Patna High Court
Gokaran Prasad Singh vs Chhotey Narayan Singh And Ors. on 24 January, 1951
Equivalent citations: AIR1951PAT595, AIR 1951 PATNA 595, ILR 30 PAT 377
JUDGMENT Lakshmikanta Jha, C.J.
1. This appeal by deft. 1 arises out of a suit for partition. The pltls. who are the grandsons of one Nath Sahay Singh, allege that they own 7 dams & odd share in tauzi No. 2542 in village Kendua, which has been included in Register D in the share, recorded in the names of (1) deft, 1, (2) defts 2 to 5(a), & (3) defts. 21 to 23(a) & 31 to 34, & their prayer is that a separate takhta of their share be allotted to them after partition. They have also claimed Rs. 449/12 as compensation for the period antecedent to the suit & future mesne profits till possession is delivered to them of their takhta in case they are found to be out of possession.
2. The trial Ct. has decreed the claim in favour of the pltfs. against deft. 1 & defts. 2 to 5(a) with costs, but dismissed it against other defts. A preliminary decree for partition has accordingly been made.
3. The pltfs. grandfather, Nath Sahay, owned 7 dams 3 kauris 12 bauris & odd share in tauzi No. 2542 in mauza Kendua & he was in possession of his share as co-sharer malik till he gave his share in ijara on 5-1-1904, to two persons, Lal Mohammad & Mulliok Turab Ali. This ijara was redeemed in 1920. One Mahendra was also a co-sharer malik of this tauzi & his interest was 7 dams & odd. eqal to the share of Nath Sahay, & one Janki Prasad Singh also held 5 dams & odd share in this tauzi as a co-sharer malik. Thus the total interest of Nath Sahay, Mahendra & Janki was 1 anna & odd in this tauzi. There were other co-sharer landlords also, but we are not concerned with them in this suit. On 3-9-1906, the 1 anna & odd share, representing the total interest of these three persons, was sold for arrears of cese & auction purchased by one Jugeshwar Dayal, Mukhtar, at a certificate sale, & he got his name mutated in register D in respect of the share purchased by him. According to the trial Ct. he did not get possession over this property. & this finding has not been challenged before us. Subsequently, Jugeshwar sold 6 dams & odd share, which he described as the interest of Mahendra, & the entire 5 dams & odd share of Janki (total 11 dams & odd), to Gokaran Prasad Singh, who is deft. 1 in the present action. He also sold the remainder, describing it as the entire 7 dams & odd share of Nath Sahay & the remaining 1 dam & odd share of Mahendra, to one Ramsaran Singh, ancestor of defts. 2 to 5 (a). But Mahendra. notwithstanding the certificate sale, sold the entire 7 dams & odd interest to one Masoom Ali in 1909, who in his turn, sold this share to one Waris Ali, ancestor of defts. 31 to 34, & in 1913 Waris Ali sold one-fourth of the interests purchased by him from Masoom Ali to one Man-zur Ali, predecessor-in-interest of defts. 21 to 23(a).
4. On 30-8-1918, Waris Ali & Manzur Ali brought Title Suit No. 290 of 1918 in the Ct. of the Munsif, 3rd Ct. Gaya, for a declaration that the sale held in execution of the certificate is illegal & void & also for recovery of possession if they were held by the Ct. to be out of possession. Thia suit was dismissed by the trial Ct. but the judgment of the trial Ct. was revsd. by the appellate Ct. & it was held that the certificate sale was illegal, void & inoperative. The judgment of the appellate Ct. was also upheld by the H. C. in s. A. NO. 215 of 1920 (Ex. Ali(1)). Now the succesors-in-interest of Waria Ali & Masoom Ali are in possession of 7 dams & odd share in accordance with the above-mentioned transfers.
5. In 1928 the pltfs. brought Title Suit No. 97 of 1928 in the Ct. of the Munsif, 3rd Ct. Gaya, impleading, among others, the heirs of. Ramsaran Singh as defts. 1 to 4, who are represented by defts. 2 to 5(a), Gokaran Singh as deft. 5 who m deft. 1, the heirs of Manzur Ali as defts. 20 to 22, who are represented by defts. 21 to 23. (a) & the heirs of Waris Ali as defts. 31 to 34, who are represented by defts. 31 to 34. This suit of the pltfs. was for a declaration of their title & recovery of possession with mesne profits in respecfe of Nath Sahay's 7 dams & odd share. It may be stated that the pltfs. claimed 6 dams & odd share from Gokiran (deft, 1), 16 kauris & odd share from the heirs of Ramsaran, & the remaining 2 kauris & odd interest from the heirs of Waris Ali & Manzur Ali. The trial Ct. decreed the suit for possession with mesne profits against Gokaran in respect of 6 dams & odd share, but in respect of the remaining share the pltfs. title only was declared. There were two appeals one by the present pltfs. & other by Gokaran. Gokaran's appeal was dismissed, but the pltfs' appeal was allowed & they got a decree for joint possession with mesne profits for the entire 7 dams & odd share of Nath Sahay. The pltfs. have accordingly instituted the present suit by impleading all the co-sharer maliks of the tauzi & have sought partition & allotment of separate takhta of 7 dame & odd share belonging to Nath Sahay. They have also claimed, as already stated mesne profits on the ground that since the year 1343 Pasli defts. 1 to 5 (a) in collusion with defts. 21 to 23 (a) & 31 to 34 realized the pltfa. share of the produce rent from the tenants but did not give them their hakmi share of the produce rent in spite of repeated demand, & also prevented the pltfs. from cultivating their proportionate share of the bakasht land.
6. Several sets of written statement have been filed, but the suit was contested only by defts. 1, 21 to 23 (a) & 31 to 34. As the appeal is only by deft. 1, we are not concerned with the defence of other defts. The defence of deft. 1 is, inter alia, that he is in possession as a cosharer malik of 3 annas & odd share in the tauzi in his own right & that he is not in possession of any share belonging to the pltfs. Accordingly, his case is that the pltfs. are not entitled to any takhta being carved out from the share which stands recorded in Register D in his name, nor to any compensation or mesne profits from him. The trial Ct. has, as already stated, held that the pltfs. are entitled to 6 dams & odd from out of the 3 annas & odd share in the possession of deft. 1 which stands recorded in his name in register n in excess of his legitimate share. It has accordingly ordered recovery of possession of this 6 dams & odd share from deft, 1. with mesne profits. There is also a decree against", defts. 2 to 5 (a) in respect of 16 kauria & odd share, with mesne profits, but the trial Ct. has dismissed the pltfs' claim in respect of the remaining shares against defts. 21 to 23 (a) & 31 to 34 There is no appeal by defts. 2 to 5 (a). Therefore, the decree in respect of 16 kauris has become final. There was, however, a cross-objection in respect of 2 kauris & odd claimed from defts. 21 to 23 (a,) & 31 to 34, but the cross objection has not been pressed. The present appeal is only by deft. 1, & is directed against the decree for recovery of 6 dams & odd share from out of the 3 annas interest in the tauzi which stands recorded in Register D in his name.
7. The following points emerge for our consideration:
(1) Whether the pltfs are entitled to claim 6 dams & odd share from deft. 1?
(2) Whether the pltfs. are entitled 'to claim any compensation or mesne profits from deft. 1.
(3) Whether the pltfs. claim is barred by limitation?
8. All the three points for decision in this appeal are inter-connected & may, therefore, be conveniently taken up together. It may be recalled thai; Nath Sahay's 7 dams & odd share in the tauzi was in the possession of the ijardnrs as usufructuary mtgees from 1904 to 1920. The certificate sale took place on 3-9 1906, while the usufructuary mtgees. of Nath Sahay were in possession. The certificate sale, however, was held to be illegal, void & inoperative in Title Suit No. 290 of 1918. Later on the pltfa. brought Title Suit No. 97 of 1928 for possession & mesne profits against the present defts. or those who represented their interest. This suit was also decreed, & the writ of delivery of possession (Ex. 3) & the order-sheet (Ex. 4) show that the pltfs. recovered possession over 7 dams & odd share now claimed by the pltfs. in the present suit. The subject, matter of dispute in the two suits is identi-cally the same, & the plea of the applts. is also identically the same. In spite of the plea of the apples, it was held in the previous suit that the pltfs. were entitled to 6 dams & odd share which stands recorded in the name of the applt. & the pltfs. were given a decree for mesne profits against Gokaran Prasad Singh in respect of this share. P, W. 1 has stated in his evidence that delivery of possession was given to the pltfs. in his presence. D. W. 1 has, however, stated that delivery of possession was not taken by the pltfs. but he had to admit that the pltfs. realized mosne profits but not from him. He has further admitted that there was a proceeding against him under Section 107, Cr. P. C. regarding the disputed shares at the instance of the pltfs. & he gave an undertaking not to disturb the pltfs. in their possession. Therefore, in my opinion, on the evidence in the case, there is no manner of doubt that the pltfa. recovered joint possession in January 1934. The trial Ct. has held that the evidence of P. W. 1 that mesne profits were realized from the applt. & Kabir Mian is not worthy of credence. In my opinion, in view of Gokaran's own admission that mesne profits were realised by the pltfa. (but not from him) there is no reason why the evidence of p. W. 1 on this point also should not be accepted. The pltfs. have proved by documentary evidence (Exs. 3 & 4) that they got joint possession in January, 1934. Therefore, it is not necessary to decide whether the pltfs. or their mtgees. were dispossessed prior to 1928 when the Title Suit No. 97 of 1928 was instituted, or whethor dispossession of the mtgees. can, in the eye of law operate as dispossession of the mtgors. As this suit was instituted on 8-9-1934, within twelve years of the suit, the question of limitation, in my opinion, does not arise.
9. The next question for consideration is whether the applt can resiat the pltfa. suit for possession. It appears that 3 annas 7 dams & odd share has been recorded in register D in the name of the applt. under serial No. 99. Admittedly, the applt. purchased from Jugeshwar 6 dams & odd share of Mahendra, & Ramsaran purchased 7 dams & odd share of Nath Sahay & I dam & odd share of Mahen-dra from him. It was held by the appellate Ct. as well as by the H, C., in Title Suit No. 290 of 1918 that the certificate sale was illegal & inopera tivp. Therefore, the purchasers from Jugeshwar acquired no title & they were in possession of the properties purchased by them as trespassers. It was held in Title Suit No. 97 of 1928 that 6 dams & odd share now claimed by the pltfs. in the present suit from the applt. was in his possession & the pltfs. were held entitled to recover possession from him. The trial Ct. has held that the 6 dams & odd share clamed by the pltfs. from the applt. is in his possession & is included in 3 annas & old share recorded in his name in Register D. I see no reason to differ from its view. Moreover, it is not open to the applt. to resist the claim of the pltfs. for recovery of possession because the matter is res judicata. Identically the same point was raised in Title Suit No. 97 of 1928 before the learned Munsif, & he gave his decision in favour of the pltfs. In my opinion, the learned Munsif who decided the former suit was competent to decide the present suit in so far as it relates to the particular relief as to the title of the pits. Though the present suit has been valued at Rs. 11,000 for the purpose of jurisdiction & partition (being the value of the entire 16 annas of the tauzi under partition in 1944) the relief as to the declaration of title & recovery of possession as against the app t. must be deemed to have the same value in 1944 as it had for the purpose of jurisdiction before the learned Munsif in 1928 in Title Suit No 97 of 1928. A higher value has been put, due partly to the rise in the price of the property & partly because the entire 16 annas share has been valued for the purpose of partition. But the matter directly & substantially in issue in both the suits is identically the same. Therefore, in my opinion, the judgment of the appellate Ct., which finally heard & decided the matter, in the former suit (Title Suit No. 97 of 1928) operates as res judicata in the present suit. Mitter J. in Gopi Nath v. Bhugwat ershad, 10 cal. 697 has observed that the words "in a Ct. of jurisdiction competent to try such subsequent suit " must refer to the jurisdiction of the Ct. at the time when the first suit was brought, that is to say, if the Ct. which tried the first suit was competent to try the subsequent suit if then brought, the decision of such Ct. would be conclusive, although on a subsequent date, by a rise in the value of such property or from any other cause the said Ct. ceased to be the proper Ct., so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to that property. The principle enunciated in Gopi Nath Chobey's case (10 cal. 697) has been folld. in the case of Sarupa v. Khem Lai, 10 Lah. 528: (A. I. R. (15) 1928 Lah 929), Lalmohan v. Ramlakshmi, 69 Cal. 636: A. I. R. (19) 1932 cal. 271) & Debendra Kumar V. Pra-mada Kanta, 37 C. W. N. 810: (A. I. R. (20) 1933 cal. 879). It has been held in the case of Drupad Chandra v. Bindumoyi Dasi, A. I. R. (13) 1926 Cal. 1053 : (97 I. C. 209) that if a particular relief claimed in the subsequent suit was adjudicated in the previous suit, the previous Ct. having jurisdiction to try, that relief would be barred in the subsequent suit. The same view has been reiberated in the case of Priyanath v. Kalichar an, A. I. R. (19) 1932 cal, 162 : (136 I.C. 604), & it has been held that where a decision has been given by a competent Ct. in a previous suit, regarding part of the claim in the subsequent suit, & where both the suits are between the same parties & the causes of action relating to part of the claim are the same, that much part of the claim should be excluded from the subsequent suit, being barred by the principle of res judicata.
10. So far as the pltfs. claim for compensation is concerned, I am clearly of the opinion that Article 120, Limitation Act, governs the present case & that there is no bar of limitation & they are entitled to the relief: see Midnapur Zamindary Co., Ltd. v. Naresh Narayan Boy, 29 C. W. N 270: (A. I. R. (12) 1925 P. C. 93); Yernhola v. Yeruhola, 45 Mad. 648 : (A. I. R. (9) 1922 Mad, 150 F. B.) & Mahomedally Tyebally v. Safiabai, 45 C. W. N. 2s6 at p. 231: A. I. R. (27) 1940 P. C. 15). It may be stated that the decision of the Subordinate Judge on this point was not seriously challenged.
11. The appeal is, therefore, dismissed with costs.
Reuben, J.
12. I agree.
13. The appeal should fail on the merits & also, I think on the ground of res judicata. I would base the latter conclusion on general principles rather than on Section 11, Civil P C. Stction 11 enacts that no Ct. shall try any suit or issue in which the matter directly & substantially in issue has been directly & 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 Ct. compntenfe to try such subsequent suit or the suit in which such issue has been subsequently raised, & has been heard & finally decided by such Ct. The test prescribed by this section is that the Ct. which decided the earlier suit must have been com-petent to try the subsequent suit. In reliance on certain observations of Lord Davey in Golul Mandar v. Pudanund Singh, 29 I. A. 196 : (29 cal. 707 P. a), Section 13 (now Section 11), Civil P. C, was construed strictly by a D. B. of the Calcutta H. C. in Snibo Baut v. Baban Raut, 35 Cal. 353: (7 C. L. J. 470), where a portion of the property forming the subject of "the later suit had been the subject of an earlier suit between the same parties in which earlier suit the title to the property had been adjudicated between them. The question whether the earlier decision was binding as regards the subject-matter of the earlier suit was answered in the negative by their Lordships, who distd. a previous decision of the same Ct. reported in Bhugwanbutti V. A. H. Forbes, 28 Cal. 78 : (5 C. W. N 483), decided on the basis that the pltf. cannot be allowed to evade the provisions of S. 13 (now Section 11), Civil P. C. by joining in on(c) suit several causes of action. The same view of S. 11 as in the case of Shibo Baut, (35 cal. 353: 7 C. L. J. 470) was taken by a D. B. of the Lahore. H. C. in Fazal Hussain v. Jivan Shah, 14 Lah 869 : (A. I. R. (20) 1933 Lah. 551), again in reliance on the observations of Lord Davey. A situation on a par with that in the case of Shibo Raut (35 Cal. 353 : 7 C. L. J. 470) arose in Drupad Chandra v. Bindumoyi Dasi, A. I. R. (13 1926 Oal. 1053 : (97 I. C. 209). Apparently the attetion of their Lordships was not drawn to the earlier decision & they gave a contrary answer to the question, observing without giving any express reasons:
"We think that as to the properties which measure one & half bighas of land of schedule Kha the decision in the previous suit operated as res judicata & the pltf. cannot succeed so iar as this portion ot the land is concerned."
This decision was folld. in Pnyanath v. Kali-charan, A. I. R. (19) 1932 Cal. 162 : (136 I. C. 604). That was a case where different causes of action were combined in the subsequent suit as in the ease of Bhugwanbutti v. Choudhrani, 28 cal. 78 : (5 C. W. N. 483), & the decision in the case of Shibo Baut, (35 Cal. 353 : 7C.L J. 470) was distd. by their Lordships.
14. I do not think that, in the present case, it is necessary to rely upon Section 11, Civil P. C for the purposes of res judicata. That section prescribes certain conditions in which the matter directly & Substantially in issue in an earlier suit & heard & finally decided therein may not be tried in a subsequent suit. There is nothing in that section which takes away from the final de( ree in the earlier suit its finality as between the parties & has the effect of setting it aside. The decree in that suit remains binding between the parties so far as the subject-matter of that particular suit is concerned, although the issues on which that result was arrived at may for the purposes of the later suit, be open to trial. In other words, the cause of action has passed into a decree & cannot be reagitated. Unless this was so there would be no end to litigation & matters decided in suits before Munsifs would be reoper ed by inclusion in suits of higher valuation. The rule of res judicata which forbids the re-opening of matters once decided as in embodiment of the well-known maxims "Nemo debet bis vexari prn eadetn causa & Interest reipublicae ut sit finis litium," & the memorable words of Sir Lawrence Jenkins in Sheoparasan Singh v Bamnandan Prasad, 43 cal. 694 : (A. I. R. (3) 1916 P. c. 78) set out the manner in which the question ought to be approached :
". . . in view of the arguments addressed to them their Lordships desire to emphasise that the rule of res judicata while founded on ar oient precedent, is dictated by a wisdom which is for all time.
'It has been well said', declared Lord Coke, interest reipublicae suit sit ffirs litium, otherwise great oppression might be done under colour & pretence of law. (6 coke 9).
Though the rule of the Code may be traced to an English source, it emhodes a doctrine in no way opposed to the spirit of the law as expounded by the Hindu com-mentati ors. Vijnanesvara & Nitakantha include the plea of a former judgment among those allowed by law, eachiting for this purpose the text of Katayayana, who deaoribei the plea thus : "If a person though defeated at law such again he should be answered, you were defeated formerly. This called the plea of for tner judgment: [See The Mitakshara (Vyavahara) Bk. II, Ch edited by J. R. Gharpure, p 14, & The Mayuka, Oh. i., Section. 11, p. 11 of Mandlik's Edn.
And so the application of the rule by the Cts. in India should be influenced by no technical considerations of form hut by matter of substanoe within the limits allowed by law,"
Lord Darling consd. it worth while to repeat these words in Kalipada De v. Dwijapada Das, 57 I. A. 24 : (A. I. R. (17) 1930 p. C. 22) I may also-refer to Bamachandra Bao v. Ramachandra Bao, 45 Mad. 320 : (A. I. R. (9) 1923 P. C. 80) in which case Lord Buckmaster observed that :
"The principle which prevents the same case being twice litigated is of general application & is not limited by the specific words of the Code in this respect."
The observation of Lord Davey in Gokul Man-dar's case (29 I. A. 196 : 29 Cal. 707 P. C.) must be understood in the light of the facts of that case; There, it was argued before the Judicial Committee in reliance on Section 13 (NOW Section 11), Civil P. C. that a Settlement Officer being empowered to decide questions of status in the course of settlement proceedings under the Bengal Tenancy Act, his decision in such a proceeding was a bar to a civil suit. It was in answer to this argument that his Lordship observed that :
"It is not the province of a judge to disregard or go outside the letter of the enactment according to its true. construction."
As is clear from the subsequent decisions of the Judicial Committee to which 1 have refd., the dictum of his Lordship cannot be taken to mean that S. 13 (now Section 11) had the effect of abrogating, the general principles of res judicata. As other decisions of the Judicial Committee supporting my conclusion, I may mention G. H. Hook v. Administrati r-Oeneral of Bengal, 48 Cal 499 : (A. I. R. (8) 1921 P. C. 11) & Ram Kirpal v. Mt. Rup Kumari, 11 I. A. 37 : (6 ALL. 269 P. C.).
15. The conclusion to which 1 have come is also supported by the learned & illuminating discourse of Tek Chand J., on the doctrine of res judicata in Mt. Larhhmi v. Mt. Bhulli, 8 Lah. 384 : (A. I. Rule (14) 1927 Lah. 289 F. B.). His Lordship cites a relevant passage from an ancient Hindu law-giver Harita which I reproduce below:
'"The pltf. should be non-suite! if the deft, avers : 'In this very affair, there was litigation between him & myself previously,' & is is found that the pltf had los- his cafe."
In my opinion, this passage applies to the present case. His Lordship having indicated that the doctrine is of universal application & is to be found in various systems of jurisprudence, relates that in some of the ancient systems the operation of the rule was confined to cases in which the pltf. puts forward his claim to "the same subjecj-matter with regard to which his request had already been determined by a competent Ct. & had passed into judgment" this is what is described as the plea of "estoppel by judgment" or "estoppel by record." This rule of estoppel, he points out, was first enacted in British India bv Section 16. Bengal Ragulation III [3] of 1793 & again in Section 2, Civil P. C. of 1859. In other systems of law, & notably in England, his Lordship continues, the doctrine has developed & expanded, & the bar is applied in a subsequent action not only to cases where claim is laid to the same property but also to the same matter (or issue) as was directly & substantially in dispute in the former litigation; in other words, it is the identity of the issue & not the identity of the tubjeot-matter which attracts the operation of the rule. This is what is described as "estoppel by verdict." According to his Lordship, this extension of the principle was given effect to by Section 13 of the Code of 1877, which was substantially on the same lines as Section 11 of the present Code, I do not think that the effect of the extension of the principle was to do away with ' estoppel by record" & it is this estoppel which I would apply in the present case.
16. That there was no intention to abrogate "estoppel by record" would also appear from Section 13 of the Code relating to foreign judgments. The section provides that a foreign judgment shall be conclusive as to "any matter thereby directly adjudicated upon" between the same parties or between parties under whom they or any of them claim, litigating under the same title, subject to certain conditions, one of which is that the adjudication must be by a Ct. of competent jurisdiction. If the decision of a foreign Ct. of competent jurisdiction is given this effect in India, it is not possible that the Code intended to give a lesser effect to the decision of a competent civil Ct. of this country. I may also mention Order 2, Rule 2, Civil P. C. which shows the anxiety of the legislature to avoid repeated litigation of the same matter between the same parties.
17. For the reasons which I have set out, I consider that estoppel by record still exists &, with respect, I would suggest that the decision in the case of Shibo Raut (35 Cal. 353 : 7 C. L. J. 470) was to this extent incorrect.
18. Finally, I should like to draw attention to a mistake in the judgment of the learned Subordinate Judge. Having, on a consideration of the evidence, come to the conclusion that the claim against defts. 2 to 5 (a) is proved, (p. 51, lines 41-45 of the paper book), he goes on in the same para, to say that the claim is not proved against them (p. 61, lines 58-61). The latter statement is a mistake due to inadvertence & the decree has teen rightly passed against these defts.