Patna High Court
Ganesh Jha vs Baidyanath Jha And Ors. on 2 January, 1958
Equivalent citations: AIR1958PAT270, 1958(6)BLJR101, AIR 1958 PATNA 270, ILR 37 PAT 201
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT
1. In the suit which is the subject-matter of this appeal the plaintiff asked for a declaration that he is the next reversioner to the estate of Balkhandi Jha and that the sale-deed dated 18-3-1941, executed by his widow, Musammat Arjanwati, was without legal necessity and not binding upon the plaintiff. The plaintiff also asked for recovery of possession over the land mentioned in Schedule 1 of the plaint which was the subject-matter of the sale-deed executed by the widow Musammat Arjanwati.
The case of the plaintiff was that Becha Jha and Balkhandi Jha were the sons of one Shambhu Jha and that Musammat Arjanwati was the widow of Balkhandi Jha. It was alleged that after the death of Balkhandi Jha, his widow Musammat Arjanwati was maintained by the plaintiff's father, and thereafter she was maintained by the plaintiff. It was also alleged that the plaintiff and defendant No. 5 were the next reversioners of Balkhandi Jha, and the sale-deed executed by Musammat Arjanwati on 18-3-1941, in favour of defendant No. 1 was not for legal necessity and not binding upon the plaintiff.
The suit was contested by defendant No. 1 on the ground that the sale-deed was a bona fide transaction and was genuine and executed for consideration and for legal necessity and was, therefore, binding upon the plaintiff. The plea of res judicata was also raised and it was contended that in a previous title suit, namely, Title Suit No. 193 of 1942, the question of validity of the sale-deed was put in issue and the suit of the plaintiff was dismissed on the ground that it was not genuine and was not for consideration.
2. The learned Munsif held upon these rival contentions that the sale-deed of defendant No. 1 was genuine and for consideration. He further held that the plaintiff was the next reversioner of Balkhandi Jha and the sale-deed was executed for legal necessity and was binding upon the plaintiff. The suit was accordingly dismissed by the learned Munsif.
3. On appeal the learned Subordinate Judge held that the sale-deed executed by Musammat Arjanwati was executed without legal necessity and was, therefore, not binding upon the plaintiff. He accordingly allowed the appeal and granted a decree to the plaintiff for recovery of possession over the lands mentioned in Schedule 1 of the plaint.
4. The main ground taken on appeal before us is that the lower appellate court was wrong in holding that the decision in the previous title suit, namely, Title Suit No. 193 of 1942, did not operate as res judicata. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct. In the previous title suit, namely, Title Suit No. 193 of 1942, an issue was framed on the point whether the sale-deed was genuine and for consideration and for legal necessity.
The plaintiff had brought that suit for a declaration of title with regard to the lands mentioned in Schedule 1 of the present plaint and also for recovery of possession in respect of those lands. The previous suit was dismissed on the ground that the sale-deed was collusive and without consideration. The Munsif did not, however, go into the question of legal necessity, because he wrongly thought that the question could not be_ gone into because all the reversioners had not been impleaded in the suit. It was argued on behalf of the appellant in this case that in spite of this observation of the learned Munsif the question of legal necessity must be deemed to have been impliedly decided against the plaintiff in the previous suit and, therefore, the question is barred by the principle of res judicata in the present suit.
We think that this contention must be accepted as correct. In Fateh Singh v. Jagannath, Bakhsh Singh AIR 1925 PC 55 (A) the plaintiffs had in a previous suit based their claim on nearness of kin but did not mention the family custom but for the proof of which the nearness could not be proved and the suit therefore failed. It was held by the Privy Council in these circumstances that the plaintiffs could not bring a fresh suit basing their claim on the family custom.
It was also held that where a court in dismissing a suit made a remark that the plaintiffs were at liberty to file a fresh suit, that remark did not amount to a permission to bring a fresh suit under Order 23 Rule 1.
The view was supported by a decision of a Full Bench of the Allahabad High Court in Sukh Lal v. Bhikhi, ILR 11 All 187 (B), where a suit for possession of immoveable property was wholly dismissed on the ground that the plaintiff had not made out his title to the whole of the property claimed, though he had proved title to a one-third share of such property. The decree included an order in these terms:
"This order will not prevent the plaintiff from instituting a suit for possession of the one third interest of Musammat Lachminia in the fields specified in the deed of sale".
upon which the suit was based. No appeal was preferred from the decree. Subsequently the plaintiff brought another suit upon the same title to recover possession of the one-third share referred to in the order just quoted. In these circumstances it was held by the Full Bench that the Court in the former suit had no power to include in its decree of dismissal any such reservation or order; that the fact that the decree was not appealed against did not give the order contained in it, which was an absolute nullity, any effect; and that as in the former suit the plaintiff could have obtained a decree for the one-third share now claimed, and the whole of the claim in that suit was dismissed, the decree in that suit was a decision within Section 13 of the Civil Procedure Code and the present suit was consequently barred as res judicata.
5. There is a similar statement of principle on this point in Malaya Kumar v. Fakir Mohammad, AIR 1947 Cal 393 (C) where the relevant facts are almost similar to the facts of the present case. It was held in that case that where in a previous suit the defendant's right to relief which he seeks in the subsequent suit as plain tiff was one which might and ought to have been raised and had in fact been raised by him but the Court erroneously remitted him to another suit, the subsequent suit would still be barred by res judicata, notwithstanding that liberty had been expressly reserved to him to institute a separate suit. In such a case the matter would be deemed to have been impliedly decided in the previous suit, and the subsequent suit filed in pursuance of the Court would be barred by the rule of constructive res judicata.
We accept the principle laid down in these authorities as correct and hold that in the pre sent case the suit of the plaintiff for declaration that the sale-deed dated 18-3-1941 was not for legal necessity and was not binding upon the plaintiff is barred by the decision in the previous title suit by the doctrine of constructive res judicata. We hold accordingly that this appeal should be allowed, the decree of the lower appellate court should be set aside and the suit of the plaintiff should be dismissed. We order that the parties should bear their own costs throughout.