Rajasthan High Court - Jodhpur
Ganesh Das & Anr vs Shanti Devi & Ors on 7 February, 2014
S.B.Civil Second Appeal No. 152/2003
Ganesh Das & Anr. Vs. Shanti Devi & Ors.
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
S.B.CIVIL SECOND APPEAL NO.152/2003
Ganesh Das & Anr.
Vs.
Shanti Devi & Ors.
Date of Judgment : 7th February, 2014
PRESENT
HON'BLE MR. JUSTICE MAHENDRA MAHESHWARI
Mr.R.K.Thanvi, Senior Advocate assisted by
Mr.Narendra Thanvi, for the appellants.
Mr.Mishrilal Chhangani, for the respondents.
*****
Reportable
BY THE COURT :
Aggrieved against the judgment and decree dated 17.2.2003 passed by the learned Additional District Judge, Phalodi (for short "the appellate Court"
hereinafter) in Civil Appeal Decree No. 02/2002, whereby the appeal preferred by the appellants- defendants against the judgment and decree dated 12.2.2002 passed by the learned Civil Judge (Senior Division), Phalodi, District Jodhpur (for short "the trial court" hereinafter) in Civil Regular Suit No. 88/1999 decreeing the suit in favour of the respondents-
S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 2 plaintiffs, has been dismissed, the Ganesh Das & Others, the appellants herein have preferred this second appeal assailing the judgment and decree on the various grounds.
Concisely stated, the factual position of the case as emerged from the record of the trial court as well as the first appellate court is that a suit was preferred by the respondents-plaintiffs for possession and permanent injunction. The learned trial court while deciding the suit, vide aforesaid judgment and decree impugned dated 12.2.2002 passed the decree in the terms that the appellants-defendants shall hand over the vacant possession of the disputed land/property as mentioned in the suit situated in southern-eastern side of the main property covered by Patta No. 254-A which has been described as A,B,C,D,E,F,G & H in the attached map with the plaint, to the respondents- plaintiffs within a period of two months and by way of mandatory injunction, the trial court further restrained the appellants-defendants from raising any illegal construction in the disputed premises either by themselves or through anyone else.
Being aggrieved against the judgment and decree dated 12.2.2002, the appellants-defendants preferred S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 3 the appeal in the first appellate court which has been dismissed by the appellate court, while directing that appellants-defendants should hand over the possession of the disputed property to the respondents-plaintiffs within stipulated period of three months. Hence, the appellants-defendants have preferred this second appeal before this Court against the aforesaid both judgments and decrees passed by the courts below.
While admitting the second appeal, this Court framed the following substantial question of law vide order dated 23.7.2003 :-
"Whether the earlier decision given on an issue in previous suit against the party, who cannot challenge the finding of that issue on the ground of dismissal of the suit can be treated as res-judicata in subsequently filed suit ?"
Learned counsel appearing for the respondents- plaintiffs neither raised any objection regarding the aforesaid substantial question of law being originated in the instant second appeal nor any other substantial question of law has been suggested by both the sides. Learned counsel for the appellants-defendants also did not press the other grounds/issues mentioned in the appeal except the question framed by this Court as above on 23.7.2003. In this view of the matter, it is S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
4 considered just and appropriate to decide this appeal in the light of the substantial question of law framed as above.
On the basis of the submissions made on behalf of the learned counsel appearing for the parties in respect of the aforesaid substantial question of law, available documentary and oral evidence on record and within the purview of the precedents of law, the crux of the dispute involved between both the parties in the matter, in short appears to be that a suit bearing No. 28/1983 was preferred by Shri Nathmal-the father of the present respondents-plaintiffs against the appellants-defendants for injunction regarding selfsame disputed premises which is subject-matter in the present suit, and while the earlier suit was pending on account of death of Shri Nathmal, the present respondents-plaintiffs were brought on record as legal heirs of Shri Nathmal. The trial court, according to the issues framed, dismissed the previous suit No. 28/1983, however, while dismissing the earlier suit, the trial court decided the issues framed therein against the appellants-defendants which were to be proved by them but failed to prove, while recording adverse findings regarding their rights in the land in dispute, S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
5 but, no appeal was filed by the appellants-defendants against such adverse findings on issues determining the rights in the disputed property in favour of present plaintiffs-respondents and against the present appellants-defendants and thus, whether in the suit under appeal filed between the same parties regarding the selfsame disputed property, the bar of res-judicata would come in the way of the appellants-defendants or not in re-agitating their ownership rights which were already determined against them in the earlier suit?
To adjudicate the controversy involved in the appeal effectively and finally, it is considered appropriate and necessary to narrate here the factual position of the matter as depicted from the record. In the first instance, Nathmal-the father of the present respondents, preferred a suit against the appellants- defendants for injunction in respect of disputed premises showing appellants to be the tenants which was registered as suit No. 28/1983 (28/1993) "Nathmal through LRs Vs. Ganesh Das & Ors." In the said suit, in all 11 issues were framed. The burden to prove the issues No. 5,7,9,10A & 10B was on the appellants-defendants. The said issues No. 5,7,9,10A & 10B read as under:-
S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 6
"5. आय क पत व द गण इस म न म सयक ह ससद र और उन सयक सव ममतव !?
(प.व द )
7. आय क ववव दगस म न म पत व द लम& अरस स ब&ज और इस प र उन बज मख लफ न - च ?! (प.व द )
9. आय व द न घ-षण अथव अनय -ई अन -ष न म ग और वल सथ ई तनषध ज मलय य व द ससथर रख ज न य-गय न !?
(प.व द )
10.ए आय अज9द व म वरण;
थय= स व द - पत व द ववरद
वद प!द न - , अ : य
द व ख ररज क ए ज न य-गय ?!
(प.व द )
10.&B आय मदईय न न अज9
द व म मद यल ववरद सपष
आर-प लग य ! क मद यलह म
म न म क र यद र -न & वजदD
& Eर म न म मल म न म
-डफ-ड व आमDल पररव न ; र र
इसB रण मदईय न मद यलह म
ववरद म न &दखल क र य एव
ज ;न दव र स ।
इस रण य द व चलन य-गय
न !?
(प.व द )
The learned trial court vide judgment dated
15.02.97, while deciding the aforesaid issues No. 5 and 7 in favour of the respondents-plaintiffs and against the appellants-defendants and issue No. 10A against the appellants-defendants, dismissed the earlier suit preferred by the respondents/plaintiffs as per the S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 7 observations made on other issues framed therein. To prove the issues No. 5 and 7, it was incumbent upon the appellants-defendants to establish their joint ownership with the others and ownership vested by way of adverse possession to them. Since the appellants-defendants failed to establish their joint ownership and title by way of the adverse possession in disputed property, the issues No. 5 and 7 were decided against them. However, since the respondents- plaintiffs failed to establish the appellants-defendants to be the tenants, despite deciding the issues No. 5 and 7 in their favour and against the appellants-defendants, earlier suit was dismissed by the trial court. It is relevant to mention here that earlier said suit No. 28/1983 was originally decided vide judgment dated 16.1.1987 which was challenged by way of filing appeal bearing Appeal No. 03/1987 (26/1993) before the Additional District Judge, Phalodi and vide judgment dated 8.2.1994, the appellate court while deciding the said appeal, remanded the matter to the trial court to decide afresh. After remand, the Original Suit No. 28/1983 was decided vide trial court's judgment dated 15.2.1997.
At the time of final hearing of the appeal, this S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 8 Court has already requisitioned the original record of the earlier Civil Original Suit No. 28/1983 (28/1993), first appeal and the record relating to the decision of the suit after remand. The Court has also requisitioned the original record of the present suit No. 88/1999 and the first appeal as well i.e. the original record of both the courts below.
After the decision of the earlier suit as mentioned above, the present Civil Original Suit No. 88/1999 (Shanti Devi & Ors. Vs. Ganesh Das and Ors.) was filed before the learned trial court by the respondents- plaintiffs which was decided vide judgment and decree impugned dated 12.2.2002. Mainly, the said suit was filed on the ground that appellants-defendants are in possession of the disputed property without any legal right/basis and that according to the decision of the earlier suit, the appellants-defendants failed to prove their joint ownership or adverse possession, therefore, the suit for recovery of the possession/dispossession has been filed on the ground of appellants-defendants being in illegal possession and not on the basis of the tenancy.
Since, the findings recorded in the judgment dated 15.2.1997 passed in the earlier suit No. 28/1983 S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 9 (28/1993) against the appellants-defendants in respect of issues No. 5 and 7 framed therein were not challenged by filing any appeal by the appellants- defendants, in the present Civil Regular Suit No. 88/1999, mainly issues No. 2 and 5 were framed which are basic points in issue in this second appeal. The issues No. 2 and 5 framed by the trial court in the subsequent suit are quoted herein below:-
"2. कय पDवव; 9 व द सखय 28/93 तनण;य हद. 15.2.97 म पत व द गण - व दग भDखड म अत कमB म न गय?
..... व द गण
5. कय व दग भखD ड पर पत D ल बज आध र पर पत व द गण -
सव ममतव अधध र असज; - च
!?
......पत व द गण
Both the courts below while deciding the issues No. 2 and 5 framed in the subsequent suit against the appellants-defendants, held that the appellants- defendants are barred from anew putting their stand on the ground of principles of res-judicata and accordingly decreed the suit and dismissed the appeal by the judgments and decrees impugned.
According to the factual position as visualized S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 10 from the suit filed before the learned trial court, the disputed property is part of the property covered by Patta No. 254-A which has been said to be issued in favour of Surajkaran and Rampratap on 8.3.1926. Surajkaran is the son of Rampratap and after death of Rampratap, his sole son Surajkaran became the absolute owner of the said property and Surajkaran died issue-less. It is also stated that Late Surajkaran, before his death, executed a Will on 26.5.1969 in favour of the plaintiff-Nathmal who preferred the earlier suit No. 28/1983 (28/1993) and after the death of plaintiff-Nathmal, his LRs - the present plaintiffs were brought on record. It is further mentioned in the suit that the appellant-defendant No. 1 is the son of Nainsukh who is the brother of Late Shri Nathmal- father of the present respondents-plaintiffs and since in the earlier suit, the appellants were not considered as tenants, therefore, on the basis of appellants- defendants being in illegal possession and encroachers/tresspassers, the second suit has been preferred, the decision whereof is under challenge in this second appeal.
It is submitted by the learned counsel appearing for the appellants that the judgments and decrees S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 11 passed by both the courts below are contrary to the provisions of the law. Learned counsel submitted that the learned Courts below were not justified in decreeing the suit and dismissing the appeal on the principles of res-judicata while omitting to take into consideration the grounds raised by the appellants regarding their joint ownership over the disputed land in the subsequent suit holding that the issue relating to ownership had already been decided in the earlier suit. It is contended on behalf of the appellants that since the earlier suit preferred by the respondents was dismissed, the appellants were not affected by the outcome of the said suit and therefore, the opinion and observation relating to filing of the appeal against the said decision was fatal. The right of the appellants- defendants to avail the remedy of appeal against such decision is not justified nor according to the law, the appeal could be preferred by the appellants against the finding recorded in the judgment while deciding the earlier suit. It is submitted that the findings recorded and the observations made by the Courts below while adjudicating the previous suit on the issues and factual possession cannot be considered to be applicable on the issues/points raised in the second suit. Learned S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 12 counsel further argued that in the suit for eviction preferred under Tenancy Law, the concerned court is not competent to decide the ownership right of the parties, rather such ownership rights can only be decided by the competent Court having jurisdiction to decide the same. In such a situation, if any issue has been decided against the appellants by a trial court which is having no jurisdiction to decide the same, then such finding is not binding on the latter Court. Accordingly, learned counsel has prayed that the appeal may kindly be accepted. In support of his contention, learned counsel for the appellants has placed reliance upon the decisions of the Hon'ble Supreme Court reported in AIR 2005 SC 1050 (Management of M/s Sonepat Co-Operative Sugar Mills Ltd. Vs. Ajit Singh), AIR 1974 SC 1126 (Smt. Ganga Bai Vs. Vijay Kumar and Ors.) and the decisions reported in 1994 (2) Civil Court Cases 530 (Bombay) (Balmukund Motiram Anecha Vs. Suresh Bansilal Anecha & Ors.), 2007 (3) Current Civil Cases 1 (Sanjay Chahal Vs. Narendra Singh) and lastly the decision reported in 1996 (1) Civil Court Cases 617 (kuppuswami Vs. Krishnaveni & Ors.).
S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 13 Per contra, learned counsel appearing for the respondents submitted that it is true that the earlier suit No. 28/1983 (28/1993) was filed while stating that the suit property was given on rent as per the requirement of the appellants-defendants and though, the tenancy relationship were not found by the trial court, but learned court below also did not find the joint ownership or the adverse possessory rights of the appellants over the disputed property, meaning thereby, the Court below did not find any ownership rights of the appellants over the land/property in dispute and considered them to be the encroachers. Accordingly, the issue framed in this regard was decided against the appellants but they did not prefer any appeal or cross appeal before the appellate court against the said findings. Thereafter, the respondents have preferred the present suit on the ground that the appellants being in possession of disputed property as encroachers/ tresspassers, as found and decided by the trial court, while deciding the issues No. 5 and 7 framed in the earlier suit between the same parties and thus, according to learned counsel, the learned trial court is justified in decreeing the subsequent suit keeping in view the ownership rights of the S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 14 respondents on the basis of the Will executed and appellants-defendants being in possession of the disputed property as trespassers without having any proprietary rights over it. It is also contended by the learned counsel that it was mandatory for the appellants-defendants to prefer an appeal against the finding recorded by the trial court while deciding the earlier suit considering them to be encroachers and since neither any appeal was filed nor any other remedy was availed by the appellants, therefore, the said finding regarding ownership rights had become final and thus, the learned courts below were justified in decreeing the suit and dismissing the appeal while deciding the issues No. 2 and 5 keeping in view the fact that the finding recorded by the Courts below in the earlier suit against the appellants-defendants regarding ownership rights have become final. Accordingly, learned counsel has prayed that the appeal may kindly be dismissed. In support of his submissions, learned counsel for the respondents has relied upon the decisions reported in AIR 1977 Andhra Pradesh 427, (Konda Lakshman Bapuji Vs. The State of Andhra Pradesh & Ors.), AIR 1986 Kerala 251 (Kadapurath Illam Khalid Vs. S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 15 Beemapura Palamkakkada Sulekha & Ors.), AIR 1994 Supreme Court 152 (Sulochana Amma Vs. Narayanan Nair), AIR 1996 Karnataka 296 (N. Hanumantha Rao Vs. Corporation of the City of Bangalore), RLW 1999 (2) Supreme Court 270 (Pawan Kumar Gupta Vs. Rochiram Nagdeo), 2010 (95) AIC 103 (S.C.) (MD. Nooman & Ors. Vs. MD. Jabed Alam & Ors.) and (2003) 2 Supreme Court Cases 464 (Mahila Bajrangi (Dead) Through LRs. & Ors. Vs. Badribai & Anr.).
I have considered the rival submissions made by the learned counsel appearing on behalf of the parties, the facts and circumstances of the case and also gone through the records of Courts below and decisions cited on behalf of the respective parties.
In the light of the substantial question of law framed by this Court, this appeal is being decided in the manner indicated as under.
In the case of M/s. Sonepat Co-operative Sugar Mills Ltd. Vs. Ajit Singh (supra) cited on behalf of the appellants, the Hon'ble Apex Court propounded the law that if a decision of any Court is beyond jurisdiction in S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
16 the eyes of law, then in that situation, the principles of res-judicata cannot be made applicable, rather the principles of res-judicata is procedural and not statutory and objective. In this decision, basically it was enunciated by the Apex Court that a decision which has been passed by the Court relying upon an earlier decision which has been rendered per incuriam, then such decision cannot be said to have attained finality and the bar of principles of res-judicata would not be applied.
However, so far as the case in hand is concerned, it is not relating to legality of law but is relating to a decision passed by the Court on factual position of the matter and there is no such change in the factual position rendering the decision passed by the earlier Court as perverse or nullity on account of coming into force of any new law or change in the statutory position. Apart from this, so far as the question regarding jurisdiction of the Court is concerned, firstly, the earlier suit was filed by the plaintiffs-respondents stating the appellants-defendants to be the tenants while basing the title derived from a Will executed by Surajkaran in favour of plaintiff-Nathmal and in rebuttal of case set up by the plaintiffs, the appellants-
S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
17 defendants took the stand that they are in legal possession of the disputed premises on the basis of joint ownership and otherwise by way of the adverse possession, and thus claimed ownership rights over the disputed property. Accordingly, in the light of aforesaid grounds taken by the parties, the trial court was required to decide the relationship between the parties and their rights in the disputed property. In such a situation, if the Court, in a suit claiming relief on the ground of tenancy, on the basis of the defences raised by the appellants-defendants while taking into consideration the factual position, has decided the appellants-defendants' rights relating to the disputed property in the light of the issues framed according to the pleadings of the parties, then it is not beyond the jurisdiction of the Court.
Secondly, the first suit was filed only for seeking permanent injunction and not for eviction, in that situation, whether permanent injunction could be granted or not, for adjudicating such issue, the Court was required to decide the issues regarding the status of the defendants as stated by the plaintiffs i.e. tenants and as claimed by the appellants-defendants i.e. joint owner or owner by way of the adverse possession.
S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
18 Thus, the decision of the trial court on the issues No.5 and 7, while deciding the earlier suit, cannot be considered to be without jurisdiction.
In Smt. Ganga Bai Vs. Vijay Kumar and Ors. (Supra), the Hon'ble Apex Court has observed that basic distinction between the right of suit and the right of appeal is required to be seen. Right of appeal is limited upto Section 96, 104 & Order 43 Rule 1 CPC and under Order 7 CPC in the right of suit, every person can present a suit according to the factual position so long as it is not barred by any specific law and statute. In the case under reference, the Apex Court basically held that the matter with regard to partition in a mortgage suit was not directly and substantially in issue, therefore, any finding given by the Court in that respect, would not operate as res- judicata. In the present case which is in our hand, in the earlier suit No.28/1983 (28/1993), the issues No.5 & 7 were framed on the basis of the pleadings of the appellants themselves raised in defence and upon their failure to prove such pleadings, these issues were decided while recording findings against them. Since the findings recorded against the appellants-defendants were binding in nature, therefore, it was imperative S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
19 upon them to make a challenge to such findings by filing appeal and if according to learned counsel for the appellants, under any law, filing of appeal is not permitted against such finding, then in that situation, the appellants could have challenged the said decision in a writ petition under the Constitution of India or by way of a special appeal. Therefore, the contention of the learned counsel for the appellants that the appellants were barred under the provisions of appeal to challenge the said decision on issues is not found to be justified.
In Balmukund Motiram Anecha Vs. Suresh Bansilal Anecha & Ors. (Supra), it has been held that a person, in whose favour a suit is decreed, is not entitled to prefer an appeal against the adverse findings recorded by the court if such findings do not operate as res-judicata. In the present case, the appellants themselves have brought the factual position regarding their ownership rights over the land in dispute by way of the defence and if any finding was given by the trial court on the issue framed in that respect in the previous suit, by which the appellants were affected, then in that situation, taking proceedings to challenge the said finding in my opinion S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
20 is not barred under the aforesaid cited precedent.
In Sanjay Chahal Vs Narendra Singh (supra), according to the facts of that case, the suit was filed for possession and damages in respect of the disputed property, therefore, the Court framed three issues relating to possession, damages and joint-ownership rights. The suit based on a notice was dismissed as not maintainable. However, on issue No.3 regarding joint- ownership, since the defendants did not produce any documentary evidence, the Court gave adverse opinion regarding that fact and in that situation, the appeal against such finding on issue No.3 was not considered to be maintainable by the Delhi High Court.
In Kuppuswami Vs. Krishnaveni & Ors. (supra), the cross-objection filed by one of the defendants against the finding recorded by the trial court regarding the extent of encroachment or trespass was found to be not maintainable as the same cannot operate as res-judicata.
The facts of the present case are different from these two precedents under reference. In the present case, sufficient opportunity was given to the appellants to prove their pleadings and after providing more than sufficient opportunities to prove the issue framed and S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
21 taking into consideration the entire evidence produced by both the parties, the Court has recorded the finding in respect of ownership rights which were required to be decided according to the pleadings of the parties for adjudicating the controversy raised by the parties. In such a situation, where the finding recorded is relating to the ownership rights in the disputed property which was the subject matter of the controversy raised in the suit, in that event, it cannot be said that the statute bars filing of an appeal against such adverse finding.
Coming to the case law cited on behalf of the respondents, in Konda Lakshman Bapuji Vs. The State of Andhra Pradesh & ors. (supra), it has been laid down by the Apex Court that despite the suit having been decided in favour of the defendants, if any finding on issue is recorded against any co-defendant, then he can file an appeal against such decision.
In Kadapurath Illam Khalid Vs. Beemapura Palamkakkada Sulekha & Ors. (supra), a Full Bench of Hon'ble Apex Court has enunciated the dictum that if in a suit filed between the same parties regarding selfsame property, while dismissing the suit on account of its maintainability alone, any rights of the parties are decided finally, then also, though the suit has been S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
22 dismissed on the ground of it being premature, but in respect of the findings recorded regarding the rights of the parties, the doctrine of res-judicata applies.
In Sulochana Amma Vs. Narayanan Nair (supra), it has been laid down that a court though having limited or special jurisdiction, if decided any issue finally framed on the basis of the pleadings of the parties and the same has been raised in the subsequent suit filed between the same parties, then the bar of principles of res-judicata would operate.
In N.Hanumantha Rao Vs. Corporation of the City of Bangalore (supra), it has been held by the Court that in a suit seeking permanent injunction, though the suit was decreed on the ground of possession, but the court recorded adverse finding that the plaintiff was not lawful owner of the suit property and if against such adverse finding no appeal is filed, such decision would operate as res-judicata in any other proceedings.
In Pawan Kumar Gupta Vs. Rochiram Nagdeo (supra), the Hon'ble Supreme Court has propounded the law that in a suit for eviction filed on the ground of default, where the tenant disputed the ownership of landlord, the Court while adjudging the issue of title/ ownership rights in favour of the plaintiff, dismissed the S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
23 suit on depositing the arrears of rent by the tenant and if the tenant does not prefer any appeal against the findings recorded regarding ownership rights, then such findings would become final and shall operate as res- judicata.
In MD. Nooman and Others Vs. MD. Jabed Alam and Others (supra), the Hon'ble Apex Court has propounded the maxim that if the issue of title has been expressly raised by the parties and decided by the Court in a suit for eviction in favour of the plaintiff, the question of title being directly and substantially in issue between the parties in the earlier suit, such findings recorded in favour of the plaintiff would operate as res judicata in the subsequent suit for declaration of title and recovery of possession between the parties.
In Mahila Bajrangi (Dead) Through LRs. & Others Vs. Badribai and Another (supra), the Apex Court has declared the law that if any question has already been finally decided by framing issue in any suit between the parties, then such question cannot be raised for deciding afresh in the subsequent suit.
In the instant appeal, from the aforesaid case law cited on behalf of the learned counsel for the parties, it reveals that where any point directly and substantially S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
24 involved in the matter, has been decided finally by the Court between the same parties in respect of same property and rights by framing issues and no appeal has been filed against such decision or if any appeal has been filed, the same has been dismissed and the decision had attained finality, certainly that adverse findings which was given on issue cannot be challenged by way of filing fresh suit or cross suit by any of the parties on account of the bar of res-judicata.
According to the factual scenario of the present case, as stated above, it is clear that earlier suit (Suit No.28/1983 [28/1993]), seeking permanent injunction, was filed by Late Shri Nathmal-father of the present respondents against the appellants-defendants, claiming himself to be the owner of the disputed property on the basis of the Will executed in his favour, in which upon death of plaintiff-Nathmal, the present respondents-plaintiffs were brought on record being his legal representatives, and in that suit the appellants- defendants have taken the stand posing themselves to be the owners of the disputed property on the basis of joint-ownership and adverse possession. On the basis of the pleadings of the respective parties in the earlier suit (Suit No.28/1983 [28/1993]), the court was S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
25 required to decide the ownership rights of the parties for adjudicating the controversy raised between the parties and accordingly, the point relating to ownership rights was decided by framing issue and the respondents-plaintiffs were considered as the owners of the disputed property on the basis of the Will executed in favour of their father Late Shri Nathmal and the appellants-defendants were considered as the trespassers and not the owners of the disputed property and against the said decision no appeal has been filed and it has attained finality. After the decision rendered in the previous suit, while stating their proprietary rights, the respondents-plaintiffs have preferred the present suit for dispossessing the appellants-defendants from the disputed property narrating them to be the trespassers and in the said suit issues No. 2 and 5 have been decided against the appellants-defendants as aforesaid.
In this regard, it is to be noticed that against any judgment and decree, the Statute has provided the remedy of regular first appeal under the provisions of Section 96 of the Code of Civil Procedure, 1908 which reads as under:
S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors. 26
"96. Appeal from original decree:- (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte. (3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of small Causes, when the amount or value of the subject-
matter of the original suit does not exceed [ten thousand rupees]."
Similarly, on perusal of the Explanation 8 of Section 11 CPC, the position will become more explicit, which reads as under:-
"11. Res Judicata.-
Explanation VIII -An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised."
S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
27 From the perusal of provisions of Section 96 CPC, it is evident that a first appeal can be preferred under the provisions of Section 96 CPC against every decree, whether the decree is passed ex-parte or on merits, however, no appeal is maintainable if the decree is passed with the consent of the parties or any decree of less than Rs. 10,000/- is passed by the Small Causes Court so long as no question of law is involved in the matter. The aforesaid statutory provision further makes it manifestly clear that an appeal can be preferred against every decree except a decree passed under Section 96 (3) and 96 (4) of CPC. Thus, under Section 96 CPC, provisions prescribing bar to file appeal against the decree passed in certain cases are provided, but it does not appear from the perusal of said legal provision that the intention of the provision is to preclude a party from filing an appeal against a judgment whereby adverse findings have been recorded by the Court on the issues framed according to the pleadings of the parties regarding the rights of the parties in the property which is the subject matter and root cause of the dispute involved. Rather, where any presumption is drawn in respect of any fact without framing issues, then such presumption cannot be considered as S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
28 conclusive finding recorded against the parties concerned and in that situation, in the light of the decisions cited by the learned counsel for the appellants, no appeal is maintainable.
It is also obvious from a perusal of Explanation- VIII to Section 11 CPC, that if any issue has been decided finally by the Court, then that cannot be raised afresh or re-agitated in any subsequent suit. In the present case also, in the previous suit, the rights of the appellants relating to the suit property were finally decided by framing issues while recording adverse findings, which have not been challenged in any higher court and therefore, the trial court as well as the first appellate court were perfectly justified in deciding the matter holding it to be covered by the principles of Res-judicata.
In the considered opinion of this Court, if in any matter, the issue is not framed on the basis of the pleadings of the parties and only in respect of any fact without giving an opportunity to the parties to produce evidence in that respect, if any presumption is drawn by the Court, then in such a situation, in the light of the case law cited on behalf of the appellants, since the appellants do not have any right to prefer appeal S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
29 against the presumption drawn, such matter cannot be considered to be coming within the purview of principles of res-judicata. But in the present case, in the previous suit No.28/1983 (28/1993) the issues No. 5 and 7 were framed on the basis of the pleadings of the parties and on the basis of the evidence produced, the rights of the parties in the disputed property were decided and the respondents-plaintiffs were held to be the owner of the disputed property and the appellants- defendants were though not considered as tenants but held to be trespassers and accordingly, the suit was dismissed. Though the suit was dismissed, but the findings arrived at by the trial court regarding the respondents-plaintiffs being the owner and the appellants-defendants being the trespassers remained intact and since the rights of the parties have been decided in the matter after framing issues and the adverse findings arrived at by the court below on those issues were not further challenged by the appellants- defendants, in such situation, the said earlier decision regarding ownership rights in the property shall be considered to have attained finality and would attract the bar created by the doctrine of res-judicata in subsequent proceedings between the parties.
S.B.Civil Second Appeal No. 152/2003 Ganesh Das & Anr. Vs. Shanti Devi & Ors.
30 Accordingly, in the light of the substantial question framed by this Court on 23.7.2003, this Court is of the considered view that the rights of the appellants in the disputed property having been decided against them finally by recording findings on the issue framed by the trial Court in the previous suit No.28/1983 (28/1993), which have attained finality, the same cannot be raised in the subsequent suit filed between the same parties to be decided anew as it is barred by the doctrine of res-judicata. This second appeal therefore, lacks merits and is liable to be dismissed.
In view of the discussion made herein above, this second appeal is dismissed. Consequently, the stay petition is also dismissed. The record of the courts below be returned.
(Mahendra Maheshwari)J. Taruna