Gujarat High Court
Jashvantsinh Kalusinh Parakhiya vs Kamlaben Koyjibhai Tadvi on 5 September, 2024
NEUTRAL CITATION
C/SA/360/2019 ORDER DATED: 05/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 360 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/SECOND APPEAL NO. 360 of 2019
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JASHVANTSINH KALUSINH PARAKHIYA
Versus
KAMLABEN KOYJIBHAI TADVI & ORS.
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Appearance:
MR DHARMENDRA PARIKH(2389) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/09/2024
ORAL ORDER
Aggrieved and dissatisfied with the judgment and order rendered in RCA No.50 of 2018 passed by the learned Principal District Judge, Narmada on 20/08/2019, one of the unsuccessful appellant - Jashvantsinh has filed the captioned Second Appeal under Section 100 of the Code of Civil Procedure raising following substantial questions of law:
"(i) Whether both the lower Appellate Court and the Trial Court have erred in giving priority to the provisions of Tenancy Act and not giving priority to the provisions of Transfer of Property Act?
(ii) Whether both the lower Appellate Court and the Trial Court have erred in not appreciating the oral evidence of the witnesses with respect to the possession of the appellant?
(iii) Whether both the lower Appellate Court and the Trial Court have erred in deciding the issue pending for adjudication before the Civil Court with respect to Will of the appellant in the present suit /appeal?Page 1 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024
NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined
(iv) Whether both the lower Appellate Court and the Trial Court have erred in not appreciating the fact that once the dispute of Tenancy is pending before the Hon'ble High Court, whether the Courts below were justified in passing the impugned judgment and decree based on the order passed by ALT till such time the decision is rendered by the High Court?
(v) Whether the courts below have been justified in rejecting the suit and appeal of the plaintiff?
(v) Whether the courts below were justified in discarding the plea of the appellant-plaintiff that he was in actual possession of the suit land relying upon the order of ALT?"
2. The facts of the case are that RCS No.42 of 2016 is filed by the present appellant inter alia on the ground that they have purchased the disputed property from the owner viz., Gananben Somsinh Parekhiya though registered sale-deed dated 09/06/1996 and as such Koyaji Himmatbhai Tadvi plaintiff of RCS No.45 of 2016 has no right to enter into the suit property.
2.1 RCS No.45 of 2016 is filed claiming that in Tenancy Case No.3 of 1989, the competent authority has declared the plaintiff therein as tenant as per order dated 10/11/1991 qua the disputed land and therefore since he has been declared as owner on the basis of his tenancy right, the original owner Gananben had no right to sell the disputed land to Jasvantsinh Kalusinh Parekhiya in 1996 and therefore suit was filed to protect the possession and restrained Jasvantsinh and others from entering into the disputed property.
Page 2 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined 2.2 The learned Court below by judgment and decree dated 01/08/2018
partly allowed RCS No.45 of 2016 and issued perpetual injunction against the present appellant and other party restraining them from entering into the disputed property. Whereas, RCS No.42 of 2016 filed by the present appellant and other party is dismissed. Two suits are disposed of by common judgment drawing two separate decrees.
2.3 Being aggrieved by this judgment, the present appellant filed RCA No.50 of 2018 under Section 96 of the CPC which came to be dismissed and thus the present Second Appeal is filed.
3. In order to admit this appeal, learned Advocate Mr.Parikh appeared through Video Conference mode and in his short submission referring to the questions of law as framed in the appeal memo would submit that the Transfer of Property Act being the Central law has effect over the State law viz., Gujarat Tenancy and Agricultural Lands Act, 1948. He would therefore submit that order passed under the Tenancy Act declaring Koyaji Tadvi as tenant has no overriding effect over the registered sale- deed executed under Transfer of Property Act. He would further submit that the courts below committed serious error in understanding this issue. He would further submit that order passed by the Mamlatdar though has been confirmed by the authority is not challenged before any higher forum and therefore the same has attained the finality. He would further submit that in view of this aspect, the trial court was required to stay its own hand of proceeding further holding that Koyaji Tadvi has become the tenant and therefore no sale-deed can be executed qua the disputed land or had to believe that Transfer of Property Act being Central Act has effect over the Gujarat Tenancy and Agricultural Lands Act, 1948.
Page 3 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined 3.1 On the above argument, he would submit to admit this appeal.
4. Apt to note that trial court by common judgment decided two above referred suits and two separates decrees are drawn. RCS No.42 of 2016 is dismissed; whilst RCS No.45 of 2016 is allowed. In Section 96 of the CPC, the Legislature has used the word "decree" and not "decrees" which indicates that First Appeal under Section 96 can be filed only against one decree. If two decrees are drawn by common judgment, two separate appeals are required to be filed; otherwise if only one appeal is filed, the principle of res judicata would apply. In another words, the finding arrived at in other suit culminated into the decree would remain unchallenged and attain the finality. Since the other decree would remain unchallenged as to attain finality. In that way, principle of res judicata attracts and applies. The said issue has been succinctly dealt with by the Hon'ble Apex Court in case of Premier Tyres Limited vs. Kerala State Road Transport Corporation [1993 (Supp2) SCC 146] where in paragraph 3 and 4 held thus:
"3. The validity of this finding has been assailed by Shri Raja Ram Aggarwal, the learned Sr. Advocate appearing on behalf of the appellant. It is urged that Section 11 of the Civil Procedure Code does not apply as such. According to him since both the suits were connected and decided by a common order the issue in neither suit can be said to have been decided in a former suit. Therefore, the basic ingredient of Section 11 of the C.P.C. was not satisfied. The submission derives some support from observations in Narhari v. Shanker , that, 'even when there are two suits it has been held that decision given simultaneously cannot be a decision in the former suit'. But this decision was distinguished in Sheodan Singh v. Smt. Daryao Kunwar 1966 SC 1332, as it related to only one suit, therefore, the observations extracted above were not relevant in a case where more than one suit were decided by a common order. The Court further held that where more than one suit were filed together and main issues were common and appeals were filed against the judgment and decree in all the suits and one appeal was dismissed either as barred by time or abated then the order operated as res judicata in other appeals, 'In the present case there were different suits from which different appeals had to be filed. The High Court's decision in the two appeals arising from suits Nos. 77 and 91 was undoubtedly earlier and therefore the condition that there should Page 4 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined have been a decision in a former suit to give rise to res judicata in a subsequent suit was satisfied in the present case. The contention that there was no former suit in the present case must therefore fail'. In Shri Ramagya Prasad Gupta v. Sri Murli Prasad , an effort was made to get the decision in Sheodan Singh (supra) reconsidered. But the Court did not consider it necessary to examine the matter as the subject matter of two suits being different one of the necessary ingredients for applicability of Section 11 of the C.P.C. were found missing.
4. Although none of these decisions were concerned with a situation where no appeal was filed against the decision in connected suit but it appears that where an appeal arising out of connected suits is dismissed on merits the other cannot be heard, and has to be dismissed. The question is what happens where no appeal is filed, as in this case from the decree in connected suit. Effect of non filing of appeal against a judgment or decree is that it become final. This finality can be taken away only in accordance with law. Same consequences follows when a judgment or decree in a connected suit is not appealed from."
5. In case of Darayas Bamanshah Medhora vs. Nariman Bamansha Medhora [2002 (1) GLR 474] the Division Bench of this Court had an occasion to deal with the same issue; paragraph 10 to 13 and 18 thereof reads thus:
"10. However, we may note only in brief the distinction, and the departure from the earlier point of view, created by subsequent decisions of the Supreme Court, from the aforesaid decisions. The controversy considered by the aforesaid decisions has been examined mainly on whether the principles of resjudicata as enshrined in section 11 of CPC would be applicable in such cases. It appears to us that the line of reasoning first enunciated by the Full Bench in the case of Mt. Lachhmi (AIR 1927 Lahore 289) and adopted by different High Courts in India subsequently, appear to flow from a generalised principle laid down by the Full Bench to the effect that the principle of resjudicata which created a bar to subsequent agitation of the same issue, is created by the judgment and not by the decree. 10.1 In our opinion, it would be a loose generalisation to hold that the bar of res judicata is created only by the judgement and not by the decree. This generalisation would hold the field only if the question under consideration was in respect of only, or merely, "issue estoppel", and not in respect of a common judgement resulting in two decrees.
10.2 In this context we cannot overlook the fact that an appeal under section Page 5 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined 96, CPC lies only from a decree and not from a judgement. It cannot be overlooked that these are not merely loose concepts, but have a very specific meaning and connotation inasmuch as each of these has been independantly defined under the CPC.
10.3 Section 2(9) defines a "judgement" as the statement given by the Judge on the grounds of a decree or order. As against this, a "decree" is defined by section 2(2) of CPC as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It is not necessary, in our opinion, to refer to numerous authorities on the distinction between these two phrases and concepts, as used in law. The short substance of the distinction is that the judgement constitutes the opinion of the Court, wherein it encompasses the pleadings of the parties, the issues, the evidence led by the respective parties, the interplay of different pieces of evidence upon each other, the conclusions drawn and the findings of fact recorded by the Court. In short, the judgement reflects merely the justification of the court for passing the decree in question. On the other hand, the decree is the crystallisation of the rights in controversy between the parties, as declared by the court, on the basis of the judgement. Consequently, in our opinion, a judgement and a decree are not phrases or concepts which can be used in the alternative to each other, neither do the two concepts overlap each other. In our opinion, it is precisely for this reason that section 96 of CPC contemplates an appeal only from a decree, and by necessary implication, not from a judgement. Furthermore, when the rights of a party crystallised in a decree are sought to be enforced by due process of law, by execution proceedings under Order 21, CPC, such proceeding would lie only on the basis of a decree, and not on the basis of a judgement. 10.4 The entire controversy in law as to whether a single appeal would lie from one of the decrees arising from a common judgement has been considered in the various decisions aforesaid, only by testing against and applying the principle of res judicata. In the context of these decisions it is necessary to bear in mind that a reference to the common judgement, and consequently a reference to a supposed judgement resulting in one of the decrees, is only necessary to ascertain whether "the question substantially in issue" was common in both the suits.
11. While considering the aforesaid decisions, which, as aforesaid, have also been considered by the subsequent decisions of the Supreme Court, it also requires to be kept in mind that the principle of res judicata is not the only principle upon which this legal controversy can be reflected upon. Another principle which, in our opinion, would have a bearing on this controversy is the principle of acquiescence and/or estoppel. This principle would also apply to the controversy in issue, inasmuch as it could be urged that when only one decree is challenged in the singular appeal, the other decree which is not the subject matter in appeal, is a decree which is acquiesced to. Ultimately it makes no difference whether the same set of reasons and the same set of findings justify both the decrees. This may perhaps appear to be similar to Page 6 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined calling a glass half full or also calling it half empty. It may be that such a description carries different concepts, although the factual result is the same. The distinction in law lies in the real and substantive distinction between an appeal from a judgement and an appeal from a decree. Once this distinction is established and kept in mind, it becomes a simpler exercise to appreciate the view expressed by the Supreme Court in the decisions hereinafter discussed.
12. In the case of Sheodan Singh Vs. Daryao Kunwar, reported in AIR 1966 SC 1332, the Supreme Court specifically found that where there were two suits having common issues, and the suits were decided by the trial court on merits which resulted in two appeals therefrom, and one of the appeals was dismissed (although not on merits), the decision of the appeal court will be res judicata. It is pertinent to note that in the said decision, the Full Bench decision in the case of Mt. Lachhmi (supra) has been specifically considered, as also the supreme Court decision in the case of Narhari Vs. Shanker, reported in AIR 1953 SC 419.
12.1 The aforesaid decision of the Supreme Court viz. Sheodan Singh, has been referred to, considered and relied upon by the Supreme Court in its subsequent decision in the case of Premier Tyres Limited V. The Kerala State Road Transport Corporation, reported in AIR 1993 SC 1201. This decision also takes into consideration the earlier decision of the Supreme Court in the case of Ramagya Prasad Vs. Murli Prasad, reported in AIR 1974 SC 1320, and distinguishes the earlier decision of the Supreme Court in the case of Narhari Vs. Shanker, reported in AIR 1953 SC 419.
12.2 In the said decision (viz. Premier Tyres Ltd. (supra) there were two suits which were connected and tried together inasmuch as the nature of the dispute in both the suits were same. The issues framed were also common. In this case, the appellant did not file any appeal against the dismissal of the suit for part of its claim, but an appeal was filed against the decree granted in favour of the respondent in the appeal in the suit filed by it. The High Court of Kerala in its decision dismissed the appeal of the appellant as barred by res judicata since the finding recorded in the connected suit had become final inasmuch as the same was not challenged in the appeal. In the appeal before the Supreme Court it was urged, as is urged in the appeal before us, that both the suits were connected and decided by common order, and therefore the issues in neither suit can be said to have been decided in a former suit, and consequently the basic ingredient of section 11 of CPC would not be satisfied. This submission was sought to be supported by the earlier decision of the Supreme Court in the case of Narhari Vs. Shanker (supra). However, the Supreme Court observed that the decision in the case of Narhari Vs. Shanker (supra) has been distinguished in the case of Sheodan Singh (supra), inasmuch as it related to only one suit and therefore the observations extracted therefrom were not relevant in a case where more than one suit was decided by a common order. The Supreme Court then observed that in the present case before it, there were different suits from which different appeals had to be filed. In paragraph 4 of the said decision the Supreme Court therefore concluded that where an appeal arising out of connected suits is Page 7 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined dismissed on merits, the other cannot be heard and has to be dismissed.
12.3 The question which was also considered by the Supreme Court was as to what happens where no appeal is filed, as in the case before the Supreme Court from the decree in the connected suit. The Supreme Court specifically found that the effect of non-filing of an appeal against a judgement or decree is that it becomes final. This finality can be taken away only in accordance with law. The same consequences follow when a judgement or decree in a connected suit is not appealed from. These observations of the Supreme Court, which were further fortified by the findings recorded by it in para 6 of the said decision, are as under: "Thus, the finality of finding recorded in the connected suit, due to non filing appeal, precluded the Court from proceeding with appeal in other suit."
12.4 In the context of the observations made by the Supreme Court in the said decision, and particularly the observations in paras 4 and 6 of the said decision, we are also of the view that the Supreme Court has, to some extent, departed from the earlier principles of relying and referring to only the principles of res judicata, by also considering and incorporating the principles of acquiescence and issue estoppel. As discussed hereinabove, the principle of acquiescence and issue estoppel are also relevant and can be applied to the consideration of examining the legality and validity of the contentions raised for and against the maintainability of such an appeal.
13. The decision of the Supreme Court in the case of Ram Prakash Vs. Charan Kaur, reported in AIR 1997 SC 3760 is also relevant and pertinent. 13.1 This decision is based on facts which are identical to the facts before us. The Supreme Court specifically held that where the findings in one suit had been allowed to become final in the absence of an appeal, an appeal filed against the findings in another suit would be barred by principles of res judicata.
13.2 In para 2 of the said decision the Supreme Court observed as under:
"2. It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the appellate Court that damages had accrued to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree which is subject matter of the special leave petition cannot be assailed. The self-same question was directly in issue and was the subject matter of both the suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any appeal against the appeal dismissing the suit. In view of this situation, the High Court was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under section 11, CPC in the appeal against which the petitioner has filed the second appeal."
13.3 We may also observe in passing that in the present decision the Supreme Court has applied not only the principles of res judicata, but has also decided Page 8 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined the facts from the alternate perspective, by applying the principles of acquiescence and issue estoppel.
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18. In the premises aforesaid, we are of the opinion that the present appeal is not maintainable and is consequently dismissed with no order as to costs."
6. Thus, the appeal before the first appellate court was barred by principle of res judicata. The effect of not challenging the decree arrived at in the another suit makes it final and as such it would operate res judicata on the decree which is challenged in the first appeal. Thus, the first appeal itself was not maintainable before the appellate court.
7. Yet, cursorily look at the impugned judgment and order would give the picture that Koyjibhai Himmatbhai Tadvi was declared as tenant by the Mamlatdar and ALT in in Tenancy Case No.3 of 1989 on 11/10/1991 which order was produced before the trial court at Exh.112. In the subsequent proceedings the order produced at Exh.112 has been confirmed though it is contended that proceedings before this court challenging the said order is pending; but the fact remains that when suit was filed before trial court by either of the party, the order at Exh.112 was not altered. The Civil Court under the provisions of the Tenancy Act has legally prevented from examining the validity of the order passed under the Tenancy Act. Just certificate issued under Tenancy Act of forming the order passed declaring tenant is conclusive proof of title. Undisputedly, Koyjibhai Tadvi had become the owner of the disputed land. The appellant who is claiming his right and title over the disputed land based on a sale-deed executed by Gananben had no title to the disputed property to transfer in favour of appellant. In view of Section 6 of the Transfer of Property Act, on the date of execution of sale-deed on 09/04/1996, the Gananben Parekhiya had no right title or interest in the disputed property and she could not transfer any right, title or interest in Page 9 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined favour of Jashvantsinh Kalusinh Parekhiya. Thus, the effect of the sale- deed dated 09/04/1996 is nonest, void and ab initio. It may not be pressed into service to seek relief to protect possession of the disputed land as possession of the land is already lying with tenant-Koyjibhai Tadvi as a title holder at least from 11/10/1991. Both the courts below have elaborately discussed this issue referring to oral evidence of the party.
8. Hopeless argument was canvassed by the learned advocate for the appellant that the Transfer of Property Act being Central Law has effect over the provisions of the Gujarat Tenancy and Agricultural Lands Act, being State law. Learned Advocate for the appellant argued so, but; could not make out the said submission worthy.
9. It is apt to note that in the suits the parties were heirs of deceased - Koyjibhai Himmatbhai Tadvi viz., (01) Kamlaben Koyjibhai Tadvi, (02) Laxmanbhai Koyjibhai Tadvi, (03) Ramabhai Koyjibhai Tadvi, (04) Gopalbhai Koyjibhai Tadvi and (05) Manishaben Koyjibhai Tadvi and on another hand (01) Jasvantsinh Kalusinh Parekhiya (02) Gananben Somsinh Parekhiya (abated on account of died) (03) Narpatsinh Himmatsinh Khatpat and (04) Pratapinh Ganpatsinh Parekhiya. The first appeal before the appellate court was preferred by Jashvantsinh Kalusinh Parekhiya and Narpatsinh Himmatsinh Khatpat. Though Pratapsinh was party to the suit has not been joined whilst Second Appeal is preferred by only Jashvantsinh Kalusinh Parekhiya; without joining Narpatsinh and Pratapsinh. The issue is significant to note that as per cause title of the first appeal, Jashvantsinh Parekhiya is a practicing Advocate and yet has not joined the necessary party who are party to the suit or appeal. Another significant aspect is that since appellant Jashvantsinh who is a practicing Advocate must know the effect of the Tenancy Act declaring Koyjibhai Tadvi as tenant in 1991 yet he had an audacity to purchase the disputed Page 10 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024 NEUTRAL CITATION C/SA/360/2019 ORDER DATED: 05/09/2024 undefined property knowing fully well that no title of the property is possible when the tenancy proceedings were culminated in favour of the tenant which could not base legal title or possession in absence of any challenge to it. Thus, the act on the part of the appellant is deplorable.
10. In view of the above discussions, none of the questions as framed in the memo of appeal can be said to be the substantial questions of law and present appeal deserves to be dismissed at the admission stage and accordingly it is dismissed. Connected application is also dismissed.
(J. C. DOSHI,J) sompura Page 11 of 11 Uploaded by SOMPURA MANISHKUMAR JYOTINDRA(HC00189) on Wed Sep 18 2024 Downloaded on : Sat Sep 21 00:22:40 IST 2024