Patna High Court
Narain Das vs Banarsi Lal And Ors. on 20 February, 1969
Equivalent citations: AIR1970PAT50, 1969(17)BLJR749, AIR 1970 PATNA 50
JUDGMENT Tarkeshwar Nath, J.
1. This appeal by the plaintiff arises out of a suit for a declaration that the decree passed in Mortgage Suit No. 176 of 1943 was illegal, collusive, fraudulent and not binding on him and his interest was not affected by the said decree. The plaintiff further asked for a decree for recovery of possession in respect of a land measuring 0.91 acre being a portion of plot No. 575 of khata No. 171 (not 137 as mentioned in the plaint) of village Jathuli, touzi No. 66. The plaintiff wanted a decree for mesne profits as well.
2. The plaintiff stated that one Laksh-man Mistry had four sons, namely, Sri-cliand, Tulsi and Daroga (from one wife) and Jagarnath (from another wife). All of them were members of a joint Mitak-shara family and Daroga happened to be the Karta of that family. It will be necessary to state here the names of the other members of that family. Srichand had two sons, Dhupnarain and Sadhu. Dhup-narain left a son. Ramchandra. Tulsi left two sons, Banwari and Dargahi. Daroga also had two sons, Ramlagan and Bhag-wan. Hari (defendant No. 3) is the son of Ramlagan, whereas Parbhu and Ram-dayal (defendants 4 and 5) are the sons of Bhagwan Lakhan Lal (defendant No. 6) is the minor son of Hari. Banarsi Lal and Mukha Lal (defendants 1 and 2) do not belong to this family. Sometime either in the year 1911 or 1912 dispute arose among the three sons of Lakshman on one hand and the fourth son, Jagarnath, on the other in respect of the joint family properties, and those three full-brothers were trying to deprive Jagarnath of his share in the family properties even to the extent of executing some fictitious documents in favour of strangers. The family, however, continued to be joint till August, 1924, but by an Ekrarnama dated 22-9-1924 those members separated amongst themselves, with the result that Srichand, Tulsi and Daroga got 2/7th share each in the joint family properties, whereas Jagarnath got 1/7th share only. Defendants 3 to 6 were described as the defendants second party.
On 20-4-1942 the plaintiff purchased by a sale deed executed by Banwari and Dargahi, the sons of Tulsi, of their interests in certain properties, including their interest in plot No. 575 of khata No. 171 and plot No. 1023 of another khata. Defendants 3 to 5 raised a dispute with regard to the possession of the land bearing plot No. 1023 of khata No. 410, with the result that there was a proceeding under Section 145 of the Code of Criminal Procedure in respect of the disputed area. An adverse order was passed against the plaintiff on 20-11-1945, and hence he and 12 others instituted Title suit No. 189 of 1945 in the Court of Mun-sif against Ramprasad, Bihari Lal (who are not parties to the suit giving rise to this appeal), Hari, Parbhu and Ramdayal (who are defendants 3 to 5 in the present suit also and two others, namely, Bhagwan and Ramlagan (who were described as defendants second party in that suit) for, adjudication of their title, recovery of possession, mesne profits and other reliefs. The plaint was, however, returned as the valuation of the suit was increased and the plaint was then refiled in the Court of Subordinate Judge on 9-5-1949 and the suit was numbered as Title Suit 27 of 1949. That suit was decreed by the Additional Subordinate Judge, 2nd Court, Patna, on 22-9-1950. The title of the plaintiffs (of that suit) was declared, and a decree for recovery of possession and mesne profits was passed in their favour. The amount of mesne profits was to be determined in a subsequent proceeding. Later on, Execution Case No. 39 of 1952 was filed to execute that decree for mesne profits (after ascertainment) and 0.91 acre out of plot No. 575 was purchased by the plaintiff-decree-holders of Title Suit No. 27 of 1949 on 19-5-1953.
3. It appears that on 31-1-1917 Tulsi and his two sons, Banwari and Dargahl, had sold their 2/7th share in plot No. 575 to Daroga, with the result that Daroga acquired, all told, 4/7th share. On 24-1-1936 Daroga executed a mortgage bond in respect of 3/7th share of plot No. 575 in favour of Mukha Lal (present defendant No. 2), and the mortgagee (defendant No. 2) filed Title Suit No. 176 of 1943 to enforce that mortgage against defendants 3, 4 and 5 (the grandsons of Daroga). A preliminary mortgage decree was passed on 20-11-1944 and the final decree was passed on 29-9-1948. Defendant No. 2 filed Execution Case No. 585 of 1951 to execute that decree, and the present defendant No. 1 (Banarsi Lal) purchased 1.35V2 acres of plot No. 575 on 18-6-1953 and the sale was confirmed on 18-7-1953. Later on, defendant No. 1 applied for delivery of possession in respect of the land purchased by him, but the plaintiff resisted the delivery of possession and hence the petition of defendant No. 1 complaining about the resistance was registered as Miscellaneous Case No. 281 of 1954 and It was allowed on 17-8-1954, with a direction to issue a fresh writ for delivery of possession in respect of the land purchased by him. The plaintiff, being aggrieved by the said order, filed Civil Revision No. 913 of 1954 in this court, but it was dismissed on 7-9-1955. The plaintiff further alleged that the sale deed dated 31-1-1917 was a fictitious and fraudulent one and the said mortgage bond and the proceedings in the mortgage suit also were fraudulent and collusive. The case of the plaintiff was that he was not at all a party to the Title (Mortgage) Suit No. 176 of 1943, and hence the decree passed in that suit was not binding on him. The suit giving rise to this appeal was instituted on 6-9-1956 for the reliefs already indicated.
4. Defendant No. 1 contested the suit on grounds inter alia that the four sons of Lakshman had separated long before the year 1917 and they were dealing with the properties separately from time to time. The Ekrarnama of the year 1924 referred to by the plaintiff was not a valid one and, in any event, by that Ekrarnama there was only an adjustment of certain disputes amongst the four brothers and it did not, in any way, affect the right acquired by Daroga by virtue of the sale deed dated 31-1-1917. That sale deed was executed by Tulsi and his two sons for legal necessity and Daroga acquired a valid title in respect of 4/7th share in the disputed plot No. 575. He further stated that Daroga had validly executed the mortgage bond dated 24-1-1936 in respect of 3/7th share of plot No. 575, and on his failure to pay the mortgage dues Title (Mortgage) suit No. 176 of 1943 was rightly instituted and a decree obtained in that suit. The auction sale in respect of 1.35'/2 acres of plot No. 575 on 38-6-1953 as well was quite valid and legal. He challenged the sale deed dated 20-4-1942 in favour of the plaintiff as having been collusive and fictitious, inasmuch as Banwari and Dargahi had no subsisting right at all to transfer the property by that sale deed. The other plea taken by defendant No. 1 was that the suit was barred by limitation.
5. The Additional Munsif held that the suit was barred by time under Article 11(i) of the Limitation Act, as it was instituted more than a year after the order passed by the executing court on 17-8-1954. But besides this, he further held that the sale deed in favour of the plaintiff dated 20-4-1942 executed by the sons of Tulsi was invalid and illegal, as those heirs of Tulsi had no right to transfer the land mentioned in that sale deed. In other words, the plaintiff had acquired no title. In view of those findings, he dismissed the suit. Being aggrieved by the dismissal of the suit, the plaintiff filed an appeal, but he was unsuccessful and the appeal was dismissed by the Additional Subordinate Judge. Hence, the plaintiff has filed this second appeal.
6. The learned Advocate General for the appellant raised two points in this appeal. The first one was that the Courts below had taken an erroneous view on the question of limitation and the suit in fact was not barred by time. The second point was that the decision in the previous Title Suit No. 27 of 1949 operated as res judicata and it was not open to the Courts below to hold that there was any separation among the four brothers, Srichand, Tulsi, Daroga and Jagarnath before the year 1917. It will be convenient to deal with these points in the order in which they have been urged.
7. In order to appreciate the contention of the learned Advocate General on the first point, it is necessary to mention the relevant dates once again, Miscellaneous Case No. 281 of 1954 under Order 21, Rule 97 was allowed on 17-8-1954. Thereafter, the plaintiff filed Civil Revision No. 913 of 1954 in this Court on 28-9-1954 but it was dismissed on 7-9- 1955. The present suit was filed on 6-9- 1956. The contention was that the suit was within one year of the order of this Court in the said Civil revision and in any event the plaintiff was entitled to get the benefit under Section 14(1) of the Limitation Act (before the present amendment of the said Act) in respect of the entire period commencing from 18-8-1954 and ending on 7-9-1955. Section 14(1) of the Limitation Act, 1908, reads thus :
"In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a bice nature, is unable to entertain it."
Explanation I of that section reads thus :
"In excluding the time during which a former suit or application was pending the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted."
The real purpose of this section Is to extend the period of limitation prescribed by adding the period during which the suit or other proceeding has been prosecuted with due diligence and in good faith in a Court which, either on account of defect of jurisdiction or other cause of a like nature was unable to entertain it. In other words, if a person hag tried his level best to get his case tried on the merits but, if on account of defect of jurisdiction or other cause of a like nature, his case cannot be tried, then he should get the benefit in respect of the period during which he diligently prosecuted that suit or other proceeding.
8. According to Article 11A of the Limitation Act, 1908, a suit has to be instituted by a person within one year of the date of the order passed against him in a proceeding under Order 21, Rule 97 of the Code of Civil Procedure. In the present case, the order of the executing Court against the plaintiff was passed on 17-8-1954 and, therefore, the period of one year has to be calculated from 18-8-1954 itself.
The plaintiff, is, however, entitled to get the benefit under Section 14 of the Limitation Act. in the sense that the period during which his application (civil revision) was pending in this court, has to be excluded. The contention of the learned Advocate General, however, was that before the filing of the Civil revision in this court the plaintiff had to obtain the certified copy of the order dated 17-8-1954 (Ext. Angaj and, besides that, he had to make necessary preparations for the filing of the civil revision and as such the plaintiff was entitled to exclude the entire period commencing from 18-8-1954 and till the riling of the application in revision. He, however, fairly conceded that if that period would not be excluded, then this suit under Order 21, Rule 103 of the Civil Procedure Code was obviously barred by time, as it was not instituted within one year of the order dated 17-8-1954. According to Article 11A of the Limitation Act, the present suit ought to have been instituted within one year of the said order. The learned Additional Subordinate Judge relied on the decision in Mt. Bibi Aziman v. Mt. Saleha, AIR 1963 Pat 62 and held that the plaintiff was not entitled to exclude that period and hence the suit was barred by time.
9. The short question for consideration is as to whether the plaintiff was entitled to exclude the said period according to the provisions of Section 14(1) of the Limitation Act. The learned Advocate General submitted that it was true that in the case of Mt. Bibi Aziman, AIR 1963 Pat 62, only the actual period during which an application in revision filed earlier remained pending was excluded under Section 14(1), but this view was not a sound one on account of the earlier decision of the Supreme Court in Raghunath Das v. Gokal Chand, AIR 1958 SC 827. It is thus necessary first, to consider the Division Bench decision of this court in the case of Mt. Bibi Aziman, AIR 1963 Pat 62. The Miscellaneous Case No. 42 of 1953 was dismissed on 14-5-1954 and hence the plaintiffs had filed Civil Revision No. 699 of 1954 on 3-8-1954. but it was dismissed summarily on 16-9-1954. The suit giving rise to that appeal was then filed on 14-9-1955. A question arose whether the suit was barred by time. Reliance was placed on the Full Bench decision of this court in Lal Bihari Lall v. Beni Madhava Khatri, ILR 28 Pat 102=AIR 1949 Pat 293 and it was held that the plaintiffs were entitled to deduct the period from. 3rd August, 1954 to 16th September, 1954 only, but even then the suit instituted on 14-9-1955 was barred by time, inasmuch as they had made a long delay for a period of one year in instituting that suit after the dismissal of their application in revision.
In order to get rid of that difficulty, learned counsel for the appellants had submitted that the "date of order" in Article" 11A of the Indian Limitation Act should be taken to mean the date of the final order, from which the period of one year, prescribed for a suit under that Article, should commence. But this submission was not accepted and it was pointed out that the order passed in the miscellaneous case in fact gave a cause of action to the plaintiffs for a suit to establish the right which they claimed in respect of possession of the property in question. I held distinctly in that case that the order dated 14-5-1954 being adverse to the plaintiffs their cause of action accrued on that date, and the period of limitation for the suit commenced immediately after the passing of that order but they could take the benefit of Section 14(1) so far as the period between 3rd August, 1954 and 16th September 1954 was concerned.
10. The learned Advocate General laid great stress on the decision of the Supreme Court in the case of Raghunath Das, AIR 1958 SC 827. The order of the Court accepting the award with certain modification was passed on 18-11-1936. On 15-11-1939 Raghunath Das filed an application in the court of the District Judge for execution of the decree passed in terms of the modified award, but the said application was dismissed on 23-12-1942 on the objection of Gokul Chand.
On appeal by Raghunath Das to the High Court, a learned Single Judge accepted the appeal on 5-4-1944, but on Letters Patent Appeal filed by Gokul Chand, the Division Bench reversed the order of the learned Single Judge on 15-3-1945 and restored the order of dismissal passed by the Subordinate Judge (to whom the execution had been transferred), Raghunath Das, having failed to get relief granted to him by the said decree instituted suit No. 80 of 1945 against Gokul Chand on 21-8-1945 for recovery of a certain sum still due out of the sum awarded in his favour. That suit was decreed on 22-12-1945 and there being no appeal that decree became final. On 5-6-1946 Raghunath Das filed Suit No. 239 of 1946 claiming inter alia that Gokul Chand be ordered to transfer G. P. Notes of a certain value. A question arose in the appeal arising from that suit as to whether that suit was barred by time. It was pointed out in that case that the period of limitation fixed by Article 120 was six years from the date when the right to sue accrued. The plaintiff in that case, in order to be within the period of limitation claimed to exclude the period, November 15, 1939 to March 15, 1945, spent in the execution proceedings. Their Lordships quoted the provisions of Section 14(1) of the Indian Limitation Act and thereafter observed as follows :--
"The respondent contends that the above section has no application to the facts of his case. We do not think that such contention is well founded. The execution proceedings initiated by Raghunath Das were certainly civil proceedings and there can be no doubt that he prosecuted such civil proceedings with due diligence and good faith, for he was obviously anxious to have his share of the G. P. Notes separately allocated to him. He lost in the execution court but went on appeal to the High Court where he succeeded before a single Judge, but eventually he failed before the Division Bench which reversed the order the Single Judge had passed in his favour. Therefore, there can be no question of want of due diligence and good faith on the part of Raghunath Das. In the next place the section excludes the time spent both in a court of first instance and in a court of appeal. Therefore, other conditions, being satisfied the entire period mentioned above would be liable to be excluded."
The learned Advocate General submitted that in that case their Lordships had excluded the entire period, November 15, 1939 to March 15, 1945. His further submission was that some time must have elapsed between the order of the executing court and the filing of an appeal in the High Court which was put up before a Single Judge, and similarly a few days must have intervened between the date of order of the Single Judge and the date when the Letters Patent Appeal was filed. According to him, even those intervening periods also were excluded under Section 14(1) and that was really the effect of the decision of their Lordships. With regard to this contention, it is necessary to point out that the question as to whether the intervening periods should be excluded or not does not seem to have been raised and it can not thus be said that their Lordships dealt with that question and expressed their opinion on that question. On the other hand, they observed that the time spent both in a court of first instance and in a Court of appeal had to be excluded. The position thus is that only the period during which the proceeding actually remains pending either in the court of first instance or in the court of appeal can be excluded under Section 14(1). The decision of the Supreme Court cannot be interpreted in the manner suggested by the learned Advocate General.
11. The learned Advocate General referred to Tirumareddi Raiarao v. State of Andhra Pradesh, AIR 1965 Andh Pra ?88 (FB), to support his contention that the provisions of Section 14 should be interpreted liberally and the plaintiff in the present case was entitled to exclude the period which intervened between the date of the order of the executing court and the date of the filing of the application in revision.
In that case the appellants had filed an application under Order 21, Rules 100 and 101 of the Civil Procedure Code claiming the properties as their own and seeking to dispossess the Government as representing the decree-holder-auction-purchaser. That application was rejected by the executing court on 9-7-1953. Instead of having recourse to Order 21, Rule 103 of the Code the appellants filed a civil revision petition in the High Court of Judicature at Madras on 23-9-1953. But the petition was dismissed on 18-10-1955 presumably for the reason that it did not involve any question relating to jurisdiction within the connotation of Section 115 of the Code.
The appellants then filed a suit on 15-10-1956 for the setting aside of the adverse order dated 9-7-1953, but the suit having been instituted more than one year after the date of the impugned order as prescribed by Article 11A of the Indian Limitation Act, the appellants sought the aid of Section 14 of that Act. The defendants pleaded that Section 14 (1) of the Limitation Act enabled the plaintiffs to deduct only the period between the date of the filing of the civil revision petition and the disposal thereof, i. e., from 23-9-1953 to 18-10-1955. This defence prevailed with the Courts below and the suit was dismissed as it was not brought within one year (excluding the period of pendency of the civil revision petitien), although the finding on the question of title was in favour of the appellants. The aggrieved plaintiffs filed a second appeal which was ultimately referred to a Full Bench, inasmuch as the decision of that appeal turned entirely on the provisions of Section 14 of the Limitation Act. The question to be answered bv the Full Bench was formulated in these words :
"Whether the consistent view as held in Venkatragayya Appa Row v. Sriramulu (1912) 17 Ind Cas 593 (Mad); Baiznath Lala v. Ramadoss, ILR 39 Mad 62 = AIR 1915 Mad 405 and Alagappa Chettiar v. Somasundaram Chettiar, 1937 Mad WN 465(2) that only the pendency of the in-fructuous revision should be excluded under Section 14(1) of the Limitation Act, requires re-consideration in view of Rule 41-A(2) of the Appellate Side Rules prescribing the period of 90 days for civil revision petitions, or for any other reason, so as to exclude the entire period from the date of the adverse order to the date of disposal of the infructuous revision under the said provision of the Limitation Act."
Dealing with this question their Lordships observed as follows :
"It is also to be borne in mind that subsection (1) makes no reference to the pendency of the suit, appeal or other proceeding in a Court of Law. The legislature has used words of general import and of widest amplitude. So, we do not find any justification for reading as restriction into that sub-section and to hold that the time during which a party was engaged in taking steps for invoking the aid of the Court falls outside the contemplation of that section. If we give effect to the contention urged on behalf of the respondents while the pendency of a proceeding in a Court could be deducted in computing the period of limitation, the time occupied in obtaining certified copies of the judgment, which is an essential requisite for the filing of an appeal or revision in the higher Court has to be disregarded for purposes of Section 14. We do not think that the legislature would have contemplated such a situation. It would certainly result in an anomaly to hold that the time covered by taking steps absolutely necessary for initiating proceedings in a Court should be included in calculating the period of limitation while the time during which a former suit or application was pending in a Court should be excluded. In our considered judgment, the Section does not make any distinction between the steps which a litigant has to take to initiate proceedings in a Court and the actual pendency of those proceedings in the Court."
The ultimate conclusion of their Lordships was that there was no scope for limiting the ambit of Section 14 to pendency of infructuous proceedings in a Court of Law and to disregard the time taken for taking the indispensable and preparatory steps to institute proceedings which ultimately proved to be fruitless. The answer to the question was given in this manner. With great respect, I am unable to share the view taken by their Lordships, inasmuch as the prosecution of a civil proceeding, whether in a Court of first instance or in a court of appeal is absolutely necessary and the time spent during that prosecution alone has to be excluded under Section 14. There is nothing in Section 14(1) which can justify the view that the time taken by a party in taking steps for invoking the aid of the Court should also be excluded while computing the period of limitation. Explanation I to Section 14 clearly provides that in excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted. Section 14 has to be read as a whole along with the Explanation to that section. It is true that in Section 14 (1) the word 'prosecution' has been mentioned, but in Explanation I the word 'pending' has been mentioned. The position thus is that reading Section 14(1) along with Explanation I, it is the pendency of a civil proceeding, either in a Court of first instance or in a Court of appeal, which has to be enquired into and then the Court has to ascertain the period during which the proceeding actually remained pending. The view which I am taking is in consonance with the principles laid down in Thycattuseri Church v. Sicillyamma, AIR 1963 Ker 137 (FB). The majority view in that case was expressed in these terms :
"Assuming, without deciding, that Section 14, Limitation Act, applies, it allows exclusion only of 'the time during which the plaintiff has been prosecuting. ..... another civil proceeding, which is the revision petition in this case. The period of actual pendency of the revision petition can alone be thus excluded from computation .....Plaintiff can therefore claim exclusion only of the period which with his filing of the revision petition and ended with the passing of the order thereon. He cannot exclude the period between the date of the order of the executing Court and the date of his filing the revision petition, for he could not have been prosecuting a proceeding while he was merely making up his mind to apply for revision."
Govindan Nair, J., took the view that under Article 11A the period of one year provided by that Article should be computed from the date of the order of the revision in the High Court and not the date of the order of the execution Court, and as such his Lordship did not go into the question as to whether Section 14 of the Limitation Act was attracted. In other words, his Lordship refrained from expressing any opinion on that point. So far as the contrary view taken by Govindan Nair J., is concerned, it has not been urged in the present case that the period of one year should be counted from the date of the order in revision, and it is thus not necessary to deal with that aspect.
12. The provisions of Section 14 (1) of the Limitation Act are quite clear and there is absolutely no difficulty in interpreting those provisions. This section provides for exclusion of time. A question arises as to which time has to be excluded? The answer is furnished by Section 14 itself, inasmuch as it envisaged that the time during which a civil proceeding has been prosecuted with due diligence, whether in a Court of first instance or in a court of appeal, has to be excluded. There must be actual prosecution of the civil proceeding, either in the Court of first instance or in the Court of appeal. What should be deemed to be the period during which a proceeding can be said to have been prosecuted? In order to get an answer to this question Explanation I to Section 14 is helpful. A proceeding should be deemed to have started on the date of the presentation of the plaint or application. In other words, the date of prosecution can be safely said to be the date when the proceeding commenced. The date when the proceeding came to an end can be said to be the date of termination of the proceeding. The entire period from the date of institution of the suit till its disposal can alone be said to be the period during which the suit or the civil proceeding was prosecuted. This period has to be excluded under Section 14(1) and nothing more.
13. I would now refer to Haridas Ray v. Sarat Chandra Dey, (1913) 17 Cal WN 515. The plaint in that case was filed on 25th February, 1907 (24th February being a Sunday), that is to say, on the last day of the period of limitation. The Subordinate Judge raised and tried an issue on the question of valuation and held that the value of the suit was less than Rs. 1000. He accordingly returned the plaint to the plaintiff on 30-1-1908 for presentation to the proper Court within a week. The proper Court was the Court of the Munsif of Ranaghat, and the plaint was filed in that Court on 4th February, 1908. The defendant took the plea that the suit was barred by limitation and contended that the plaintiff was entitled only to the allowance for the period during which the suit was actually being tried in the Court of the Subordinate Judge as provided under Section 14 of the Limitation Act and the Subordinate Judge could not extend that period by his order directing the plaintiff to file the plaint in the proper Court within a week.
Five days had elapsed between the return of the plaint by the Subordinate Judge and the refiling of the same in the Court of the Munsif of Ranaghat, with the result that the period of limitation was exceeded by five days. The Munsif held that the suit was barred by limitation and he dismissed it. On first appeal, the District Judge set aside the judgment and decree of the Munsif and remanded the suit to him for trial. Against the order of the District Judge an appeal was filed before the High Court. Their Lordships held that the view taken by the Munsif was quite correct and only the period during which the suit was pending in the Subordinate Judge's Court without jurisdiction could be excluded under Section 14 of the Limitation Act, and, in that view of the matter, the suit of the plaintiff stood dismissed with costs.
14. On a consideration of the question of limitation I am of the opinion that the plaintiff could claim exclusion only of the period which was taken in the prosecution of the civil revision application in this Court and he cannot exclude the period between the date of the order of the executing Court and the date of filing of the revision petition (28-9-1954). The learned Additional Subordinate Judge has rightly excluded the period during which the application in revision was pending in this Court. But even after that exclusion the suit filed on 6-9-1956 was barred by time. I would thus affirm this finding of the learned Additional Subordinate Judge. The learned Advocate General had further suggested that this second appeal should be referred to a larger Bench in order to examine further the provisions of Section 14 of the Limitation Act and to ascertain the correctness or otherwise of the view taken in the case of Mt. Bibi Aziman, AIR 1963 Pat 62. But I do not find any justification for adopting that course.
15. The second point which arises in this appeal is as to whether the decision in Title Suit No. 27 of 1949 dated 22nd September, 1950, operated as res judicata. The plaintiff (who was plaintiff No. 1 in that suit) and plaintiffs 2 to 13 (of that suit) had described the properties in Schedule I of the plaint of that suit in the following manner :
"16 annas share in Mauza Sambalpore Makhdumpore bearing tauzi No. 16 C Lakhraj including garden known as 6 (six) Bigha was measuring 3.18 acres in Plot No. 1023 under Khata No. 410 . . ."
The plaintiffs there wanted a declaration of their title, recovery of possession and mesne profits, besides other reliefs in respect of that property. Then case was that after the death of Lakshman Mistry his sons, Srichand, Daroga, Tulsi and Jagarnath partitioned the family properties. Daroga, Tulsi and Srichand took 2/7th share each, viz., 4 annas 6 pies each, whereas Jagarnath took 1/7th share, viz., 2 annas 6 pies, in the joint family properties. They further stated that plaintiff No. 1 was the purchaser of 4 annas 6 pies and odd share of the property in suit by a registered sale deed dated 20-4-1942 (not 2-4-1942, as stated in the plainti executed by Dargahi and Banwari, sons of Tulsi, The position thus was that that suit was not in respect of any portion of plot No. 575 (which is in dispute in the present suit giving rise to this appeal). The case of defendant No. 3. Hari Mistry, in that suit, on the other hand, was that the sons of Lakshman Mistry separated during the lifetime of Lakshman and the property in dispute (that suit) was acquired in the year 1896 by Daroga alone out of his self-acquired income and that the brothers of Daroga had absolutely no concern with that property. Issue No. 4 in that suit was as to whether the sale deed dated 2-4-1942 (which ought to be 20-4-1942) and the ijara dated 8-11-1943 were valid and genuine?
Issue No. 6 was whether Daroga and his two brothers were separate from Lakshman? The case of the plaintiffs in that suit was that all the sons of Lakshman were joint amongst . themselves till the year 1924 and the separation took place in that year. The Additional Subordinate Judge, 2nd Court, Patna, tried the suit and decreed the suit on 22-9-1950. He believed the case of the plaintiffs that Jagarnath and his brothers were joint till the year 1924 and separation took place in that year. He disbelieved the case of defendant No. 3, that Daroga and his brothers were separate in the lifetime of Lakshman. He further found that the defendants had failed to prove that the disputed property was the self-acauired property of Daroga. The sale deed relied upon by the plaintiffs in that case was treated as valid and the ultimate conclusion was that the plaintiffs had proved their title and possession in respect of the disputed property in which plaintiff No. 1 had 9 annas share, whereas plaintiffs 2 to 9 had 7 annas share. The learned Advocate General pressed that these findings operated as res judicata and the same question could not be reagitated by the present defendants in the suit which had given rise to this appeal. Section 11 of the Civil Procedure Code, omitting the Explanations, reads thus :
"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 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, and has been heard and finally decided by such Court."
It is quite clear that the present defendants 1 and 2 were not parties to Title Suit No. 27 of 1949, The next question which arises for consideration is as to whether these defendants were making any claim under persons who were parties to that suit and whether they were litigating under the same title. A person can be said to claim under another if he derives his title through the other one by assignment or otherwise, but his title must have arisen subsequently to the commencement of the previous suit. The entire object is that if the proceeding originally instituted was right and proper, then any decision obtained therein would bind all persons on whom that right or Interest might devolve, provided the latter set of persons derived any title through the persons who were parties to the previous proceeding. A mortgagee is a transferee from the mortgagor of an interest in the property mortgaged, and as such in respect of the interest conveyed the principle of res judicata is applicable. In other words, the mortgagee would be bound by a decision against his mortgagor in respect of the property mortgaged, provided the decision was arrived at in a suit which was instituted prior to the mortgage. Some relevant dates have to be noticed once again in this connection. The mortgage bond by Daroga was executed in favour of the present defendant No. 2 on 24-1-1936 in respect of 3/7th share of plot No. 576. and on the basis of that mortgage bond defendant No. 2 instituted Title Suit No. 176 of 1943 against defendants 3, 4 and 5 (the grandsons of Daroga). In execution of that mortgage decree defendant No. 1 purchased 1.35 1/2 acres (corresponding to 3/7th share) of Plot No. 576 on 18-6-1953. In other words, instead of the decree-holder (defendant No. 2) having purchased the property, there was a stranger purchaser, such as defendant No. 1. Title Suit No. 27 of 1949 was decided on 22nd September, 1950, and this was long after the execution of the mortgage bond in the year 1936. The position thus is that neither the mortgage (defendant No. 2) nor the auction purchaser (defendant No. 1) can be bound by the decision in Title Suit No. 27 of 1949. If defendant No. 2 had acquired the mortgagee's interest after the decision of that suit, the position would have been quite different; but it is not so in the present case. I would refer in this connection to Chandi Prosad Ganguly v. Gajadhar Singha, AIR 1949 Cal 666. On a review of a catena of decisions Das Gupta, J., who delivered the leading judgment, observed in paragraph 17 as follows :
"In the face of this long line of decisions of this Court, and also of other High Courts in India the question whether the mortgagee is bound by a decision against his mortgagor, in legal proceedings instituted after the date of the mortgage is no longer open to discussion. The question is concluded by authority. We may add that we respectfully agree with the proposition laid down in these decisions, and hold that the mortgagee is not bound by a decision against his mortgagor, in legal proceedings instituted after the date of mortgage."
A similar view was taken in Doddarangappa v. Kenchegowda, AIR 1953 Mys 111. Mallappa J. quoted the following observations made in Mt. Katori v. Om Prakash, AIR 1935 All 351 :
"Any decision obtained against a mortgagor after the execution of a mortgage-deed cannot operate as 'res judicata' against the mortgagee, if he (the mortgagee) was not a party to the suit. Much less will a decision between a transferee of the mortgagor and a third person operate as 'res judicata' between the mortgagee and such transferee when the same question arises in a subsequent suit. The mortgagee cannot be considered to be litigating under the same title in the subsequent as the mortgagor did in the earlier suit. Nor can he be said to be litigating under the same title as the transferee of the mortgagor."
This view was adopted by his Lordship. I am in full agreement with the principles laid down in these decisions, and I have not the least hesitation in holding that the decision in Title Suit No. 27 of 1949 cannot operate as res judicata, and it was open to the Courts below to consider the case of the respective parties on the question of separation among the four sons of Lakshman.
16. The case of the plaintiff was that the said four brothers remained joint till the year 1924 and thereafter there was a partition in the same year. The case of the contesting defendants, on the other hand, was that there was a separation among the four brothers even before the year 1917 when Tulsi and his two sons sold 2/7th share in Plot No. 575 to Daroga. Subsequently, Daroga had executed a mortgage bond on 24-1-1936 in favour of defendant No. 2 in respect of 3/7th share of the same plot. On a careful consideration of the oral and documentary evidence, the Courts below disbelieved the case of the plaintiff and accepted the case of the defendants. The case of the contesting defendants having been accepted, it is quite clear that the vendors of the plaintiff, Banwari and Dargahi, sons of Tulsi were not entitled to execute the sale deed dated 20-4-1942 in favour of the plaintiff and the plaintiff acquired no title in respect of the land in suit on the basis of the said sale deed, inasmuch as Tulsi had already parted with his share in Plot No. 575 in favour of Daroga. The learned Additional Subordinate Judge gave a categorical finding in view of the oral and documentary evidence that Tulsi's sons had neither title nor possession In respect of Plot No. 575 and hence the plaintiff acquired neither title nor possession in respect of the disputed land. Mr. Ramnandan Sahai Sinha, who also appeared on behalf of the appellant, submitted towards the close of the argument that the evidence of D. Ws. 1 and 3 had not been properly considered by the learned Additional Subordinate Judge and, therefore the finding given by him was vitiated.
I do not find any justification for accepting this contention, inasmuch as the learned Additional Subordinate Judge has referred to the evidence of D. W. 1 and pointed out that he was a competent witness and he had deposed that there was partition in the family of Tulsi. His testimony was accepted by the learned Additional Subordinate Judge, as, according to him, it fitted in with the circumstances and other documents. The question as to when there was a partition among the four brothers was entirely one of fact and the finding given by the learned Additional Subordinate Judge cannot be interfered with in this second appeal. Learned counsel for the appellant has not been able to point out that any error of recording was committed by the Court before giving that finding. I am of the opinion that the Courts below have rightly dismissed the plaintiff's suit.
17. In the result, the appeal is dismissed with costs payable to respondent No. 1 (defendant No. 1).
Dutta, J.
18. I agree.