Chatar Singh and Others vs Ram Nath Singh and Others

Arun Bhansali, J.

This writ petition is directed against order dated 28.01.1987 passed by S.D.O., Rajgarh (Churu) (''SDO''), whereby, the issue Nos. 8 and 9 framed in the suit have been decided against the petitioners and judgment dated 15.11.1994 passed by the Board of Revenue, Ajmer (''Board''), whereby, the revision filed by the petitioners against order dated 28.01.1987 has been rejected.

The present litigation has got a chequered history, inasmuch as, the first suit between the parties was filed in the year 1955 and ever since the parties through generations are in litigation; the dispute in the present suit pertains to the property of one Tej Singh, who died issueless; the dispute is among the sons of Ganga Singh - brother of said Tej Singh; while Pabudan Singh and Birju Singh are on the one side, the legal representatives of third brother Sheobux Singh are on the other side; the property in dispute is a land situated in village Niyagli; in the present suit No. 26/1984 filed by Pabudan Singh and others, on objection raised in the written statement, the SDO framed two preliminary issues, which read as under:-

After hearing the parties, the SDO came to the conclusion that the Explanation-IV to Section 11 CPC applies to a case where Section 11 applies, when Section 11 itself is not applicable, Explanation-IV does not apply; the defendants have failed to prove that the suit was barred under Order II, Rule 2 CPC and decided issue No. 8 against the defendants-petitioners; on issue No. 9 based on the contention raised in the written statement, the SDO came to the conclusion that the suit was maintainable.

In the revision petition, the Board came to the conclusion that the previous suit of the present suit was founded on different cause of action and, therefore, was not barred by res judicata and, consequently, dismissed the revision petition; whereafter, review petition was also filed by the petitioners, which was also rejected by order dated 03.04.1997.

It is submitted by learned counsel for the petitioners that the respondents/their predecessors Pabudan Singh and Birju Singh had filed Civil Suit No. 179/1955 before the Civil Judge, Churu, which suit was dismissed on 30.05.1957, whereafter, another Suit No. 75/1964 was filed in the Court of Senior Civil Judge, Churu for declaration, which was dismissed on 27.09.1965; whereafter a Revenue Suit No. 53/1966 was filed before the SDO, which suit was dismissed as abated on 09.05.1984 and during the pendency of the Suit No. 53/1966 the present Suit No. 26/1984 was filed; it was submitted that all the pleas and the cause of action raised in the present suit had already been taken/should have been taken by the respondents right from the year 1955 before the Civil Court and Revenue Court and, therefore, the present suit was barred under Explanation-IV to Section 11 CPC, Order II, Rule 2 CPC and Order XXII, Rule 9 CPC and, therefore, the SDO as well as Board fell in error in deciding issue Nos. 8 and 9 against the petitioners; it was submitted that both the authorities fell in error in misconstruing the contents of petitioners'' written statement for the purpose of deciding the issues against the petitioners and without taking into consideration the relevant facts and the law applicable have decided the issues against the petitioners and, therefore the same deserves to be reversed and the suit filed by the defendants deserves to be dismissed.

Learned counsel for the respondents supported the orders impugned; it was submitted that from the admission of the petitioners, it is apparent that the present suit has been filed by the petitioners on a fresh/different cause of action and, therefore, the dismissal of the earlier suits are of no consequence and, therefore, the orders impugned do not call for any interference.

I have considered the rival submissions made by learned counsel for the parties and have perused the material placed on record.

As noticed hereinbefore, the parties are litigating qua the legacy of one Tej Singh son of Bagh Singh, uncle of Sheobux Singh; Pabudan Singh and Birju Singh all sons of Ganga Singh, brother of Tej Singh, who died issueless; Pabudan Singh and Birju Singh filed a Suit No. 179/1955 before the Civil Judge, Churu for declaration against petitioners, children of Sheobux Singh that each of the plaintiff is entitled to 1/3 landed property of deceased Tej Singh.

The suit was contested and it was claimed that partition took place between the parties and the plaintiffs separated from the joint family and Tej Singh remained joined with Sheobux Singh till his death and after his death the property of Tej Singh passed to the defendants by survivorship; after the issues were framed, the trial court decided all the issues and came to the following conclusion on issue pertaining to the relief:-

"By the findings on the above issues it is clear that the plaintiffs have not cleared in their plaint how they are entitled to the land of Tejsingh. In the plaint the land of Tejsingh has also not been clearly specified. The land is neither specified in the quantity nor by survey numbers. It is also not clear the basis on which the plaintiffs seek to have the share in the land as prayed for in the plaint. It was for the plaintiffs to have cleared the whole position but they have not done in the instant case. Even the plaint itself is not clear in this connection. The plaintiffs'' suit deserves to be dismissed. Looking the circumstances of the case the parties should be left to bear their own cost."

It would be pertinent to notice that the issue relating to jurisdiction of Civil Court was decided in favour of the plaintiffs holding that the suit was maintainable.

Whereafter, another suit was filed by Pabudan Singh and Birju Singh being Civil Original Suit No. 75/1964 seeking similar declaration to the effect that the plaintiffs were entitled to 2/3rd share in the property left by Tej Singh and for partition by metes and bounds; the Senior Civil Judge, Churu, inter alia, framed preliminary issue whether the suit was barred by res judicata and after noticing that the earlier suit and first appeal arising there from had been dismissed by the trial court and the first appellate court vide its judgment dated 27.09.1965 came to the following conclusion:-

"5..........The decision given by this court in the former suit has become final against the plaintiffs, and they cannot be now permitted to agitate the same matter again in the present suit, Under the circumstances, this issue is decided against the plaintiffs.

In view of the decision of the issue No. 6 against the plaintiffs, their suit fails, and hence the same is hereby dismissed with costs."

Whereafter, again Pabudan Singh and Birju Singh filed Suit No. 53/1966 before the SDO, inter alia, seeking declaration that the plaintiffs were having 2/3rd share in the suit property claiming that the property in question was ancestral property of the plaintiffs and father of the defendants and the same belong to their grand-father Bagh Singh, regarding the cause of action the following averments were made:-

It would be seen that the cause of action has been indicated as from the death of Tej Singh.

A written statement was filed by the petitioners, inter alia, raising several objections; it appears that the suit remained pending and ultimately an application dated 07.03.1983 was filed by the defendants, inter alia, indicating that the suit has abated on account of death of Sheobux Singh; another application was filed by the plaintiffs i.e. Pabudan Singh etc. seeking withdrawal of the suit on the ground that they have already filed another Suit No. 26/1984; the SDO by his order dated 09.05.1984 came to the conclusion that the Suit No. 53/1966 filed by the plaintiffs has abated and, consequently, dismissed the same; the application filed by the plaintiffs seeking withdrawal of the suit was also dismissed.

In the Suit No. 26/1984 plaintiffs Pabudan Singh and Birju Singh sought declaration of Khatedari rights, partition of the agricultural lands under Sections 88 and 53 of the Rajasthan Tenancy Act, 1955. The cause of action indicated in the suit reads as under:-

It would be again noticed that the cause of action indicated is death of Tej Singh and the claim made is 3/4th share in the property.

The defendants opposed the suit and, inter alia, raised plea regarding res judicata etc. as noticed hereinbefore, which led to trial court framing ten issues and deciding issue Nos. 8 and 9 as preliminary issues.

The relevant paragraph in the written statement, which led to the SDO and Board deciding the issues against the petitioners reads as under:-

From the entire sequence of events, it is apparent that Pabudan Singh and Birju Singh have been filing repeated proceedings before the civil courts and revenue courts seeking legacy of deceased Tej Singh; the first suit was filed in the year 1955 before Civil Judge, Churu, which was rejected by the trial court on merits after coming to the conclusion that the Civil Court had jurisdiction to try the said suit, the appeal filed by the plaintiffs was dismissed; whereafter, the second suit was filed in the year 1964, which was dismissed as barred by res judicata; having availed and exhausted the remedy regarding the subject matter of the suit before the Civil Court, the plaintiffs Pabudan Singh and Birju Singh filed revenue Suit No. 53/1966 before the S.D.O., Churu; the suit remained pending for over eighteen years and was dismissed as abated by the SDO on 09.05.1984; during the pendency of the Suit No. 53/1966 another suit was filed by said Pabudan Singh and Birju Singh again seeking identical reliefs on the same cause of action.

The provisions of Section 11 CPC deal with res judicata and read as under:-

"11. Res judicata. - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

Further, the provisions of Order II, Rule 2 CPC read as under:-

"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court."

Lastly the provisions of Order XXII, Rule 9 CPC read as under:-

"9. Effect of abatement or dismissal. - (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.

(2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit.

(3) The provisions of section 5 of the Indian Limitation Act, 1877 (15 of 1877), shall apply to applications under sub-rule (2).

[Explanation. - Nothing in this rule shall be construed as barring, in any later suit, a defence based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this Order.]"

The fundamental principles, which govern Section 11 and Order II, Rule 2 CPC are that for the same cause of action and issues involving similar issues between the parties, which have been decided finally, the matter cannot be raised again; further, the Explanation under Section 11 elaborates the said provision and Explanation IV, inter alia, provides that any matter, which might and ought to have been made ground of defence or attack in former suit shall be deemed to have been a matter directly and substantially be issued in such suit.

Similarly, Order II, Rule 2 CPC requires that the whole of the claim, which the plaintiff is entitled to make in respect of cause of action should be included and if the plaintiff omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

In the present case, the civil suit of 1955 specifically sought declaration regarding the share of the plaintiffs in the property of Tej Singh; suit of 1964 sought declaration and partition of the property belonging to Tej Singh, which suits and the appeal arising from the suit of 1955 were all dismissed and as noticed hereinbefore the issue regarding the jurisdiction of the Civil Court was held in favour of the plaintiffs and, therefore, plaintiffs Pabudan Singh and Birju Singh cannot get out of the said decrees passed by the Civil Courts, wherein, specifically the property and the cause involved were the same as raised in the present suit and the issues are also similar being whether the plaintiffs could claim the legacy of Tej Singh.

Even before the Revenue Court the Suit No. 53/1966 filed by the plaintiffs was dismissed as abated and provisions of Order XXII, Rule 9 CPC specifically bar a fresh suit on the same cause of action, where, a suit has already abated. Though the present suit was already filed by the plaintiffs before the Suit No. 53/1966 was dismissed as abated, the plaintiffs cannot be permitted to take advantage of the said fact and to get away from the rigor of provisions of Order XXII, Rule 9 CPC and the suit was ex facie barred under Order XXII, Rule 9 CPC.

So far as the findings of the SDO and the Board based on the contents of the written statement is concerned, the plea raised by the petitioners in the written statement was very specific that the plea in the present suit, which now purports to seek partition of property of Bagh Singh i.e. father of Tej Singh, the said aspect could always be raised in the earlier suits filed way back in the years 1955, 1964 and 1966 and the petitioners after having abandoned the said plea of suit property belonging to the joint family of Bagh Singh and having all along claiming the legacy of Tej Singh were not entitled to raise the said issue and the issue was barred under Section 11 Explanation IV CPC and Order II, Rule 2 CPC; both the SDO and the Board by merely picking up few words from the written statement have totally misconstrued the plea raised by the petitioners and have without even considering the material available on record i.e. all the three previous proceedings initiated by the plaintiffs Pabudan Singh and Birju Singh have wrongly reached a conclusion that the suit was not barred under Section 11 CPC, Order II, Rule 2 CPC and that the dismissal of Suit No. 53/1966 as abated had no effect on the present suit.

In view of the above discussion, the finding of SDO and Board on issue Nos. 8 and 9 is reversed and both the issues are decided against the plaintiffs and as a consequence the suit No. 26/1984 filed by them before SDO, Churu is, therefore, dismissed.

Consequently, the writ petition filed by the petitioners is allowed in above terms.