Calcutta High Court (Appellete Side)
Smt. Ganga Bala Ghosh & Ors vs Mira Patra & Ors on 14 May, 2014
Author: Debangsu Basak
Bench: Debangsu Basak
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Before:
The Hon'ble Justice Debangsu Basak
S.A. No. 152 of 2000
Smt. Ganga Bala Ghosh & Ors.
Vs.
Mira Patra & Ors.
For the Plaintiffs : Mr. P.B. Sahoo, Advocate
Mr. Asish Bagchi, Advocate
Mr. S. Biswas, Advocate
For the Defendants : Mr. Haradhan Banerjee, Advocate
Mr. Tapas Bhattacharya, Advocate
Mr. Sandip Das, Advocate
Heard on : 20th March & 10th April, 2014
Judgment on : May 14, 2014
DEBANGSU BASAK, J.
A piece of land at Nandanpur, South 24-Parganas generated a lot of litigation including the present second appeal. The judgment and decree impugned in the second appeal was one of reversal. The Trial Court decreed the suit which was reversed on appeal leading to the present second appeal.
The property originally belonged to one Nil Gopal Halder. On his death he was survived by his widow Sm. Amritamoyee Dasi and four sons, namely, Prankrishna, Bejoykrishna, Saratchandra and Jyotishchandra. On his death Prankrishna was survived by his son Himangshu Halder. Himangshu filed Title Suit No. 20 of 1916 for partition. In such suit Smt. Amritamoyee Dasi was allotted some property. Smt. Amritamoyee Dasi sold certain portions of her allotment to one of her sons Bejoykrishna subject to the tenancy right of Shri Adhar Chandra Manna. Thereafter, he sold the rest portion of the property to Uttamamoyee Dasi the mother of the plaintiffs by a registered deed. On the death of the mother Uttamamoyee Dasi the property devolved upon the plaintiffs. The plaintiffs filed Title Suit No. 778 of 1928 for eviction of the tenant Adhar Chandra Manna and the predecessor in interest of the defendants, namely, Haricharan. Such suit was dismissed. The plaintiffs preferred an appeal which was disposed of on May 22, 1930. Adhar was allowed to continue with the tenancy of 2 cottahs of land at a rental of Rs.2/- per annum. The plaintiffs claimed to be in exclusive possession of the entire property except the 2 cottahs of land.
The defendants were the heirs of Haricharan. The defendants purchased 5 cottahs of land on April 8, 1947 in the benami of one Panchanan and Krishnachandra from the heirs of Nil Gopal, Birendra and Purnamoyee.
The Defendant No. 6 was the son-in-law of Haricharan. The defendants filed Title Suit No. 72 of 1952. Such suit was dismissed on contest. The appeal therefrom was withdrawn.
The plaintiffs in the instant suit were claiming through the Defendant No. 5 of the earlier Title Suit No. 54 of 1962. The 3 plots of land of the instant suit were subject matter of Title Suit No. 54 of 1962. Such suit was decreed ex parte against the Defendant No. 5 (the predecessor-in-interest of the plaintiffs herein) on May 31, 1967. An application for setting aside of the ex parte decree was filed by the Defendant No. 5 therein which was disallowed. A petition under Section 47 of the Code of Civil Procedure, 1908 was also filed by the Defendant No. 5. The same was also disallowed.
In the instant suit the plaintiffs claimed that, the defendants did not have valid subsisting interest in the suit property as Uttamamoyee Dasi had superior interest and Adhar had dakhaldari interest in respect of Plot No. 775.
The defendants contended that, the decree passed in Title Suit No. 54 of 1962 was valid. The predecessors of the plaintiff contested such suit after filing written statement. The instant suit was, therefore, barred by the principles of res judicata.
Eight issues were originally framed for trial. An additional issue with regard to res judicata was subsequently framed in the suit. The Trial Judge considered the issues raised elaborately and with reasons. The issue with regard to res judicata was answered by holding that, the suit was barred. Other issues were also found to be against the plaintiffs. The Trial Court dismissed the suit.
On appeal, by the judgment impugned it was held that, the suit was not barred by the principles of res judicata since no issue with regard to nullity was raised in the earlier suit being Title Suit No. 54 of 1962. The plea of res judicata was negated also on the ground that, the suit plots vested in the State under the provisions of the West Bengal Estate Acquisition Act, 1953 and, therefore, the principle of res judicata were not attracted. The Appeal Court found that, the decree passed in Title Suit No. 54 of 1962 was a nullity.
The second appeal was admitted on December 6, 1999 and was directed to be heard on the following substantial question of law:-
"whether the learned Court of appeal below erred in reversing the judgment and decree passed by the learned Trial Judge without taking into consideration the fact that the plaintiffs being parties to the earlier suit being Title Suit No. 54 of 1962 which had been disposed of in 1967 which should not have been disposed of after a period of 20 years as the same was barred by limitation".
At the invitation of the parties four more substantial questions of law were framed on December 5, 2013. Such substantial questions of law were:-
1. Whether the learned court of appeal below made substantial error of law in holding/declaring that the judgment and decree of the learned trial court passed in Title Suit No. 54 of 1962 is a nullity without determining the status and interest of the defendants/appellants in the suit property.
2. Whether the learned court of appeal below erred in holding that the present suit would not be barred by the provision of Section 11 read with explanation of Code of Civil Procedure.
3. Whether the learned Additional District Judge should have held that the decision in the proceeding under Section 47 of the Code of Civil Procedure would be barred by the principle of constructive res judicata.
4. Whether the suit is hit by Order 21 Rule 101 of the Code of Civil Procedure.
On behalf of the defendants Mr. Sahoo, learned Advocate took up the plea of res judicata first. According to him, all ingredients of res judicata were satisfied. Title Suit No. 54 of 1962 was in respect of 3 plots of land. One of the plots of land involved in the earlier suit was subject matter of the present suit. The parties to Title Suit No. 54 of 1962 and the parties to the instant suit were same in the sense that, the parties were either the same or were claiming title through the parties in the earlier title suit. In the earlier suit the predecessor of the present plaintiffs was the Defendant No. 5. The same issue, at least substantially the same issue, with regard to the title of the plot of land involved was raised in the earlier suit. The decision rendered in Title Suit No. 54 of 1962 was, therefore, binding upon the present plaintiffs.
It was contended on behalf of the defendants that, the decree passed in Title Suit No. 54 of 1962 was binding on the parties to such suit and all persons claiming through the parties to suit irrespective of the fact whether such decree was void, illegal, incorrect or irregular, unless set aside by a competent Court. In support of such contention reliance was placed on 2004 Volume 1 Supreme Court Cases page 287 (Rafique Bibi v. Sayed Waliuddin & Ors.), 2004 Volume 8 Supreme Court Cases page 706 (Balvant N. Viswamitra & Ors. v. Yadav Sadashiv Mule & Ors.), All India Reporter 1964 Supreme Court page 907 (Ittyavira Mathai v. Varkey Varkey & Anr.).
According to the defendants, the plaintiffs were relying upon record of rights. Record of rights was not a document of title. In support of the contention that, the record of rights were not documents of title and that a decree for declaration of title could not be based on record of rights, reliance was placed on All India Reporter 1926 Privy Council page 100 (Thakur Nimran Singh & Ors. v. Thakur Lal Rudra Partab Narain Signh & Ors.), 31 Calcutta Weekly Notes page 135 (Rai Kiran Chandra Roy Bahadur & Ors. v. Srinath Chakravarti & Ors.), 1976 Calcutta High Court Notes page 42 (Tarak Nath Das v. Ramesh Chandra Ghosh & Ors.) and 1993 Volume 4 Supreme Court Cases page 349 (Guru Amarjit Singh v. Rattan Chand & Ors.).
The defendants contended that Article 59 of the Limitation Act, 1963 was applicable to a suit for setting aside of a decree either on the ground of fraud or on any other ground. The ex parte decree passed in Title Suit No. 54 of 1962 was dated May 31, 1967. The instant suit was filed in 1987 well beyond the period of limitation prescribed under Article 59 of the limitation Act, 1963. In support of the proposition that Article 59 of the Limitation Act, 1963 applied to a suit of the present nature reliance was placed on 1996 Volume 7 Supreme Court Cases page 767 (Md. Noorul Hoda v. Bibi Raifunnisa & Ors.), 2009 Volume 6 Supreme Court Cases page 194 (Sneh Gupta v. Devi Sarup & Ors.).
It was contended on behalf of the defendants that, the suit was barred by the law of limitation. Point of limitation was admissible even in a Court of last resort. In any event, it was the duty of the Court to determine limitation under Section 3 of the limitation Act, 1963. In support of such contentions reliance was placed on All India Reporter 1944 Privy Council page 24 (Lachhmi Sewak Sahu v. Ram Rup Sahu & Ors.), All India Reporter 1935 Privy Council page 85 (Maqbul Ahmad & Ors. v. Onkar Pratap Narain Singh & Ors.), 2007 Volume 10 Supreme Court Cases page 296 (Gannmani Anasuya v. Parvatini Amarendra Chowdhary & Ors.) and All India Reporter 1970 Supreme Court page 196 (Management of the State Bank of Hyderabad v. Vasudev Anant Bhide & Ors.).
Various provisions of the West Bengal Estate Acquisition Act, 1953 particularly Sections 2 (f), (i) 4, 5, 6 and 6(5) of the West Bengal Estate Acquisition Act, 1953 were relied upon on behalf of the defendants. Rule 4A of the West Bengal Estate Acquisition Rules, 1954 was also relied upon on behalf of the defendants. It was contended that, the vesting under the West Bengal Estates Acquisition Act, 1953 was automatic and reliance was placed on 2009 Volume 4 Supreme Court Cases page 453 (State of West Bengal v. Ratnagiri Engineering Pvt. Ltd. & Ors.).
Relying upon All India Reporter 1967 Supreme Court page 940 (Shibsankar Nandy v. Prabartak Sangha & Ors.) it was contended that non-agricultural tenancy was outside the purview of the West Bengal Estate Acquisition Act, 1953.
The scope of Order 21 Rule 97 of the Code of Civil Procedure, 1908 was emphasized and reliance was placed on 1997 Volume 1 Calcutta High Court Notes page 495 (Sri Deba Prasad Mazumdar v. Man Mohan Majumdar & Ors.) on behalf of the defendants in that regard.
Mr. Haradhan Banerjee learned Advocate appeared for the plaintiffs. He contended that, the principles of res judicata were not attracted. He submitted that, the decision rendered in Title Suit No. 54 of 1962 was a nullity in view of the fact that, the decree passed therein sought to declare as valid a transaction which was prohibited by law. It was contended that, the reversioner holders were not the contracting parties to the document of 1927. The reversioner repudiated the transaction in 1947 by 3 deeds. These 3 deeds were sought to be challenged by way of a negative declaration. Therefore, the principles of res judicata would not apply. He submitted that, the cause of action of the present suit was different and, therefore, the principles of res judicata were not attracted. He relied on 2007 Volume 13 Supreme Court Cases page 416 (Tamil Nadu Wakf Board v. Larabsha Darga) in that regard.
He also submitted that, there was no finding on issue no. 8 framed by the Trial Court in Title Suit No. 54 of 1962. Exhibit 'D' was the judgment passed in Title Suit No. 54 of 1962. Issue no. 8 related to whether the suit was bad for defect of parties and whether the heirs of Nil Gopal Halder and the State of West Bengal were necessary parties to the suit. He relied very heavily at page 14 of Exhibit 'D'. He submitted that, the nullity of the decree was open to challenge in a regular suit. He commented that, the findings recorded at pages 21 and 28 of Exhibit 'D' were contrary to law. He relied on 79 Calcutta Weekly Notes page 387 (Bhagirathi Khan & Ors. v. Nanibala Dessi & Ors.) on the issue of sale by a widow.
He submitted that, the State of West Bengal being absent as a party to Title Suit No. 54 of 1962 the decree passed therein was a nullity. On the issue of nullity he cited All India Reporter 1965 Supreme Court page 271 (Kanakarathanammal v. V. S. Loganatha Mudaliar & Anr.), 2007 Volume 10 Supreme Court Cases page 448 (Lachhman Dass v. Jagat Ram) and 79 Calcutta Weekly Notes page 936 (Jatindra Nath Das v. Jadaram & Anr.).
On the substantial question of law no. 3 framed on December 3, 2013, Mr. Banerjee submitted that, Section 47 was not maintainable in the previous suit since the decree passed therein was a nullity and, therefore, the decisions rendered in the proceedings under Section 47 did not have any manner of application.
On the provisions of the West Bengal Estate Acquisition Act, 1953 he submitted that, the vesting would come into effect immediately upon the notification. In support of such contention he relied upon All India Reporter 1997 Supreme Court page 2645 (State of W.B. & Anr. v. Arun Kumar Basu & Anr.), 2006 Volume 3 Calcutta High Court Notes page 1 (Tarumoni Mondal & Ors. v. Prafulla Kumar Mondal & Ors.) and 74 Calcutta Weekly Notes page 887 (Kalipada Saha v. Kishore Singh Sreemal). He contended that, a party after the vesting of the land with the state, the parties did not have any right in respect of such land and he relied upon All India Reporter 1977 Supreme Court page 5 (Gurucharan Singh v. Kamla Singh & Ors.) in that regard.
On the point of limitation it was submitted that, since the decree passed in Title Suit No. 54 of 1962 was a nullity there was no question of limitation. He relied on 1990 Volume 1 Calcutta Law Journal page 234 (Sri Prohlad Roy v. Sunil Kumar Roy alias Sasadhar Roy & Ors.) in that regard. It was submitted that, the transfer made in favour of the defendants in the instant suit was not out of legal necessity and as such the same was invalid. In that regard reliance was placed on All India Reporter 1954 Supreme Court page 505 (Kalishanker Das & Anr. v. Dhirendra Nath & Anr.).
On the point of setting aside of a decree passed ex parte reliance was placed on All India Reporter 1957 Calcutta page 242 (Girish Chandra Jana v. Kalachand Maity) and 2006 Volume 2 West Bengal Law Reports (Supreme Court) page 710 (Mst. Sugani v. Rameshwar Das & Anr.).
I have considered the respective submissions of the parties, the material on record and the judgment impugned. The suit was for declaration and injunction. The plaintiffs sought a decree of declaration that the defendants who were the plaintiffs in Title Suit No. 54 of 1962 had no subsisting interest in the suit property when Title Suit No. 54 of 1962 was filed and when the decree in such suit was passed. The plaintiff also sought a decree for declaration that the right, title and interest of the defendants vested in the State of West Bengal with effect from April 14, 1954 with coming into operation the West Bengal Estates Acquisition Act, 1953. The plaintiffs sought permanent injunction on the defendants from taking steps and/or steps in Execution Case No. 17 of 1979 and from taking advantage of the decree obtained in Title Suit No. 54 of 1962.
For the sake of convenience the prayers in the plaint are set out herein:-
(a) A decree declaring that the defendants who were plaintiffs in Title Suit No. 54 of 1962 the 10th Court of Assistant District Judge (Sub-Judge) at Alipore had no subsisting interest in the suit property when the suit was brought as also when the decree was passed and the decree passed in said suit is a nullity and nor binding on the plaintiffs;
(b) A decree for declaration that the right title and interest of the defendants, who were the landlords, had vested in the State of West Bengal as soon as the West Bengal Estates Acquisition Act came into operation and specially when the interest of all intermediaries vested in the State with effect from 14th April, 1954;
(c) A decree of permanent injunction restraining the defendants from taking steps or any further steps in Title Execution Case No. 17 of 1979 of the 10th Court of Assistant District Judge at Alipore;
(d) A decree of permanent injunction restraining the defendants from trying to take any advantage of the decree obtained in Title Suit No. 54 of 1962 of the 10th Court of Assistant District Judge at Alipore;
(e) Temporary Injunction;
(f) Such other or further relief or reliefs as the plaintiffs are entitled to in law and in equity.
The prayers, the pleadings and the parties to the instant suit amply established that, the plaintiffs in the instant suit were claiming through the Defendant No. 5 of Title Suit No. 54 of 1962. There was no pleading in the plaint that the decree of Title Suit No. 54 of 1962 was obtained by fraud. The property involved in the instant suit was the subject matter of Title suit No. 54 of 1962. The first prayer in the plaint of the instant suit related to a declaration that the defendants who were the plaintiffs in Title Suit No. 54 of 1962 did not have any subsisting interest in the suit property when Title Suit No. 54 of 1962 was filed and when the decree therein was passed. Whether or not the defendants in the instant suit as plaintiffs in Title Suit No. 54 of 1962 had right, title and interest in respect of the suit property was directly and substantially in issue in Title Suit No. 54 of 1962. Such issue was adjudicated and a judgment and decree was pronounced therein. The parties of Title Suit No. 54 of 1962 were bound by such decree passed in such suit. It was a matter of record that the decree passed in Title Suit No. 54 of 1962 was challenged by various proceedings without success.
Title Suit No. 54 of 1962 was contested by the predecessor-in- interest of the plaintiffs herein (the Defendant No. 5 therein) by filing a written statement jointly with the Defendant Nos. 1 to 4 therein. Title Suit No. 54 of 1962 was decreed on May 31, 1967 ex parte as against the Defendant No. 5 therein. The Defendant No. 5 therein applied under Order IX Rule 13 of the Code of Civil Procedure, 1908 for setting aside of the decree which was registered as Miscellaneous Case No. 32 of 1980. The Defendant No. 5 filed an application under Section 47 of the Code of Civil Procedure, 1908 challenging the decree dated May 31, 1967. Such Miscellaneous Case was dismissed on June 6, 1987. Such dismissal order was challenged under Section 115 of the Code of Civil Procedure, 1908 before the High Court and was rejected on October 12, 1987. Suffice it to say that the decree passed in Title Suit No. 54 of 1962 attained finality between the parties therein. As against the Defendant No. 5 in Title Suit No. 54 of 1962 the defendants in this suit were found to hold title.
The next prayer in the instant suit related to a declaration that the right, title and interest of the defendants in this suit vested in the State of West Bengal with the coming into effect of the West Bengal Estates Acquisition Act, 1953. This relief was also not available to the plaintiff. The same principles of res judicata stared at the plaintiffs, moreover, the State of West Bengal was not claiming any relief with regard to the suit plot of land. The plaintiff could not be allowed to espouse the cause of the State of West Bengal. The State of West Bengal was not a party to the suit.
The plaintiffs contended that, the decree passed in Title Suit No. 54 of 1962 was a nullity. The issue of nullity could not be adjudicated in a proceeding under Section 47 of the Code of Civil Procedure, 1908. The dismissal of the application under Section 47 of the Code of Civil Procedure, 1908 filed by the predecessor-in-interest of the plaintiffs in the earlier proceedings as also the dismissal of the application under Order IX Rule 13 of the Code of Civil Procedure, 1908 filed by the predecessor-in-interest of the plaintiffs in the earlier proceedings did not preclude the plaintiffs from filing the instant suit. The instant suit was not visited by the doctrine of res judicata. It was contended that, the execution of the present suit was different and as such the principles of res judicata was not attracted. In support of such contention he relied upon Tamil Nadu Wakf Board (supra). The Supreme Court in the facts of that case found that the decision in the earlier proceedings did not have a bearing to the issue in the later proceedings. In the instant case the issue whether the defendants herein as plaintiffs of Title Suit No. 54 of 1962 had right, title and interest in respect of the suit property was an issue in Title Suit No. 54 of 1962. The same issue was sought to be raised by the plaintiffs in the instant suit. The predecessor-in-interest of the plaintiffs was Defendant No. 5 in Title Suit No. 54 of 1962. The earlier suit being Title Suit No. 54 of 1962 attained finality. The plaintiffs, therefore, could not be allowed to rake up the same issue in a subsequent suit between the same parties and/or parties claiming through the parties of the previous suit.
In Rafique Bibi (supra) the Supreme Court was concerned with an eviction proceeding. When the decree for eviction was put into execution, in the facts of that case, the judgment debtors raised the issue of the inexecutibility of the decree. Such objection was overruled by the Executing Court which was upheld by the High Court. The Supreme Court also dismissed the appeal. The Executing Court was directed to proceed expeditiously with the execution proceedings. Their Lordships was in such judgment explained the meaning of "Void" in relation to a decree. "A decree can be said to be without jurisdiction, and hence a nullity, if the Court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the Court passing the decree must be patent on its face in order to enable the executing Court to take cognizance of such a nullity based on want of jurisdiction, else the normal rule that an executing Court cannot go behind the decree must prevail".
In Rafique Bibi (supra) the distinction between a decree passed by a Court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which was merely illegal or not passed in accordance with the procedure laid down was noted. It was held that, a decree suffering from illegality and irregularity of the procedure, could not be termed inexecutable by the executing Court; the remedy of a person aggrieved by such a decree was to have it set aside in a duly constituted legal proceedings or by a superior Court failing which he must obey the command of a decree. A decree passed by a Court of competent jurisdiction could not be denuded of its effect by any collateral challenge or an incidental proceeding. In the facts of the instant case the plaintiffs did not seek that the decree passed in Title Suit No. 54 of 1962 was a nullity or that it suffered any illegality requiring it to be set aside. The decree passed in Title Suit No. 54 of 1962 was also not challenged on the ground of the same being obtained by fraud. Significantly the plaintiffs claimed decree that the defendants herein who were the plaintiffs in Title Suit No. 54 of 1962 did not have any subsisting right in the suit property. Such declaration in my view could not be granted on the principles of res judicata.
In Balvant N Viswamitra & Ors. (supra) the Supreme Court noted the distinction between a decree which was void and a decree which was wrong, incorrect, irregular or not in accordance with law. Their Lordships were of the view that when a Court lacked inherent jurisdiction and passed a decree or made an order, a decree or order passed by such Court would be without jurisdiction non est and void ab initio. A defect of jurisdiction of the Court went to the root of the matter and struck at the very authority of the Court to pass a decree or to make an order. Such defect was always treated as basic and fundamental and a decree or order passed by a Court or an authority having no jurisdiction was a nullity. Validity of such decree or order could be challenged at any stage in execution or collateral proceedings. Their Lordships were also of the view that all irregular or wrong decrees or orders were not necessarily null and void. An erroneous or illegal decision which was not void, could not be objected to in execution or collateral proceedings.
In Ittayavira Mathai (supra) it was held that, when a Court having jurisdiction over the subject matter and the party, passed a decree, it could not be treated as a nullity and ignored in subsequent litigation even if the suit was one barred by time.
Coming back to the facts of the instant case the Court passing the decree in Title Suit No. 54 of 1962 was not claimed by the plaintiff in the instant suit to be without jurisdiction. The Court had jurisdiction both over the subject matter the suit as well as parties thereto. The claim in the instant suit was that the defendants in the instant suit did not have right, title and interest in respect of the suit property when Title Suit No. 54 of 1962 was filed and when the decree was passed therein. Such contention had nothing to do with jurisdiction of the Court passing the decree in Title Suit No. 54 of 1962. The decree passed in Title Suit No. 54 of 1962, therefore, could not be said to be a nullity.
On behalf of the defendants Sri Deba Prosad Mazumdar (supra) was relied upon to contend that any objection to a decree must be filed by way of an application under Section 47 or Order XXI Rule 97 of the Code of Civil Procedure, 1908 and not by any independent suit specially when no such suit was pending at the inception of the execution proceeding. The two prayers of the perpetual injunction of the instant suit related to execution proceedings emanating from the decree passed in Title Suit No. 54 of 1962 was required to be made under Section 47 of the Code of Civil Procedure, 1908. In fact, the predecessor-in-interest of the plaintiffs herein did make such application under such provision and were unsuccessful. The plaintiffs, therefore, could not be allowed to achieve the same relief indirectly which they failed to obtain after having applied under Section 47 of the Code of Civil Procedure, 1908.
On behalf of the plaintiffs it was contended that, a transfer by a Hindu widow of her limited interest made prior to the commencement of the Hindu Succession Act, 1956, remained valid during her lifetime, but passed on or her death to the heirs of the last full owner. Such a sale was made by the Hindu widow without legal necessity would not be binding. In support of such contention Bhagirathi Khan & Ors. (supra) was relied upon. The facts of the instant case were absolutely different. The issue of title of the plaintiffs to the suit land in relation to the defendants in the instant suit was conclusively adjudicated upon in Title Suit No. 54 of 1962. The plaintiffs could not be allowed to rake up the same issue in a subsequent proceeding.
In Kanakarathanammal (supra) the Supreme Court was concerned with a transaction had in benami. The plaintiff relied on this judgment to contend that, the State of West Bengal was a necessary party in the previous suit and not being party thereto the decree passed in the earlier suit was vitiated. Such contention of the plaintiff could not be accepted for the reason that, the State of West Bengal was not setting up any title as against any of the parties to the two suits. The State of West Bengal made not grievance with regard the decree in Title Suit No. 54 of 1962. Whether or not State of West Bengal was a necessary and proper party to Title suit No. 54 of 1962 was required to be raised in the previous suit. Significantly State of West Bengal was not made a party to the present suit by the plaintiffs who were espousing the cause of the State of West Bengal.
On the same vein was the judgment of the Supreme Court in Lachhman Dass (supra). In the facts of that case it was found that the parties were aware that the appellant had right, title and interest in respect of the immovable property. In Jatindra Nath Das (supra) the Division Bench of this Court was concerned with a judgment which was impugned as obtained by fraud. Such was not the case in the instant case.
In view of the fact that the present suit was barred by the principles of res judicata, the other contentions of the respective parties became academic and were not required to be considered. Such contentions would arise only and only if, the claims of the plaintiffs were not barred by principles of res judicata. Since the suit of the plaintiffs and the claims made therein were barred by the principles of res judicata none of the parties were entitled to raise any contentions contrary to the decision rendered in Title Suit No. 54 of 1962.
In view of my finding that the present suit is barred by the principles of res judicata due to the decision of Title Suit No. 54 of 1962 the judgment and decree passed by the lower Appellate Court is set aside.
Title Suit No. 127 of 1987 is dismissed on contest without any order as to costs. The judgment and decree of the lower Appellate Court is set aside. The judgment and decree of the Trial Court is affirmed.
S.A. No. 152 of 2000 is allowed. There will be no order as to costs. Urgent Xerox certified copy of this judgment be delivered to the parties, if applied for, as expeditiously as possible.
[DEBANGSU BASAK, J.]