Awadhesh Sao and Others vs State

S.N. Pathak, J.—This appeal has been preferred against the judgment and decree passed by the 3rd Additional District Judge, Aurangabad, in Title Appeal No. 19 of 1983, affirming the judgment of the Additional Munsif-II, Aurangabad, passed in Title Suit No. 107 of 1979, The plaintiff of that suit is appellant here.

Admittedly, the aforesaid title suit was filed by the appellant before this Court, seeking declaration that suit plot No. 262 under Khata No. 100 was settled by the ex-landlord in favour of plaintiff and he was coming in possession of the same. However, the Revenue officer wanted to settle the aforesaid land to the Harijans of the locality. So the plaintiff had sought declaration of his title over suit land and also wanted to get the defendant of the suit, including the State of Bihar, to be restrained from interfering with the plaintiff''s possession. The suit under appeal (Title Suit No. 107 of 1979) was filed under service of notice u/s 80 of the CPC upon Government officials. However, the suit was dismissed by the trial Court on the principles of res judicata, because there was an earlier suit (Title Suit No. 43 of 1966) between the same parties and this suit was dismissed for non-service of notice u/s 80, C.P.C., as also on other material issues, after full hearing. The judgment and decree passed by the trial Court was appealed against and the lower appellate Court under its judgment dated 16th April, 1986, affirmed the judgment of the trial Court. So this appeal was filed before this Court and it was admitted on the sole substantial question of law to the effect whether Title Suit No. 107 of 1979 was barred by the principle of res judicata.

It was submitted before me that when the suit is dismissed for non-service of notice u/s 80, C.P.C., decision on other material issues by the trial Court becomes a biter dicta and, therefore, decision thereon cannot be deemed to have been covered under the principle enunciated u/s 11, C.P.C. Appellant''s lawyer relied on a decision passed by this High Court as reported in Sarajubala Devi Vs. The Chairman and Commissioner of Chaibassa Municipality, . The appellant''s lawyer also relied on two other decisions, out of which one was handed down by Privy Council reported in AIR 1950 P.C. 80 Shankar Lal v. Hira Lal. The 3rd judgment referred to by the appellant''s was reported in Sajjadanashin Sayed Md. B.E.Edr. (D) By Lrs. Vs. Musa Dadabhai Ummer and Others, . So far the judgment reported at page 1238 passed by the Supreme Court (supra), it has been held therein that the question directly and substantially in issue in the previous suit and decided after full hearing will operate as res judicata in the subsequent suit between the same parties, but certain issues which arose incidentally to the issues directly and substantially and decided, shall not operate as res judicata. That means issues which are necessary for decision of a suit must operate as res judicata in the subsequent suit, if they arise again for decision. But certain matters and questions which are incidentally decided in the previous suit will never operate as res judicata in the subsequent suit. So that was the principle decided in the decision supra. Facts of this present appeal are apparently different and in Title Suit No. 43 of 1966, the decision of material issues affecting the title suit of the plaintiff was not an incidental issue, rather it was directly and substantially affecting the plaintiff''s right, title and interest. So I am of the opinion that the decision of the Supreme Court, as reported at Page 1238 (supra) is not applicable to the facts of the present case. So far the decision of the Patna High Court reported in the case of Shanti Pada (supra), I find that the Hon''ble High Court held that if suit is not rejected under Order VII, Rule 11, C.P.C. for non-service of notice u/s 80, C.P.C. and the suit is decided on the issue of non-service, as also on other issues, this decision shall not operate as res judicata because non-service of notice barred the jurisdiction of the Court and, hence, the decision on material issues shall operate as "res judicata". However, I do not find myself in agreement with the Hon''ble High Court decision because Section 80, C.P.C. barred the filing of a suit and it has never barred the jurisdiction of the Court. So if a suit is dismissed for non-service of notice u/s 80, C.P.C. as also on other material issues, I do not think the decision of the Court, having full jurisdiction over the suit (pecuniary or territorial), must operate as res judicata, even though the suit is dismissed on the issue of non-maintainability of the suit. I am fortified in my opinion by a decision of the Supreme Court as reported in Gangappa Gurupadappa Gugwad Gulbarga Vs. Rachawwa Gugwad and Others, . In this decision, the Hon''ble Supreme Court also explained the decision of the Privy Council (supra). So I find that the decision of the Court in title Suit No. 43 of 1966 on material issues as also on the issue relating to service of notice u/s 80, C.P.C. had also barred the subsequent suit u/s 11, C.P.C. and se this suit was rightly dismissed on the principle of res judicata. The first appellate Court also did not make legal error by affirming the judgment of the trial Court, so far as the bar of the suit u/s 11, C.P.C. was concerned.

As a result of the aforesaid discussion of the legal aspect of the case, I am of the considered opinion that there is no legal error committed by the first appellate Court necessitating any interference by this Court. Accordingly, this appeal is dismissed.

There shall be no order as to cost at this appeal.