Orissa High Court
Kumudabandhu Das (Since Dead) And After ... vs Aswini Kumar Das And Ors. on 25 March, 1993
Equivalent citations: 1993(II)OLR124
JUDGMENT S.C. Mohapatra, J.
1. Defendant No. 6 was the appellant against a preliminary decree for partition. Since appellant died in a motor accident, step mother and her children claimed to be legal representatives of the appellant who are also defendants in the suit. One Shantilata claiming to be the widow filed petition for substitution as legal representative of deceased. There was an enquiry where report has come that Shantilata is the widow. The said report was contested by step mother, her childlen and legal representatives of pre-deceased son of Lilabati. At last the contest was resolved by settlement where without admitting Shantilata as widow of defendant No. 6, it has been settled that Shantilata shall be entitled to all the movables of deceased Kumudabandhu and step mother with her son and legal representatives would have no right over the same. They would not object if the service benefits on death of Kumudabandhu are made available to Shantilata by the employer and others. Step mother, her sons and legal representatives, however, shall be entitled to the land acquisition compensation in deposit which Kumudabandhu is entitled to receive. On this settlement, the only dispute remaining in the appeal being partition of lot No. 2 of schedule 'B' of the plaint and the compensation in schedule 'C' which is in respect of part of the land in lot No. 2, I allowed the application of step mother (defendant No. 5) and others to be substituted in place of Kumudabandhu and continue appeal.
2. Admittedly common ancestor of the parties is Aparti who had three sons, Gopi, Lokanath and Jagannath @ Jogi. The plaintiff and defendant Nos. 1 to 4 belong to the branch of Jagannath. Defendant Nos. 5 to 13 belong to the branch of Gopi. Defendant Nos. 14 onwards belong to the branch of Lokanath. Short question for consideration is whether lot No. 2 belongs to Gopi exclusively on basis of which answer, amount of compensation is to be divided. ,
3. Aswini, grandson of Jagannath filed the suit lor partition of properties belonging to joint family of the three branches, viz, Gopi Lokanath and Jagannath. Defendants in the branch of Gopi in their written statements claimed that lot No. 2 of 'B' schedule is the selfacquisition of Gopi and other two brothers had no interest in such property. Thus dispute in this appeal centres round lot No. 2.
4. A portion of land out of lot No. 2 in 'B' schedule was compulsorily acquired under the Land Acquisition Act, compensation was awarded in favour of all the members of the joint family. Claiming the said award of the trial Court not binding, the defendant No. 5 and her children besides other defendants in the suit filed a suit for declaration that they alone with Kumudabandhu are entitled to the compensation and the award is not binding on them.
5. Both the suit for partition and the suit for declaring, the compensation were heard together. One set of evidence was ordered in both the suits. One of the issues common in both the suits is in respect of exclusive right of Gopi to the land in lot No. 2. Trial Court observed the issues against the present appellants and held that the land in lot No. 2 in '&' schedule belongs to the joint family. Preliminary decree for partition of land in deciding lot No. 2 and compensation was made against which Kumudabandhu alone filed this appeal. Suit of defendant No. 5 and others as plaintiffs was dismissed which has become final.
6. Kumudabandhu, the appellant lost his life in a motor accident. Two claim petitions were filed for compensation against the owner of the vehicle which caused the accident and the insurer who covered risk of the owner. One application was filed by Shantilata claiming to be widow and the other by the present appellants, Tribunal awarded compensation in favour of Shantilata and dismissed the application of the present appellants. Against both the awards two appeals were filed by present appellants. In view of the settlement arrived at between Shantilata and the present appellants, the appeals have been disposed of where it has been directed that Shantilata is entitled to entire enhanced compensation, i have already directed that the settlement between Shantilata on one hand and the present appellants on the other shall form part of the decree in this appeal.
7. Only question involved in this appeal being exclusive right of Gopai to lot No. 2, it is to be examined whether at instance of the present appellants, such question can be answered in their favour.
8. While Mr. S. K. Nayak-2, learned counsel for plaintiff-respondents submitted that the present appellants are not entitled to raise the question that Gopi was exclusive owner of lot No. 2 since such an issue has been finally decided against them. Mr. P. Kar, learned counsel for the present appellants on the other hand submitted that in this appeal right of Kumudabandhu (deceased appellant) is to be adjudicated and such finding not being final against Kumudabandhuj appellants can raise such a question.
9. Two questions are involved for solving the dispute :
(i) whether persons who did not challenge a finding can get the benefit where the same is available to appellants along with them,
(ii) whether finding on an issue in another suit tried together with the decree in appeal where the same issue involved can be disturbed at instance of a party who did not prefer appeal against the decree when he is substituted as appellant in place of the deceased appellant.
10. There can be no doubt that in case Kumudabandhu would have been available to continue the appeal and would have become successful to prove that lot No. 2 is the exclusive property of Gopi, his right to the same as legal representative of Gopi could not have been defeated and present appellant having the same right as of Kumudabandhu would have also been entitled to the benefits notwithstanding the fact that they did not prefer any appeal and the finding that lot No. 2 is joint family property and not exclusive property of Gopi became final. However, Kumudabandhu is dead and appellants as his legal representatives though permitted to continue the appeal cannot raise the said question as the finding against them has become final. They are to be bound by the finding on this issue unless it is held that dismissal of their suit would not be res judicata,
11. Second question, is thus, important as the present case. Mr. Nayak has relied on a decision reported in AIR 1966 SC 1332 (Sheodan Singh v. Daryao Kunwar) in support of his submission. He has also relied on Division Bench decision of this Court reported in 45(1978)CLT 219(Union of India v. Central Coal Fields Ltd. and Ors.) wherein relying on the aforesaid decision of the Apex Court and some other decisions it has been held :
"In the case before us, five suits had been disposed of by a common judgment and the Issues in all the suits were examined. Issue No. 9, as already indicated, was the most relevant one for purpose of disposing of the dispute. Defendant No. 1 who had lost in the trial Court had carried five separate appeals, One of these appeals was dismissed as being barred by limitation in February, 1972. On the ratio of Sheodan Singh's case, when the judgment of the trial Court stood affirmed by dismissal of the appeal in this Court, the first appeal must be deemed to have been disposed of on merit and in terms of the Explanation-1 to Section 11 of the Code of Civil Procedure, the decision of this Court in First Appeal No. 254 of 197S became a decision of the Court in a former suit. Thus, the bar of res judicata is fully attracted. The preliminary objection raised by the plaintiff- respondent No. 1 must be sustained in these circumstances and we would, therefore, dismiss the remaining four without entering into merits thereof."
Mr. Nayak submitted that the ratio of the Division Bench decision would be applicable where only one appeal has been filed against decree in one suit and applying the said principle, the present appeal at the instance of the substituted appellants would be barred by res judicata. Mr. Nayak further submitted that when the same person has two roles to play which cannot be separated, affected appellants would suffer on account of res judicata.
12. Mr. P. Kar, learned counsel for appellants relied upon a decision of the apex Court reported in AIR 1974 SC 1320 (Ramagya Prasad Gupta and Ors. v. Murli Prasad and others) as also a decision of this Court reported in ILR (1980) 2 Cut. 363 (Karunakar Panda v. Durgabati Bewa and others). All the decisions of the apex Court as also of this Court except the Division Bench decision appears to have been considered in the aforesaid decision of this Court and principle has been laid down as follows :
"Where the suit or appeals raise only common issues for decision and there has been one trial, one finding and one decision, an appeal against the decree in one suit or the appeal will not be barred by res judicata by not filing an appeal against the decree in the other suit or appeal. But where the subject-matter of each of the two suits or appeals is different and the decision in the two proceedings, though stated in one judgment, really amounts to two decisions and not one decision common to both the proceedings, an appeal filed against the decision in one proceeding will be barred by the rule of res judicata if no appeal is filed against the decision in the other proceeding."
13. Even applying the principle in ILR (1980) 2 Cut. 363 (supra),this appeal would be barred by res judicata. Subject-matter in the suit relating to compensation and subject-matter relating to the present appeal is different. Only one issue was common. This issue being found against the plaintiff in that suit, present appellants had a right of appeal against the dismissal of suit. They did not prefer any appeal. They had also not preferred any appeal against the preliminary decree in partition although they would get some benefit which would be same as of defendant No, 6 if the appeal would have been allowed. Merely because they have been substituted in place of defendant No. 6 they cannot raise the question of exclusive title of Gopi which had become final as against them. In the aforesaid circumstances 1 am inclined to hold that principle of res judicata would be attracted and the appellants though permitted to continue the appeal on substitution, should not be allowed to raise the question of exclusiveness in the title of Gopi.
14. Appellants have filed an application for additional evidence to consider deposition of Jagannath whose interest is claimed by plaintiff. In the said evidence Jagannath has admitted that his brother Gopi had acquired the property in lot No. 2 This evidence was referred to in the written statement of the appellants. Possibly on account of mistake of the lawyer the deposition was not admitted to evidence. This document is relevant for a just decision in the suit. I would have been inclined to set aside the preliminary decree to remit the suit back to the trial Court for consideration of the question to the exclusive title of Gopi in lot No. 2 of 'B' schedule by giving an opportunity to parties to adduce further evidence. However, on my finding that substituted appellants cannot raise this question any further on account of the bar of res judicata. I am not entertaining the application for additional evidence which is dismissed as the same would no more be necessary for consideration.
15. In result, the appeal is dismissed. In the peculiar circumstances of the case, both the parties shall bear their own costs.