Bombay High Court
Tajuddin S/O Sheikh Amir (Abated vs Dula Dharu Rathod on 16 October, 2008
Author: C. L. Pangarkar
Bench: C. L. Pangarkar
Second Appeal no.27 of 1985. 1
IN THE HIGH COURT OF JUDICATUTRE AT BOMBAY,
NAGPUR BENCH NAGPUR.
SECOND APPEAL NO. 27 OF 1985.
APPELLANTS: 1. Tajuddin s/o Sheikh Amir (abated)
1.(a) Sheikh Mozzam s/o Sheikh Tajoddin,
aged about 28 years.
(b) Sheikh Jamil s/o Sheikh Tajoddin,
aged about 25 years.
(Both resident of Dhalsawnagi, Tq. and
Distt.Buldhana)
(c) Sheikh Kalimoddin s/o Shiekh Tajoddin,
(dead)
Legal Representatives of appellant no.1(c).
1(c)-I. Shahanaz Begum w/o Shiekh Alimoddin,
aged about 40 years, Occu: Household,
1(c)-II. Sheikh Matin s/o Shiekh Kalimoddin,
aged about 23 years, Occu: Labour.
1(c)-III. Sheikh Moin s/o Shiekh Kalimoddin,
aged about 22 years, Occu: Student.
1(c)-IV. Mehnaazbi d/o Shiekh Kalimoddin,
aged about 21 years, Occu: household.
1(c)-V. Mehraz d/o Sheikh Kalimoddin,
aged about 18 years, Occu: Household.
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Second Appeal no.27 of 1985. 2
1(c)-VI. Sheikh Nazim s/o Sheikh Kalimoddin,
aged about 17 years, Occu: Student.
1(c)-VII. Sheikh Alim d/o Sheikh Kalimoddin,
aged about 12 years, Occu: Student.
1(c)-VIII. Sheikh Nasim s/o Sheikh Kalimoddin,
aged about 6 years, Occu: Student.
1(c)-IX. Afsanabi d/o Sheikh Kalimoddin,
aged about 8 years, Occu: Student.
1(c)-X. Anjum Parveen d/o Sheikh Kalimoddin,
aged about 4 years, Occu: Nil.
1(c)-XI. Massaratbi d/o Sheikh Kalimoddin,
aged about 2 years, Occu: Nil.
Applicants No.VI to XI are minors and
represented by their natural guardian applicant
No.1- mother. All resident of Dhalsawangi,
Tq. and Distt.Buldhana.
2. Alam Noorbi w/o Tajuddin,
3. Sheikh Dagadu s/o Tajuddin,
: VERSUS :
RESPONDENTS: 1.Dula Dharu Rathod.
Legal representatives.
1. Sayyadabi w/o Sayyad Lukman,
aged about 38 years, r/o Panbadod, Tq.
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Second Appeal no.27 of 1985. 3
Sillod, Distt.Aurangabad.
2. Smt.Zahedabi w/o Sheikh Sattar,
aged about 32 years, r/o at post Walsawangi,
Tq.Bhokardan, Distt.Jalna.
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Mr.Z.A.Haq, Advocate for the appellants.
Mr.Jaiswal, Advocate for the respondents.
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CORAM:
DATED :
C.L.PANGARKAR,J
16th October, 2008.
ORAL JUDGMENT:
1. This is a second appeal by the original defendants. The parties herein after shall be referred to as plaintiff and defendants.
2. The facts giving rise to this appeal are as follows -
The subject matter of the suit is field Survey No.32/1. The said land belonged to one Sk.Kalu Sk.Chand and one Ibrahim Baig. The plaintiff instituted a civil suit against Sk.Kalu and Ibrahim Baig being Civil Suit No.5A of 1956. The said suit was compromised on 16/4/1957. On the basis of the ::: Downloaded on - 09/06/2013 13:59:23 ::: Second Appeal no.27 of 1985. 4 compromise decree passed in Civil Suit No.5A of 1956, the plaintiff filed an application for execution of a decree and for possession of this suit field. The same was filed on 24/1/1960. The possession was delivered to the present plaintiff on 21/6/1960. The plaintiff submits that after he took possession in 1960, he continued to cultivate the said land until month of May, 1970. In the month of May 1970, however, it is alleged that defendant/appellant illegally dispossessed the plaintiff and took possession. The plaintiff requested the defendants to deliver back the possession. The defendants refused. Hence, the suit came to be instituted for possession.
3. Defendant no.1 Tajuddin alone contested the suit.
He denied that the suit property belonged to Sk.Kalu and Ibrahim.
He also denied that it was their ancestral property. Sk.Ibrahim was the husband of the step-sister of Sk.Kalu. The defendant contends that the suit property had fallen to the share of Sk.Kalu's step-sister Munirbee and after death of Munirbee, Ibrahim - her husband -
gifted the said property to defendant under a registered sale deed.
::: Downloaded on - 09/06/2013 13:59:23 :::Second Appeal no.27 of 1985. 5 The defendant contends that if there is any documents for cancellation of the said gift-deed, the same is void. It is his contention that since the date of gift he is in continuous possession of the suit property. The defendant denies that Sk.Ibrahim and Sk.Kalu had sold the property to the plaintiff for a consideration of Rs.1100/- under a decree in Civil Suit No.5A of 1956. The defendant submits that in Civil Suit No.5A of 1956, he was also party to the suit, however, he was discharged and was deleted from the array of defendants. Therefore, the compromise decree between the plaintiff and Ibrahim and Sk.Kalu is not binding on defendant Tajuddin. Defendant Tajuddin was never dispossessed and he never surrendered the possession. The defendant contends that he is, therefore, the owner of the suit property and is not liable to be evicted.
4. The learned Judge of the trial court framed issues and found that the plaintiff received possession of the property in Civil Suit No.5A of 1956 and that the plaintiff cultivated the land till month of May, 1970. He also found that the defendant was not ::: Downloaded on - 09/06/2013 13:59:23 ::: Second Appeal no.27 of 1985. 6 in possession of the suit property under gift deed. Further the learned judge found that the decree in Civil suit No.5A of 1956 was binding on defendant no.1 Tajuddin. Holding so, he decreed the suit against defendant no.1 and directed him to deliver the possession.
5. The learned judge of the appellate court also found that the plaintiff had received the possession of the suit property in Civil Suit No.5A of 1956, decreed was binding on defendant no.1 and the plaintiff was entitled to possession. He, therefore, dismissed the appeal and confirmed the decree.
6. This second appeal came to be admitted on the following substantial question of law -
"The Substantial question of law is as regards the binding nature of the compromise decree on the appellant who was not a party to the decree"::: Downloaded on - 09/06/2013 13:59:23 :::
Second Appeal no.27 of 1985. 7
7. Since the appeal has been admitted only on this substantial question of law, I need not consider any other aspect nor do parties urge any other ground.
8. A certified copy of the plaint in Civil Suit No.5A of 1956 has been filed before the trial court and it is Exh.46. It shows that the present respondent/plaintiff was plaintiff in that suit also.
The defendants in that suit were one Sk.Kalu Sk.Chand, 2) Ibrahim Beig, and 3) Tajuddin - the present appellant. The certified copy further shows that Tajuddin - defendant no.3 in that suit - was discharged and was deleted from the array of defendant w.e.f.
16/4/1957. Thus, Tajuddin was no more party to the suit from 16/4/1957. Civil Suit No.5A of 1956 was not decided by court on merit but was compromised and a decree in terms of the compromise was passed. The certified copy of the compromise pursis is Exh.47. It shows that the compromise was effected between Dula Dharu Rathod i.e. present respondent and the plaintiff in that suit on one part and Sk.Kalu and Ibrahim Beig on the other. Tajuddin - the present appellant/defendant was not ::: Downloaded on - 09/06/2013 13:59:23 ::: Second Appeal no.27 of 1985. 8 party to this compromise at all. This compromise was effected on the same day on which name of Tajuddin was deleted from the array of defendants. Obviously, there was no compromise between Dula Dharu -the present respondent - and the plaintiff in that suit.
Since he was not at all party either to the suit or the compromise, the decree on the basis of the compromise cannot and could not bind the present appellant Tajuddin. One must bear in mind that a decree binds the party only when it operates as res judicata. It would, therefore, be necessary to look into Section 11 of the C.P.C.
and its requirements. Section 11 reads thus -
11.Res Judicata - 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 a 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.
9. What is, therefore, necessary is that the matter ::: Downloaded on - 09/06/2013 13:59:23 ::: Second Appeal no.27 of 1985. 9 must be directly and substantially in issue in former suit between the same parties or between the parties under whom any of them claim or litigating under the same title. Obviously, therefore, since Tajuddin was not party to the suit it was not binding on him.
10. Since appellant Tajuddin was not party to the compromise, compromise decree between present plaintiff Dula Dharu and Sk.Ibrahim could not be executed against Tajuddin. The possession receipt in that suit is Exh.27. It shows that the possession was obtained from Sk.Kalu and Ibrahim. Apparently, therefore, it was not taken from Tajuddin. One wonders as to how and why Tajuddin was deleted as defendant from Civil suit No.5A of 1956. The certified copy of the written statement filed by appellant Tajuddin in Civil Suit No.5A of 1956 is atExh.44. If this written statement is seen, it would be apparent that Tajuddin had denied the revocation of the gift-deed and he claimed to be in possession of the suit property in his own right. The allegations in the plaint in Civil Suit No.5A of 1956 go to show that plaintiff Dula Dharu had alleged in it initially that defendants no.1 to 3 i.e. ::: Downloaded on - 09/06/2013 13:59:23 ::: Second Appeal no.27 of 1985. 10 Sk.Kalu, Ibrahim and Tajuddin were in possession and it was sought from all of them. When the plaintiff sought possession from defendant no.3 Tajuddin and Tajuddin specifically alleged that he was in possession of the property, the dispute about possession could not have been said to be resolved by the compromise since Tajuddin was not party to it. For this reason too, the said decree could not be binding on Tajuddin.
11. Tajuddin - the appellant has claimed the ownership on basis of the gift executed by Ibrahim. The decree against Ibrahim could not bind Tajuddin. The reason is that, the gift is prior to the compromise i.e. the gift is dated 11/1/1954 and the compromise is dated 16/4/1957. Ibrahim had already lost title in 1954 when he gifted the property. Thus, on the date of the compromise, Ibrahim was not the owner and was not in possession.
If the plaint in present suit No.312 of 1977 is seen, there is no allegation in the plaint that the gift was revoked by Ibrahim and that, therefore, Tajuddin is no more owner of the property and in possession. In absence of such a plea, the question of revocation of ::: Downloaded on - 09/06/2013 13:59:23 ::: Second Appeal no.27 of 1985. 11 gift, in fact, need not be considered at all. If at all we assume that there is a plea, yet the gift could not be revoked. The gift is at Exh.43. Certified copy is at Exh.44. It is not a conditional gift nor the gift appears to be a contract which could be rescinded. Since both these ingredients do not exist, the gift was irrevocable. The alleged deed of revocation has no value. The gift, therefore, conferred the full title on Tajuddin and he continues to be the owner.
12. The land revenue payment receipts Exh.52 to 59 are from the year 1958 to 1972 and the crop statements Exh.66 to 72 are from 1959 to 1969-70. They show continuous possession of Tajuddin. PW 1 Sk.Budan admits that these entries were never challenged before any authority any time. They have assumed finality. Although he says that plaintiff paid land revenue from 1960 to 1970, the plaintiff does not produce even a single land revenue receipt. On the other hand, all land revenue payment receipts are filed by defendant Tajuddin and they are in his name.
The most important admission this witness gives is that Tajuddin ::: Downloaded on - 09/06/2013 13:59:23 ::: Second Appeal no.27 of 1985. 12 was in possession when it was taken through the court. Apparently, Tajuddin was in possession of the property when decree is said to be executed. The warrant of possession can be executed only against the person named in the warrant. Apparently, the warrant could not be in the name of Tajuddin. It could not, therefore, be executed against him. In no case, therefore, it can be held that Tajuddin delivered possession or that he was dispossessed. The decree in any sense, therefore, was not binding on appellant/Tajuddin. Courts below fell in error. The findings recorded by the courts below on this point need to be set aside.
The substantial question of law is answered accordingly.
Resultantly, the appeal must be allowed. The appeal is allowed.
Judgments and decree passed by the courts below are set aside and the suit is dismissed.
The appellant shall be entitled to costs throughout.
JUDGE.
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