Kalasipudi Subba Rao (deceased) and Others vs Palakurthi Bhimalingam (deceased) and Others

Madhavan Nair, J.—Plaintiff is the appellant. The plaintiffs suit was for the redemption of the mortgage over the lands in A and B schedules

of the plaint and for possession of the same. A schedule lands are Mazumdari service inam and the B schedule lands are quit-rent inam. These

lands were originally held by the members of Kasiraja family. In 1885 the holders executed a usufructuary mortgage over both the A schedule and

B schedule lands in favour of the predecessor-in-title of defendants 1 to 5 for Rs. 6,000. In 1886 a simple mortgage of these lands was executed

in favour of one Putta Audenna for Rs. 1,500. In the same year a third mortgage which was also a simple mortgage was executed in favour of two

persons, K. Latchayya and M. Venkata Rao, Latchayya having a 2/3rd share in the mortgage and Venkata Rao a one-third share. This mortgage

was for Rs. 1,200. The second mortgagee transferred his mortgage to the first mortgagee. In execution of the decree in O.S. No. 27 of 1887 the

plaintiff''s father who had obtained a money decree against the mortgagors purchased the equity of redemption over these lands and obtained

symbolical delivery on the 14th October, 1892. In 189.3 defendants 1 to 5 brought O.S. No. 34 of 1893 on the second mortgage and obtained a

decree. This decree amount was paid off by the plaintiff''s father. On the 17th of July, 1894, the plaintiff got an assignment of the 2/3rd share of the

third mortgage owned by K. Latchayya. In O.S. No. 303 of 1896 Venkata Rao, the mortgagee of one-third share of the third mortgage, obtained

a decree which was transferred to the 6th defendant who got the lands sold at Court auction and purchased them. The plaintiff''s father was a party

to the suit. It may here be observed that the sale and purchase of the A schedule lands was invalid as the lands are Mazumdari service inam and

hence inalienable; but the sale of the B schedule lands was not open to this objection. However, the plaintiff being bound by the decree must be

deemed to have lost his rights over both the properties; but in 1902 he was given a patta for the A schedule lands by the Government. In AIR

1922 96 (Privy Council) it was held that the grant of patta constitutes a fresh grant. The plaintiff must therefore be deemed in consequence of the

grant to have obtained an absolute title to the property for which he was given a patta. On the strength of the title thus obtained the plaintiff

instituted O.S. No. 280 of 1903 for possession of the A schedule properties against the present defendants 1 to 5 and the 6th defendant who was

the 19th defendant in that suit. The first issue in the suit was whether the patta granted to the plaintiff had the effect of cancelling the sale of the

lands in favour of the 19th defendant. On this issue the District Munsif found against the plaintiff and dismissed the suit (see Ex. IV). On appeal the

District Judge confirmed the District Munsif''s decision holding that to get possession the plaintiff must first pay off the mortgage of defendants 1 to

4 and that the grant of the patta in his favour did not affect the rights of the 19th defendant (i.e., the 6th defendant) in the suit lands (see Ex. V). As

a result of this decision the plaintiff instituted the suit out of which this appeal arises for redemption and for possession of the suit lands. The suit is

admittedly confined to the lands for which the plaintiff has obtained a patta from the Government as already mentioned in 1902.

Besides raising the contentions relating to the merits of the case, the contesting defendants raised, at the very outset, various legal objections to

the suit, as preliminary points for decision. These points were that the plaintiff''s rights in the lands have been extinguished in consequence of some

of the previous proceedings, that his rights, if any, were barred by limitation, that the suit was barred under Order II, Rule 2 of the CPC and that it

was also barred by res judicata by reason of the decision in O.S. No. 280 of 1903. On these preliminary points, the learned Subordinate Judge

upheld the contentions of the defendants and in consequence the plaintiff''s suit was dismissed without an enquiry into its merits.

In appeal Mr. Govindarajachari on behalf of the plaintiff-appellant contended before us that the decision on fall these points is wrong and that

the case should be sent down for a decision on the merits. Mr. Somasundaram on behalf of the 6th defendant attempted to support before us the

Lower Court''s decision only on the point of res judicata. The only point, therefore, for us to decide is ""Is the plaintiff''s suit barred by res judicata

by reason of the decision in O.S. No. 280 of 1903"". It may here be mentioned that the plaintiff is willing to redeem defendants 1 to 5, but they

support the 6th defendant''s plea which, if successful, would entail dismissal of the plaintiff''s suit.

The Lower Court''s decision on the question of res judicata is contained in paragraph 13 of the judgment which is as follows:

... The 6th defendant was the 19th defendant in the previous suit. There was a specific issue raised therein as to whether the patta to plaintiff had

the effect of cancelling the sale in favour of 19th defendant. This issue was found against the plaintiff. This finding was confirmed in appeal. This

decision is conclusive there being no second appeal by the plaintiff.

Mr. Govindarajachari contends that assuming that a previous decision on a question of law, though erroneous, can be treated as res judicata in a

subsequent suit - a proposition which he is not willing to concede though, we think, the decisions are against him - the decision of the appellate

Court in the previous suit should not be accepted as res judicata in the present suit inasmuch as the District Munsif in whose Court the previous suit

was instituted is not competent to try the present suit which has been instituted in the Sub-Court. According to Section 11 of the Civil Procedure

Code, to constitute a previous decision res judicata in a subsequent suit it is necessary amongst other things that the Court which tried the previous

suit must have been a Court ""competent to try the subsequent suit"". In the case before us the Court of the District Munsif was competent to try the

previous suit, that suit being one for possession; but admittedly the present suit being one for redemption of a mortgage of Rs. 6,000, it was not

competent for the District Munsif''s Court to try it. It must therefore follow according to Section 11, Civil Procedure Code, that the previous

decision cannot operate as res judicata in the present suit. But Mr. Somasundaram for the respondent argues that the nature of the previous and

the present suits remains the same and that the plaintiff should not be allowed by merely tacking on to the prayer for possession a prayer for

redemption to get rid of the effect of the decree in the previous suit. In support of his contention he strongly relies on the decision in Pathuma v.

Salimamma ILR (1884) 8 Mad. 83 followed and explained in Thekkamannengath Raman alias Kochu Poduval Vs. Kakkasseri Pazhiyot

Manakkal Karnavan and manager Raman Bhattathripad and Others, . and Pattrachariar v. Alamelumangai Ammal (1926) 25 L.W. 11; but on

examination it will be found that that decision does not support him. In that case it was held that the decision of a District Munsif with regard to the

validity of a gift of a shop and a warehouse which was only one of the items in a deed of gift which comprised various other properties also was res

judicata in a subsequent suit as it was within his competency to decide it; but his decision as to the validity of the deed of gift which was a larger

question was not res judicata in a subsequent suit as his Court was not competent to decide this larger issue which involved title to the rest of the

properties comprised in the gift. Applying this principle to the present case the position will be this. If the District Munsif had held in the previous

suit that the plaintiff could not recover possession from the 19th defendant (that is, the present 6th defendant), then that decision which fell within

the competency of his Court to decide would be res judicata in the present suit and the plaintiff will be precluded from raising the same question

again; and if the District Munsif gave any decision with regard to the redemption of the mortgage, that decision would not be res judicata as his

Court could not try a suit for redemption and may therefore be disregarded. In the previous case it was not decided that the plaintiff was not

entitled to possession as against the 19th defendant. As between the 19th defendant and the plaintiff the only issue raised in that suit was whether

the patta granted to the plaintiff had the effect of cancelling the sale of the lands in favour of the 19th defendant. On this point the decision was

against the plaintiff. That decision not only did not say that the plaintiff is not entitled to possession against the 19th defendant but it did not involve

any finding that the defendants 1 to 4 were entitled to remain in possession, for the final decision was the decision of the District Judge and he held

that the plaintiff is entitled to redeem defendants 1 to 4 and that a suit should be brought for that purpose if he wanted to recover possession. The

present suit has been instituted in consequence of that decision. The nature of the decision in the prior suit being as described above, I do not think

the contentions of the appellant''s learned Counsel in the present case in any way goes against the decision in Pathuma v. Salimamma ILR (1884) 8

Mad. 83. Various decisions, such as (1882) L.R. 9 I.A. 197 (Privy Council) , (1884) L.R. 12 I.A. 23 (Privy Council) , 20 CWN 738 (Privy

Council) were brought to our notice but as they have only a general bearing on the question under discussion I do not think it is necessary to deal

with them. The case relied on by the Lower Court in support of its decision Bhugwanbutti Chozvdhrani v. Forbes ILR (1900) 28 C. 78 has no

application to the present case. In that case the previous suit was brought in the Munsif''s Court where it was held that the plaintiff is not entitled to

road and public work cesses. In the subsequent suit instituted by him against the same defendant in the Sub-Court he claimed to recover the road

and public work cesses and also embankment and dak cesses. It was rightly held that the plaintiff cannot be allowed to enlarge the scope of the

suit by adding reliefs to it to get rid of the effect of the decree in the previous suit. The present case is clearly not one of that class. The plaintiff now

seeks to redeem the suit mortgage. Such a suit cannot be tried in a District Munsif''s Court. If in the suit before him the District Munsif expressed

any opinion about redemption such opinion may be disregarded; but his decision about possession which he was competent to decide would be

binding. See Pathuma v. Salimamma ILR (1884) 8 Mad. 83. In the present case, as already pointed out, the District Munsif did not decide in the

previous suit that the plaintiff was not entitled to possession as against the 19th defendant, nor was it decided that defendants 1 to 4 are entitled to

remain in possession against the plaintiff. What was finally decided was that the plaintiff may redeem. In no way does the present suit therefore go

against the decisions of this Court in Pathuma v. Salimamma ILR (1884) 8 Mad. 83, Thekkamannengath Raman alias Kochu Poduval Vs.

Kakkasseri Pazhiyot Manakkal Karnavan and manager Raman Bhattathripad and Others, and other cases of a similar nature. For the above

reasons I would hold that this suit is not barred by res judicata by virtue of the decision in O.S. No. 280 of 1903.

In the result we set aside the decision of the Lower Court and remand the case for disposal according to law after hearing the case on the

remaining issues on which we express no opinion. The appellant is entitled to the costs of this appeal. We may say that there is no liability in

respect of the court-fee as the appeal was allowed to be filed in forma pauperis.

Jackson, J.,

A mass of authority has been cited upon the question of res judicata, but the case is very simple and runs on all fours with Pathuma v.

Salimamma ILR (1884) 8 Mad. 83. In both cases plaintiff was suing a defendant in ejection and a third party intervened claiming paramount title.

In Pathuma v. Salimamma ILR (1884) 8 Mad. 83 ""an issue as to the title derived under the gift was framed"" and it might run in this fashion.

Whether the title set up by plaintiff had the effect of cancelling the gift in favour of Salimamma, the third party.

In our case we have the issue whether the patta granted to plaintiff had the effect of cancelling the sale in favour of 19th defendant (the third

party).

In Pathuma v. Salimamma ILR (1884) 8 Mad. 83 the Munsif''s Court found in favour of the plaintiff, and in our case against him. That makes

no difference. The point is that when a larger question was agitated in the superior Court, the opinion of the Munsif, who was not competent to

deal with this larger question, was not treated as res judicata.

Salimamma sued for all the property under her alleged deed of gift, and the gift was upheld.

In the same way when plaintiff sues in our case for his right to redeem as mortgagor. - a matter beyond the competence of the Munsif - his

right can be upheld regardless of the Munsif''s opinion that he had no right.

But what cannot be disregarded, and this is the main import of Pathuma v. Salimammai ILR (1884) 8 Mad. 83, although it is mere common

sense which hardly requires a ruling, is on the competent decision of the Munsif within the bounds of his jurisdiction. The Munsif decreed that

plaintiff must have the shop and warehouse for which he sued, and that decree cannot be upset on any theory of its not being res judicatA.S. 11 of

the CPC contemplates ''matter in issue'' which no one except out of sheer perversity could suppose to mean ''matter already decreed''. And so too

in our case if the Munsif within his competence had decreed, that plaintiff could not eject the 19th defendant, it would be idle for plaintiff to re-open

the matter. He might get a decree in redemption against defendants 1 to 4 but defendant 19 would be irremovable under the prior decree.

But 19th defendant never claimed possession in O.S. No. 280 of 1903. He claimed (see para. 5 of the judgment, Ex. IV), as was set forth in

the issue, that his title by sale was superior to plaintiff''s title by patta just as Salimamma had claimed that her title by gift was superior. The Munsif

found in favour of 19th defendant and if in consequence of that finding it had been held that plaintiff could not eject defendants 1 to 4, defendants 1

to 4 could retain their possession just as in Pathumma v. Salimamma ILR (1884) 8 Mad. 83 plaintiff retained his shop and warehouse. But that

was not the final finding; for the District Judge held that to get possession plaintiff must first pay off 1st defendant''s mortgage (Ex. V) in conformity

with which finding the present suit is brought. An attempt to shake the authority of Pathuma v. Salimamma ILR (1884) 8 Mad. 83 by reference to

an obiter dictum of the Privy Council in Gokul Mandar and Another vs. Pudmanund Singh and Others was repelled by a bench of this Court in

Thekkamannengath Raman alias Kochu Poduval Vs. Kakkasseri Pazhiyot Manakkal Karnavan and manager Raman Bhattathripad and Others, .

But in the present suit the question there is academic. If the dictum of the Privy Council is given the literal interpretation which was attempted to be

applied to it, not even the decree of the Munsif''s Court would be res judicata in the superior Court - the whole proceeding of the Court not

competent to try such subsequent suit would be a nullity. But for the appellant Mr. Govindarajachari does not carry his argument so far, and is

content to rest it upon Pathuma v. Salimamma ILR (1884) 8 Mad. 83 leaving the respondents entitled to whatever they got by the decree in the

Munsif''s Court. Of course if the decree also is ruled out, respondents are worse off than they were before. It seems hardly necessary to add that

in my opinion the dictum does not carry this meaning and has been correctly interpreted in Thekkamannengath Raman alias Kochu Poduval Vs.

Kakkasseri Pazhiyot Manakkal Karnavan and manager Raman Bhattathripad and Others, .