Pravas Chandra Das and Others vs Srimati Nirupama Dei and Others

R.N. Misra, J.—Plaintiffs have appealed against the affirming judgment and decree of the learned Subordinate Judge. Jajpur, in a suit for title, possession and permanent injunction.

They came to Court making the following allegation: Plot No. 227 with an area of 20 decimals appertained to Khata No. 3 and constituted ancestral property of the Plaintiffs and Defendant No. 3. In 1951 the third Defendant sued for partition which was decreed finally on 18-1-1957. Half of the disputed property fell to the share of Defendant No. 3 and the other half came to the Plaintiffs jointly and Plaintiffs 1 to 4 ultimately became owners of the half share. Defendant No. 3 sold her share of 10 decimals out of the disputed property to Defendant No. 1 who is wife of Defendant No. 2 under a registered sale deed dated 7-3-1960 and Defendant No. 1 brought money suit No. 41 of 1967 against Plaintiff No. 1 (deceased) claiming damages of Rs. 120/ - for unauthorised cutting of certain trees. The original Plaintiff No. 1 contested the suit claiming that in the alleged partition, the eastern half of the property had fallen to the share of the Plaintiffs, whereas the western half had gone to the third Defendant and accordingly Defendant No. 1 who was Plaintiff in the money claim had no title to the eastern half of the property from which trees had been cut. The money suit was dismissed in the trial Court by accepting the defence raised in the said suit. In appeal, Plaintiff''s title in that suit was accepted but relief was not granted on the finding that the factum of cutting of trees had not been established. Thereafter Plaintiffs brought the present suit for declaration of their title, confirmation of possession and alternately recovery of possession and for issue of a permanent injunction on the footing that a cloud had been cast over their title and Defendants 1 and 2 taking advantage of declaration of their title in the earlier litigation were out to disturb their possession and enjoyment.

Defendant No. 1 alone entered contest and pleaded that in the partition the eastern half of the property had fallen to the share of Defendant No. 3. her vendor, and she has been put into possession of that portion on the basis of the sale. In the earlier litigation for damages (Money Appeal No. 1 of 1968) her title had been declared and the said decision having become final operated as res judicata between parties on the question of title. Accordingly Plaintiffs'' suit was liable to be dismissed.

Four Issues were framed in the trial Court including one on the question of bar of ''res judicata. On 5-8-1972, Defendant No. 1 moved the trial Court that the issue of res judicata may be taken up and if that defence doe; not succeed, the suit may be decreed. By order dated 8-1-1972, the trial Court accepted the offer of Defendant No. 1 and posted the matter for argument as a proposition of law and ultimately accepted the plea of res judicata. Therefore, the suit was dismissed. The lower appellate Court has also affirmed the decree of the trial Court.

Ext. D is the Judgment in the money appeal. Admittedly the contesting Defendant was the Plaintiff-Appellant and the original Plaintiff No. 1 of the present suit was the Defendant-Respondent in the money appeal. Issue No. 2 in the money suit related to Plaintiffs (i. e. present Defendant No. 1''s) title to the disputed portion of the plot. While the trial Court h ad decided against the Plaintiff of the money suit, the lower appellate Court did record a categorical finding that Plaintiff in that suit had successfully proved her title to the eastern portion of the plot. The present Plaintiff No. 1 admittedly was the karta of the family though in the money suit he had not been impleaded as such. The learned Appellate Judge relying on the decision of the Supreme Court in the case of Amrit v. Sudash AIR 1070 S.C. 5, has accepted the position that Plaintiff No. 1 as Defendant in that suit represented the members of the family of the present Plaintiffs. Mr. Mohanty for the Appellants does not challenge that position. It must, therefore, be found that Plaintiff No. 1 of the present suit had represented the entire family in the money suit.

Appellants next contention before me is that the money appeal having ultimately been dismissed, there was no necessity for the Respondent in the money appeal to challenge the finding on one score by preferring a second appeal. Therefore, the finding on a question of fact may not operate as res judicata. A similar contention had been raised in the lower appellate Court on the basis of a decision of this Court in the case of G. Sahu, M. Nahak, B. Behera and Ors. v. Mahant R. Ramanoj Das. 1971 (1) C.W.R. 993. The learned Subordinate Judge distinguished the ''authority on facts as not applicable to this case. Reliance had been placed by this Court on an English decision in the case of Lake v. Lake 1955 (2) A.E.R. 538, and a Full Bench decision of the Calcutta High Court in the case of The Commissioners for the Port of Calcutta Vs. Bhairadinram Durga Prosad, . In both those cases, though certain findings were against the party who ultimately succeeded and, therefore, had no occasion to prefer a further appeal, it was found that the finding recorded on certain questions would not be res judicata because the aggrieved party would not have a right of appeal. The true test seems to be that when a finding is rendered against a litigant but he has no right of appeal against that finding because the ultimate decision is in his favour, the finding does not have the protection of res judicata. This rule has also been approved by the Judicial Committee of the Privy Council in the case of Midnapur Zamindari - Company v. Naresh Narain Ror 48 (1920) l A. 49. At page 55 of the Reporter, it has been indicated:

Their Lordships do not consider that this will found an actual plea of res judicata, for the Defendants having succeeded- on the other plea, had no occasion to go further as to the finding against them; ...

A similar view has been expressed by a Bench of the Bombay High Court in the case of Mathurabai and Another Vs. Ramkrishna Bhaskar Barve and Others, .

As already stated, the earlier money suit was dismissed by the trial Court. When the contesting Defendant who was the Plaintiff in the money suit appealed, in the money appeal, the learned Appellate Judge came to hold that the Appellant before him had title to the property, but he having failed to establish cutting of trees was not entitled to any relief. The money appeal as a fact was dismissed. Against the dismissal of the money appeal, Respondent had no right of further appeal. In that view of the matter the rule indicated in the aforesaid decisions has full application and the decision in the money appeal would not operate as res judicata.

The Courts below have not entered into merit of the case on the footing that Plaintiffs'' claim in the present suit was barred by res judicata. Mr. Mohanty for the Defendant-Respondent claimed that the litigation must be disposed of on merit; otherwise prejudice is bound to occur. I think, there is force in the contention. I would accordingly allow the second appeal, vacate the decrees of the Courts below and remit the matter to the trial Court for disposal of the suit on merit. Parties shall be free to lead evidence as no evidence has been led in the suit and the litigation must be disposed of on merit in accordance with law. Costs shall abide the event.