Avtar Singh and Others vs Th. Atma Singh and Others

Kotwal, J.—This appeal has a chequered history, Hukma Singh, the father of respondents Atma Singh, Kalyan Singh, Khem Singh, Hardev

Singh and Rughbir Singh, executed a gift deed in respect of the suit house in favour of one Dhayan Singh, the pre-decessor-in-interest of the

appellants, on 16th Kartik, 2002, Samvat. The respondents, out of whom Kalyan Singh died during the pendency of this appeal, and whose legal

representatives have already been brought on the record, brought a suit on 3rd Magh, 2009 Samvat. in the Court of Munsiff, Sub-Registrar

Jammu, against Dhayan Singh seeking a declaration that the suit house being their joint and ancestral property, their father Hukma Singh had no

right to alienate it in favour of the donee, Dhayan Singh. In this suit they also impleaded their father Hukma Singh as the second defendant.

Summons were issued to Dhayan Singh but the same could not be served on him and the trial Court proceeded ex parte against him. Hukma Singh

however, did not choose to contest the suit and he also remained ex parte. On taking ex parte evidence, the Court ultimately decreed the

respondents' suit declaring the aforesaid gift deed to be null and void as against the rights of the respondents, by virtue of its judgment dated 31st

Assuj, 2010 Samvat. The suit was brought for mere declaration on the allegation that the respondents were in possession of the suit house.

On 1st May, 1968, Dhayan Singh having disappeared in the meantime, and his whereabouts not being known for a period of more than seven

years, the appellants brought a suit for declaration that they were the owners of the suit house by virtue of the gift deed executed by its owner

Hukma Singh in favour of their predecessor-in-interest Dhayan Singh, and for consequential relief of possession of the suit house, alleging that

pursuant to the gift-deed, Dhayan Singh was put in possession of the suit house on the very day it came to be executed in his favour and he along

with the appellants had remained in its possession till his disappearance; the appellants continuing in its possession till December, 1957, when the

respondents forcibly ejected them from it, This suit was resisted by the respondents both on the grounds of title as well as possession. Their,

contention wag that the appellants had no title to the suit house as the decree, even though ex parte, passed by Munsiff, Sub-Registrar, Jammu, on

31st Assuj, 2010 Samvat, declaring the gift deed void and inoperative in so far their rights in the house were concerned, operated as resjudicata

between the parties. They also contended that neither Dhayan Singh, nor the appellants, ever came into possession of the suit house, which all

along remained in their possession, adding, that it was joint and ancestral qua the respondents and the suit was not properly valued for the

purposes of court-fee and jurisdiction, A preliminary issue in regard to the valuation of the suit was framed by the trial court, which was eventually

decided in favour of the respondents, and the appellants were directed to bring a suit for possession simpliciter. The appellants, consequently,

amended the plaint and converted their suit into one for possession, valuing the same for the purposes of court-fee and jurisdiction at Rs. 5,500/-.

The suit was, as a result, tried by District Judge, Jammu, who without going into other points involved therein, framed a preliminary issue as to

whether or not the suit was maintainable, when admittedly the gift deed upon which the appellants had based their title, was declared null and void

by the Court of Munsiff, Sub-Registrar, Jammu, by its judgment dated 31st Assuj, 2010 Samvat. This issue wag decided by the learned District

Judge in favour of the respondents, holding that even though the suit was not barred under the provisions of Section 11 C. P. C., yet Section 43 of

the Specific Relief Act applied to it and the judgment of Munsiff Sub-Registrar. Jammu, dated 31st Assuj, 2010 Samvat, declaring the gift deed as

null and void, was binding on the appellants, who admittedly claimed the suit house through Dhayan Singh. As a consequence, the learned District

Judge dismissed the suit on 31st January, 1969.

An appeal wag taken from the aforesaid judgment to the High Court, where the appellants made an application seeking amendment of the plaint

by adding to it two additional grounds of attack: one, that Dhayan Singh having died before the ex parte decree came to be passed against him on

31st Assuj, 2010 Samvat, the same was a nullity; and two, that the appellants having remained in continuous possession of the suit house as

owners thereof in derogation of the title of the respondents, they had perfected their title to it by adverse possession. The Division Bench permitted

to include the second ground, but, refused to include the first ground on the ex parte decree dated 31st Assuj, 2010 Samvat, was a nullity. The

Bench also directed the District Judge to raise the necessary issue, and allow the parties to lead evidence on it. It kept the appeal pending on its

file, and remitted the case back to the District Judge with a direction that he will record the finding on the proposed issue and submit the same to

this Court within two months from the date of the order,

The District Judge accordingly, framed an additional issue in the following terms :

Whether the plaintiff and his father remained in possession of the suit property from 18th Kartik, 2002 (BK) up to December 1957 adversely to

the defendants and have thus become the owners of the suit property by prescription? O. P. P.

The parties joined the issue and led evidence on it. The learned District Judge on consideration of the same, eventually returned a finding that the

appellants had perfected their title by virtue of adverse possession. The respondents, after the finding was received in the Court, also filed their

objections to it. This is how the whole appeal is now before us.

Mr. Thakur, appearing for the appellants, while supporting the aforesaid finding of the learned District Judge, has assailed his earlier finding that

the appellants cannot be said to have any subsisting proprietary title in the suit house based upon the gift deed because of the decree passed by

Munsiff, Sub-Registrar, Jammu, on 31st Assuj, 2010 Samvat, According to the learned counsel, reliance by the learned District Judge upon two

decisions referred to in the judgment viz. Durjati Subbayya Vs. Anantaraju Nagayya and Others, and Razia Begum Vs. Sahebzadi Anwar Begum

and Others, was clearly misplaced. The provisions of Section 43 of the Specific Relief Act, argued the learned counsel, have to be read subject to

the provisions of Section 11 Civil P. C. One of the conditions for applying the rule of res judicata enshrined in Section 11, is that the Court whose

judgment is to operate as res judicata in the subsequent suit, must have had pecuniary jurisdiction to try the subsequent suit. The present suit, the

jurisdictional value whereof is Rs. 5,500/-, not being triable by Munsiff, Sub-Registrar, Jammu, his judgment declaring the gift deed null and void

could not operate as res judicata, and nor could Section 43 come into play for this very want of inherent pecuniary jurisdiction. To substantiate his

argument, he has also brought to our notice some decisions, later in point of time, taking a view different from the one taken in Durjati Subbayya

Vs. Anantaraju Nagayya and Others, . In so far as the other authority viz Razia Begum Vs. Sahebzadi Anwar Begum and Others, is concerned,

the learned counsel has argued that the question as to whether or not Section 43 had to be read subject to the provisions of Section 11, in so far as

the pecuniary jurisdiction of the first Court to try the subsequent suit is concerned, the same was never, in terms, raised before their Lordships, and

the decision was also distinguishable on facts, wherein the only question involved was as to under what circumstances could a person be impleaded

as a party to a suit in terms or Order I Rule 10 C. P. C,

In Durjati Subbayya Vs. Anantaraju Nagayya and Others, , the Bench no doubt took the view that to apply Section 43, it was not necessary

that the Court which passed the earlier declaratory decree, must have had pecuniary jurisdiction to try the subsequent suit. The same view was

taken by the Nagpur High Court in Raju Chattar Singh v. Diwan Roshan Singh AIR 1946 Nag 277 A single Judge of Madras High Court in a later

case viz, Samavedam Sarangapani Ayyangar Vs. Kandala Venkata Narasimhacharyulu and Another, , however, struck a different note, and

disapproving the view taken by the Division Bench in AIR 1936 Mad 51 (supra), held that Section 43 has to be read subject to the provisions of

Section 11, and unless the Court which passed the earlier declaratory decree had pecuniary jurisdiction to try the subsequent suit, the parties to the

earlier suit, or those claiming through them, were not bound by the declaration granted by it. A similar view was taken in two more Full Bench

decisions, namely, AIR 1943 338 (Oudh) and Veeranna v. Sayamma AIR 1958 AP 363 wherein also it was held that Section 43 had to be read

subject to the provisions of Section 11. It is not necessary for us to go into the question as to which of these two divergent views is correct, for the

conflict has been ultimately set at rest by their Lordships in Razia Begum Vs. Sahebzadi Anwar Begum and Others, , wherein the majority view

was expressed in these words (at p. 894) :

.....The doctrine of res judicata, as it has been enunciated in a number of rules laid down in Section 11 of the Civil P. C. covers a much wider field

than the rule laid down in Section 43 of the Specific Relief Act. For example, the doctrine of res judicata lays particular stress upon the

competence of the Court. On the other hand, Section 43 emphasizes the legal position that it is a judgment in personam as distinguished from a

judgment in rem. A judgment may be res judicata in a subsequent litigation only if the former Court was competent to deal with the later

controversy. No such consideration finds a place in Section 43 of the Specific Relief Act. Again, a previous judgment may be res judicata in a

subsequent litigation between the parties even though they may not have been eo nomine parties to the previous litigation or even claiming through

them. For example, judgment obtained by a presumptive reversionet in a representative suit, or a judgment will bind the actual reversioner even

though he may not have been a party to it, or may not have been claiming through the parties in the previous litigation.

These observations show that Section 43 is not to be read subject to the provisions of Section 11 and the Court that passed the declaratory

decree need not have had pecuniary jurisdiction to try the subsequent suit. True, the question of pecuniary jurisdiction of the two Courts was not,

in terms, raised before their Lordships, and to that extent their observations on it are obiter dicta, nevertheless, even obiter dicta of the Supreme

Court are binding on High Court. In this view, the dissenting view taken in AIR 1952 Mad 384 (supra), AIR 1943 338 (Oudh) and AIR 1958 AP

363 (supra) must be deemed to have been impliedly overruled by the Supreme Court. We have thus no option but to hold that the appellants do

not have any subsisting proprietary title in the suit house traceable to the gift deed executed by Hukma Singh in favour of their pre-decessor-in-

interest Dhayan Singh.

This brings us to the issue of adverse possession. Mr. Thakur, besides relying upon the evidence led on the issue, has also brought into aid the

donor's admission contained in the gift deed that possession of the donated house was handed over to the donee on the very day the gift deed

came to be executed, and has argued that the respondents are bound by the admission of the donor as they claim the suit house through him. We

cannot accept this contention. Section 18 of the Evidence Act no doubt provides that statements made by persons from whom the parties to the

suit have derived their interest in the subject matter of the suit, are admissions if they are made during the continuance of the interest of the persons

making the statements. But, the respondents cannot be bound by the aforesaid admission of Hugma Singh, for they are not claiming the suit house

through him, but are claiming the same as coparceners by virtue of their birth in the joint Hindu family, to which the suit house belonged. That the

suit was the joint and ancestral property of the respondents and their father Hukma Singh, has been finally established by the ex parte decree

passed by Munsiff, Sub-Registrar, Jammu, declaring the transfer of the suit house in favour of Dhayan Singh null and void, on the only ground that

it was the joint and ancestral property of the respondents and their father.

Even so, we are satisfied that the finding returned by the learned District Judge is unassailable on facts. Whereas the appellants have examined

Durga Singh, Ichhya Ram, Prabhat Singh and Purakh Singh besides Uma Devi appellant to prove the factum of adverse possession, the

respondents have examined Gobind Ram, Krishen Chand, Trilok Singh and Nanak Chand besides respondent Atma Singh to rebut the same.

Durga Singh, Prabhat Singh and Purakh Singh have stated that on the day the deed of gift came to be executed in his favour, Dhayan Singh entered

into possession of the suit house and remained in its continued posssesssion till he disappeared. His son, daughter, and wife were also living along

with him in it and continued to live there even after his disappearance, till they were forcibly dispossessed from it in December 1957. Their other

witness Ichhya Ram has stated that he used to go to the suit house on private tuition from April 1957 to December 1957 when the appellants were

forcibly thrown out from it by the respondents. According to him, he was teaching appellants 1 and 2, who were then minors. After the appellants

were forcibly thrown out, they for some time stayed in some house at Chowgan Fathu, and thereafter went to village Jagti, where the house of the

maternal uncle of appellants 1 and 2 is situated. To the same effect is the statement of appellant Uma Devi also. Mr. Sharma, however, persuaded

us to disbelieve the statements of P. Ws. Prabhat Singh and Purakh Singh who are admittedly related to the appellants; the only ground for

rejecting their testimony being their aforesaid relationship. In our opinion, in the circumstances of the case, this is no ground to disbelieve these

witnesses. Their close relationship with the appellants, in our opinion, probabilises their personal knowledge about the factum of possession. There

is every likelihood that these people might have been visiting the suit house off and on and can reasonably be said to have personal knowledge as

to whether the appellants in fact remained in possession of the house and if so, till when. Their visits must have been too frequent when admittedly

Dhavan Singh having disappeared, there was nobody to look after the appellants.

The witnesses examined by the respondents do not inspire any confidence. Whereas D. Ws. Gobind Ram, Trilok Singh and Nanak Chand

state that the suit house had been in possession of its tenants, a teacheress not named, and D. W. Gobind Ram, during the relevant period, D. W.

Krishen Chand has given a direct lie to these witnesses, according to whom, he never saw any tenant occupying the house, which, according to

him, remained in possession of Hukma Singh and the respondents throughout. That apart, the respondents have not produced the teacheress

alleged to have occupied the house, and nor have they cared to get produced in the Court the rent deed executed by D. W, Gobind Ram, and the

receipts which he had been allegedly obtaining from Hukma Singh from time to time on payment of rent to him. He is alleged to have occupied the

house for more or less sixteen years; but not a single receipt has been got produced from him. Hukma Singh is admittedly dead. Any receipt

executed by him in favour of D. W. Gobind Ram, if got produced in the Court after his death, would have been clinching in nature and undoubtedly

tilted the scales in favour of the respondents. Non-production of any such receipt or the rent deed, which too might have had the signature of

Hukma Singh on it, raises an inference that either no such rent deed or receipt existed, or that if the same were produced in the Court, those might

have gone against the respondents. Mr. Sharma next contended that had the appellants been really dispossessed in 1957, they could not have

remained inert for more or less eleven years, and would have in all probability brought the present suit much, earlier. We are not impressed with

this argument either. The appellants have furnished a very plausible explanation for the delay in bringing the present suit. They have said that

whereas appellants 1 and 2 were minors, appellant No. 3 is a deaf and dumb lady.

Mr. Sharma lastly argued that institution of the suit on 3rd Magh, 2009, Samvat, and the decree passed in it on 31st Assuj, 2010 Samvat, in

the eye of law interrupted the appellants' adverse possession, if any, and excluding the period between 3rd Magh, 2009 and 31st Assuj, 2010

Samvat, the statutory period of twelve years fell short by more or less two months, which could not confer any title on the appellants even on the

basis of adverse possession. This argument has also no force. It is well settled that neither institution of a suit for declaration, nor a decree passed

in it, can cause any interruption in the continuous adverse possession of a party which has commenced earlier to the institution of the suit.

Ramachandram Pillai Vs. Neelambal Achi, 16th Kartik, 2002 Samvat, corresponds to October 1945. The appellants therefore, remained in

possession of the suit house for a little more than twelve years. They having no title to remain in its possession, their possession for a period of

twelve years over the suit house was clearly adverse to the rights of the respondents, who claimed to be its owners. They had, consequently, not

only lost the remedy but also their title in the suit house u/s 28 of the Limitation Act. The learned District Judge was, therefore, perfectly justified in

coming to the conclusion that in December 1957, when the appellants were forcibly turned out from the suit house, they had become its owners by

virtue of adverse possession.

In the result, we allow the appeal, set aside the judgment and decree of the learned District Judge, dated 31-1-1969, and decree the

appellants' suit. In the peculiar circumstances of the case, we leave the parties to bear their own costs throughout.