Patna High Court
Syed Shamshul Haque vs Sitram Singh And Ors. on 8 August, 1977
Equivalent citations: AIR1978PAT151, 1978(26)BLJR325, AIR 1978 PATNA 151
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT
1. Defendant No. 2 is the appellant in this appeal. It appears that some dispute arose between the appellant and respondents 1 to 3 in respect of several plots of land measuring about 40 bighas situated in village Bhawampur in the then district of Champaran. At the time of the harvesting of the crops there was an apprehension of breach of peace and due to intervention of common friends and well wishers the crops were harvested and kept in custody of Laksh-man Singh. the then Mukhiya of the Gram Panchayat, and later they were sold for Rs. 1,536. After some time the aforesaid Lakshman Singh filed an interpleader suit impleading the appellant and respondents 1 to 3. During the pendency of the interpleader suit respondents 1 to 3 were transposed to the category of plaintiff and Lakshman Singh was transposed to the category of defendant. Thereafter, the suit proceeded for trial in which Lakshman Singh was defendant No. 1 and the appellant defendant No. 2.
2. The trial court, on consideration of the materials, came to the conclusion that respondents 1 to 3 were in possession of the lands in dispute since long; as such they were entitled for the money which had been kept in custody of the Mukhiya concerned. An appeal filed on behalf of the appellant before the court below was also dismissed by the learned Additional District Judge, Motihari. affirming the findings of the learned Additional Munsif. Hence this second appeal on behalf of defendant No. 2.
3. This appeal was listed for hearing before a learned single Judge of this court who has referred it to Division Bench. The learned counsel appearing for the appellant has urged two points on behalf of the appellant. The first point which has been raised on behalf of the appellant is that there has been non-compliance with Rule 2 of Order XXXV of the Civil P. C. (hereinafter to be referred to as the Code) inasmuch as the aforesaid amount of Rs. 1,536 was never deposited with the Court concerned. Rule 2 of Order XXXV of the Code prescribes that, where the thing claimed is capable of being paid into court or placed in custody of the Court, "the plaintiff may be required so to pay or place it before he can be entitled to any order in the suit." In our view, it is difficult to hold that this: provision is mandatory in nature, so as to nullify the whole proceeding before the court concerned. In this connection it may be mentioned that earlier under the old provisions the words used were "must so pay or place it." They have been substituted by the words "may be required so to pay or place it." On plain reading, the words "may be required so to pay", lead to an inference that such provision is directory in nature. There is no material on the basis of which it can be held that at any stage the original plaintiff, the Mukhiya, was required to deposit such amount with the court. In our opinion, there is no merit in this contention.
4. It was then submitted on behalf of the appellant that the courts below have decreed the suit of the plaintiff without recording any finding on the question of title to the subject matter of dispute. In this connection learned counsel drew our attention to Rule 4 of Order XXXV of the Code which is as follows:--
"4. Procedure at first hearing (1) At the first hearing the Court may,
(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed, award him his costs, and dismiss him from the suit; or
(b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the suit.
2. Where the court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate the title to the thing claimed.
3. Where the admissions of the parties do not enable the court so to adjudicate, it may direct--
(a) that an issue or issues between the parties be framed and tried; and
(b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try the suit in the ordinary manner.
According to the learned counsel, once a dispute arises between two claimants in respect of the property in question, that has to be decided either on the admissions of the parties concerned or in a regularly framed suit, and court cannot absolve its responsibility by saying that it was considering only the question of possession. Sub-rule (2) of Rule 4 of Order XXXV provides that where court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate title to the thing claimed, Sub-rule (3) of aforesaid Rule 4, however, says in clear and unambiguous terms that where the admissions of the parties do not enable the court so to adjudicate, "it shall proceed to try the suit in ordinary manner". In our view, the only option given to the court in Sub-rule (2) and Sub-rule (3) of Rule 4 is either to decide the question of title on the basis of admissions of the parties or on the basis of evidence adduced in ordinary manner in any suit, after framing issues and transposing any of the claimants as plaintiff. In the instant case, the plaintiff, respondents 1 to 3 had been transposed to the category of plaintiffs from which it is obvious that the court was not in a position to adjudicate on the basis of admissions of any of the parties and it proposed to proceed under Sub-rule (3) of Rule 4 of Order XXXV of the Code. The trial Court had even framed issues on the basis of the pleadings saying as to whether plaintiffs Nos. 1 to 3 or defendant No. 2 are entitled to the paddy crops in dispute. Of course, it further added as to which of the two sides had been in possession of the disputed land. In the instant case, the dispute relating to the paddy crops from the land which itself was being claimed by both the parties, cannot be decided without deciding title to the land in question. In our opinion, in view of the mandate under Sub-rule (3) of Rule 4 of Order XXXV, it was incumbent upon the trial court to try the suit in the ordinary manner, which means it had also to decide the question of subsisting title in respect of the land from which the crops in question have been harvested. No authority directly on the point was brought to our notice, although the case was adjourned more than once. We get some support from the observation in the case of Abdul Halim Khan v. Saadat Ali Khan (AIR 1928 Oudh 155 at p. 181) where it was observed that any finding in an interpleader suit will operate as res judicata. In that connection it was observed as follows:--
"If therefore, she did not contest the point and it was decided against, her, it must be deemed to be a point directly and substantially in issue and decided against her under Expl. 4, Civil P. C. My finding, therefore, on the second question, is that, after the decision of the interpleader suit, it is no more open to Rani Champa to contest the factum or the validity of the adoption of defendant No. l. In short the decision operates as res judicata against her."
If the findings of this interpleader suit are to operate as res judicata. it is difficult to hold that, it is open to the civil court, where such suits are filed, to decide only the question of possession and to exercise a power similar to the power conferred on a Magistrate under the C. P. C. while disposing of a property which has been used for commission of an offence. In our view, it was incumbent upon the trial court to decide the suit in an ordinary manner recording findings of the issues. The court of appeal below was also not correct in deciding the appeal saying that it was not deciding the question of title and was deciding only question of possession over the land. In such a situation, we are left with no option but to set aside the judgment and decree passed by the court of appeal below and to remit the case back for a fresh decision in accordance with law. It will be open to the court of appeal below, if it so thinks after hearing the parties concerned, to call for a finding in accordance with Order XLI, Rule 25 of the Code, and then dispose of the appeal in accordance with law. In the circumstances of the case, however, there will be no order as to costs.