Hari Mohan Malik vs Madan Mohan Malik

Debangsu Basak, J.—The revisional application was directed against an Order dated January 30, 2014 passed in Title Suit No. 95 of 2013. An application under Order 7 Rule 11(d) of the Code of Civil Procedure was dismissed by the Court below on the ground that mixed question of law and fact arose requiring trial.

On behalf of the petitioner, it was contended that the parties had litigated earlier.

A suit for eviction of the plaintiff was filed by the petitioner herein being Title Suit No. 8 of 1985. Such suit was decreed ex parte. The plaintiff-opposite party thereafter filed the present suit seeking a declaration that the plaintiff-opposite party was a co-sharer in respect of the self-same plot of land involved in the previous suit. In the previous suit, the plaintiff-opposite party herein was directed to be evicted, as the plaintiff-opposite party was a trespasser. In such premises, reliance was placemen AIR 1977 SCC 2421 in support of the proposition on the ground that the second suit was filed as an abuse of process of the Court.

The revisional application was contested by the plaintiff-opposite party. It was contended that although the plaintiff-opposite party was a defendant in the previous suit, such suit was decreed ex parte. No issue at all was framed in the previous suit. The issue as to whether the plaintiff-opposite party was a co-sharer in respect of the present suit property was not an issue in the previous suit. In the present suit, the issue between the parties was whether the plaintiff-opposite party was a co-sharer in respect of the property involved. Such issue was not raised and not decided in the previous suit. In the previous suit, a document filed on September 2, 1952 was relied upon by the petitioner herein to deny the title of the plaintiff-opposite party in respect of the suit property. In the present suit, the plaintiff-opposite party was relying upon a deed prior to September 2, 1952 to establish, that the plaintiff-opposite party was a co-sharer in respect of the suit property.

So far as the document dated September 2, 1952 was concerned, it was contended by the opposite party that such deed of gift was never acted upon. In fact, the previous document which the plaintiff-opposite party was relying upon in support of his title in the present suit was acted upon and that the name of the plaintiff-opposite party was incorporated into the record of right of such possession and that the plaintiff-opposite party was in possession of the suit property since then.

It was submitted that the instant suit should not be rejected on the ground of res judicata inasmuch as the res judicata was a mixed question of fact and law. Moreover, the issue raised in the instant suit was not raised in the earlier suit. Consequently, the plaintiff-opposite party was entitled to proceed with the instant suit.

It was also submitted that in order to establish the contention of the respective parties in the instant suit evidence was required to be taken. Therefore, there was no infirmity in the order impugned.

A In support of the contention that the instant suit should not be dismissed on the ground of res judicata, reliance was placed on Deva Ram and Another Vs. Ishwar Chand and Another, , Kamala and Others Vs. K.T. Eshwara Sa and Others, .

It was contended that since issues were not framed, the principles of res judicata would not apply and in support of such contention reliance was placed on Madhvi Amma Bhawani Amma and Others Vs. Kunjikutty Pillai Meenakshi Pillai and Others, . Reliance was also placed on the questions of res judicata in the case of Ramesh Kumar Alias Chandra "Appellants: Ramesh Kumar Alias Chandra Khowala and Another Vs. Mamata Chakraborty and Others, and Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Others, .

I have considered the rival contentions of the parties and the materials on record.

The petitioner herein is a defendant in Title Suit No. 95 of 2013. The petitioner had instituted a suit being Title Suit No. 8 of 1995 against the plaintiff herein and against one Ghanashyam Mallick, who was added as a proforma defendant. The petitioner and the opposite party are the brothers. In Title Suit No. 8 of 1985, the petitioner herein claimed that the suit property was acquired by him by virtue of a Registered Deed of Gift dated September 2, 1952. The plaint case was that the Opposite party herein, as the brother, has approached the petitioner for temporary accommodation, which was granted, and that in spite of request the opposite party-plaintiff herein was not vacating the suit premises. In such context, eviction of the plaintiff-opposite party herein from the suit premises was prayed for on the ground that the opposite party was a trespasser. Such suit was decreed ex-parte on May 18, 1989.

Being aggrieved by such ex-parte decree, the appeal carried at the instance of the opposite party herein, was also dismissed as not maintainable. However, the opposite party-plaintiff was granted liberty to approach the appropriate forum in accordance with law.

The Title Suit No. 8 of 1985 was decreed ex-parte on May 18, 1989. The decree passed in Title Suit No. 8 of 1985 was put into execution. The decree was executed. The day the petitioner herein obtained possession in execution of the decree passed in Title Suit No. 8 of 1985, he was dispossessed from the suit premises at the instance of the opposite party. Consequently, the petitioner filed a proceeding under Section 6 of the Specific Relief Act. Such proceeding was allowed. Aggrieved by the order allowing the Section 6 proceeding, an appeal was carried at the instance of the opposite party. Such appeal was dismissed. Against the order of dismissal of the First Appeal, the Second Appeal was filed which was found to be not maintainable by the order dated September 7, 2012. However, by the order dated September 12, 2012 the opposite party was granted liberty to approach the appropriate forum in accordance with law.

It was contended on behalf of the opposite party-plaintiff that the suit filed by the opposite party and in consideration in the revisional application was pursuant to such leave granted by the order dated September 7, 2012.

The order dated September 7, 2012 passed in the Second Appeal could not be read, as suggested by the learned Advocate for the opposite party, to mean that a suit filed by the opposite party which may otherwise to be found to be barred by law would still be maintainable because of the leave. Order dated September 7, 2012 has granted liberty to the opposite party to approach an appropriate forum in accordance with law. Obviously, any proceeding including the present suit that may be filed by the opposite party pursuant to such leave or even otherwise had to be in accordance with law.

The petitioner herein had applied under Order 7 Rule 11 of the Code of Civil Procedure claiming that the present suit was barred on two grounds-one was the ground of res-judicata and the other one is limitation.

On contested hearing, the Court below rejected the application finding that mixed question of fact and law was involved in both the grounds.

So far as the point of limitation was concerned, no doubt, it was a mixed question of law and fact and required trial. The learned Advocate for the opposite party had relied upon Ramesh Kumar Alias Chandra "Appellants: Ramesh Kumar Alias Chandra Khowala and Another Vs. Mamata Chakraborty and Others, in support of such proposition.

Therefore, the point of limitation to dismiss the suit was not available to the petitioner.

The other point that remains for consideration was the point of res-judicata. While considering the question of res-judicata, it was held in Madhvi Amma Bhawani Amma (supra) that in order to apply the principles of res judicata, the Court must find whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceedings and that it was between the same parties and it was decided by a Court of competent jurisdiction. It was also held that there must be an issue raised and decided and not merely any finding on any incidental question for reaching such a decision. If no issue was raised and no finding recorded the same would not come within the periphery of the principles of res-judicata. Incidentally, while applying such ratio to the facts of this case, it must be held that, the opposite party-plaintiff was the principal defendant in Title Suit No. 8 of 1985. The petitioner was the plaintiff in title Suit No. 8 of 1985. The opposite party-plaintiff herein was, therefore, claiming a right in respect of the petitioner herein in the same capacity as in Title Suit No. 8 of 1985 at least as against the same party of Title Suit No. 8 of 1985.

In the earlier Title Suit No. 8 of 1985, the petitioner stated that he was the owner of the suit premises by virtue of a Deed of Gift dated September 2, 1952 and that the opposite party-plaintiff herein was a trespasser to the suit property. In the present suit, the opposite parry-plaintiff herein was seeking a decree declaring the Deed dated September 2, 1952 to be illegal and not binding upon the opposite party-plaintiff and was seeking division of the immovable property concerned by metes and bounds. As stated herein, the parties to the proceedings are brothers. The same property was, therefore, involved in both the suits between the same parties claiming through the same title. In the previous suit, the petitioner was claiming title in respect of the immovable property, through the Deed dated September 2, 1952. In the present, suit, the opposite parry-plaintiff was seeking to have the same Deed declared null and void. Therefore, the validity and legality of the Deed dated September 2, 1952 was in issue directly and substantially in Title Suit No. 8 of 1985. It did not help the opposite party-plaintiff to contend that the Title Suit No. 8 of 1985 was decreed ex-parte. It was a choice of the opposite party-plaintiff by not contesting the Title Suit No. 8 of 1985. The ex-parte decree in such suit could not be diluted or said to be of lesser effect.

In Deva Ram & Another (supra) the Supreme Court allowed the second suit to continue on the facts of that case. The previous suit was filed for recovery of a sum of money as sale price of the land. The second suit was for recovery of possession. Obviously, the issues in the two suits were different and, therefore, the second suit was found to be maintainable.

Here, the parties were claiming title, or the lack of it, because of a particular Deed of Gift dated September 2, 1952 and which such issue received consideration between the same parties by a Court having competent jurisdiction to try a suit in Title Suit No. 8 of 1985.

In Kamala & Others (supra), the Supreme Court considered the applicability of an Order 7 Rule 11(d) of the Code of Civil Procedure. In such context, it was stated that in the event properties were subsequently acquired the effect was to take it beyond the purview of the Order 7 Rule 11 of the Code of Civil Procedure. In the instant case same properties were involved.

In Kunjan Wair Sivaraman Nair (supra) the Supreme Court was dealing with the provisions of Order 2 Rule 1 of the Code of Civil Procedure. The Supreme Court also considered Section 11 of the Code of Civil Procedure. It was held that Section 11 did not affect the jurisdiction of the Court but operated as a bar to the trial of the suit or issue, if the matter was directly and substantially in issue and finally decided in the previous suit between the same parties litigating under the same title in a Court, competent to try the subsequent suit in which such issue has been raised.

In the facts and circumstances of this case, I have already held that the issue as to the ownership of the plot of land was decided finally in Title Suit No. 8 of 1985 between the same parties.

In such circumstances, I find merit in the application under Order 7 Rule 11 of the Code of Civil Procedure filed by the petitioner therein. Such application is allowed. Title Suit No. 95 of 2013 is dismissed. The impugned order is set aside.

The revisional application is, therefore, allowed. There will be, however, no order as to costs.