Patna High Court
Baidyanath Rai And Anr. vs Satyanarain Rai And Ors. on 31 July, 1959
Equivalent citations: AIR1960PAT36, AIR 1960 PATNA 36
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Kanhaiya Singh, J.
1. This is an appeal under the Letters Patent by the defendants first party from the decision of a Single Judge of this Court dated 5-12-1952, by which he reversed the concurred decisions of the Courts below which dismissed the suit.
2. The lands involved in this litigation are situate in two villages, namely, Bathaili Debi Jagir and Kamalpur Jagir comprised in khewat No. 1 of the respective villages belonging formerly to Silanath Jha, the ancestor of the defendants second party. The latter also owned and possessed eight annas share in another tenure bearing khewat No. 24 in another village Bathaili Dhanoat. Ban-khandi Rai, the ancestor of the plaintiffs respondents acquired these three tenures, from Silanath by virtue of a registered deed of sale dated 7-2-1933 and went info possession thereof. Before this purchase, these three tenures were subject of attachment before judgment. Bansman Rai, the ancestor of the defendants first party, had instituted Money Suit No. 20 of 1931 against Silanath on 24-2-1931 and on the same date obtained attachment before judgment (Ext. D) of the said tenures. In due course the money suit was decreed on 30-11-1931, that is, before the plaintiffs' purchase, and the attachment before judgment was made absolute. Bansman, the decree-holder, levied execution and the three tenures were advertised for sale without fresh attachment and were purchased by the decree holder himself at auction sale on 1-5-1933. Thereafter, the plaintiffs filed an application under Order 21 rule 90 of the Code of Civil Procedure on 30-5-1953 for setting aside the auction sale on 'the grounds, inter alia, that the writ of attachment was not properly served but that it was kept concealed from them, which was numbered as Miscellaneous Case No. 86 of 1933. A compromise was effected therein between the parties on 18-11-1.933, by which Banlchandi agreed to satisfy the decretal dues in two instalments, when the sale was to be set aside; if not, the sale was to be confirmed. Bankhandi made default, with the result that the sale was eventually confirmed on 29-5-1934. Thereafter, Bailsman, the decree-holder, auction-purchaser, obtained delivery of possession of the disputed properties through Court on 15-6-1934. It will be observed that on the facts as they stand there is a competition between two sales, one a private one in favour of the plaintiffs respondents and the other a Court sale in favour of the appellants. The former was prior in time, but by reason of the earlier attachment before judgment, the Court sale in favour of the appellants, though later in time, had priority over the plaintiffs sale, and this position was affirmed by the said compromise. The matter ended there for the time being.
3. It will be seen that before the sale of date 7-2-1933 in favour of the plaintiffs but after the attachment before judgment on 24-2-1931, Darbhanga Raj, the superior landlord, ignoring the previous purchases, instituted Rent Suit No. 2235 of 1932 against the original tenure-holder, Silanath and his sons, in respect of khata No. 24 obtained a decree and in execution of it the said tenure was put up for sale on 10-1-1934 and purchased by Bankhandi benami in the name of his son Satyanarain (plaintiff No. 1) probably to secure their previous purchase and reinforce their title. Satya-narain took delivery of possession of the khewat on 10.-2-1936 dispossessing Bansman and others, including one Jagianand and Kausalya Dai, a daughter of Bansman. The last two had taken transfer of portions of the khewat previously. Bansman and his sons instituted Title Suit No. 61 of 1937 against Bankhandi and his sons and heirs for a declaration of their title and possession on the grounds that the decree obtained by Darbhanga Raj was a money decree, that the execution which followed was a money execution and the auction sale was a money sale and that consequently their purchase at auction being prior in time by reason of the previous attachment before judgment prevailed over the defendants' purchase and their title, therefore, remained intact and unaffected by the subsequent purchase of the defendants. Bansman died during the pendency of this suit which was continued by his sons and widow. The defendants, in reply, attacked the validity of the attachment before judgment and impugned the plaintiffs' title and asserted their own. The trial Court held that the decree obtained by the Darbhanga Raj was a money decree and the execution a money execution. That being so the interests of the plaintiffs were not affected, but notwithstanding these findings, it dismissed the plaintiffs" suit on the ground that the attachment before judgment in Money Suit No. 20 of 1931 at the instance of Bansman was invalid and consequently his title could not prevail over that of Bankhandi who had taken a kebala prior to their purchase at the auction sale. An appeal against the judgment and decree by the descendants of Bansmam failed. Thus Bankhandi's title with respect to khewat No. 24 was upheld.
4. Now, the sons and widow of Bankhandi commenced the present action on 30-4-1945 with respect to the remaining two tenures, namely, Survey Khewat No. 1 in village Bathaili Debi Jagir and Survey Khewat No. 1 in village Kamalpur Jagir. They have prayed for declaration of title and recovery of possession, substantially on the ground that the attachment before judgment in Money Suit No. 20 of 1931 was illegal and ineffective, that it did not affect their title to the disputed lands and that consequently the purchase of the disputed lands by their ancestors, being prior in time would have precedence over that of Bansman, the ancestor of the defendants first party. They also pleaded that the decision in Title Suit! No. 61 of 1937 operated as res judicata, because the issue in regard to the invalidity of the attachment was conclusively decided against the defendants:
5. The defendants first party alone contested the suit. They asserted that the attachment before judgment in the aforesaid money suit was valid and legally effective, that the purchase of the disputed lands by their ancestors at the Court sale was a good sale and the auction purchase will prevail over the purchase by the plaintiffs. They also pleaded that the compromise in Miscellaneous Case No. 6 of 1933 estopped the plaintiffs from challenging the validity of the sale and the attachment, and the title acquired by them was thus indefeasible. It is alleged-that the decsion in Title Suit No. 61 of 1937 did not operate as res judicata.
6. The learned Subordinate Judge who tried the suit held that the attachment was valid and proper, that by virtue of the compromise in the miscellaneous case Bankhandi waived all objections to the sale as well as the attachment and accepted the position that the question of title as between Bansman and Bankhandi had been set at rest. As regards res judicata he held that since the previous suit related to a different item of property and was tried by a Court which was not competent to try the present suit having regard to the pecuniary jurisdiction, the plea of res judicata was not available to the plaintiffs. He held further that the plaintiffs purchase was subsequent to the order of attachment and as such it can have no priority over the title of Bansman of his heirs. On these findings he dismissed the suit.
7. On appeal, the learned Additional District Judge concurred with the learned Subordinate Judge that the decision on the attachment in Title Suit No. 61 of 1937 did not operate as res judicata, but for different reasons. He was of the opinion that this question was not directly and substantially in issue in the previous suit and no issue was framed to that effect. According to him, *his question arose in that suit only collaterally or incidentally. He further held that the attachment was invalid but expressed the view that the compromise in the miscellaneous case debarred the plaintiffs and their ancestors from challenging the validity of the attachment. He held, therefore, that the plaintiffs were precluded from challenging the rights of Bansman or his heirs with regard to the disputed property and accordingly affirmed the decision of the learned Subordinate Judge.
8. On appeal to this Court, the learned Single Judge upheld the findings of the Courts below that the decision in Title Suit No. 61 of 1937 with regard to attachment did not operate as res judicata between the parties. He further, affirmed the finding of the lower appellate Court that the attachment was invalid. He, however, differed from the Courts below on the question of estoppel and held that the compromise in the miscellaneous case did not estop the plaintiffs from challenging the title of the defendants with regard to the property in suit. As, in his opinion, there was no proper attachment and the compromise did not operate as) estoppel, he reached the conclusion that the sale (feed in favour of the ancestors of the plaintiffs dated 7-2-1933 had precedence over the auction sale on 1-5-1933 in favour of the ancestors of the defendants. Accordingly, he set aside the judgments and decrees of the Courts below and decreed the plaintiffs' suit with costs throughout.
9. The two questions, namely, the question of estoppel and the question of res judicata which were agitated before the learned judge have been reiterated before us. Mr. B.C. De appearing for the appellants contended 'that' by reason of the compromise in Miscellaneous Case No. 86 of 1933 the plaintiffs were precluded from questioning the validity and propriety of the attachment before judgment obtained by the defendants in Money Suit No. 20 of 1933, and if the attachment prevailed", the title of the plaintiffs to the disputed lands acquired subsequent to the attachment was legally ineffective and invalid vis-a-vis the defendants' title and, therefore, did not and could not prevail over their title.
Learned counsel for the respondents on the ether hand contended that the validity or otherwise of the attachment was not in issue in the miscellaneous case and compromise could not be regarded even inferentially as concluded decision on the validity of attachment and hence the plaintiffs were free to raise the question, in this case. His contention is that the plaintiffs did not im4 peach the sale but simply wanted a declaration that it did not affect their title. This contention weighed with the learned Judge and he held:
"The mere fact that as a result of the com promise, the sale was confirmed does not, in my judgment, show, even inferentially, that those who were parties to the compromise accepted the validity of the attachment. In that view of the mat ter, I am of the opinion that the plaintiffs are not estopped from challenging the title of the defendants in regard to the property in suit. As there was, upon the findings, no attachment of the properties in suit, the sale deed in favour of the an cestor of the plaintiffs dated 7-2-1933, must have precedence over the auction sale held on the 1st of May, 1933 in favour of the ancestor of the defendants."
It is quite plain that the effectiveness of the auction' sale as against the plaintiffs' acquisition depended upon the validity of the attachment before judgment and I do not see how after having accepted the validity of the sale, the plaintiffs' can legitimately impeach the validity of the attachment which is so intimately connected with the validity of the said sale. It is well to remember that in their application under Order 21, Rule 90, the plaintiffs sought the reversal of the sale on the ground, inter alia, of material irregularity, and one of the material irregularities pleaded was that the attachment was invalid as the writ of attachment was not proper v served but that it was fraudulently suppressed.
It is indisputable that the absence of attachment is a material irregularity which, coupled with substantial injury, may vitiate the sale. By reason of the compromise arrived at in the miscellaneous ease, the auction sale stood a good sale, free from any infirmity, with the result that the defendants, had no occasion to establish that the attachment was in fact sewed and was a valid attachment. Having by their conduct denied the defendants an opportunity 'to establish the legality of the attachment, the plaintiffs cannot now turn round and impeach indirectly the sale on the same ground, namely, invalidity of the attachment, which now has become final and conclusive.
If the attachment stands, the plaintiffs as will appear from the above, have no case and the acceptance of their contention is tantamount to relegating themselves to the same position as they occupied before the presentation of their application under Order 21, Rule 90 of the Code, Thus, they suffer nothing at all, despite the compromise entered into by them, and all the consequences will have to be borne by the defendants for no fault of theirs. Manifestly, it appears against all canons of justice. Assume that the application under Order 21, Rule 90, was fought on merits and in presence of the parties, it was decided that the attachment was properly served and was legally valid.
The question is whether that determination would operate as res judicata debarring the plaintiffs from questioning the validity of the attachment in any subsequent proceeding. Mr. Baidyanath Jha appearing for the respondents candidly conceded that in that case the plaintiffs could not impeach the auction sale on the ground of infirmity in the attachment. I do not see how in the application of the principle of estoppel there can be any difference between the cases where the sale was confirmed on compromise and "where the sale was confirmed after contest.
In principle there is hardly any difference. A decision by compromise is as effective a decision as a decision on contest. If that were nob so, any decision on admission of the parties will have no binding effect. When the validity of the attachment was the very foundation of the validity of the sale and when by compromise the plantiffs conceded that on the happening of certain contingency (in this case their failure to pay the decretal amount on the appointed dates) the sale will stand good, now, after having made the default and having allowed the sale to be confirmed, they cannot, in my opinion, turn round and contest the same matter in a different garb. The learned Judge thought that in a case of this nature the principles of Sec. 115 of the Evidence Act did not apply.
Here also, I beg to differ with great respect, In the present case the ancestors of the plaintiffs admitted that the sale was a good sale, and on that footing the defendants' ancestors made concession in their favour and allowed them time to pay off the decretal amount, both agreeing that on payment of the full decretal amount the sale should be set aside, and if they failed, the sale should stand good. The defendants' ancestor, did not contest the application under Order XXI, Rule 90, and allowed the whole matter to be decided by compromise. Here, there was a complete representation by the plaintiffs to the defendants that the sale was good and on the faith of that representation the defendants forbore from contesting the application and allowed them time to pay the decretal amount.
By their conduct the plaintiffs induced in the defendants a belief that the sale was good and allowed them to act upon that belief. Hence, they cannot be allowed in law in a subsequent suit between them to deny the truth of their representation and impeach again what they undertook not to impeach. I may refer in this connection to a decision of the Calcutta High Court in Uttam Chandra v. Khetra Nath ILR 29 Cal 577. In that case the respondent had obtained a decree and, in execution of his decree, certain property belonging to the applicant was sold. The sale was confirmed. The decree-holder took possession on l6-8-1899. Then the judgment-debtor put in an application for the setting aside of the sale on the ground of irregularity and fraud.
The application was contested and, on 16-12-1899, the judgment-debtor put in a compromise petition to which the decree-holder consented, and it was agreed that the sale should be set aside on the judgment debtor paying the full decretal amount by a fixed date with the reservation that if he failed the sale would stand good. He paid a portion of the money on the appointed date and obtained further time to pay the balance. This balance he tendered on a subsequent date, but the decree holder refused to accept it. The question mooted in that case was whether the judgment-debtor was bound by his compromise petition and whether it was open to him to contest the legality of the sale. Their Lordships of the Calcutta High Court observed as follows :
"The judgment debtor, it appears to us, is estopped from contesting the legality of the sale. He asked for time and bound himself not to contest the validity of the sale, provided he got time. He obtained time and the advantages of a postponement, and it is, we think, quite contrary to reason and equity that he should now turn round and say that he is not bound by his agreement."
The same view was expressed by a Division Bench of this Court in Bala Krishna Prasad v. Apurba Krishna Mitra, AIR 1938 Pat 199.
In my opinion, the principles laid down in these cases fully apply to the present case. Here also, the plaintiffs, obtained time to pay the decretal amount on the condition that in the event of their failure to pay the sale would stand good. They defaulted. Having obtained time and prevented the defendants from contesting the validity of their objections, they cannot now, after their default has resulted in the confirmation of the sale, turn round and contest the legality and validity of the sale on the very same grounds on which the sale was impeached in the previous proceeding. In my opinion, the plaintiffs are estopped from questioning the legality of the sale in this case.
10. Mr. Jha attempted to support the conclusion of the learned Judge on the ground that the question of the validity of the attachment was barred by the principle of res judicata. This contention is founded upon the decision in Title Suit No. 61 of 1937, which, as said above, related to khewat No. 24. It will be recalled that the properties which were the subject-matter of attachment before judgment were three in number, namely, khewat No. 1 in mauza Bathaaili Debi Jagir, Khewat No. 1 in Kamalpur Jagir and Khewat No. 24 in Dhanpat. Only the first two are the subject matter of litigation in the present action. We are not concerned with Kliewat No. 24. In Title Suit No. 61 of 1937 between the parties, it was no doubt held that the attachment before judgment was invalid.
Now, the contention of the plaintiffs is that this decision operates as res judicata since the question of the validity of the attachment was directly and substantially in issue in the former suit. This contention was overruled by the learned Judge on the ground that the properties were different. Mr. Jha contested the correctness of this proposition of law and urged that the test of res judicata was the identity of title in the two litigations and not the identity of actual property involved in the two cases.
His submission is that although the properties in the two suits were different, the question involved was similar, namely, the validity of the attachment and that matter having been conclusively tried between the same parties, the Court in the subsequent suit between the same parties or persons claiming through them cannot try anew the same issue, in face of the express provision in Section 11 of the Code. Mr. De on the other hand, contended that though the attachment with respect to Khewat No. 24 was found invalid in the former suit, still the appellants were not bound by it, because the suit did not relate to the property which was the subject of the former suit.
In my opinion, the abstract proposition of law put forward by both the learned counsel cannot be accepted as correct without qualification. It depends upon the circumstances of each case whether or not difference in the subject-matter of litigation will attract the application of Section 11 of the Code. It cannot be said as a general proposition of law that an estoppel is not binding unless the suit relates to the same subject-matter. At the same time, cases may arise where the title under which the party's claim in a particular suit differs with different properties though the properties form part of the same estate.
In such a case the finding about the title cannot be regarded as conclusive between the parties; for all times to come and in respeol of all the properties claimed. In support of his contention Mr. Jha relied upon a decision of the Supreme Court in Raj Lakshmi Dasi v. Banamali Sen, AIR 1953 SC 33 at 39. In this case their Lordships of the Supreme Court! have laid down that "the test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases." The suit ^elated to the estate of one Raj Ballav who died on 10-6-1870 leaving him surviving his widow Mati Dassi and three grandsons, Sens who were sons of a predeceased daughter by another wife.
On Raj Ballav's death, Mati Dassi entered into possession of the estate and adopted one Jogendra Nath Seal in 1873 under the authority conferred on her. Jogendra married Katyayani, and Rajlakshmi was their only child. Mati Dassi died in ,1899 and the Sens then appeared to have taken possession of the estate. On 13-1-1903, Katyayani commenced suit of 1903 against the Sens. In the plaint as originally filed, Katyayani admitted the title of the Sens to a one fourth share of the estate and claimed only a three-fourth share for herself as the widow of Jogendra.
The Sens claimed the whole estate for them selves as the heirs of Raj Ballav. During the pendency of this suit, on 25-9-1903 the Sens mortgaged the whole sixteen annas of the estate to one Das in order to secure a loan of Rs. 7000. The; trial Judge decreed the claim of Katyayani for the whole of Raj Ballav's estate and a decree for recovery of possession of the whole estate was passed in her favour. Against decision of lower Court in this suit an appeal was taken to the District Judge. The mortgagee Shib Krishna Das was also added as a party in the appeal. The appeal was compromised and under the compromise Katyayani was to get a six anna share in absolute right in the estate, Kanai, her father, was to get another six anna share for his supposed troubles and' expenses in connection with the litigation and the Sens four anna share, their share to be subject to the mortgage charge.
The compromise decree was passed on 9-1-1907 and the suit was remanded to the trial Court in order that a partition might be effected and a final decree passed. A partition was made in due course and final decree was passed on 1.0-9-1907. The property described as 2 Deb Lane, Calcutta forming part of Raj Ballav's estate and which had been allotted under the compromise to the share of the Sens was notified by a declaration under the Land Acquisition Act for acquisition on 16-1-1921. On 27-4-1928 the mortgagee made an application claiming the entire amount of compensation money and contended that the mortgagee decree-holders were entitled to the whole of it. Rajlakshmi claim ed the entire amount as owner of the sixteen annas share of Raj Ballav's estate.
On 7-7-1928 a joint award was made in favour of all the claimants. Rajlakshmi asked for a reference to the Court on the point of apportionment of compensation by a petition made by her on 18-7-1928. She asserted that the Sens and the Dassesi were not entitled to any portion of the compensation money. A special Judge was appointed under the Land Acquisition Act to try the matter. He disallowed Rajlakshmi's claim and held that the Sens wore entitled to the entire compensation money.
In an appeal to the Privy Council. Rajlakshmi was declared entitled to the entire compensation money. Within two months of the decision of the Privy Council, the present suit was commenced by Rajlakshmi on 21-9-1938 against the Sens and the Dasses for possession of the properties which represented the four anna share of the estate allotted to the Sens, and possession of which was delivered to them in pursuance of the terms of the final decree in the suit of 1903. It is evident that the claim to compensation made by the respective parties was founded on the assertion of their respective titles in the part of Raj Ballav's estate which under the partition decree of 1907 has been allotted to the Sens subject to the charge of the Dasses, and the decision on the question of apportionment depended on the determination of that title. In these circumstances, their Lordships of the Supreme Court held that the question of title to the four; annas share was necessarily and substantially involved in the land acquisition proceedings and was finally decided by a Court having jurisdiction to try it and that decision thus operated as res' judicata and estopped the Sens and the mortgagees from reagitating that matter in this suit. In that case they also observed that the test of res judicata was the identity of title in the two litigations and not the identity of the actual property involved in the two cases and that it could not be said that the judgment of the Privy Council could not operate as res judicata against the present contention of the Sens and the mortgagees, about the title icy the four anna share of Raj Ballav's estate, because the subject-matter of those proceedings was the compensation money and not the property that was the subject-matter of the present suit.
It is plain that although in the former suit the question related to compensation money and in the latter suit the question related to possession of the parties in respect of which compensation was claimed, still their Lordships of the Supreme Court applied the principle of res judicata as embodied in Sec. 11 of the Code, because the title on which claim to compensation and claim to possession of the property were rested was identical. Having regard to the provisions of Sec. 11 of the Code, it is the matter in issue directly and substantially and not the subject matter of the suit that forms the test of res' judicata. At the same time while determining what was the matter in issue directly and substantially in a suit, the subject matter of the litigation cannot be overlooked.
In order to attract the applicability of Section 11 not only the matter must be directly and substantially in issue in both the suits but must also be litigated under the same title in a Court of competent jurisdiction. It is really not the subject matter of the litigation which determines the applicability of the principle of res judicata but the identity of the title which forms the foundation of the claim. For instance, suppose a person purchases by two registered deeds of sale properties A and B respectively which form part of the same estate and a dispute arises as to the title of the person with respect to property A and it was decided that the sale deed relating to this property was genuine and conferred a valid title upon the purchaser.
A second suit arose between the said parties with respect to the other property B and the question is whether the finding in the previous suit as to the genuineness of the sale deed and the validity of the title of the purchaser will bar the trial of the genuineness of the sale deed and the title of the purchaser with respect to property B. Evidently, it will not. Although the claim was based upon purchase, the two properties were acquired by two different instruments, and the genuineness of one Instrument will not necessarily imply the genuineness of the other instrument. In such a case though the matter was apparently in issue in both the questions it will not operate as res judicata for the simple reason that not only the properties differed but also the title under which, they were acquired; To vary the illustration given above, if the properties A and B were acquired by the same instrument and if in a suit relating to the property A the genuineness of the instrument was established finally and conclusively, then in a second suit relating to the property B the title of the plaintiffs based on the same instrument must be held to have been finally decided in the former suit so as to bar the trial of the same issue in the subsequent suit. The reason is obvious. Here, one common title embraced the entire property, and though in both the suits the properties were different yet the title under which they were claimed was identical, and, therefore the decision in one suit with respect to the validity of the transfer and the title of the purchaser will operate as res judicata in the subsequent suit.
Again, if a person claims a part of an estate on the ground of being the adopted son of the last male holder, and it is found by a Court of competent jurisdiction that the adoption was valid, in subsequent suit relating to the other portion of the estate, the factum and the validity of adoption cannot be allowed to be raised as it was finally and conclusively decided in the previous suit. In such a case, estoppel will be binding notwithstanding that the suit which raises it relates to a different property. Applying these principles to the present case it will appear that the title based upon the attachment cannot be regarded as identical in both the suits.
It will be observed that the former suit did not relate to the same property as that which is the subject of the present suit. The property involved in the present suit is entirely different from the property in the former suit, and both these properties are situate in two different villages, and it cannot be said that the service of the writ of attachment on one property necessarily implies the service of the writ of attachment on the other property. It is conceivable that while the attachment effected in respect of the property in the former suit was invalid, the attachment was validly served on the properties in the present suit.
In other words, the title arising out of the attachment before judgment in respect of these pro-
parties cannot be said to be identical. If the properties had been situated in one compact block and the writ of attachment in a suit with respect to a portion of that block was found to be valid, then this decision will operate as res judicata with respect to the validity of the attachment in a subsequent suit with regard to the remaining property. The position here is entirely different. In my considered judgment, in this particular case the principle of res judicata did not apply, because not only the subject-matter of the two suits was different but also the title under which the properties were claimed differed. I would hold, therefore, that the finding about the invalidity of the attachment in the former suit was not conclusive against the appellants in the present suit, and the trial of that matter was not barred under Section11 of the Code of Civil Procedure.
11. In the result, this appeal is allowed with costs and the suit is dismissed with costs throughout.
Ramaswami, C.J.
12. I agree.