THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF OFFICERversusGURAPPA (D) BY LRS. & ANR.

                        [2015] 15 S.C.R. 480


A            THE CITY MUNICIPAL COUNCIL BHALKI,
                      BY ITS CHIEF OFFICER
                                   v.
                   GU RAPPA (D) BY LRS. & ANR.
B              (Civil Appeal Nos. 8044-8048 of 2015)
                       SEPTEMBER 29, 2015
          [V. GOPALA GOWDAAND AMITAVA ROY, JJ.]
           Code of Civil Procedure, 1908- s. 11 - Res Judicata -
C Essential elements that need to be satisfied before a plea of
    resjudicata can be raised by a party-Held: The principle of
    res judicata has been codified u/s. 11 of CPC - The principle
  · of res judicata is a need of any judicial system, that is, to
    give finality to the judicial decisions of the disputes between
D parties - It also aims to prevent multiplicity of proceedings
    between the same parties of the same subject matter of. the
    /is - An issue which was directly and substantially involved
    in a former suit between the same parties, and has been
    decided and has attained finality cannot be re-agitated before
E the courts 9gain by instituting suit or proceeding by the same
    parties on the same subject matter of earlier /is- For the bar
    of res judicata to operate in the subsequent original suit
    proceedings, the litigating parties must be the same, and
    the subject matter of the suit must also be identical - Further,
F for the bar of res judicata to operate in the subsequent original
    suit proceedings, the decision in the former suit must have
    been decided on merits on the same substantial questions
    both on facts and in law that would arise in the subsequent
    original suit- In the instant case, respondent no. 1 had filed
G a suit in 0. S. No. 255 of 1984, which was dismissed and
    thereafter, he filed a suit in 0. S. No. 39 of 1993, after
    impleading certain other defendants therein and changing
    the description of the suit property- No doubt the Trial Court
    in the suit in O.S. No. 255of1984 filed by respondent no.1
H
                                 480
   THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF                   481
            OFFCR. v. GURAPPA(D) BY LRS.

framed certain issues and even examined the documents A
produced by the parties - However, neither the parties, nor
the subject matter was the same in the earlier suit 0. S. No.
255 of 1984 and 0. S. No. 39 of 1993 - Since neither the
reliefs claimed in the two suits were identical, nor the parties
were the same and nor could the decision in the first suit B
said to have been on merits, it cannot be held in the singular
facts and circumstances that the suic in 0. S No. 39of1993
was barred by res judicata.
     s. 80 - Notice under, if necessary when suit filed against
a Municipality- Held: Municipal council is not a public officer, C
and no notice is necessary when a suit is fHed against a
municipality - The question of sufficiency of notice u/s. 80 of
CPC does not arise at all.
        Suit - Suit for declaration of title and possession- Held:
                                                                     0
In such a suit, the onus is upon the plaintiff to prove his title
- Further, not only is the onus on the plaintiff, he must prove
his title independently, and a decree in his favour cannot be
awarded for the only reason that the defendant has not been
able to prove his title.
                                                                     E
      Sheodan Singh v. Daryao Kunwar AIR 1966 SC
      1332: 1966 SCR 300; Syed Mohd. Sa/ie Labbai
      & Ors. v. Mohd. Hanifa & Ors AIR 1976 SC 1569:
      1976 (3) SCR 721; Ram Gobinda v. Bhakta Bala
      AIR 1971 SC 664 : 1971 (3) SCR 340; Brahma                     F
      Nand Puri v. Neki Puri AIR 1965 SC 1506 : 1965
      SCR 233; R. V.E Venkatachala Gounder v.
      Arulmigu Viswesaraswami & V. P Temple & Anr.
              s
      (2003) sec 752 : 2003 {4) Suppl. SCR 450 -
      relied on.                                                     G
                    Case Law Reference
1966 SCR 300                  relied on              Para 12
1976 (3) SCR 721              relied on              Para 12
                                                                     H
482         SUPREME COURT REPORTS                [2015] 15S.C.R.


A 1971 (3) SCR 340                relied on            Para 13
      1965 SCR 233                relied on            Para 18
      2003 (4) Suppl. SCR 450 relied on                Para 19
          CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.
 B    8044-8048 of 2015.
           From the Judgment and Order dated 15.07.2005 of the
      High Court of Karnataka at Bangalore in R.S.A. Nos. 1053,
      1054, 1055, 1056 & 1057 of 2001.
c          Basava Prabhu S. Patil, Sr. Adv., B. Subrahmanya
      Prasad, Anirudh Sanganeria, Chinmay Deshpande, Amjid
      Maqbool, V. N. Raghupathy,Advs. fortheAppellant.
          K. Nagmohan Das, Sr. Adv., Shekhar Naphade,
      ShanthkumarV. Mahale, Amith J., Uday B. Dube, Ms. Anitha
·D    Shenoy, Vishruti Vijay, Ad vs. for the Respondents.
           The Judgment of the Court was delivered by
          V. GO PALA GOWDA, J. 1. Leave granted in the Special
      Leave Petitions.
 E          2. The present appeals arise out of the common
      impugned judgment and order dated 15.07 .2005 passed by
      the High Court of Karnataka at Bangalore in Regular Second
      .l\ppeaf Nos. 1053, 1054, 1055, 105G ar.d 1057 of 2001,
      whereby the High Court set aside the judgment and order
 F    dated 22.09.2001 passed by the Additional District and
      Sessions Judge, Bidar in RA Nos. 9, 10, 11, 12 & 13 of 1997.
          3. The facts which are required to appreciate the rival
   legal C'Jntention s urged en behalf of the parties are stated in
 G brief hereunder:
            The plaintiff-deceased respondent no.1 herein (since
      died dur!hg the pendency of these appeals, is being
      represented by his LRs i.e. respondent Nos. 1a to 1g) had
      file~ a suit O.S. No. 255 of 1984 before the Additional Civil
 H
    THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF               483
   OFFCR. v. GU RAPPA (D) BY LRS [V. GOPALA GOWDA, J .]

  Judge (Sr. Divn.), Bidar against the Deputy Commissioner, A
  Sidar for declaration that he is the owner of the land 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
  Sy. Nos. 249 and 250 situate at Saiki and as such sought for a
  declaration that they are the owners of the said property and B
  the assignments of property, if any, created by the defendants-
. appellants as ineffective. The deceased respondent no.1 also
  sought for correction to correct the revenue records in respect
  of the suit land. The learned Civil Judge dismissed the said
  suit on the ground that the plaintiff-deceased respondent no.1: c
       "has filed the present suit against the Deputy
       Commissioner and the Chief Officer on some
       misconception of the fact. If wants to obtain a
       effective decree, he has to implead various persons
       who are in actual possession of various portion of          D
       the suit land and seek the effective relief like
       declaration of possession etc as the plaintiff has
       miserably failed to prove his possession over the
       suit property ...... "
                                                                   E
 The land in old Sy. Nos. 249 and 250 of Kasba Saiki previously
 belonged to the ancestors of respondent no.1 herein, Gurappa
 (since deceased). The total extent of this land was 41 acres
 18 guntas. Out of the above land, 20 acres 29 guntas was
 owned by the first cousin brother of Gurappa, and he was the F
 owner of the remaining 20 acres and 29 guntas. Parts of it
 came to be acquired by the state government. Ultimately, the
 deceased respondent no.1 retained ownership over 5 acres
 and 22 guntas of land. During the revision of survey and
 resettlement of the lands in the village, the land in the said Sy. G
 Nos. 249 and 250 was divided into six new Sy. Nos. 179 to
 184. It is the case of the legal heirs of the deceased respondent
 no.1 that some discrepancies had crept in while preparing the
 new revenue records and that due to the wrong·entries, the
 names of ~he owners and their actual possession did not tally H
484         SUPREME COURT REPORTS                    [2015] 15S.C.R.


A     with the survey numbers. The suit land measuring 4 acres and
      g guntas which bclnnged to the deceased respondent no.1
      was shown in the narn2 of one Chaturbhuj Heda and allotted
      Sy. No.184. Another land, which actually belonged to Chaturbhuj
      Heda was allotted Sy. No. 182 and it was shown in the name
B     of the deceased respondent no.1. Chaturbhuj Heda got his
      land surveyed and the Assistant Director of Land Records
      (ADLR) directed him to get his name entered in the RTC of
      Sy. No. 182, which actually belonged to him. The revenue
      records of the suit schedule property of the deceased
c     respondent no.1, however, remained uncorrected.
            4. The deceased respondent No.1 thereafter filed Suit
      No. 3g of 1gg3 before the Civil Judge, Sr. Div. at Basavakalyan,
      herein after called as Civil Judge, impleading several
      defendants, and prayed for grant of the decree of declaration
D     of the title of the respondents to the suit land, recovery of
      possession of the suit land and perpetual injunction restraining
      the defendants therein from constructing shops over the suit
      land. The learned Civil Judge after examining the evidence on
      record decreed the suit in favour of the deceased respondent
E     no.1, and declared him as the owner of the suit property. On
      the issue of the ownership of the suit property, the learned Civil
      Judge held as under:
           "PW1 has marked Ex pg to show that Sy.No 24g
           and 250 are his ancestral properties. Ex. pg is
F
           Khasra Patrak. It is for the year 1g54_1 g55, It is
           maintained as per the Hyderabad Land Revenue
           Act 1g17. This Act was repealed on 01.04.1g54
           and Karnataka Land Revenue Act 1g54 came into
           effect. In view of Section 133 KLR Act, there is
G
           presumptive value for the entries of the RoRs of
           the land . .,....... Ex. pg unequivocally shows that the
           plaintiff and Ghallappa were joint owners and joint
           possessors of land Sy. Nos. 24g and 250 of Kasba
           Saiki."
H
  THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF                  485
 OFFCR. v. GU RAPPA (D) BY LRS [V. GO PALA GOWDA, J.]

      Further, the learned Civil Judge also recorded a finding     A
of fact on appreciation of evidence on record, that the old Sy.
Nos. 249 and 250 were divided into six new Sy. Nos. (179 to
184) during the revision of survey and resettlement of land.
     The learned Civil Judge further directed the defendant
nos.2-22 therein to put the deceased respondent no.1 in            8
possession of the suit property. On the issue of the wrong area
being mentioned by the plaintiff-deceased respondent no.1 in
the earlier suit, the learned Civil Judge held as under:
     "Upon perusal of all the records and upon hearing             c
     argument what appears to us is that 1) in his
     previous suit the plaintiff showed the area of Sy.No
     184 as 6 acres 35 guntas in his present suit he
     showed the area of Sy. No. 184 as 4 acres 09
     guntas such error was due to the mistakes of the              D
     revenue department. lnspite of notice under Ex.
     P30 D-1 kept mum. Such conduct of 01 was
     against the purpose of Section 80 CPC. The
     purpose of such notice is to give an opportunity to
     the government, reconsider the legal position to
                                                                   E
     make amends or to settle the claim without
     litigation. It was his duty to take steps for corrections
     of the entries of revenue records. He did not do so.
     Thereby the plaintiff was led to file the suit
     mentioning the incorrect area. It appears the plaintiff
                                                                   F
     did what he could. If one carefully reads Ex. P30 he
     will understand the pain, helpless and awkward
     position of the plaintiff. If 01 remained lethargic, if
     01 did not do his duty inspite of notice, if the plaintiff·
     filed a suit with incorrect available materials of
                                                                   G
     revenue records, it appears, it would be unjust to
     penalize the plaintiff for such an error on his part.
     The plaintiff could not have undertaken by himself
     the detailed survey of the concerned land. The
     plaintiff himself could have done any of this to set
                                                                   H
485         SUPREME COURT REPORTS                   [2015] 15 S.C.R.


A          right the revenue records. Therefore, one has to
           believe the plaint allegations, noted supra."
      The plea of the suit t:eing barred by res judicata was also
      raised in the suit proceedings by the defendants therein. The
      learned Civil Judge came to the conclusion on proper
 B    appreciation of facts and evidence on record that the "tis"
      involved in the previous suit between the parties was not finally
      heard and decided, and was only 'closed' for non availability
      of necessary and sufficient records and held as under:
c          "Therefore I am inclined to hold that the properties
           and reliefs in the suit are different also that the
           matter in this suit has not been heard and finally
           decided in all its perspectives in the previous suit
           (i.e O.S. 255/ 84 C.J Bidar)."
 D        5. Aggrieved, of the judgment and decree passed in the
    O.S. No. 39of1993 the appellants herein filed Regular Appeal
    Nos. 9of1997, 10of1997, 11of1997,12of1997and 13of
    1997 before the Additional District and Sessions Judge at
    Bidar urging various grounds. The learned Additional District
 E and Sessions Judge by his judgment and order dated
    22.09.2001, set aside the judgment and order of the Civil
    Judge, Bidar. Firstly, it was held that the suit filed by the
    deceased respondent no.1 herein was not maintainable, as
    the same had been filed without issuing notice to the appellants
 F herein under Section 80 of Code of Civil Procedure (hereinafter
    referred to as "CPC") and Section 284(1) of the Karnataka
    Municipalities Act. It was further held that the suit is also not
    maintainable as it is barred by res judicata. The learned
    Additional District and Sessions judge held that in the instant
 G case, the earlier suit in O.S. No. 255of1984 was not dismiss.ed
    on technical grounds, but on merits after framing issues and
    taking into consideration the evidence of both the parties. The
  . learned judge also came to the conclusion that the deceased
    respondent no.1 herein had not succeeded in proving his title
 H to the suit land.
  THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF                  487
 OFFCR. v. GURAPPA (D) BY LRS [V. GOPALA GOWDA, J.]

      6. The deceased respondent 110.1 then preferred Regular A
Second Appeal Nos. 1053, 1054, 1055, 1056 and 1057 of
2001 before the High Court of Karnataka by framing certain
substantial qucs~icins of law. The learned single judge of the
High Court set as:cio the judgn:t<1 .. ,, :d order of theAd<;litional
District and Sessions Judge in the first appeals dated B
22.09.2001 referred to supra. On the issue of dismissal of suit
for want of notice, the learned single judge held that the
dismissal of the suit on the technical grounds was bad in law.
The learned single judge also restored the finding of fact
recorded by the learned Civil Judge in O.S. No. 39 of 1993         c
that the deceased respondent no.1 herein had succeeded in
proving his title and ownership over the suit property. Further,
on the issue of res judicata, it was observed that to take the
plea of resjudicata, one of the ingredients is that the litigating
parties must be the same and that the subject matter of the D
suit also must be identical. The earlier suit was dismissed not
on merits but for want of clarity and for want of necessary
parties. Thus, all the substantial questions of law framed were
answered in favour of the deceased respondent no.1 herein.
Aggrieved, the appellant Municipality has filed these present E
appeals before us questioning the correctness of the judgment
of the learned single judge of the Karnataka High Court by
raising various questions of law and urging grounds in support
of the same.
     7. We have heard the learned counsel appearing on             F
behalf of both the parties. On the basis of the factual evidence
on record produced before us and the circumstances of the
case and also in the light of the rival legal contentions urged
by the learned senior counsel for both the parties, we have
broadly framed the following points which require our attention    G
and consideration-
      1. ·Whether the suit in O.S. No. 39 of 1993 filed before
          the Civil Judge, Bidar was barred by res judicata?

                                                                   H
488         SUPREME COURT REPORTS                 [2015] 15 S.C.R.


A          2. Whether the deceased respondent no.1 has
              succeeded in proving his title over the ownership of
              the suit property?
           3. What order?
 B Answer to Point No.1
             8. The deceased respondent no.1 had filed a suit in O.S.
      No. 255 of 1984, which was dismissed. Thereafter, he filed a
      suit in O.S. No. 39of1993 before the Civil Judge, Bidar, after
      impleading certain other defendants therein and changing the
 C    description of the suit property.
           9. Mr. Basava Prabhu S. Patil, learned senior counsel
   appearing on behalf of the appellant Municipality contends that
   the earlier suit in O.S. No. 255 of 1984 having been filed by
   the deceased respondent no.1 against the same defendants;
 D in respect of the same subject matter, with the same allegations
   and having been decided by a court of competent jurisdiction,
   on merits after due consideration of the ·extensive evidence
   led by the parties, attracts the bar of res judicata and the
   subsequent suit in O.S. No. 39of1993 was not maintainable.
 E It is further contended that the suit in O.S. No. 255of1984 was
   not dismissed on technical grounds, but the Trial Court gave a
   well reasoned order, passed after considering the matter on
   merits. The learned senior counsel contended that the Trial
   Court had recorded a finding of fact that the land claimed by
 F the deceased respondent no.1 was not created out of the land
   in Sy. Nos. 249 and 250. The learned senior counsel further
   contends that the impleadment of respondent nos.3 to 22
   herein in the subsequent suit O.S. No. 39 of 1993 was not
   enough to overcome the bar of resjudicata, as they all claimed
 G title to the su:t land through the appellant Municipality. The
   learned senior ccunsel further contends that the Trial Court had ·
   not granted the liberty to the deceased respondent no.1 to file
   a fresh suit, and that since the matter had been decided on
   merits, the subsequent suit brought on the same grounds was
 H not mairtainable in law.
   THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF                  489
  OFFCR. v. GU RAPPA (D) BY LRS [V. GO PALA GOWDA, J.]

     10. The learned senior counsel further contends that the A
deceased respondent no.1 was barred from seeking relief in
respect of Sy. No. 183 in the subsequent suit in O.S. No. 39 of
1993 as it was hit by the bar of Order II Rule 2 of the CPC.
       11. Mr. Shekhar Naphade, learned counsel appearing
on behalf of some of the legal heirs of the deceased                B
respondent no.1, on the other hand contended that the bar of
res judicata does not operate on the subsequent suit in O.S.
No. 39 of 1993 by virtue of the judgment and order dated
09.01.1986 passed in O.S. No. 255of1984 as the earlier suit
had been dismissed on the ground of non-joinder of necessary        C
parties, and the said order could not be said to operate as res
judicata. He further contended that the suit property and even
the parties involved in the two original suits are different. The
learned senior counsel further contended that the Trial Court
 in the order passed in O.S. No. 255of1984 has given liberty        D
to the deceased respondent no.1 to file a fresh suit, as the suit
 was dismissed only on the ground that no effective relief can
 be granted. The learned counsel further contended that the
 bar of Order II Rule 2 of the CPC cannot operate against the
 heirs of the deceased respondent no.1, as they could not           E
 identify the property due to the mismanaged revenue records,
 and thus, they should not be made to suffer for the scime. Mr. K
 Nagmohan Das, learned senior counsel appearing on behalf
 of some of the other legal heirs of the deceased respondent
 no.1 argued that the bar of res judicata does not operate on       F
the suit in O.S. No. 39of1993, as the earlier suit cannot be
 said to have been dismissed on merits. The learned senior
 counsel contends that for the bar of res judicata to operate,
 there must have been a final adjudication on substantial issues
 between the same parties on the same subject matter, which         G
 was not done in the instant case.
      12. We agree with the contentions advanced by the
learned senior counsel appearing on behalf of the legal heirs
of the deceased respondent no.1.
                                                                    H
490            SUPREME COURT REPORTS                  [2015] 15S.C.R.


A      The principle of res judicata has been codified under Section
      11 of CPC in the following terms:
              "11. Res judicata- No Court shall try any suit or
              issue in which the matter directly and substantially
              in issue has been directly and substantially in issue
 B            in a former suit between the same parties, or
              between parties under whom they or any of them
              claim, litigating under the same title, in a Court
              competent to try such subsequent suit or the suit in
              which such issue has been subsequently raised,
 c            and has been heard and finally decided by such
              Court."
   The principle of resjudicata is a need of any judicial system,
   that is, to give finality to the judicial decisions of the disputes
 0 between parties. It also aims to prevent multiplicity of
   proceedings between the same parties of the same subject
   matter of the /is. An issue which was directly and substantially
   involved in a former suit between the same parties, and has
   been decided and has attained finality cannot be re-agitated
 E before the courts again by instituting suit or proceeding by the
   same parties on the same subject matter of earlier /is. This
   court in a catena of cases has laid down the law relating to the
   essential elements that need to be satisfied before a plea of
   res judicata can be raised by a party. In the case of Sheodan
 F Singh v. Daryao Kunwar1 it was held as under:
              "A plain reading of s. 11 shows that to constitute a
              matter res judicata, the following conditions must
              be satisfied, namely - (i) The matter directly and
              substantially in issue in the subsequent suit or issue
 G            must be the same matter which was directly and
              substa11tially in issue in the former suit; (ii) The
              former suit must have been a suit between the same
              parties or between parties under whom they or any
      1
          AIR 1966 SC 1332
 H
     THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF                491
    OFFCR. v. GU RAPPA (D) BY LRS [V. GOPALA GOWDA, J.]

        of them claim; (iii) The parties must have litigated        A
        under the same title in the former suit; (iv) The court
        which decided the former suit must be a court
        competent to try the subsequent suit or the suit in
        which such issue is subsequently raised; and (v)
        The matter directly and substantially in issue in the       B
        subsequent suit must have been heard and finally
        decided by the Court in the first suit."
The above legal principles laid down by this Court have been
reiterated in the case of Syed Mohd. Salie Labbai & Ors. v.
Mohd.Hanifa & Ors 2 as under:                                       C
        " ....... it may be necessary to mention that before a
        plea of res judicata can be given effect, the following
        conditions must be proved-
        (1) that the litigating parties must be the same;           D
        (2) that the subject-matter of the suit also must be
        identical;
        (3) that the matter must be finally decided between
        the parties; and                                            E
        (4) that the suit must be decided by a court of
        competent jurisdiction."
                                                         .
       13. Thus, for the bar of res judicata to operate in the
subsequent original suit proceedings, the litigating parties        F
 must be the same, and the subject matter of the suit must also
be identical. Further, it has also been held by this court in the
case of Ram Gobinda v. Bhakta Ba/a 3 that for the bar of res
judicata to operate in the subsequent original suit proceedings,
the decision in the former suit must have been decided on
 merits on the same substantial questions both on facts and in      G
 law that would arise in the subsequent original suit.

2 AIR 1976 SC 1569
3
    AIR 1971 SC 664
                                                                    H
492         SUPREME COURT REPORTS                     [2015] 15 S.C.R.


A           In the instant case, no doubt the Trial Court in the suit in
      O.S. No. 255 of 1984 filed by the deceased respondent no.1
      framed certain issues and even examined the documents
      produced by the parties. The fact which cannot be lost sight of
      is that ultimately the learned trial judge came to the foll0wing
B     conclusion:
            "For all the reasons mentioned above, I come to
            the conclusion that the plaintiff has failed the present
            sui! against the Deputy Commissioner and the chief
            officer on some mis-conception of fact. If he wants
c           to obtain an effective decree, he has to implead
            various persons who are in actual possession of
            various portions of the suit land and seek the
            effective relief like declaration and possession etc
            as the plaintiff has miserably failed to prove his
D           possession over the suit property ...... "
      i he prayer in suit in O.S. No. 255 of 1984 was for:
            "declaration of title holding that the illegal and
            unauthorized assignment if any created by
            defendant no.2 shall stand void ab initio and issue
            of perpetual injunction in respect of land Sy.No. 184
            measuring 06 acres 35 guntas, situated at
            Balki. ..•. ."
      Whereas, the prayer in the suit of O.S. No. 39of1993 instituted
F     by the deceased respondent no. 1 reads as under:
            "1) Declaration of plaintiffs title to the suit land
            2) Recovery of possession of the suit land
            3) Perpetual injunction, restraining D3 to D22 from
G
            constructing shops over the suit land.
           4) Correction of R.O.Rs"
      Thus, it can be seen that neither the parties, nor the subject
      matter was the same in the earlier suit O.S. No. 255 of 1984
H
  THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF                   493
 OFFCR. v. GU RAPPA (D) BY LRS [V. GOPALA GOWDA, J.]

and O.S. No. 39of1993. It also becomes crystal clear that the A
deceased respondent no.1 herein has availed the indirect
liberty granted by the Additional Civil Judge in O.S. No. 255 of
1984 that
     "if he wants to obtain an effective decree, he has
     to implead various persons who are in actual                   B
     possession of various portions of the suit land and
     seek the effective relief like declaration of
     possession etc"
      14. Since neitherthe reliefs claimed in the two suits were    c
identical, nor the parties are the same and nor could the
decision in the first suit said to have been on merits, it cannot
be held in the singular facts and circumstances that the suit in
O.S. No. 39 of 1993 was barred by res judicata as contended
by the learned senior counsel Mr. Basava Prabhu S. Patil.           0
       15. At this stage, we also direct our attention to the
contention raised by Mr. Basava Prabhu S. Patil, learned senior
counsel appearing on behalf of the appellant Municipality that
the suit in O.S. No. 39of1993 was not maintainable, as the
notice was issued under Section 80 of CPC in suit O.S. No. E
255 of 1984 could not be said to be sufficient notice for the
institution of the suit in O.S. No. 39of1993. We cannot agree
with the said contention. The High Court of Karnataka in the
Second Appeal had dismissed the contention on the ground
that the notice issued in the suit O.S. 255 of 1984 can be said F
to be constructive notice. The High Court considered that the
object of the Section is the advance of justice and securing of·
public good.
     In our opinion, this issue does not arise at all, as a
municipal council is not a public officer, and no notice is G
necessary yvhen a suit is filed against a municipality. Thus, the
question of sufficiency of notice under Section 80 of the CPG
does not arise at all. Further, the issuance of notice under
Section 284( 1) of the Karnataka Municipalities Act, 1964 also
                      J                                           H
                      i
494         SUPREME COURT REPORTS                     [2015] 158.C.R.


A     does not arise for the reason that the dispute between the
      parties in the suit in O.S. No. 39 of 1993 does not attract the
      above provision of the Act and therefore, we need not advert
      to and answer the above contention.
      Answer to Point no.2
 B
            16. Mr. Basava Prabhu S. Patil, the learned senior
      counsel appearing on behalf of the appellant Municipality
      contends that the onus of proving title to the suit property heavily
      rests on deceased respondent no.1, and that the mere failure
 c    on part on the appellant Municipality to establish its title to the
      suit schedule property does not entitle the deceased
      respondent no.1 to obtain a decree of declaration, possession
      and consequential reliefs as sought for in respect of the suit
      schedule property in the original suit proceedings.
·D         The learned senior counsel further contends that the
     ·:riation in the extent of land claimed by the deceased
    rnspondent no.1 at different stages, that is, 6 acres and 35
    guntas in the suit O.S. No. 255 of 1984 and 5 acres and 21
    guntas in the suit in O.S. No. 39of1993 without any explanation
· E offered by the deceasect respondent no.1 for such variation
    itself if indicative of the falsity of the claim of deceased
    respondent no.1. The learned senior counsel has further
    contended that the entries in the revenue records in respect of
    the suit schedule property stand in the name of one Ghallappa
  F and Chaturbhuj Heda and thus no presumption from the RTC
    records as to the ownership of suit property the deceased
    respondent no.1 or his legal heirs can be raised by them. The
    learned senior counsel contends that the learned Civil Judge
    and the High Court of Karnataka have erred in coming to the
  G conclusion that the deceased respondent no.1, has succeeded
    in establishing his title over the suit property.
        . 17. On the other hand, Mr. Shekhar Naphade, the learned
      counsel appearing on behalf of some of the legal heirs of the
      respondent no.1 contends that they have succeeded in
 H
  THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF                            495
 OFFCR. v. GU RAPPA (D) BY LRS [V. GOPALA GOWDA, J.]

establishing their title of ownership over the suit property. He             A
has further contended that the variations in the extent of the
land have only crept in due to the mistake of the appellant
Municipality. The onus was on the Municipality to maintain the
record properly and the same has not been done in the instant
case. The same cannot be mad_e a ground to disentitle the                    B
deceased responden~ no.1, especially in light of the fact that
the Civil Judge in O.S. No. 39 of 1993, on appreciation of
evidence on record recorded the finding of fact that the
deceased respondent no.1 was the owner of the land bearing
Sy. Nos. 249 and 250, which has been proved by way of the                    C
khasra pahni patrak, produced as Exh. P9 before it. The
learned Civil Judge further examined the document produced
as "Exh. P28", the map of land bearing Sy. Nos. 179 to 184 of
Saiki village, and "Exh. P33", copy of land revenue receipts in
the name of the deceased respondent no.1 to show that the                    D
land revenue tax is paid by him in respect of land bearing Sy.
 Nos. 179, 182, 183 for the year 1983-1984.
      18. We are unable to agree with the contentions
advanced by the Mr. Basava Prabhu S. Patil learned senior
counsel appearing on behalf of the appellant Municipality. The               E
learned Civil Judge, Bidar decreed the suit in O.S. No. 39 of
1993 in favour of the legal heirs of the deceased respondent
no.1, which judgment and order was restored by the Kamataka
High Court in the second appeal, after it was set aside
judgment and order passed in the first appeals. The learned                  F
senior counsel on behalf of the Appellant has not brought to
our attention, any evidence, which can lead us to come to the
conclusion that the learned Civil Judge, Bidar and the learned
judge of the High Court of Karnataka have erred in decreeing
the suit in favour of the deceased respondent no.1.                          G
        19. It is a settled position of law that in a suit for declaration
of title and possession, the onus is upon the plaintiff to prove
his title. Further, not only is the onus on the plaintiff, he must
prove his title independently, and a decree in his favour cannot             H
496         SUPREME COURT REPORTS.                    [2015) 15 S.C.R.


A     be awarded for the only reason that the defendant has not been
      able to prove his title, as held by this Court in the case of
      Brahma Nand Purl v. Neki Puri" as under:
           " ......... the plaintiff's suit being one for ejectment
           he has to succeed or fail on the file that he
 B         establishes and if he cannot succeed on the strength
           of his title his suit must fail notwithstanding that the
           defendant in possession has no title to the
           property ......... "                              •
 c The same view has been reiterated by this Court in the more
      recent case of R. \l.E Venkatachala Gounder v. Arulmigu
      Viswesaraswami & V.P. Temple & Anr. 5 as under:
           "In a suit for recovery of possession based on title
           it is for the plaintiff to prove his title and satisfy the
 D         Court that he, in law, is entitled to dispossess the
           defendant from his possession over the suit property
           and for the possession to be restored with him .
           .. ... ... .. .. In our opinion, in a suit for possession
           based on title once the plaintiff has been able to
 E         create a high degree of probability so as to shift
           the onus on the defendant it is for the defendant to
           discharge his onus and in the absence thereof the
           burden of proof lying on the plaintiff shall be held to
           have been discharged so as to amount to proof of
 F         the plaintiffs title."
      In our opinion, on perusal of the material evidence on record,
      the legal heirs of the deceased respondent no.1 herein have
      succeeded in establishing their title to the suit property.
 G          20. The deceased respondent no.1 herein established
      before the learned Civil Judge and the High Court of Karnataka
      that he was the owner of 20 acres and 29 guntas of land, which
      formed p~rt of Sy. Nos. 249 and 250 of Saiki village. Part of
      'AIR 1965 SC 1506
 H • c2003J a sec 152
   THE CITY MUNICIPAL COUNCIL BHALKI, BY ITS CHIEF                497
  OFFCR. v. GU RAPPA (D) BY LRS [V. GOPALA GOWDA, J.]

this land was acquired by the state government for                A
development around the area, the details of which are as under:
     Tahsil office           3 acres 30 guntas
     Munsiff court           3 acres 00 guntas
     School                  4 acres 12 guntas                    B
     Hospital                0 acres 30 guntas
     Road                    1 acres 05 guntas
       21. The deceased respondent no. 1 also stated in his
evidence that he had alienated a further 3 acres 03 guntas in C
favour of Chaturbhuj Heda. Thus, out of his entire ancestral
property, only an area of 5 acres and 22 guntas remained in
his ownership. He produced before the learned Civil Judge
the khasra patrakforthe village for the year 1954-55 as Exh.
P9. On the basis of the same, the learned judge rightly came D
to the conclusion on facts and evidence on record and held
that the land in Sy. Nos. 249 and 250 was the ancestral property
of the deceased respondent no.1. He further produced before
the court the extract of the revision survey register as "Exh.
P24" and a copy of the village map as "Exh. P28". From a E
perusal of these two documents, the learned Civil Judge came
to the correct conclusion that it was proved that the old Sy.
Nos. 249 and 250 had become Sy. Nos. 179 to 184. The
learned judge also took into consideration the documents
marked as "Exh. P37" which was the plaint in the suit O.S. No. F
130 of 1980 filed by Chaturbhuj Heda to get the records of
revenue rectified. Sri Chaturbhuj had admitted in the plaint in
that suit that there was an interchange in the Sy. ·Nos. 182 and
184 and that he was wrongly shown as the owner of the land in
Sy. No. 184, when intact he was the owner of the land in Sy. G
No.182. Thus, the deceased respondent no.1 has established
his title to the suit property. The learned Civil Judge further
observed that the appellant Municipality has not produced any
document to prove their title to the suit property. Even if it was
                                                                  H
498          SUPREME COURT REPORTS                  [2015] 15S.C.R.


A     their case that the suit property was also acquired by the state
      government, it should have produced the acquisition
      notifications under Sections 4 and 6 of the Land Acquisition
      Act of 1894 and award passed under Section 11 of the Act.
      The learned Civil Judge further held that since the appellant
B     Municipality had denied the title to the deceased respondent
      no.1 and his ancestors over the suit property, there is no
      question of them having acquired adverse title over the same. ·
      Since the appellant Municipality had no title over the suit
      property, it did not have any right to confer better title upon the
c     suit schedule property upon the other defendants in the suit in
      O.S. No. 39 of 1993. We find no merit in the claim of the
      appellant Municipality, as the reversal of the findings of fact on
      the relevant points answered by the High Court in exercise of
      its jurisdiction by recording valid and cogent reasons on the
o     substantial questions are perfectly correct and there is no
      miscarriage of justice in the interference by the High Court in
      the judgment and order passed by it in the second appeals.
      Answer to Point No.3
E             22. In view of the reasons mentioned supra, we are of
      the view that no error has been committed by the High Court in
      setting aside the erroneous findings of the first appellate court
      in its judgment and order passed in the Regular Appeals and
      restoring the judgment and order passed by the learned Civil
 F    Judge in O.S. No. 39 of 1993. We accordingly dismiss the
      Civil Appeals.


      Bibhuti Bhushan Bose                             Appeals dismissed.