Calcutta High Court
Smt. Laxmi Mani Dasi vs Manik Chandra Das on 19 March, 1990
Equivalent citations: AIR1991CAL231, (1990)2CALLT277(HC), 95CWN108, AIR 1991 CALCUTTA 231, (1990) 2 CALLT 277 (1990) CAL WN 108, (1990) CAL WN 108
JUDGMENT
1. This appeal by the plaintiff/appellant involves only a short question of law as to whether a suit can be disposed of finally on the point of res judicata under Order 14, Rule 2, C.P.C. treating as a bar to the suit created by law under clause (b) of sub-rule (2) of Rule 2 of Order 14, C.P.C. After careful consideration, I have no hesitation to hold that when the facts are admitted, a question which has been decided fully and finally being an issue, directly and substantially, in the previous suit as in the present suit, it, no doubt, stands as a bar to the subsequent suit, and in that case, res judicata also operates as a bar to the suit created by law as contemplated under clause (b) of sub-rule (2) of Rule 2 of Order 14, C.P.C.
2. To elucidate this point of law, let us refer to the facts of this case. The present suit, out of which this appeal arises, being Title Suit No. 166 of 1979 in the Second Court of Munsif, Jangipur has been brought by Laxmi Mani Dasi for declaration of her title to the suit property, comprising plot No. 23 of Kahatian No. 199 of Mouza Kaiyor, and for permanent injunction restraining the defendant/ respondent Manik Chandra Das from disturbing her peaceful possession in the said property. The respondent-defendant Manik Chandra Das contested the suit by filing a written statement challenging the plaintiffs title and possession of the suit property. It was aiso asserted by the defendant-respondent in his written statement that the property in question belonged to one Ajit Kr. Saha, from whom it was purchased by Laxmi Mani Dasi alias Lakshmi Bala Dasi alias Naku Bala Dasi, daughter of late Mohini Mohan Das and eldest sister of present plaintiff and that she had brought Title Suit No. 59 of 1971, in the Addl. Court of the Munsif at Jangipur, against the present plaintiff Raj Lakshmi Dasi alias Laxmi Dasi in respect of the self same property which was decreed in her favour. It has also been stated that during the pendency of the said suit she executed a registered deed of gift and transferred the property in favour of her brother the present defendant, Manik Chandra Das, who was also impleaded as a co-plaintiff in that suit. The present plaintiff who was a party defendant in the aforesaid previous suit, preferred an appeal against the decree obtained by the plaintiff in that suit which was also dismissed by the appellate Court on a finding that Laxmi Mani Dasi alias Laxmi Rani Dasi alias Naku Bala Dasi, the predecessor in interest of the present defendant Manik Chandra Das was the real purchaser of the suit property from Ajit Kr. Saha. It has, therefore, been asserted that in view of the conclusive determination of the title of the present defendant Manik Chandra Das in respect of this property in the previous suit, in which the present plaintiff was the party-defendant, the matter has been settled at rest and the finding on the question of identity of the actual purchaser stands as a bar of res judicata to this suit.
3. It has been urged by Mr. Chatterjee, learned Advocate for the appellant-plaintiff, that both the Courts below went wrong in deciding and disposing of the suit on a preliminary issue, under O. 14, R.2, C.P.C. inasmuch as, such finding in the previous suit does not relate to a question of jurisdiction or does not constitute a bar to the present suit created by any law for the time being in force as contemplated under sub-rule (2) of O.14, Rule 2, C.P.C. It has, therefore, been urged that even if it is a question of res judicata, it is a mixed question of law and fact and in any view of the case it cannot constitute a bar of jurisdiction to the present suit, nor can stand as a bar created by any law as required under Order 14, Rule 2 to dispose of the suit finally and fully as an issue of law only.
4. I have carefully perused the judgments of both the Courts below. It is an undisputed position that Laxmi Rani Dasi alias Laxmi Mani Dasi alias Naku Bala Dasi and the present plaintiff Raj Laxmi Dasi alias Laxmi Dasi and the present defendant Manik Chandra Das are the daughters and son-respectively of late Mohini Mohan Das. It is also an undisputed fact that the present plaintiff or for the matter of that defendant in that suit is the wife of Harendra Nath Ghosh of Raghunathganj Darbeshpara, District Murshidabad. It is also an undisputed fact that in the previous suit, namely, Title Suit No. 59 of 1971 of the Munsifs Court at Jangipur, Murshidabad, Laxmi Rani Dasi, daughter of late Mohini Mohan Das was the plaintiff and Raj Laxmi Dasi, wife of Harendra Nath Ghosh was the defendant and the subject-matter of that suit was also plot No. 23 among others which is the subject-matter of the present suit. Undisputedly also Manik Chandra Das is the brother of the plaintiff in this suit who was impleaded as a co-plaintiff in that suit as being a donee in respect of the suit property from the plaintiff of that suit Laxmi Mani Dasi by a deed of gift.
5. The question which arose for decision in the previous suit was whether the suit property was purchased from Ajit Kr. Saha by a registered deed of sale dated 21-1-58, by the plaintiff or the defendant in that suit. The suit brought by the predecessor in interest of the defendant Manik Chandra Das was decreed and was also affirmed on appeal being preferred by the present plaintiff who was a defendant in that suit. The question that arose in that suit and appeal previously was whether the present appellant Laxmi Mani Dasi alias Raj Laxmi was the purchaser of the suit property from Ajit Kr. Saha. It was decided clearly and unequivocally in the pre-
vious suit that the plaintiff in that suit, who was none else than the predecessor in interest of the present defendant Manik Chandra Das
-- Laxmi Rani Dasi alias Laxmi Mani Dasi alias Naku Bala Dasi was the purchaser of such property and her right, title and interest in the property was declared as such. The Court also found that by virtue of the deed of gift she had transferred her interest in the suit property to Manik Chandra Das who was a co-plaintiff in that suit and who figures as the defendant-respondent in the present suit.
6. The certified copies of the judgments, pleadings and the decree of the Court of appeal below, that of the District Judge, Murshidabad leave no manner of doubt that the parties in the previous suit as also the subject-matter of the present suit are identical. Confusion was sought to be created before the trial Court over the names of the present plaintiff who tried to pass off as the real purchaser from Ajit Kumar Saha. As already stated this question as to who was the real purchaser or the identity of the real purchaser was fully and conclusively determined in that suit which was affirmed in appeal. As such, it cannot be said to be a mixed question of law and fact, as because the identity of the parties in the previous suit and the subject-matter of the same has not been challenged in so many words in this suit. So, no question of dispute arises regarding the identity of the parties or that of the subject matter of the suit. This being the position, the finding as to the title relating to the suit land having been decided once for all between the parties, the same stands as a res judicata in the trial of this suit.
7. The provisions of Section 11 are quite clear on the point that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a previous suit between the same parties or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such suit, in which such issue has been subsequently raised and has been heard and finally decided by such Court.
8. Mr. Chatterjee, learned Advocate for the appellant has emphasised in vain to impress upon this Court that the facts relating to the determination of the question of title have not been admitted in so many words and that such question as to identity of the parties and the subject-matter of the suit are yet to be established by evidence on record.
9. I find no substance in such argument as because the certified copies of the judgments in the previous suit as well as the pleadings leave no manner of doubt about the identity of the parties or that of the subject-matter of the suit. Moreover, this question was not also urged so seriously, i.e., regarding the identity of the parties and subject-matter, either before the trial Court or before the appeal Court.
10. Mr. Chatterjee also referred in this connection to a decision of this Court reported in (1981) 1 Cal LJ 91 (Mahabir Prosad Lilha v. Biswanath Kothari) to urge the point that question of res judicata is not a question of jurisdiction, nor it constitutes a bar under any law as contemplated under Order 14, Rule 2, C.P.C. The question that arose for determination in that suit was regarding the validity of a notice terminating the tenancy in that suit. The plaintiff brought the suit for eviction on the basis of a notice to quit according to English Calendar Month. The defendant contended that the tenancy having commenced from 12th of November, 1963, the notice to quit was invalid. The defendant raised the plea of non-maintainability of the suit, because of want of jurisdiction and wanted determination of the suit on preliminary issue as the validity of the notice. The prayer was rejected and was affirmed in revision on a finding that the month of tenancy is a mixed question of law and fact and is not a question of law on which the whole suit could be decided creating a bar as to jurisdiction of the Court to try the suit or any other bar created by any other law for the time being in force.
11. The other decision referred to by Mr. Chatterjee is 1986 (1) CHN 58 (Smt. Sulochana Devi Bubna v. Sri Gobinda Chandra Nag) has little relevance to the facts of the instant case.
12. It is true after the amendment of the C.P.C. by the Amendment Act of 1976, the Court shall subject to the provisions of sub-rule (2) has to pronounce judgment on all issues, notwithstanding that the case may be disposed of on a preliminary issue. Under sub-rule (2) if the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. The bar of res judicata as provided in Section 11 of the C.P.C. constitutes such a bar as contemplated in Clause (b) of sub-rule (2) of Rule 2 of Order 14. In view of the facts and circumstances of the case, the suit in question could therefore be disposed of on such an issue of law only and that is exactly what both the Courts below did. Therefore, in view of what has been discussed above, I have no hesitation to hold that the finding in the previous suit and the judgment and decree passed in that suit are binding on the plaintiff in this suit as res judicata and there is no scope for re-agitating the same question again in this suit. Both the Courts below are, therefore, perfectly justified that issue No. 5 which was decided as a preliminary issue constitutes a bar as res judicata in deciding the present suit as contemplated under Order 14, Rule 2, C.P.C. I find no reason, therefore, to interfere with the findings of the Courts below.
13. The appeal, therefore, fails and is dismissed.
14. There will be no order as to costs.
15. Appeal dismissed.