Ramakrishna Acharya vs Bauri Padhan and Others

S. Acharya, J.—The unsuccessful Defendant No. 1 has preferred this second appeal against the judgment and decree of the Subordinate

Judge, Aska, reversing the judgment and decree passed in favour of Defendant No. 1 by the trial Court.

The Plaintiffs filed this suit for setting aside the Court sale ordered in E.P. No. 242/63, and for a declaration that The judgment debtors in S.C.

No. 161/56 had no saleable interest in the property. The Defendant No. 1 previously filed a suit (being S.C. No. 161/56) against Panchu Padhan,

the brother of the Plaintiffs 1 and 2. In E.P. No. 242/63 arising out of the decree obtained in S.C.C. No. 161/56, the Defendant No. 1, who was

the Plaintiff in that suit, got the suit land, along with some other lands, attached and sold in the said proceeding, and he himself purchased the suit

land. The present Plaintiffs before filing this suit filed a petition under Order 21, Rule 58, CPC but as that was rejected by the Court, they filed this

suit with the above prayer on various averments, mainly directed to show that late Panchu Padhan, the judgement debtor in the former suit of 1956

and/or his legal representatives, did not have any interest in any portion of the suit land.

Defendant No. 2 is the widow of late Panchu, and Defendants 3 and 4 are their sons. Only Defendant No. 1, the Appellant in this second

appeal contested the Plaintiffs� suit by alleging in his written statement that the Plaintiffs and their brothel Panchu had not divided their properties

including the suit lands by metes and bounds in 1934, as alleged by them, and no separate allotment of any property was or could be made in

favour of their parents in 1934 as their parents were not alive by then. All the facts alleged in the plaint are denied in the written statement, and it is

asserted therein that late Panchu had one-fourth share in the suit land, and the sale of this one-fourth share in the aforesaid execution proceeding is

valid and binding against the Plaintiffs and Defendants 2 to 4. On the above grounds the Defendant No. 1 prayed for dismissal of the suit.

The trial Court dismissed the Plaintiffs� suit by holding inter alia that the judgment debtors in the S.C.C. suit bad interest in the suit land and

accordingly the sale in the Execution proceeding could not be set aside.

On Plaintiffs� appeal against the aforesaid decision, the appellate Court allowed the Plaintiffs� appeal and decreed their suit mainly on the

ground that the defence taken by the Defendant No. 1 to the effect that there was no division of the family property, was barred by res judicata on

account of the decision In Title Suit No. 250 of 1949.

In arriving at the said finding on res judicata the Court below took into consideration the fact that in Title Suit No. 250 of 1949 between one

Somenath Patra, the mortgagee, as the Plaintiff and the four brothers of the Plaintiffs and the widow of the fifth brother, the mortgagors, as the

Defendants, it was decided that there was a completed partition between the Defendants in that suit.

It is when settled that the doctrine of res judicata applies as between co-Defendants in a previous suit on the conditions that there must be (1) a

conflict of interest between the Defendants. (2) the necessity to decide that conflict in order to give the Plaintiff the appropriate relief and (3) a

decision to that question between the co-Defendants. The above doctrine would apply even though the party against whom it is sought to be

enforced did not in the previous suit think fit to enter an appearance and contest the question. But if such a party is to be bound by a previous

judgment it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be

decided-Chandulal Agarwalla v. Khalilur Rahamon AIR 1950 P.C. 17.

The Court below, on a consideration of the facts, borne out on the evidence on record, in the perspective of the above well settled law on the

point, arrived at the finding that there was conflict of interest between the co-Defendants in the former suit and that conflict was adjudicated upon

by the said Court holding that there was division of the family property amongst the said co-Defendants. The present Defendant No. 1 having

purchased the interest of late Panchu, one of the Defendants in that suit, should be bound by the aforesaid decision in the former suit, and as such

his present plea will be clearly hit by the doctrine of res judicata. The Court below further ordered declaration to the effect that the Defendant No.

1 did not acquire the interest of late Panchu in any portion of the suit land and ordered that the Bale in E.P. No. 242/63 on the file of the Munsif,

Aska be set aside.

Mr. Ramdas, the learned Counsel for the Appellant contended that the Court below should not have taken into consideration the plea of res

judicata as the said plea, in the form considered, was not pleaded in the plaint nor raised in the final Court, and as such the finding of the Court

below to the above effect could not be sustained. Mr. Ramdas, in support of his above contention, relied on the following portion of paragraph 15

of the decision in C. Manicka Nadar v. Sellathamal 1919 S.C.D. 955.

A party relying on such a plea must not only allege the facts giving rise to the plea but, raise an issue thereon if the plea be traversed and present

argument in support of the decision in his favour before the Court which is called upon to scrutinise the facts over again. A party cannot he allowed

to raise such a plea before this Court if he did not raise it either in the trial Court or in the .High Court hearing the appeal from the trial Court.

On a close reading of the above passage I am of the opinion that their Lordships do not support the contention as specifically raised by Mr.

Ramdas. The above observations, viewed carefully, do not preclude such a plea to be raised in the Court hearing the appeal from the trial Court.

I am of this view specially because of the underlined portions there in italics) of the above passage, which include within their scope both the trial

and the appellate Courts, which are Courts of facts where the facts alleged can be properly scrutinised over again.

It is well settled that a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceeding. Such a plea of

law, as held in Sha Shivraj Gopalji v. Edappakath Ayissa (sic) AIR 1949 P.C. 302, can be raised in the appellate Court, though not pressed in the

lower Court. In the decision reported in Kanda Kuri Papamma v. Kanda Kuri Narayana and Ors. AIR 948 Mad. 54, such a plea was raised for

the first time at the hearing of the second appeal and Chandrasekhara Aiyar, J. held that ""the question being one of law can be taken at any stage.

Their Lordships of the Supreme Court in observing as quoted above relied upon the observations of The Privy Council contained in paragraph 19

of the decision reported in Subbayya v. Bala Gongadhar AIR 1948 P.C. 3. As such therefrom, The plea of res judicata raised by The

Respondents in that Court could not be entertained as the fact presented in support of the above plea made it difficult for their Lordships to apply

The principle of res judicata. Apart from that, the said plea could not be accepted for consideration as There was no issue on that point and The

question of res judicata was not specifically pleaded and this question was not argued before The High Court nor before the trial Court, and also

because of The fact that The Respondents� lawyer argued contrary to the plea taken in The Privy council, namely that The decision in the

previous suit could not operate as res judicata.

On all The above considerations I feel convinced that their Lordships of The Supreme Court by Their above quoted observations, while ultimately

holding that such a plea cannot be raised in the bearing of an appeal, by special leave, before the Supreme Court, do not, in general and in a

sweeping manner preclude The other Courts below and specially the Court of first appeal from entertaining such a plea only because it was not

specifically pleaded or raised in the trial Court. I am, Therefore, unable to accept The contention of Mr. Ramdas in this respect.

The Appellant, as the Respondent in The first appellate Court, did not� oppose The raising of The plea of res judicata in the said Court. The

decision on the above mentioned plea has been arrived at, on The facts existing on the evidence on record. No new facts were required to be

investigated and no additional evidence was enquired to be taken for the purpose, of deciding the above mentioned question of law. Accordingly,

The Court of first appeal being a Court of fact, in my opinion, was perfectly justified to consider The above plea of res judicata on the evidence on

record, and on the argument presented on behalf of both The parties. I do not see any reason to discard.

The said finding of The Court below, so arrived at on such a vital question affecting The very jurisdiction of the Court, only because no specific

plea was pleaded and/or raised to the above effect in the trial Court.

On the above discussion and consideration I do not find any merit in this second appeal. The decision of the Court below is accordingly

confirmed and this second appeal is dismissed, but on the facts and circumstances of this case each party would bear his own costs of this Court.