigated by the same parties and a party is precluded from re-litigating the issue that ha s already been decided and also an issue which it could and should have brought forward in the earlier proceedings but chose not to do so. Keeping in view those principles, the High Court went on to observe as follows: “31. The triple identity which I have referred to in the earlier paragraphs of my order assumes importance for deciding the issues which I have raised for my consideration. At the cost repetition, let me once again notice the triple require ment for the doctrine of res judicata to apply. They are, identit y of the parties, cause of action and the subject matter. The ide ntity of the parties is not in dispute nor it can be dispute d by the plaintiffs. In fact, their father was agitating the auc tion sale held and its confirmation before various forums and after hi s death, the plaintiffs have stepped in to his shows (sic) to continue the proceedings till this stage. The secon d requirement is the cause of action. A cause of action comprises of all the facts and circumstances necessary to give r ise to the relief. Before the revenue authorities, the Trib unal the primary grievance of the plaintiffs was the conformati on of sale of their immovable property held in a public auction by the Deputy Commissioner and their illegal dispossession from the suit schedule property. Before all the forums, the plaintiffs have lost their case and those others have been confi rmed by this court in the writ petitions and writ appeal filed . Thus the orders passed by the revenue authorities have become final , in the sense, auction of the immovable property by a pub lic authority and delivery of the possession of the same is not disturbed by any of the revenue authorities or the Tribunal or by this Court; however the same is also not confirmed by the Tribunal pursuant to the remand order passed by the Mysor e Revenue Tribunal in the appeal No.486/1967. Thirdly , the subject matter is the same in all the proceedings, na mely, suit schedule property bearing No.63, measuring 23 acres and 15 guntas situate at the Bisaleri village, Davanagere di strict. 32. The doctrine of res judicata would apply in these ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. [A.M. KHANWILKAR, J.] proceedings, for the reason, the claim in the earlier l itigation was between the same parties, the cause of action and the subject matter was also the same or identical and by ju dicial pronouncement by a competent Court the possession of th e defendants is not disturbed. Therefore, plaintiffs are precluded from re-litigating an issue that has already been d ecided. Even otherwise also, the plaintiffs father or at le ast the plaintiff’s could have brought forward an issue for possession of the suit schedule property, in the earlier proceed ings but chose not to do so and therefore cannot subsequently re-agitate the issue, which they could have done in the earlie r proceedings. Therefore, in my view, the judgment and decree passed by the learned trial Judge requires to be sustained on the principles of res judicata, may not be on the ground t hat this Court while disposing of the writ petition No.14012/1989 disposed off on 31.07.1989 has observed that the order passed by the Karnataka Appellate Tribunal remanding the m atter regarding the confirmation of sale has been set aside by this Court. The observations made by this Court is an appa rent error on facts and that could not have been taken note of by the trial Court, while deciding the lis between the par ties and that in my opinion, being an error on facts could have bee n ignored by the trial Court.” (emphasis supplied) 20.On the aforementioned conclusion reached by the High Court, it proceeded to dismiss the first appeal preferred by the appellants. The appellants have approached this Court by way of special leave inter alia contending that the issue regarding confirmation of auction sale was reopened in view of the decision of the Mysore Revenue Appel late Tribunal dated 27 th September, 1967. In absence of confirmation of sale and non-issuance of fresh sale certificate to the respondents, no manner of right, title or interest or whatsoever over the suit schedule property enured in favour of the respondents. The fact that the re spondents’ ancestor late Balakerappa was put in possession of the sui t schedule property, on the basis of sale certificate and confirmation of sale on 3rd May, 1966 will not impair the interest of the appellants in any manner nor denude them from pursuing their remedy of resto ration of possession of the suit property, the ownership whereof remai ned with 187 the appellants. According to the appellants, the High Court as well as the Trial Court committed manifest error in invoking the principle of res judicata to non-suit the appellants and dismiss the suit for possession on the basis of their title and to declare them as owners of the suit property. 21. The respondents, on the other hand, would contend that the Trial Court as well as the High Court had justly rej ected the suit preferred by the appellants as it was hit by the principles of res judicata. The respondents have supported the analysis and conclusion reached by the Trial Court as well as the High Court in this regard. They pray for dismissal of the appeal being devoid of merits. 22. We have heard Mr. Kashi Vishweshar, learned coun sel appearing for the appellants land Mr. E.C. Vidya Sagar, learned counsel for the respondents. 23. The factual matrix noticed by the Trial Court and reiterat ed by the High Court in the impugned judgment is indisputable. In that, the predecessor in title of the appellants had committed default in paying tax for which the suit property was put to auction in which the predecessor in title of the respondents was the highest bidder. The auction sale was confirmed by the competent authority. The correctne ss of the confirmation of sale without deciding the application for setting aside the sale, preferred by the predecessor of the appellants, was questioned by him. The matter had reached the High Court by way of Writ Peti tion No.1810/1971, filed by Andanur Umapathiyappa predecessor of th e appellants, which was dismissed with the observation tha t if the writ petitioner was willing to deposit the sale amount, the Deputy Commissioner could exercise his suo motu power to set aside th e said sale as provided in terms of Section 177 of the Mysore Land Revenue Act. This observation, however was assailed by the respondents by way of Writ Appeal No.152/1973 before the Division Bench. The Division Bench allowed the said appeal. The relevant extract of the order passed by the Division Bench dated 7 th January, 1975, having some bearing on the matter in issue, reads thus: “The result of the dismissal of the writ petition is that there is no application now pending for setting aside the sale. However, under the proviso, the Deputy Commissioner has the p ower to exercise his discretion to set aside the sale subject to such conditions as he may deem proper, notwithstanding th e fact ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. [A.M. KHANWILKAR, J.] that the application made for setting aside the sale has been rejected. Whether it is a case for setting aside the sale and on what conditions the sale should be set-aside are matters which are within the exclusive discretion of the Deputy Commissioner. This court, in the exercise of its jurisdiction, cannot direct the Deputy Commissioner to exercise the discretion if t he conditions imposed by this Court are satisfied. It is not for this court to lay down any conditions. That matter should have been left open. Therefore, we allow this appeal and hold that the Writ Petition should have been dismissed without making any observation as to how the discretion under the proviso to Section 177 of the Karnataka Land Revenue Act should be exercised. No costs.” (emphasis supplied) With this decision, the issue regarding validity of auction sale attained finality against the appellants. 24.The matter did not rest at that as the revision petition filed by the respondents as well as the appellants in relation to application filed by the appellants for invoking the discretion of th e Deputy Commissioner to set aside the auction were then made subject matter of another writ petition filed by the respondents, bein g Writ Petition No.14012/1981. The learned Single Judge of the High Court of Karknataka at Bangalore by judgment dated 31 st July, 1989 considered the tenability of the orders passed by the Revenue Authorities and the Appellate Tribunal, in particular, orders dated 4 th August, 1978, 24 th March, 1980 and 31 st January, 1981. The order dated 31 st July, 1989 passed by the learned Single Judge is, in our opinion, crucial to answer the issue that arises for our consideration. The order dated 31 st July, 1989 reads thus: “ORDER This Writ Petition is of the year 1981. I hope by disposi ng it off I would have given quietus to a controversy which appears to have arisen in the year 1966 when the predecesso r in interest of the respondents one Andanur Umapathiyappa los t 26 acres of land for having defaulted in payment of i ncome tax arrears for recovery of which sum, lands were s old by public auction and purchased by the contesting resp ondent 189 who was also placed in possession immediately. 2. It is common ground that the lands have been in possession of the petitioner since the date of the auction sal e and notwithstanding many endeavours made by the responde nts to wrest it from the petitioner by reason of a charmed life they had managed to sustain their holding over the lands. 3. In this last ditch battle for recovery of these lands the point raised is of the tenability of an application made for set ting aside the auction sale by moving the Deputy Commissione r to exercise his suo moto powers under Section 177 of t he Karnataka Land Revenue Act, although auction sale having been affirmed long back. That application the Deputy Commissioner disposed off on 9.6.75, for some reaso ns he rejected the same. But the respondents filed anothe r application on 17.06.1975 to the Deputy Commissione r seeking a review of the earlier order. The Deputy Commissioner having held application to be maintain able despite opposition by the petitioner a revision petition havi ng been filed from that order before the Karnataka App ellate Tribunal, the Deputy Commissioner’s order was in th e first instance upheld but retracted later on a review petiti on and an order made dismissing the revision petition. Pet itioners challenge the sad or per (sic) as also the order of the Deputy Commissioner dated 29.09.1975 holding a review peti tion before him to be maintainable. 4. Sri Gopal who appears for the auction purchaser who is aggrieved by these orders urges that respondents ha d any right at all to seek interference by the Deputy Comm issioner under the provisions of section 177 of the land Revenue A ct. This Court in G.D. NAVAREKAR Vs. The Mysore Revenue Appellate Tribunal and others (1973 (1) MLJ 331) has settled the law on the question of exercising of suo moto power b y a revenue authority under section 177 with particular reference to its modality, it says: ‘Suffice it to state that power is to be exercised in the interest of justice and subject to such conditions as the authority may deem proper and it does not confer a right on the petitioner ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. [A.M. KHANWILKAR, J.] to ask the Assistant Commissioner to invoke the issue.’ 5. It was pointed out by this Court in the decision referred to supra, that no one has a right to move the Deputy Commissioner to exercise his suo moto powers under section 177 of the Karnataka Land Revenue Act. In this case review application having been disposed off by the Deputy Commissioner on 9.6.1975 may be even for wrong reasons as pointed out by Mr. Gopal for the petitioner, having become final it seems to me that it was wrong on the part of the appellate Tribunal to have lent support to the application made by the respondents demanding or seeking exercise of suo moto powers by Deputy Commissioner acting under Section 177 of the Karnataka Land Revenue Act. Therefore, it seems to me on this short ground the writ petition has to succeed and hence it is I allow this writ petition and quash the impugned order of the Appellate Tribunal and that of the Deputy Commissioner Annexure-C, E and F. No costs.” (emphasis supplied) 25.This decision was challenged by the appellants by way of writ appeal before the Division Bench of the High Court which, howe ver, was summarily dismissed vide order dated 8 th December, 1989, The same reads thus: “O R D E R The view taken by the learned Single Judge with rega rd to Section 177 of the Karnataka Land Revenue Act does not call for interference. Hence, this Appeal is rejected. ” With the rejection of this appeal, even the issue of tenab ility of application under Section 177 of the Act became fina l against the appellants. 26. After all these proceedings, the appellants resorted to a civil suit before the Civil Judge (Senior Division) at Davanagere, being O.S. No.27/90, for declaration of ownership and possession. In the suit, the principal issue was that in absence of an order of the competent authority confirming the auction sale and without issuing fres h sale certificate in favour of the respondents, the respondents or for that matter their predecessor in title, had not acquired any right, title or interest or 191 whatsoever over the suit schedule property. Theref ore, the possession of the suit property given to the predec essor of the respondents was required to be restored in absence of a fre sh order of confirmation of sale. The argument though attractive at the first blush, has received deep attention not only of the Trial Court but of the High Court also, as can be noticed from the analysis in paragraphs 20 and 21 of the impugned judgment, which reads thus: “20. Admittedly, in the present case, the Deputy Commissi oner without considering the application filed by the defaul ter on 3.2.1966 had confirmed the auction sale of the immo vable property on 7.1.1966 on the recommendation made by the Assistant Commissioner in favour of the highest bidder in the auction namely, the father of the defendants late S ri belekerappa. This action of the Deputy Commissioner was taken exception to by the Mysore Revenue Appellate Tribunal in the appeal filed by the plaintiffs father in appeal No.486/ 1967 (LR) and the Tribunal by its order had set asi de the order of the confirmation of sale passed by the Dep uty Commissioner vide his order dated 3.6.1966 and had remanded the matter to the Deputy Commissioner to pass fres h order in accordance with law after considering the applicat ion filed by the plaintiffs father. On such remand, since plainti ffs father did not appear before the Deputy Commissione r on the date fixed for hearing, the Deputy Commissioner has rejected the application for non-prosecution. The o rder so made has reached the finality in view of the order mad e by this Court in W.P.No.1810/1971 and in W.A. No.152/1 973. Even after disposal of all these proceedings, the D eputy Commissioner has not passed any fresh order in confir ming the sale, pursuant to the remand order passed by the Mysore Revenue Appellate Tribunal made in appeal No.486/1967 (LR) dated 27.9.1967 and further has not issued fresh sa le certificate. These factual aspects which is not disputed by the learned Counsel for appellants would demonstrate that the defendants are in possession of the suit schedule p roperty pursuant to order of confirmation of sale passed by the Deputy Commissioner, which had been set aside by the Reven ue Appellate Tribunal. ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. [A.M. KHANWILKAR, J.] 21. The other proceedings initiated by the father o f the plaintiffs is to approach the Deputy Commissioner to set aside the sale by filing an application under Sec. 177 of the Act. Though, initially the Deputy Commissioner had reject ed the application as not maintainable before him, on an application filed for review of his order, he had entertained the applic ation by observing in his order that an application filed by the defaulter to initiate suo-motu powers by him under proviso to Section 177 of the Act is maintainable. The correct ness or otherwise of this order was questioned by the legal representatives of the late Sri Belekerappa – the def endants before the Revenue Appellate Tribunal in Revision P etition No.304/1973 filed under Sec. 56 of the Karnataka La nd Revenue Act. The Tribunal by its order dated 30.1.1981 holds that the Deputy Commissioner was justified in invok ing his powers under Sec. 177 of the Act on an application filed by the defaulter to set aside the sale and therefore, has rej ected the revision petition and have directed the Deputy Commissioner to consider the petition/application filed by the father of the plaintiffs under Sec.177 of the Act in accordan ce with law. It is the correctness or otherwise of this order was the subject matter before this Court in W.P. No.14012/1981 and this Court while allowing the petition and setting a side the order passed by the Karnataka Appellate Tribuna l in Revision Petition No.304/1973 has made a passing observation to the effect that ‘in this last ditch battle for reco very of these lands, the point raised is of the tenability of an appli cation made for setting aside the auction sale by moving the De puty Commissioner to exercise his suo-motu powers under Sec.177 of the Karnataka Land Revenue Act, although the auct ion sale having been confirmed long back.’ It is this observati on of the learned Single Judge, which has been confirme d in W.A. No.2176/1989 has weighed the mind of the learned tr ial Judge to hold that the suit is hit by principles of res judicata.” (emphasis supplied) 27. As is noticed from the judgment of the leaned Single Judge of 193 the High Court in Writ Petition No.14102/1981 dated 31 st July, 1989, reproduced in its entirety in earlier part (paragraph 24) of this judgment, the entire issue with regard to the confirmation of the auction sale and the sale certificate issued in favour of the predecessor of the respondents, was the subject matter before the High Court between the same parties in respect of the same land and including the cause of actio n. On that finding, the Trial Court as well as the High Court non-suited the appellants by dismissing the suit filed by them for declaration of owner ship and possession, being hit by the principles of res judicata , as can be discerned from the discussion in paragraphs 31 and 32 of the impugned judgment, which have been extracted in paragraph 19 of this judgment. We are in complete agreement with the analysis of facts and the conclusion arrived at by the Trial Court and affirmed by the High Court. 28.For arriving at such conclusion, the Trial Court and High Court have applied the settled legal position in reference to the decisions of this Court as noticed by the High Court in the impugned judgment. The principle of res judicata as enshrined in Section 11 of CPC, is founded on the maxim “N emo Debet Bis Vexari Pro Una Et Eadem Causa ”. In a recent decision in the case of Nagabhushanammal Vs. C. Chandikeswaralingam ,8 this Court observed thus: “15. ‘Res judicata’ literally means a ‘thing adjudica ted’ or ‘an issue that has been definitively settled by jud icial decision’. 9 The principle operates as a bar to try the same issue once over. It aims to prevent multiplicity of proceedin gs and accords finality to an issue, which directly an d substantially had arisen in the former suit between the sa me parties or their privies and was decided and has become final, so that the parties are not vexed twice over; vexatious litigation is put an end to and valuable time of the court is saved. (See Sulochana Amma v. Narayanan Nair. 10 ) 16. In Jaswant Singh v. Custodian of Evacuee Property 11 this Court has laid down a test for determining whether a subsequent suit is barred by res judicata: (SCC p. 657, p ara 7(2016) 4 SCC 434 8 Black ’s Law Dictionary, 8 th Edn. 1336-37. 9 (1994) 2 SCC 14 10 (1985) 3 SCC 648 11 (2004) 3 SCC 277 ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. [A.M. KHANWILKAR, J.] 14) ‘14. … In order that a defence of res judicata may succeed it is necessary to show that not only the cause of act ion was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the for mer proceedings. The test is whether the claim in the subsequent suit or proceedings is in fact founded upon the same cause of action which was the foundation of the former suit or proceedings.’ 17. The expression ‘cause of action’ came to be int erpreted by this Court in Kunjan Nair Sivaraman Nair v. Narayana n Nair 31 at para 16. To quote: (SCC p. 286) ‘16. The expression ‘cause of action’ has acquired a judicially settled meaning. In the restricted sense , cause of action means the circumstances forming the infracti on of the right or the immediate occasion for the actio n. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infract ion of the right, but the infraction coupled with the right it self. Compendiously the expression means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. Every fact which is necessary to be proved, as distinguis hed from every piece of evidence which is necessary to pro ve each fact, comprises in ‘cause of action’. 18. In Halsbury’s Laws of England (4th Edn.), the expression has been defined as follows: ‘Cause of action’ has been defined as meaning simpl y a factual situation the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaint iff to succeed, and every fact which a defendant would have a right to traverse. ‘Cause of action’ has also been taken to mean that particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the su bject- matter of grievance founding the action, not merely the 195 technical cause of action.” 29. The principle of res judicata applies on all fours to the present case as has been rightly held by the Trial Court and affirmed by the High Court in the impugned judgment, in particular, in paragraphs 31 and 32 thereof, which have been reproduced in paragraph 19 above. 30. We, accordingly, affirm the judgment and orders un der appeal and dismiss these appeals being devoid of merit. 31. Accordingly, these appeals are dismissed with costs. Kalpana K. Tripathy Appe als dismissed. ANDANUR KALAMMA AND ORS. v. GANGAMMA (DEAD) BY L.RS. [A.M. KHANWILKAR, J.]