Patna High Court
Ganesh Prasad Singh And Ors. vs Ram Chandra Prasad on 9 June, 1983
Equivalent citations: AIR1983PAT317, AIR 1983 PATNA 317, 1983 BBCJ 411, 1983 BLJR 511, (1983) PAT LJR 571
JUDGMENT Ram Chandra Prasad Sinha, J.
1. This Letters Patent Appeal by the decree-holders has been filed against the judgment and order dated 26-11-1970 passed by a learned single Judge of this Court in Misc. Appeal No. 227 of 1968 reversing the judgment and order dated 5-8-1968 passed by the First Subordinate Judge, Muzaffarpur, in Misc. Case No. 81 of 1966 arising out of an objection under Section 47 of the Civil P. C. (hereinafter referred to as 'the Code') filed by the judgment-debtor-respondent in Execution Case No. 109 of 1964.
2. The relevant facts, in brief, are as follows: One Achey Lal had two sons Ramdhani Lal and Mahtab Lal. Ramdhani's son Jagdip Sahay had three sons Jaimangal Prasad, Rameshwar Bajrang and Shiva Prasad. Mahtab Lal had four sons Raghubans Sahay. Anant Sahay, Narsing Sahay and Gulzar Sahay. Anant Sahav had two sons Lalji Sahay and Bhagwan Sahay. Lalji had also two sons, namely, Kailash Bihari and Rajpati Sahay, Kailash Bihari and Rajpati has got one son each, namely, Harinandan Prasad and Ramchandra Prasad respectively. Bhagwan Sahay had died issueless. Shiva Prasad. the father of appellants 1 and 2 and husband of appellant No. 3, filed Title Suit No. 90 of 1949 in the court of Subordinate Judge, Muzaffarpur which on transfer to the court of Additional Subordinate Judge III, Muzaffarpur, was numbered as Title Suit No. 90/24 of 1949/54. In the aforesaid suit, descendants of Raghubans Sahay were defendants Nos. 9 and 10 and were described as defendants 3rd party. Defendants 1 to 4 were descedants of Anant Sahav and mentioned as defendants 1st party. Defendants Nos. 5 and 6, the descendants of Gulzar Sahay and defendants Nos. 7 and 8, descendants of Jagdip Sahay, were described as defendants 2nd party. Other defendants described as defendants 4th party, except defendant Nos. 11 and 12, were the transferee from some co-sharers. Defendants 11 and 12 were tenants in occupation of some houses.
3. The case of the plaintiff was that the aforesaid two branches descending from common ancestor Achey Lal had become separate long before the Cadastral survey. In the year 1893 Bhagwan Sahay had brought a partition suit No. 98 of 1893 in the court of Subordinate Judge at Muzaffarpur which ended in a compromise decree by which the properties mentioned in Schedule 2 of the plaint were given to the shares of Bhagwan Sahay and Lalji Sahay although there was a disruption of the joint status of all the branches who were the parties to the said suit including Bhagwan Sahav and his brother. Bhagwan Sahay thereafter came to Muzaffarpur town and settled there and acquired lands in his own name and in the name of his wife and built houses which were described in Schedule 1 of the plaint. He was in exclusive possession of those Houses. In the partition decree Bhagwan Sahay and his brother Lalji Sahay had got 17 bighas of Mukarrari lands in village Jainatpur which were divided by metes and bounds amicably and the mukarrari lands mentioned in Schedule 3 of the plaint came to the exclusive possession of Bhagwan Sahay and the orchard described in Schedule 4 of the plaint also came to him. The only issue a daughter of Bhagwan Sahay and his wife died long ago and then he executed a deed of gift on 24-2-1942 in favour of Shiva Prasad in respect of all his moveable and immoveable properties out of love and affection and he came in possession of those properties. The sole plaintiff Shiva Prasad alleged that the defendants first party had dispossessed the plaintiff from all the properties mentioned in Schedules 1, 3 and 4 of the plaint on the 15th Baisakh 1352 Fasli and had prayed for recovery of possession of aforesaid properties on ejectment of defendants first party and defendants 11 and 12. Alternatively, the plaintiff had prayed for a joint possession with the defendants first party in respect of the share of Bhagwan Sahay in the lands given in Schedule 2 of the plaint if the case of private partition was not found to have been proved. A decree for mesne profits was also asked for.
4. The suit was contested by the defendants first party only and their defence was that Bhagwan Sahay had adopted defendant No. 3 as his karta-putra in the year 1339, fS. and had brought him up. The houses mentioned in Schedule I of the plaint were not the self-acquired properties of Bhagwan Sahay, rather they were acquired and built out of the money that was paid in accordance with the terms of compromise decree of the partition suit of 1893 to Bhagwan Sahay and his brother Lalji Sahay. The houses remained in joint possession of both the brothers and the descendants of Lalji. There was never any partition or division of mukarrari lands between Bhagwan Sahay and Lalji Sahay, but the former had left all his connections with those lands soon after the compromise decree and went away to Muzaffarpur where he settled. A family arrangement to that effect was entered into on 10-1-1937 and defendants 1. 2 and 4 had been coming in possession of the mukarrari and orchard lands exclusively for a very long time, much more than 12 years. They denied the defendants 1, 3, 11 and 12 to be tenants of any of the houses mentioned in Schedule 1. The deed of gift, according to them, was fraudulent and Bhagwan Sahay did not execute any deed of gift in favour of Shiva Prasad.
5. During the pendency of the suit Shiva Prasad the original plaintiff, had died and he was substituted by his legal representatives who are appellants in this appeal.
6. The trial court decreed the suit in favour of the plaintiffs and directed them to take khas possession of the houses mentioned in Schedule 1 of the plaint and joint possession over the share of Bhagwan Sahay in the properties mentioned in Schedules 2 and 4. The trial court held that Bhagwan Sahay did not renounce his connection with the family properties and there was no family arrangement in 1937 between Bhagwan Sahay and Lalji Sahay as pleaded by the defendants. Schedule 2 properties did not come in possession of the defendants first party on the basis of any such family arrangement. The deed of gift executed in favour of Shiva Prasad was valid and the plaintiffs acquired title to the share of Bhagwan Sahay in the suit properties. Schedule 1 properties were held to be separate properties of Bhagwan Sahay and the plaintiffs were held to be entitled to recovery of possession of the houses exclusively.
7. Defendants 1, 2a and 4 filed appeal before the High Court against the aforesaid decree and they claimed their title to the properties of Schedules 2 and 4 only which was numbered as First Appeal No. 309 of 1955. Defendant No. 3 also filed another appeal which was numbered as First Appeal No. 308 of 1955. Both the appeals were dismissed by this Court. This Court affirmed the finding of joint possession with respect to Schedules 2 and 4 properties and upheld the decree passed by the trial court by its judgment dated 10-4-1964.
8. After the aforesaid judgment, the appellants on 18-11-1964 filed Execution Case No. 109 of 1964 in the court of First Subordinate Judge, Muzaffarpur for the execution of the decree for joint possession passed by the trial court and affirmed by the High Court in First Appeal No. 309 of 1955 as mentioned above. On 22-9-1966 Ram Chandra Prasad son of Rajpati Sahay, one of the judgment-debtors who was defendant first party No. 4 (respondent of this appeal) filed an application under Section 47 of the Code objection to the execution of the decree passed in respect of Schedule 2 properties, i. e., mukarrari lands mainly on the ground that after passing of the decree the mukarrari interest of the decree-holders, who were not in khas possession on the date of vesting of the Zamindari vested in the State of Bihar and they had no right left in the same and the decree for joint possession could not be executed. On the aforesaid application under Section 47 of the Code, Misc. Case No. 81 of 1966 was registered by the First Subordinate Judge, who, after hearing both the parties, dismissed the miscellaneous case by holding that the judgment-debtors including the respondent being co-sharers and plea of ouster taken by them having been failed the right of the appellants still subsisted and they were entitled to get joint possession in terms of the decree. It was also very clearly held by him that the possession of the judgment-debtors including the respondent would be deemed to be the possession on behalf of the appellants as well and the lands would be deemed to have been settled with the appellants also under Section 6 of the Bihar Land Reforms Act and they would be entitled to retain the possession thereof and hold the lands as raiyat thereof under the State of Bihar having occupancy right therein. It was further held by the learned Subordinate Judge that the aforesaid First Appeal No. 309 of 1955 was heard on 12th, 13th and 16th to 20th Mar. 1964 and the estate vested in the State of Bihar from 1st Jan. 1956, but no such plea was raised before the High Court and the decree for joint possession with regard to Schedule 2 properties was affirmed and as such the respondent was precluded from raising the said plea in the execution proceeding.
9. Against the aforesaid order, the respondent filed appeal in this Court which was numbered as Misc. Appeal No. 227 of 1968 and after hearing the parties. G. N. Prasad. J. set aside the order of the learned Subordinate Judge and allowed the appeal by his judgment and order dated 26-11-1970 by holding that on the plaintiffs-decree-holders' own case that they were dispossessed and ousted by the judgment-debtors on 15th Baisakh 1352 Fs., i. e., sometime in the year 1945 and the possession having not been restored before 1st Jan. 1956, the appellants were not entitled to joint possession as Section 6 of the Bihar Land Reforms Act would not be invoked in favour of such decree-holders who were not in khas possession on 1st Jan. 195G. It is against this order of the learned single Judge of this Court that this letters patent appeal has been filed.
10. The aforesaid judgment of the learned single Judge has been challenged on two grounds; firstly that the learned Judge has overlooked that the plea of ouster taken by the defendants-judgment-debtors was not accepted either by the trial court in the title suit or by this Court in the aforesaid First Appeal No. 309 of 1955 and it was clearly held that their possession was not adverse to the plaintiffs as their possession was that of a co-sharer, and secondly, that the plea taken by the judgment-debtors to the executability of the decree was barred by principles of constructive res judicata. It has already been stated above that the trial court as well as this Court in first appeal gave a clear finding that the plea of ouster taken by the defendants-judgment-debtors was not tenable at all and that the judgment-debtors were in possession also on behalf of the plaintiffs by applying the principle that the possession of one co-sharer is the possession of other. After elaborate discussion of the oral and documentary evidences as well as the law on the subject, the Division Bench of this Court came to the following conclusions in First Appeal No. 309 of 1955 :--
".........In the present case there is no evidence of any such assertion of hostile title by Lalji or his sons at any time, much less to the knowledge of Bhagwan Sahay."
".........In the instant case there was no question of any incompatibility between the possession of Lalji and his descendants and Bhagwan's claim. Defendants first party, therefore, cannot succeed in making out a case of ouster against Bhagwan or his donee, the original plaintiff No. 1."
On the basis of the aforesaid findings, the relief for joint possession with respect to Bhagwan's share in the mukarrari lands described in Schedule 2 of the plaint was given by the trial court and upheld by this Court. The learned single Judge relying upon the decision of the Supreme Court in Suraj Ahir v. Prithinath Singh (AIR 1963 SC 454) and a Bench decision of this Court in the case of J. P. Singh v. S. P. Singh (1968 BLJR 143) held that as the appellants were not in khas possession on the date of the vesting, they are not entitled to get joint possession on the basis of the decree passed by the courts. The aforesaid Supreme Court case is not a case of possession of a co-sharer or co-owner. The Patna case is, no doubt, a case of a co-sharer but the co-sharer was held to be in khas possession of the land adversely to the other co-sharer on the basis of their ouster from the disputed land. The aforesaid cases, in my opinion, are not applicable to the facts of the present case. In the instant case the plea of ouster and adverse possession set up by the defendant-judgment-debtors was not accepted by the trial court as well as by this Court.
11. The principle that possession of one co-sharer is the possession of the other co-sharer has been recognised by the Supreme Court in several cases even in a case under Section 6 of the Bihar Land Reforms Act and it has been held that khas possession of same of the co-sharers over the bakasht lands at the time of the vesting of the estate in the State under the Land Reforms Act would be the possession of the other co-sharers and that they would be deemed to be in constructive possession through the co-sharers in possession. Only two Supreme Court decisions one the case of Bhuneshwar Prasad Narain Singh v. Sidheshwar Mukherjee (1972 PLJR 11): (AIR 1971 SC 2251) and the other case Bhaiya Ramanuj Pratap Dev v. Lalu Maheshanui Pratap Dev (1981 (4) SCC 613): (AIR 1981 SC 1937) would suffice the purpose. It has been very clearly held that land in khas possession of one particular intermediary in representive capacity on behalf of the others would be deemed to be settled with those persons on whose behalf the intermediary possessed it under Section 6 of the Bihar Land Reforms Act. As it has been stated above, there is clear finding that the defendants-judgment-debtors were in possession of the Schedule 2 lands on behalf of the plaintiffs-decree-holders as well. In the present case the possession of the respondent-judgment-debtor who is a co-owner will be possession of the appellants and the lands will be deemed to have been settled with them also under Section 6 of the Bihar Land Reforms Act.
12. The second point, as stated above is with regard to constructive res judicata. From the facts stated above it is clear that the arguments in the aforesaid first appeal was heard on several dates in the year 1964 and the plea was not taken at all that the claim of the plaintiffs would not be tenable in view of Section 6 of the Bihar Land Reforms Act. It was not even whispered on behalf of the defendants-judgment-debtors that the suit of the plaintiffs in respect of Schedule 2 property would fail on this ground alone that they were not in khas possession on the date of vesting. This plea, though available to them, was not raised during the first appeal, and it is not open to the defendants-judgment-debtors to raise this point during the course of execution proceeding the plea being barred by constructive res judicata, the learned single Judge has erred in holding that as this plea was not taken by any of the parties during the first appeal the matter was mot decided and it was open to the defendants-judgment-debtors to raise this point for the first time in execution proceeding. In my opinion, the learned Judge has entirely overlooked the provision regarding the principle of constructive res judicata. This point has been well settled by judicial pronouncements of this Court as well as of other Courts, In the case of Batjnath v. Ramphal Sahani (AIR 1962 Pat 72), a Full Bench consisting of five Judges of this Court held that if a party takes an objection at certain stage of a proceeding and does not take another objection which it might and ought to have taken at the same stage, it must be deemed that the Court had adjudicated upon the other objection also and had held against it, It has also been held that if a party had knowledge of a proceeding and having had an opportunity when it might and ought to have raised an objection, it does not do so, it cannot be allowed to raise that objection subsequently if the court passes an order which it could not have passed in the case if that objection had succeeded on the ground that it must be deemed to have been raised by the party and decided against it. This case has been followed by a subsequent Full Bench in the case of Sarjug Singh v. Basisth Singh (AIR 1970 Pat 237). In the present case the defendants-judgment debtors having failed to raise the aforesaid point in the first appeal which they might and ought to have raised were precluded from raising in the execution proceeding and the plea of the respondent-judgment debtor regarding non-executability of the decree is barred by the principle of constructive res judicata.
13. For testing the point regarding res judicata Section 11 of the Code may also be examined which reads as follows :--
"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." Explanation IV reads as follows :--
"Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit." Before the amendment of the Code in 1976 Section 11 was not made applicable to the execution proceeding but by amendment of 1976, Explanation VII has been added and the provisions of this section have been made applicable to the execution proceeding also. Though at the relevant time, this Explanation VII was not on the statute book, but it was settled by several judicial pronouncements that principle of res judicata including constructive res judicata applies to the execution proceeding. While giving the decision in the miscellaneous appeal, the learned single Judge did not at all consider the aforesaid principle of law.
14. In the result, this appeal must succeed. It is accordingly allowed and the judgment and order of the learned single Judge is set aside. As a consequence thereof the order of the executing court dated 5-8-1968 passed in the miscellaneous case is restored. The appellants shall be allowed their costs as well. Hearing fee is assessed at Rs. 110/- only.
Hari Lal Agrawal, J.
15. I agree.