Hemachal Sahu vs Kumarmani Sa and Others

R.N. Misra, J.—This is an appeal by Defendant No. 2 against the reversing judgment and decree of the learned District Judge of Sambalpur in a suit for partition and other alternate claims.

Plaintiff claimed that Defendant No. 1 Chandramani was the father of his two sons Hemachal and Santosh (Defendants 2 and 3 respectively). The A and B schedule properties belonged to the joint family of Defendants 1 to 3 and Defendant No. 4 was the wife of Defendant No. 1. Defendant No. 1 was the karta of the joint family. The first Defendant sold the disputed properties by a registered sale-deed dated 18-5-1963 (Ext. 1) for a consideration of Rs. 1,710/ - to the Plaintiff and this sale was for legal necessity. The B schedule properties had been mortgaged ''with Defendant No. 5 by the time the sale took place. Therefore, Defendant No. 1 put the Plaintiff in possession of the remaining property except the properties covered by the B schedule. It was agreed at the time of sale that Plaintiff would pay up the mortgage dues of the 5th Defendant and redeem the property. Accordingly Plaintiff filed a suit (Title Suit No. 64 of 1966) for redemption impleading all the present Defendants. In that suit, the present Defendant No. 1 also joined the Plaintiff as a co-Plaintiff. The learned Munsif came to hold that the sale was not for legal necessity. Accordingly the relief of redemption was not granted to the Plaintiff but to Defendant No. 1 as co-Plaintiff, Plaintiff claimed for partition and when Defendant refused, he came to Court with the suit claiming alternate reliefs.

Defendant No. 5 filed a written statement while Defendants 1 and 2 filed separate written statements. It is unnecessary to deal with the contentions raised by other Defendants. The second Defendant clearly took a plea that the earlier decision operated as res Judicata for the present suit; the present suit was also barred by Order 2, Rule 2 of the Code of CPC and the Plaintiff was not entitled to maintain the action. On the basis of this plea, Issue No. 5 in the suit was struck running thus:

Is the suit barred by res judicata and Order 2, Rule 2 of the Code of Civil Procedure?

The trial Court accepted the plea after rejecting the Plaintiff''s contention that while the earlier suit was filled, Plaintiff was a minor and Plaintiff''s guardian had been negligent and had not taken proper steps to prosecute the litigation.

The question of res judicata was argued at length before the power appellate Court and the learned appellate Judge reversed the finding of the trial Court on the said issue.. He examined the matter afresh and decreed the Plaintiff''s suit for recovery of possession. This reversing decree is assailed in second appeal and the main contention is that the present suit is barred by res judicata and, therefore, should have been dismissed.

Section 11 of the Code of CPC deals with ''res judicata'' and provides:

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.

Explanation....

The following are the conditions which constitute res judicata:

(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue either actually or constructively in the former suit;

(ii) The former suit must have been a suit between the same parties or between the parties under whom they or any of them claim;

(iii) the parties as aforesaid must have litigated under the same title in the former suit;

(iv) the Court which decided the former suit must have been a Court competent to try the subsequent suit or the suit in which such issue is subsequently raised;

(v) the matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the first suit.

There is no dispute that parties are common. Nor is there any dispute that the subject-matter of the former suit is the subject-matter of the present suit. It is, however, claimed that (i) Parties were not litigating under the same title; (ii) the issues in the present suit were not directly, and substantially in issue in the previous suit and (iii) the Court which decided the former suit was not competent to try the present suit.

Since there is no dispute that if the plea of res judicata applies the present suit would not be maintainable, it is very much necessary that the question of applicability of res judicata must be closely examined and the three grounds upon which the applicability of res judicata is sought to be avoided should be analysed.

Point No. (1): 6. The expression ''title'' refers to the capacity or interest of a party. It has nothing to do with the particular cause of action on which one sues or is sued. See Chattar Singh v. Roshan Singh AIR 1946 Nag. 277 Priombada Debi Vs. Johuri Lal Ray and Others, , Syed Hafiz Mir Vs. Abdul Nayeemkhan and Others, , Ashin Ali v. Phata 1970 (2) R.L.W. 115, Musamat Moola v. Bithal Das ILR 9 Luck 291. Mr. Sinha for the Plaintiff Respondent relied on a Single Judge decision of the Bombay High Court in the case of Mahomed Ibrahim v. Sheikh Hamia ILR (1911) 35 Bom. 507 to contend that in the peculiar facts of the case, there could be no res judicata. It is not very much necessary to refer to the said case in view of the fact that in a later decision of the same Court - Rajaram Maniram v. Jagannath (1949) 51 B.L.R. 234, the rule has been explained and no support for Mr. Sinha''s contention is found.

Where the first suit was for possession qua owner and the next was as mortgagee, a Division Bench of the Patna High Court in the case of Goshawarali Vs. Adhiklal Sahu and Another, , found both the suits to be in the individual capacity and, therefore, litigations under the title. Where one suit is in the personal capacity and the other in a representative capacity, on the other hand, it has been found that the litigations are under different title. See Cheria Veetil Madhavan Variar (died) and Others Vs. Chathu Nambiar of Memenda Amsom Kizhal Desam and Others, and AIR 1927 128 (Privy Council) .

In this view of the matter, when the previous suit was as mortgagor for redemption and the second suit was for possession on the basis of title, both the litigations were under the same title. The first objection against applicability of res judicata must, therefore, be overruled.

Point No. (ii): 7 Ext.5 is the previous judgment. Issue No. 3 of the said suit was the following:

Is the sale executed by Plaintiff No 2 in favour of Plaintiff No. 1 (present Plaintiff) legal, valid and for legal necessity?

The trial Court was called upon to adjudicate on such an issue on the specific defence raised to Plaintiffs'' claims of acquisition of title which provided the cause of action for asking for redemption. Evidence was gone into and the trial Court came to find.

.... In considering all these facts and circumstances, I am of the opinion that there was actually no legal necessity for the family for the sale of this land and as such it cannot bind the Defendants 2 and 3....

Ultimately it was found that Plaintiff No. 1 (present Plaintiff) was not entitled to redeem and the suit was decreed in regard to Plaintiff No. 2 who is the present Defendant No. 1. The two issues. Issue No. 3 of the former suit (extracted above) and Issue No. 6 of the present suit, namely:

Has the Plaintiff any right over the suit property and is the claim for partition maintainable in law?

are substantially the same. On the earlier occasion, Plaintiff pleaded his entitlement to sue for redemption as a transferee from Defendant No. 1. In the present suit, he claimed for recovery of possession on the basis of the self-same alienation. The validity of the transfer by Defendant No. 1 in favour of the Plaintiff under the registered sale-deed was very much in issue in the previous suit as in the present one. On the previous occasion as also in the present suit, Plaintiff claimed title and Defendants disputed it Plaintiff''s title under the sale-deed was thus directly on the earlier occasion as also now and there is no force in Respondent No. 1''s contention that title was collaterally and incidentally in issue on the earlier occasion and is issue now. It has been indicated in the case of O. Subbier v. Ramaswamy Konar AIR 1911 Mad. 643, that a matter is substantially in issue if it is of importance and value for the decision of the case. The question of Plaintiff''s title was very much in issue on the earlier occasion because if Plaintiff was not transferee of title, he could not have maintained the suit for redemption. Plaintiff cannot recover possession unless he is entitled to possession. The acquisition of title by the Plaintiff was thus a matter of real importance on both the occasions and Plaintiff''s title was, therefore, directly and substantially in issue.

Point No. (iii): 8. The previous suit had been valued at Rs. 250/ - as would appear from the copy of the plaint (Ext. 3). The present suit is valued at Rs. 3, 500/.. The value of Rs. 3,500/ - however, appears to be of the entire property. Plaintiff has only a share out of the disputed property. The Plaintiff acquired the property for a consideration of Rs. 1.710/ - and Plaintiff''s interest in the disputed property is not to be valued, in the absence of positive evidence, at a value higher than the purchase price, unless there be clear evidence that on account of steep rise in the market value the valuation has gone up. The learned appellate Judge has found that the pecuniary jurisdiction of the learned Munsif at Bargarh at the time of the previous suit was Rs. 2.000/ -. In that view of the matter, merely on the present valuation disclosed, it cannot be said that the present suit could not have been tried by the Court which decided the previous suit.

A Bench of the Patna High Court in the case of Badri Singh v. Lobhi Singh AIR 1917 Pat. 409 held that a Plaintiff cannot prevent a decision of a previous suit from operating as res judicata by over-valuing the second suit. Similar view was expressed by a Bench of the Travancore-Cochin High Court in the case of Madhavan v. K. Kochan AIR 1952 Trav. Coch. 383. On the facts found, I think it is appropriate to hold that the present suit with true valuation could have been disposed of by the Court which tried the former suit.

In the case of Devaki Amma Vs. Raghavan Unnithan, , relying upon a series of authorities, it has been held that there can be res judicata between co-Plaintiffs In the former suit, parties had invited the Court to examine the present Plaintiff''s title and once that was gone into and a final decision given it is not open to the litigating parties to re-agitate the matter. The tenor of the Fun Bench decision in the case of Ajai Verma Vs. Ram Bharosey Lal and Others, , also supports such a position. On the analysis presented above, I agree with the Appellant''s counsel that the plea of res judicata should have been upheld by the lower appellate Court and Plaintiff''s suit for the alternate reliefs should have been found to have been barred.

The second appeal is accordingly allowed and the judgment and decree of the lower appellate Court are vacted and those of the trial Court are restored. The Appellant shall be entitled to costs throughout.