Ahammad Mondal vs Monjur Mondal

Chakravartti, C.J.—This is an appeal under Clause 15 of the Letters Patent from a judgment and decree, dated January 25, 1952, passed by P.N. Mookerjee, J., in Second Appeal No. 2059 of 1947, whereby the learned Judge allowed the appeal of the first Respondent. The present appeal is by the Plaintiff.

The facts of the case lie within a short compass. It appears that a raiyati holding was held by one Ketabuddin, who died leaving him surviving five sons, two daughters and one widow. In the judgment under appeal, it is stated that the heirs of Ketabuddin were three sons and three daughters, but we were informed that that statement was not correct. The holding appears to have stood in the papers of the landlord in the name of Makbul, one of the sons of Ketabuddin, and it was sold at a rent-sale on March 4, 1925, in execution of a rent-decree obtained against Makbul as the sole Defendant. At the sale, the holding was purchased by one Nur Muhammad of Abdullapur. It is necessary to add the qualifying phrase to the name of the auction-purchaser, in as much as there is another Nur Muhammad with whom he is likely to be confused.

It appears further that on July 17, 1915, Ketabuddin executed a mortgage in respect of the lands of the holding in favour of one Taradas Das. In a suit brought upon that mortgage, Taradas obtained a decree on February 11, 1928, and that was a decree obtained against all the heirs of Ketabuddin. Taradas put the mortgage decree into execution and brought the properties to sale at which he appears to have purchased them himself. When he was about to take possession, a suit was brought by the auction-purchaser Nur Muhammad on May 19, 1939, against him as also the heirs of Ketabuddin who were impleaded as pro forma Defendants Nos. 2 to 9. That suit was Title Suit No. 111 of 1939. In the plaint, the Plaintiff Nur Muhammad stated that he had purchased the holding at a rent-sale and, therefore, the title to the lands was at the time of the mortgage-sale and at the moment in him and not in the pro forma Defendants Nos. 2 to 9. The right to possession, it was further averred, was also in him. On that footing he asked for a declaration of his own title and for a decree for recovery of possession against the Defendants and also an injunction restraining the mortgagee decree-holder, Taradas, from putting his decree into execution against the lands of the holding and disturbing the Plaintiff''s possession. The suit was dismissed by the trial Court whereupon Nur Muhammad preferred an appeal which was Title Appeal No. 116 of 1939. The appeal was allowed, a declaration of Nur Muhammad''s title was made and khas possession was decreed in his favour. An injunction was also granted against Taradas, restraining him from taking possession of the properties purchased by him at the mortgage execution sale. That litigation did not proceed further.

Among the heirs of Ketabuddin who were impleaded as. Defendants Nos. 2 to 9 in Nur Muhammad''s suit, were two sons, namely, Ahammad Mondal and Abdul. The suit out of which the present appeal arises was commenced by Ahammad on June 6, 1944. The suit was in respect of properties, described in two schedules kha and ga and the Plaintiff''s case was that as a result of an amicable partition between himself and his co-heirs, he had got the properties of schedule kha and, thereafter, he had also got the properties of schedule ga in exchange for some other properties of his own. He thus claimed title to the properties of both the schedules. The further case made by Ahammad in his plaint was that Nur Muhammad had only been a benamdar for the heirs of Ketabuddin at the rent-sale and it was, in fact, the latter who had purchased the holding and saved it for themselves by using Nur Muhammad''s name. The interest of Nur Muhammad had since been transferred to Monjur Mondal, a son of Ahammad''s brother Abdul. Ahammad further alleged in his plaint that Monjur had ousted him from the possession of the lands and, accordingly, he asked for a declaration of his title and recovery of possession. The first Defendant in the suit was Monjur and the second Defendant, his father Abdul, but we are informed that, at a later-stage of the suit, Abdul dropped out on the ground that he was not interested in the properties.

Of the defence set up by Monjur, it is only necessary to refer to points which were urged before the learned Judge. Ahammad appears to have claimed the properties not only on the basis of his original title, but also on the basis of a further title acquired by adverse possession. The two grounds upon which his claim was sought to be resisted were that the suit was barred by Section 66 of the CPC and that it was also barred by res judicata on account of the decision in Nur Muhammad''s suit. It was also pleaded that Nur Muhammad had not purchased the properties at the rent-sale as the benamdar of the heirs of Ketabuddin, but had purchased them on his own account and in his own interest. The trial Court gave effect to those pleas and dismissed the suit. It held that Nur Muhammad was not a benamdar for the heirs of Ketabuddin and that the suit was barred both by res judicata and u/s 66 of the Code of Civil Procedure. On appeal by the Plaintiff, the lower appellate Court reversed the trial Court''s decision and held that the decision in Nur Muhammad''s suit could not operate as res judicata and that Section 66 of the CPC would not also apply in so far as the Plaintiff was basing his claim on a title acquired by adverse possession. The learned Judge thought that the trial Court had decided the issue of adverse possession in the Plaintiff''s favour and, accordingly, he allowed the appeal and decreed the Plaintiff''s suit. Thereupon, Monjur Mondal preferred a second appeal to this Court and it is the decision given in that appeal which is under appeal before us.

In order to avoid confusion, I might point out that some errors of fact have unfortunately crept into the judgment of the learned Judge. He has stated that the auction-purchaser Nur Muhammad has been impleaded as pro forma Defendant No. 3 in the present suit, but it has been pointed out to us that the said pro forma Defendant is not the auction-purchaser but a different Nur Muhammad. Again, the number of Nur Muhammad''s suit has been given as Title suit No. 116 of 1939, while the correct number is Title Suit No. 111 of 1939. Lastly, the number of Nur Muhammad''s appeal has been given as T.A. No. 21 of 1943, while the correct number is T.A. 116 of 1939.

P.N. Mookerjee, J., agreed with the lower appellate Court that, in view of the decision of the Privy Council in Muhammad Abdul Jalil Khan v. Muhammad Obaid-Ullah Khan ILR (1929) All. 675 : (1928) L.R. 56 IndAp 330, Section 66 of the CPC would not bar the present suit in so far as it was based on title by adverse possession. He, however, thought that the issue of adverse possession had not been satisfactorily dealt with by the trial Court and that the lower appellate Court had proceeded upon a mistaken assumption that the issue had been found by the trial Court in the Plaintiff''s'' favour. Accordingly, he came to the conclusion that, if the decision of the appeal turned upon a determination of the issue of adverse possession, he would have to direct a remand in order that the said issue might be properly tried. He, however, found it unnecessary to provide for any further trial of the issue of adverse possession, inasmuch as, in his opinion, the suit was plainly barred by res judicata on account of the previous decision in Nur Muhammad''s suit. It appears to have been argued before him that the decision in Nur Muhammad''s suit could not operate as res judicata against the Plaintiff or, for the matter of that, against any of the heirs of Ketabuddin, inasmuch as they had been mere pro forma Defendants in the suit, against whom no relief had been claimed. An extended argument appears to have been addressed to the learned Judge in the course of which practically every decision bearing upon the question was cited. The learned Judge took the view that whatever observations might have been made in the earlier decisions of this High Court and other High Courts, the questions as to whether a decision can operate as res judicata against pro forma Defendants was now concluded by three successive pronouncements of the Privy Council made in the cases of Munni Bibi v. Tirloki Nath ILR (1931) All. 103 : (1930) L.R. 58 IndAp 158, Maung Sein Done v. Ma Pan Nyun ILR (1932) Rang. 322 : (1932) L.R. 59 IndAp 247 and particularly Kedar Nath Goenka v. Ram Narain Lal ILR (1935) Pat. 611 : (1934) L.R. 62 IndAp 224. These decisions, the learned Judge thought, had finally decided that the fact that a particular person had been impleaded as a formal or a pro forma Defendant would not prevent the decision from operating as res judicata against him, if the requisite conditions for the application of the rule of res judicata were present. He found them present in the case before him and, accordingly, allowed the appeal, set aside the judgment and decree of the first appellate Court and restored the trial Court''s decree of dismissal. It is against that decision that the present appeal has been preferred.

The only point urged before us was the point of res judicata. As before the learned Judge, so before us, it was contended by Mr. Ghosh that if a person was impleaded in a suit merely as a pro forma Defendant and no relief was claimed against him, no decision given in the suit could possibly operate as res judicata against such a person, inasmuch as, in view of the very frame of the suit, no duty was cast upon him to raise any issue or to invite any decision of the Court affecting his interests. The cases referred to before us were mainly the same as had been cited before P.N. Mookerjee, J.

As far as I could understand Mr. Ghosh, his whole argument appeared to be based on the fact that the heirs of Ketabuddin had been called pro forma Defendants in Nur Muhammad''s suit and that in framing the prayer for relief, Nur Muhammad had not specified them by name. Emphasis was laid again and again on the name by which the heirs of Ketabuddin had been called and also on the fact that the prayer for injunction was not directed against them, but against Taradas alone. Mr. Ghosh appeared to me to think that if only a Defendant in a suit was called a pro forma Defendant and if only no relief was claimed in terms against him, he could escape the bar of res judicata altogether in any subsequent suit brought by him, although the right sought to be asserted in such suit might have been considered and pronounced upon in the previous litigation.

I find it impossible to assent to the proposition advanced by Mr. Ghosh. It appears to me that there can be no universal rule that the rule of res judicata will not apply against a person impleaded as a pro forma Defendant, nor can there be a universal rule that if only a person is impleaded as a Defendant in a suit, the decision must always operate as res judicata against him. The test must always be whether the issues involved in the suit were such that, in order to give the relief which was, in fact, given, it was necessary to decide some claim or question between the Defendant concerned and some other party to the suit against whom he seeks to enforce the same right, involving the same question, in a subsequent litigation. A man may be impleaded in a suit as a Defendant and called a pro forma Defendant. In framing the prayer for relief, his name may not be specifically mentioned, but neither of the circumstances, nor both of them taken together, can be in themselves decisive of the question as to whether any decision given in the suit will operate as res judicata as to the matter decided against such person, if he seeks to re-agitate the same matter in a subsequent suit. On the other hand, a person may be impleaded as a Defendant and not even called a pro forma Defendant. He may be impleaded simply as a Defendant without any qualifying description. Yet it may be that he is neither a necessary nor a proper party, but he was still impleaded by the Plaintiff for reasons best known to him, or, perhaps, simply because the Plaintiff considered it expedient to have such persons present in the proceedings so that he might obtain a decision in his presence. In such a case, although the person concerned may not be described as a pro forma Defendant, a decision given in the suit will not operate against him as res judicata, if no question as between him and the Plaintiff in the suit or between him and any other party is directly or indirectly decided. The test, as I have said, must always be whether the matter concerned was directly and substantially in issue in the previous proceedings between the parties or their privies. If it was not, the rule of res judicata will not apply against a Defendant, although he may not have been called a pro forma Defendant. But if it was, it will operate as res judicata, although the name of "pro forma Defendant" may have been given to the Defendant concerned. That I understand to be the substance of the rule laid down in the three decisions of the Privy Council which I mentioned a few moments ago. In the last of them, their Lordships made a pointed reference to the view taken by the Subordinate Judge that the rule of res judicata would not apply to a particular Defendant, inasmuch as no relief had been sought for against him in the earlier suit and they observed that the view taken was not correct and had already been pronounced by the Privy Council to be wrong in the other two decisions.

Applying the test I have just mentioned to facts of the present case, it is impossible to see how it could be contended that there was no issue to be tried as between Nur Muhammad and the heirs of Ketabuddin in the earlier suit. A full summary of Nur Muhammad''s plaint appears both in the judgment of the trial Court and in the judgment of the Court of appeal which have been exhibited in the present case. It appears that Nur Muhammed specifically averred that it was he who had title to the lands concerned and that none of the pro forma Defendants had any interest or title and as to the question of possession it appears that, according to the case he made, it was he alone, and not the pro forma Defendants, who was entitled to possession and who was interested in resisting the attempt of Taradas to execute his decree against the lands. It appears further that one of the defences raised by Taradas was that Nur Muhammad was a mere benamdar for the pro forma Defendants and it was they who had set him up to fight their battle, while they were sheltering themselves under the cover of being mere pro forma Defendants. I am unable to see how, since Nur Muhammad was asserting that Ketabuddin''s heirs had no title to the property which had vested in him and since Ketabuddin''s heirs were present in the suit as Defendants, any relief could be given to Nur Muhammad against Taradas, except on a finding that before the mortgage-sale he had become the owner of the lands upon the extinction of the title of the heirs of Ketabuddin. The question whether at the date of the mortgage-sale the title to the properties was in Nur Muhammad or in the heirs of Ketabuddin was clearly in issue in the suit, because the pro forma Defendants were successors-in-interest of the mortgagor who could not possibly have any defence against the mortgagee and the Plaintiff, Nur Muhammad, could succeed only in his own right as the auction-purchaser at the rent-sale. It appears further that the very issue canvassed in the present suit, as to whether Nur Muhammad had acted as a mere benamdar of the heirs of Ketabuddin at the rent-sale, was specifically raised and specifically decided against Nur Muhammad by the trial Court and in his favour by the Court of appeal. The decree of the latter Court declared Nur Muhammad''s title as established and directed that he would get khas possession of the lands and the only relief which was specifically limited to Taradas was the relief by way of a permanent injunction, restraining him from proceeding against the lands in execution of his mortgage decree. The injunction had necessarily to be limited to the mortgagee, because it could have possibly no application to the heirs of Ketabuddin, but the declaration of title in favour of Nur Muhammad clearly excluded the title of Ketabuddin''s heirs and the decree awarding him khas possession clearly excluded any right to possession of the heirs of Ketabuddin.

Nur Muhammad could not have been given khas possession, if the pro forma Defendants were entitled to possession till it was taken over by Taradas, nor could bis title have been declared, if the title was in Ketabuddin''s heirs or in Taradas as the purchaser of that title. It appears to me to be unarguable that, by the decree in Title Appeal No. 116 of 1939, the question of title as between Ahammad, who was one of the pro forma Defendants in that suit, and Nur Muhammad, who was the Plaintiff in that suit and is the predecessor-in-interest of Monjur, was not decided. If it was in issue, as having regard to the averments in the plaint and the defence taken it clearly was, and if it was decided, as the decree shows it was, the decision will clearly operate as res judicata against Ahammad when he tries to revive and re-agitate the same question against a purchaser from Nur Muhammad in a subsequent suit. That is what he has been trying to do in the present suit and I am clearly of opinion that the doctrine of res judicata hits him.

The long string of decisions cited before the learned Judge below are mostly concerned with questions as between co-Defendants. We are not troubled by any such question in the present case. If any issue had to be tried between Ahammad and Abdul, the question of the position as between co-Defendants in a previous suit would arise, for both of them were co-Defendants in Nur Muhammad''s suit. But Monjur was not even a party to Nur Muhammad''s suit and could not have been, because he acquired his interest by purchase from Nur Muhammad only on February 16, 1943, The question which we have to consider in the present case is a question between Ahammad who was a Defendant in the previous suit, though a pro forma Defendant, and Monjur, which is the same thing as Nur Muhammad who was the Plaintiff in the previous suit. The question, therefore, is one between the Plaintiff and a Defendant in the previous suit and not a question as between co-Defendants in that suit. The reason why cases dealing with the question of co-Defendants have been considered at such length by the learned Judge below is perhaps that the parties cited them, because they found observations relating to pro forma Defendants only in those cases. Really, however, no question falls to be considered in the present case as to whether any implied decision of any question as between co-Defendants in a previous suit will operate as res judicata in a subsequent suit. The issue in the earlier suit in the present case was a clear issue as between the Plaintiff and one of the Defendants.

I do not consider it necessary to refer to any of the decisions cited by Mr. Ghosh before the Court below or before us, except one by which, he said, the Judicial Committee had subsequently modified the doctrine laid down by them in the earlier cases.

That decision is AIR 1950 17 (Privy Council) . In that case, after referring to the decision in Munni Bibi v. Tirloki Nath (Supra), and stating the principle that the doctrine laid down in the case might apply even though the party against whom it was sought to be enforced had not in the previous suit thought fit to enter an appearance and contest the question, Lord Simonds added:

But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had, notice that the relevant question was in issue and would have to be decided.

Mr. Ghose contended that in order that the decision in the earlier case might operate as res judicata, it was not only necessary to establish that it was required to decide the question in the earlier case to give the Plaintiff the appropriate relief and that the decision was a decision between the parties, but it had also to be established that the parties, sought to be affected, had notice of the question raised in the previous case. If I understood him a right, what he wanted to say was that it must be affirmatively proved that the pro forma Defendants in Nur Muhammad''s suit had notice of the case made by Nur Muhammad and the defence set up by Taradas. I do not think that the case relied upon by Mr. Ghosh warrants the proposition he contended for. The facts of the case before the Judicial Committee on which Mr. Ghosh relied were that a rent suit had been brought against a person named Safiquddin and, upon his death, two ladies and their children were substituted in his place and stead as his heirs on the footing that both the ladies were his widows. The second lady, upon being substituted, took no further interest in the rent suit, apparently for the reason that there was no possible defence, but the first lady filed a written statement and availed herself of that opportunity to attack the status of the second lady and to allege that she was not the wife of Safiquddin at all, but a mere concubine and, therefore, she and her children had been unjustly joined in the suit. This defence, it will be noticed, was not taken at the stage of substitution, but subsequently in the written statement filed in the suit and it is noticed in the judgment of the Judicial Committee that the decision in the rent suit was given only two days after the filing of the written statement. It appears that on that written statement being filed, the Plaintiff in the suit and the first lady agreed that the name of the second lady and those of her children should be deleted from the suit and the learned Judge accordingly decreed the suit against the first lady and her children alone. It was sought in a subsequent suit to bind the second lady by the supposed decision in this rent suit on the question of her status and it was in connection with that attempt that the Privy Council said that if the second lady was sought to be debarred from asserting her status on the basis that her eventual exclusion from the rent suit operated as res judicata against her, it had to be established that she had notice of the case made by the first lady in a rent suit which one would not ordinarily expect to be made in a suit of that character. I do not see that the facts of the present case justify an argument that the knowledge of the pro forma Defendants of the case made by Nur Muhammad should be affirmatively proved. They were made Defendants. The case made against them by the Plaintiff was that they had no title to the lands in question since the rent-sale and that they had no right to possession and the case so made was certainly not foreign to the scope of the suit and was not an unexpected averment as the averment in the rent suit before the Judicial Committee was. I have no doubt in my mind that Mr. Ghosh can derive no support from the decision in Chandu Lal Agarwala v. Khalilar Rahaman (Supra), for his argument that, even in every other condition is satisfied, the rule of res judicata will still not apply against his client, unless it is proved that he had knowledge of the case made by Nur Muhammad in the earlier suit.

Mr. Ghosh contended in the last place that, in any event, the Plaintiff''s case of adverse possession stood clear of the bar of res judicata. I am unable to accept even that contention. No clear case of adverse possession was ever made, but the suggestion was that Nur Muhammad never obtained actual possession after his purchase. If so, the Plaintiff must have already perfected his title at the date of Nur Muhammad''s suit, since that suit was brought fourteen years after the rent sale. It is clear that the Plaintiff ought to have asserted that title against Nur Muhammad''s claim of title in the suit, and not having done so, is now precluded from asserting the same title by reason of the rule of res judicata.

In my view, for the reasons given above, the decision arrived at by the learned Judge on the question of res judicata was right and the Plaintiff''s suit was rightly dismissed by him.

The appeal accordingly fails and is dismissed, but, like the learned Judge, we would make no order for costs.

Lahiri, J.

I agree.