Patna High Court
Dhanusdhari Rai And Ors. vs Man Mohan Rai And Ors. on 7 November, 1973
Equivalent citations: AIR1974PAT262
ORDER H.L. Agarwal, J.
1. The defendants 1st party, who are brothers, have moved this Court in revisional jurisdiction against the Order of the learned Munsif for deciding the question of res judicata as a preliminary issue against them.
2. The facts giving rise to this application are as follows: In a partition suit No. 20 of 1946 by petitioner No. 1 against opposite party Nos. 1, 2 and others, who were the members of a joint Hindu family, survey Plots Nos. 614 and 615 and a portion of survey plot No. 616 along with other plots are said to have been allotted to the share of the petitioner No. 1 who came in exclusive possession of the same. These plots were acquired fay the State Government for construction of a bundh and the award for a sum of Rs. 1,415.51 was prepared in favour of both the petitioners. An objection was raised by opposite party No. 1 before the Land Acquisition Officer claiming the compensation money himself. The Land Acquisition Officer, in view of the dispute regarding apportionment of the compensation money, referred the dispute for the decision of the Civil Court and the learned Additional Subordinate Judge, Muzaffarpur, after taking evidence and hearing the parties, held that the claim of the opposite party was untenable and the award in question was prepared in favour of the petitioners, An appeal was filed by opposite party No. 1 against the said judgment before the District Judge, Muzaffarpur, which was registered as Miscellaneous Appeal No. 121 of 1963 and was dismissed on the 23rd of January, 1967.
3. Opposite party No. 1 thereafter filed a money suit in the court of the Munsif at Sitamarhi in the year 1968 for a declaration that he was entitled to get one third amount out of the compensation money. The petitioners filed a petition on the 26th July, 1968, in the said suit for dismissal of the same on the ground of res judicata. Long thereafter, on the 6th September, 1971, the plaint was amended and the suit was converted from money suit into title suit and a further declaration for one third share in the Lands acquired by the State Government was sought and opposite party No. 2, his son, was also added as a co-plaintiff in the suit.
4. By the impugned order, the learned Munsif has held that, inasmuch as, in the present suit, a question for determination of the title of the plaintiff was also arising, the earlier decision would not apply as res judicata and the present suit was maintainable. The petitioners have, therefore, moved this Court as stated above.
5. It is difficult to sustain the order of the court below. The Civil Court, on a reference to it under Section 30 of the Land Acquisition Act (hereinafter referred to as 'the Act'), had considered all the relevant evidence and materials produced by the parties and had come to the conclusion that, by a partition in the family of the parties, the lands in question were exclusively allotted to the share of petitioner No. 1. In paragraph 5 of the plaint of the present suit, opposite party No. 1 has stated that he purchased 3 khathas 9 dhurs of the lands in question under a Kebala dated the 6th October, 1953, in the name of his son Maheshwar Narayan (Plaintiff No. 2) from a different co-sharer. This date is certainly much beyond the date of the partition suit which was of the year 1946 under which the petitioners were allotted the properties in question and the Civil Court recorded the definite finding that the petitioners alone became the exclusive owners of the plots in question.
6. By virtue of Section 53 of the Act, the provisions of the Code of Civil Procedure, so far as they are not inconsistent with the Act, apply to the proceeding under the Act before the Court and, therefore, it was competent to the Civil Court, when the dispute was referred to it to consider the claim of the respective parties who appeared before it. The claim of the plaintiff No. 1 was, therefore, fully adjudicated upon by the Civil Court and the said adjudication under the Act is, in my opinion as much subject to the principles of res judicata as adjudication by courts under the Civil Procedure Code. The scope of adjudication under Section 30 of the Act on a reference arises only when a dispute regarding apportionment of the compensation money arises between different claimants. It is only the question of the right and title of the respective claimants to the apportionment of the compensation money which is referred for determination by the Civil Court under Section 30 of the Act and those parties are certainly bound by the adjudication of the Court and the same question cannot be tried and determined by any other Court in a subsequent suit as the right to apportionment necessarily involves the determination of the title of the claimant or the objector in the properties which may be the subject matter of the acquisition, because it is only on the determination of this condition precedent that the Court determines the question | as to person entitled to the compensation or its apportionment.
7. A complete machinery has been provided under the Act itself for the final determination and adjudication of this controversy between the rival claimants. I am also supported in my view by a Bench decision of the Sind Judicial Commissioner's Court in the case of Fateh Mahomed v. Thariomal Jethomal (AIR 1939 Sind 66) and also by another decision in Boregowda v. Subharamiah (AIR 1959 Mys 265).
8. Faced with this difficulty, Mr. Bishwanath Agrawal submitted that petitioner No. 2 was not a party in the earlier proceeding and, therefore, that decision would not apply as res judicata at least so far as the second plaintiff was concerned. There is no difficulty to reject this contention at once in view of the clear statement of plaintiff No. 1 in the fifth paragraph of the plaint, referred to above, to the effect that it was he who purchased the lands in suit in question in the name of the second plaintiff. Mr. Agrawal further contended that some of the properties in the suit were different from those which were the subject matter of the acquisition proceeding. This contention also seems apparently untenable inasmuch as the whole claim of the plaintiffs is based upon the acquisition proceeding. However, it is made clear that this bar of res judicata would not apply to those properties, if there be any,
9. From the discussions made above, it is apparent that the learned Munsif has committed an apparent error of jurisdiction and his order in question must be set aside. This application, accordingly succeeds, but in the circumstances of this case, I shall make no order as to costs.