Ram Krishna Paul and Others vs Kamal Chandra Paul and Others

Bhaskar Bhattacharya, J.—This second appeal is at the instance of plaintiffs in a suit for partition and is directed against judgment and decree dated September 22, 1995 passed by the learned Special Judge (E. C. Act) cum Additional District Judge, Midnapore in Title appeal No. 185 of 1992 thereby setting aside those dated July 25, 1992 passed by the learned Assisiant District Judge, 1st Court, Midnapore in Title Suit No. 233 of 1987. The original plairtiffs, two brothers, filed the aforesaid suit against their elder brother, the predecessor-in-interest of the present respondents, for partition of their 2/3rd share in respect of suit property consisting of three schedules viz. ''ka'', ''kha'' and ''ga''. The case made out by the original plaintiffs were, inter alia, as follows :

(a). The properties described in Schedule ''ka'' to the plaint are the bastu land including bagan belonging to the plaintiffs and defendant no. which they inherited through their ancestors. ''Kha'' scheduled properties were taken in settlement by the father of the plaintiffs and defendant no. 1. ''Ga'' scheduled property appertained to Mouza Narayangarh and the said properties are arable lands which were the properties of Bhuban Paul, their father. All the properties described in the three schedules have been inherited by the plaintiffs and defendant no. 1 in l/3rd share each and they were in joint possession thereof.

(b) Defendant no. 1 was a worldly-wise man whereas the plaintiff no. 1 used to make earthen dolls and the plaintiff no. 2 was an employee of Railways and as such both the plaintiffs depended on defendant no. 1.

(c) After the death of the father, the plaintiffs and defendant no. 1 were in joint family and the defendant no. 1 being the eldest brother used to look after the family properties. The plaintiffs used to obey the directions given by defendant no. 1 in the matter of family properties.

(d) The property described in schedule ''kha'' to the plaint is the most valuable property which is a mango garden. The defendant No. 1 got himself severed from the joint family and Cities in 1980. There was discussion between plantiff no. 1 and defendant no. 1 for which the plaintiffs requested the defendant No. 1 on November 24, 1987 to effect amicabie particular of ''ka'' ''kha'' and ''ga'' scheduled properties by metes and bounds amongst brothers when defendant no. 1 refused in after partition in respect of the property described in schedule and to the plaint claiming exclusive right, title and interest in the said property by virtue of decisions in different law suits.

(e) The defendant no. 1 with a view to grab the ''kha'' scheduled property created documents by virtue of which he wanted to establish that ''kha'' scheduled property has exclusively fallen in his share by virtue of amicable partition between the brothers. Those documents were false and there was never any amicable partition of the properties left by the father of the parties.

Subsequently, the plaintiffs twice prayed for amendment of plaint and those prayers were allowed. By way of amendment, the plaintiffs have introduced that the plaintiffs and defendant no. 1 jointly constructed small rooms with brick built walls and asbestos shed on Dug No. 24 which appertains to ''kha'' scheduled property and the said rooms were let out jointly to different persons for the purpose of conducting business in those rooms. The rate of rent in respect of five different rooms was fixed at Rs. 40/- each. One room was however let out to Sekhar Chandra Dey at a rental of Rs. 60/- for the purpose of conducting grocery business. The plaintiffs had collected rents from those tenants through defendant no. 1 and they used to pertake rent according to their shares. After filing of the suit, the defendant no. 1 threatened not to pay rents to the plaintiffs and he himself has been realizing rents and has appropriated those rents. Thus by amendment, the plaintiffs prayed for account in respect of lents realized from those tenanted rooms.

By the subsequent amendment the plaintiffs stated that after the death of Bhuban Paul, their father, the defendant No. 1 became the karta of the family and he had in his possession all the documents relating to the properties. ''Kha'' schedule property was taken on lease by the father of the parties and after the death of the father, the plaintiffs and defendant No. 1, after the expiry of the terms of the lease held over the same for more than 12 years and they were in possession of the said properties. During R.S. operation ''kha'' scheduled property was recorded in the name of Jatindra Nath Das. The defendant no. 1 was the karla of the iomt family and used to look after the settlement matters and recording of lands by the Settlement Department. In view of the entries in Revisional Record of Right, Jatindranath Das having threatened the plaintiffs and the defendant No. 1 to evict from ''kha'' schedule properties, a suit was filed in respect of such erroneous entry and the defendant No. 1 filled the said suit on the statement that the properties of the plaintiffs and defendant No. 1 were partitioned previously. In the said suit being Title Suit No. 139 of 1963 the plaintiffs had to act according to the advice of the defendant no. 1 and his learned advocate. On the basis of such advice the plaintiff no. 1 adduced evidence in the said suit on behalf of defendant no. 1 who was plaintiff of that suit and that was in the interest of the joint family. The plaintiffs were guided through the advice of the defendant No. 1 and the said suit being Title Suit No. 139 of 1963 and Title Appeal No. 365 of 1964 arising thereof were conducted as per advice of the defendant No. 1.

The aforesaid suit was contested by the defendant No. 1 by filing written statement and additional written statement and the defence of the defendant no. 1 can be Fummarized thus :

(a) On the death of the father of the parties at the intervention of local people there was an amicable partition in respect of ''kha'', ''ga'' scheduled properties and a mango and jack fruit orchard in Plot No. 142 of Mouza Najargunj and by virtue of such amicable partition by metes and bounds, the plaintiff no. 1 got the mango and jack fruit orchard at Plot No. 142, the plaintiff no. 2 got the ''ga'' scheduled property and the defendant no. 1 got ''kha'' scheduled property exclusively. The ''ka'' scheduled property being paternal bastu remained joint.

(b) In the year 1962, one Chunilal Das by dint of a deed of purchase of the superior interest of ''kha'' scheduled property from Jatindra Nath Das having created disturbance and clouded the title of the defendant no. 1, he filed a suit being Title Suit No. 62 of 1962 against the heirs of Jatindra Nath Das and Chunilal Das. In the said suit the plaintiffs were made defendants no. 6 and 7. The said suit was transferred to the 3rd Court of Munsif. Midnapore and was renumbered as Title Suit No. 139 of 1963.

(c) The said Title Suit No. 139 of 1963 was not contested by the plaintiffs and the plaintiff no. 1 as D.W.-5 deposed and supported the claim of defendant no. 1 by asserting previous partition and exclusive title of the defendant No. 1 by virtue of such partition.

(d) The said suit was decreed in favour of the defendant no. 1 on contest against Chunilal Das and ex parte against the rest including the plaintiffs herein. An appeal before the first appellate court and a second appeal before this court at the instance of Chunilal were dismissed. The plaintiffs being parties to such decree cannot dispute the absolute title of the defendant no. 1 in ''kha'' scheduled property.

The learneu trial Judge on consideration of the materials on record was of the view that the decree passed in the previous Title Suit No. 139 of 1963 would not operate as res judicata as there was no issue in the earlier suit as to whether there was partition among the brothers. Thereafter, the learned trial Judge considered the oral and documentary evidence on record and held that there was no previous partition in respect of the suit properties and as such the plaintiffs, were entitled to get 2/3rd share in the entire suit properties including ''kha'' scheduled one and a preliminary decree to that effect was granted.

Being dissatisfied with the aforesaid judgment and decree passed by the learned trial Judge, the defendant No. 1, preferred ar appeal being Title Appeal No. 185 of 1992 and by the judgment and decree impugned herein, the learned first appellate court below set aside those passed by the learned trial Judge and dismissed the entire suit with a specific finding that the present suit is not only barred by the principles of res judicata but also by that of estoppel and acquiescence.

Being dissatisfied, the plaintiffs have preferred the instant second appeal.

It appear from the record that the Division Bench while admitting this appeal under Order 41 Rule 11 of the CPC did not formulate any substantial question of law as required u/s 100(5) of the Code. However, after hearing Mr. Ghosh appearing on behalf of the appellants and Mr. Dutt appearing on behalf of the heirs of the defendant no. 1/defendants this court formulated the following substantial questions of law :

(a) Whether the learned first appellate court below committed an error of law in setting aside the entire judgement and decree passed by the learned trial court notwithstanding the fact that the respondent restricted its absolute claim only in ''kha'' scheduled property ?

(b) Whether the learned court of appeal below failed to take into consideration whether the ingredients of Section 44 of the Evidence Act are present in the case so as to vitiate the earlier judgment and decree passed in Title Suit No. 139 of 1963 ?

(c) Whether the court of appeal below committed substantial error of law in holding that the suit was barred by the principles of res judicata in the absence of necessary ingredients pleaded and proved by the defendant ?

Mr. Ghosh, the learned counsel appearing on behalf of the appellants has firstly contended that even if it is assumed for the sake of argument that the plaintiffs lost title to the ''kha'' scheduled property, as contended by the defendant no. 1, the learned court of appeal below could not dismiss the entire suit. In such a situation, Mr. Ghosh contends, the learned court of appeal below ought to have modified the decree granted by the learned trial Judge by maintaining the decree only in respect of ''ka'' and ''ga'' scheduled properties.

Mr. Dutt, the learned counsel appearing on behalf of the heirs of the defendant no. 1 fairly conceded that the defendant no. 1 having restricted his absolute right only to ''kha'' scheduled property, the suit can not it at any event be dismissed in its entirety. In view of the aforesaid admiite position I find substance in the first contention of Mr. Ghosh and is answer the question (a) formulated above in affirmative.

The next point raised by Mr. Ghosh is that the judgment and decree passed in Title Suit No. 139 of 1963 were vitiated by fraud and as such cannot be binding upon his clients. In support of such contention Mr. Ghosh has relied upon the decision of the Apex Court in the case of S.P. Chengalvaraya Naidu (dead) by L.Rs. Vs. Jagannath (dead) by L.Rs. and others, .

Mr. Dutt appearing on behalf of the defendant no. 1 has seriously disputed the aforesaid contention of Mr. Ghosh and has Contended that there was no material before the court to suggest that the earlier decree was obtained by practicing fraud. Mr.. Dutt points out that at the time of passing of the previous decree the plaintiff no. 1 was aged 40 years and the plaintiff no. 2 was in government service. A mere bald statement that he gave evidence in favour of the defendant no. 1 in the earlier suit at the dictation of the lawyer of the defendant no. 1 cannot invalidate the previous decree.

After hearing the learned counsel for the parties and after going through the materials on record, I am of the view that the plaintiffs could not prove that the earlier decree was obtained by fraud. It is rightly pointed out by Mr. Dutt that a mere allegation of fraud is not sufficient. The earlier suit was decree in the year 1964 and the second appeal preferred by other defendants of that suit was dismissed in 1971. Long sixteen years thereafter the plaintiffs have come forward with the instant suit for partition and the ''kha'' scheduled property has been claimed to be undivided. The plaintiffs themselves were parties to the suit and suffered a decree. Over and above, the plaintiff no. 1, then aged 40 years specifically stated that the property was partitioned and the defendant no. 1 was the absolute owner thereof. The plaintiff no. 2 in this case has not deposed in support of such a case of fraud. He was employed in Indian Railways. His absence in witness box should not be lightly taken. Under the aforesaid circumstance I hold that sufficient materials in support of the plea of fraud could not be placed before court so as to vitiate the earlier decree by taking aid of Section 44 of the Evidence Act. I thus find no substance in the aforesaid contention of Mr. Ghosh.

Mr. Ghosh lastly contends that the previous judgment and decree cannot be res judicata in the present case for the following reasons :

(a) The pleadings of the previous suit were not exhibited and thus by merely proving the judgement and decree of the earlier suit, the plea of res judicata cannot be substantiated.

(b) In the previous suit the defendant no. 1 claimed the main relief against some outsiders and the plaintiffs were made proforma defendant.

(c) In the previous suit there was no issue whether there has been a previous partition between the plaintiffs and the defendant no. 1.

There is no dispute with the proposition of law that in order to attract the doctrine of res judicata the pleading of the earlier suit should be brought to the notice of the court trying the subsequent suit so that the latter can ascertain whether similar issue was raised and decided or could be raised in the earlier suit. But in the instant case it is admitted by the plaintiffs that they suffered a decree in respect of the same ''kha'' scheduled property in the earlier suit. The previous judgment and decree show that Title of the defendant no. 1 in ''kha'' scheduled property was declared and all the defendants including the present plaintiffs were restrained permanently from disturbing the possession of the present defendant no. 1 in ''kha'' scheduled property. The plaintiffs are therefore bound by such decree and unless, avoided either by preferring appeal, review or by way of an application under Order 9 Rule 13 of the Code, no inconsistent decree could be passed in the present suit at their instance so long it is not held that such decree was vitiated by fraud or collusion.

Moreover, even if there was no specific issue as to whether there was previous partition between the parties in the earlier suit, the plaintiffs herein cannot ask for fresh decision in this suit because such plea was very much available to them in the earlier suit, but instead of raising such plea, the plaintiff no. 1 admitted in the earlier suit that by virtue of amicable partition, defendant no. 1 became absolute owner of ''kha'' scheduled property. Having suffered a decree for permanent injunction, the plaintiffs cannot avoid the same by saying that they were prefome defendants in the earlier suit. I have already pointed out that the plaintiffs had right to prefer appeal against the earlier decree and is such the principles laid down by the Supreme Court in the case of Sm. Gcmga Bal vs. Vijay Kumar reported in AIR 1974 SC page 1126, relied upon by Mr. Ghosh have no application. For the same reason, the decision of the Supreme Court in the case of Ramesh Chandra vs. Shiv Charan Das (AIR 1991 SC 264) has no application. In the said case, in the absence of pleading and evidence, an unnecessary observation was altade. But in the instant case, a specific decree was passed against the plaintiffs of this suit.

Therefore, the learned first appellate court rightly held that the plaintiffs have no right, title or interest in ''kha'' scheduled property and I find no reason to interfere with such finding.

But in view of my finding on the first point mentioned above, this appeal succeeds in part. The judgement and decree passed by the learned first appellate court are set aside to this extent that there should be a preliminary decree declaring 2/3rd share of the plaintiffs in ''ka'' and ''ga'' scheduled properties only. The judgement and decree passed by the learned trial Judge are also modified accordingly. No costs.