RAMANI CHUTIA @ BORAH Vs ON THE DEATH OF PADMA BORA ,HIS LEGAL HEIRS SMTI SARUSEWALI BORAHWIFE AND ORS

1.Heard Ms.B.Choudhury, learned counsel appearing for the appellant plaintiff and also heard Mr.P.K.Roy, learned counsel appearing for the

defendants respondents.

The present appellant as the plaintiff filed Title Suit No. 2/2004 in the Court of learned Civil Judge(Jr.Div.) Biswanath Chariali against the present

defendants respondents for recovery of possession of the suit land and for permanent injunction. The suit land is described in the Schedule of the plaint

. In the plaint it is the contention of the plaintiff appellant that he was in occupation of the suit land alongwith other land as his share by way of mutual

family settlement since 1982. He constructed a cow shed and thatched house over the land covered by Dag No. 365 and used to cultivate the

remaining portion of the land . He has his residential house covered by dag No. 349. Akan Chutia, the father of the plaintiff appellant without his

knowledge and consent sold the land measuring 2 kathas out of 4 kathas 14 lechas of land covered by Dag No. 365 and 3 kathas 3 lechas out of 5

bighas 3 kathas covered by dag No. 349 under periodic patta No. 1 to the defendant respondent No. 1 Padma Bora who has been substituted on his

death by his legal heirs during the pendency of this second appeal. Challenging the said sale the plaintiff appellant earlier instituted Title Suit No.

18/1989 in the court of learned Munsiff, Biswanath Chariali against Akan Chutia(father), Padma Borah and others for declaration of his right title and

interest over the suit land and for confirmation of possession alongwith declaration that the sale deed No. Â 619/1989 as null and void . The said suit

was dismissed on 26.2.1997. Though the suit was dismissed, yet the possession remained with the plaintiff appellant as pleaded.

In pursuance of an application by the defendant respondent No.1, the Circle Officer, Gohpur directed the Lat Mandal to demarcate 2 kathas of land

covered by Dag No. 365 and 3 kathas 3 lechas covered by Dag No. 349 of periodic patta No. 1 in boundary Case No. 1/2003-04. The Lat Mandal

accordingly complied with the direction of the Circle Officer with respect to land measuring 2 kathas 10 lechas of land covered by Dag No. 349 in

absence of the plaintiff appellant. An application u/s 151 of the Assam Land and Revenue Regulations was filed before the Deputy Commissioner,

Sonitpur to set aside the order of the Circle Officer. On the other hand after the process of demarcation the defendants respondents in the absence of

plaintiff appellant forcibly occupied the land covered by dag No. 349 and also constructed C.I.Sheet house over the portion of the said land. Again on

10.1.2004 in the absence of the plaintiff appellant the defendants respondents further occupied 1 katha 11 lechas of land under dag No. 365 including

the thatched house of the plaintiff appellant. For the said reason the suit was filed alongwith reliefs mentioned herein above.

The defendants respondents though entered appearance but failed to file the written statement within the time prescribed and the suit proceeded

without the written statement.

In the course of trial plaintiff appellant examined three witnesses and exhibited several documents . The defendants respondents examined one

witness and exhibited the record of Title Suit No. 18/1989. The learned trial court dismissed the suit on contest vide judgment and decree dated

30.3.2005.Being aggrieved the plaintiff appellant preferred Title Appeal No. 3/2005 in the Court of learned Civil Judge, Sonitpur at Tezpur who

dismissed the appeal vide judgment and decree dated 17.2.2017. Thereafter the present second appeal is preferred which was admitted on 27.2.2008

on the following substantial question of law: 1. Whether the suit filed by the plaintiff is barred by res-judicata in view of Judgment dated 26.2.97 in

Title Suit No. 18/89 earlier regarding the same property?

The learned trial Court entered into the materials placed before it, compared the plaint both in the present suit and the one in Title Suit No. 18/1989

and finally held as follows:  “In the earlier suit the plaintiff has prayed for declaration of his right over the suit lands, for confirmation of

possession alongwith permanent injunction. In the present suit he has only prayed for restoration of possession and eviction of the defendants from the

suit land. This court while disposing the said Title suit being No. 18/89 dismissed the suit by holding that the plaintiff has no right to possess in the suit

land. The Court vide its judgment Ex.’Gha’ also held that the Sale Deed No. 691/89 was rightfully executed and same can not be declared as

null and void. Since the plaintiff’s suit for declaration of right, title and interest has been dismissed by this court, his present suit for eviction of the

Defendants with men and materials was also restoration of the possession is also barred. Though the relief claim is different but his main relief

claimed in the earlier suit has been rejected by this Court. Considering the above facts I am of the view that the present suit is barred by Res-judicata

as it fulfils all the criteria of Section 11 of CPC.â€​

The learned trial Court also took up as to whether the suit was bad for non-joinder of necessary party and finally held the said point for

determination against the plaintiff appellant and dismissed the suit.

The learned First Appellate Court also decided the issue of Res-judicata against the plaintiff appellant and dismissed the appeal upholding the finding

of the learned trial Court by concluding as follows:

“So, the claim of possession of the suit land which is the main basis of the present suit upon which the plaintiff prayed for restoration of possession

in the present suit, once being decided in the earlier suit against the plaintiff, the decision of the earlier suit in this regard operates as res-judicata and

the court cannot decide the same issue twice though the present suit come in the guise of a fresh cause of action and praying for separate relief.

Principles of res-judicta bars retrial and decision once again of what is already concluded. In the present case issues involved in the two proceeding

are identical in between the same parties and regarding same subject matter and already decided finally by a competent court. Now, the same matter

which is already decided cannot be retried. Learned trial court has rightly decided that the suit is barred by resjudicata. I find no illegality in his

decision regarding res-judicata.â€​

Ms.Choudhury strenuously urged before this court that the subsequent suit was filed purely on a separate cause of action inasmuch as after the

Circle Officer, Gohpur directed to demarcate the boundary of suit land in boundary Case No. 1/2003-2004, the defendants respondents forcibly

occupied the suit land and that too in absence of plaintiff appellant. The courts below was wrong in allowing the defendants respondents to adduce

evidence inasmuch there was no written statement on behalf of the defendants respondents. There being no pleadings whatsoever of the defendants

respondents there is no point in allowing them to adduce evidence. The learned courts below went wrong in those aspects of the matter. The finding

of the courts below that the suit is hit under the principles of Res-Judicata is also wrong inasmuch as there is no plea to that effect of the

defendants/respondents and in addition to that, the evidence also cannot be considered by the courts below when there is no such plea of Res-Judicata

. Accordingly substantial question of law so formulated is to be decided in favour of plaintiff appellant.

Mr Roy the learned counsel for the respondents opposed the submission made by Ms.Choudhury. It is his contention that once the plaintiff

appellant failed to get declaration of confirmation of possession over the suit land in the earlier suit, there is no point in raising a subsequent claim of

recovery of possession in a separate suit but with respect to the same subject matter. The pleadings of the plaintiff appellant would naturally struck the

minds of courts below to consider if the subsequent suit is hit under the provisions of Section 11 of the CPC. The courts below are correct in rendering

the findings thereby dismissing the suit of the plaintiff appellant.

Considered the submissions of the learned counsel. In the suit the plaintiff pleaded about the filing of the Title Suit 18/1989 against the present

defendant respondent No. 1 for the reliefs claiming the right, title and interest, confirmation of possession and also for declaration of sale deed No.

691/1989 as null and void. The said suit was dismissed thereby, the findings therein being allowed to attain its finality. In the present case the plaintiff

appellant had sought for the reliefs for recovery of possession of the suit land evicting the defendants respondents and for permanent injunction

thereon the land covered by dag No. 365 and 349 of periodic patta No. 1. The case record of Title Suit No. 18/1989 was exhibited as

Ext.’Ka’ through the official witness DW 1. The suit land described in the plaint in Title Suit No. 18/1989 is reproduced herein below

 “SCHEDULE All those land measuring 2K out of 4k-14L covered by Dag No. 365 and 3 K 3 L covered by periodic Patta No. 1 situated at

Village Khutikatia under Gohpur Mouza in the district of Sonitpur and said land is bounded on North-Ramani Kt. Bora, Souththe land of the defendant

Nos.1,2 & 3, East-Sarkari Tank, West- Sorakari Roadâ€​

The plaintiff appellant in the earlier suit sought for the relief mentioned herein above with respect to the aforesaid suit land. Amongst other issues a

specific issue was framed as to whether the plaintiff appellant was entitled to a decree as prayed for. The findings of the learned trial court in Title

Suit No. 18/1989 with respect to the aforesaid issue was specific that the plaintiff appellant was not entitled to a decree as prayed for.

The submission of Ms.Choudhury that the subsequent suit being for recovery of possession, findings of earlier suit cannot affect any finding given

in the subsequent suit with respect to the relief of the recovery of possession cannot be accepted. From the comparison of the suit land in both the suit,

the suit land covers under dag No. 365 and 349 and the process of demarcation was with respect to the extent the defendant respondent No. 1 is

entitled on the strength of the purchase deed purportedly executed by the father of the plaintiff appellant. Once the relief of confirmation of the

possession was denied, the subsequent relief of recovery of possession with respect to the same land involves in deciding the fact of possession of the

plaintiff appellant over the suit land. The relief of confirmation of possession was denied so there is no point in allowing the relief of recovery of

possession rather the said issue with regard to the possession of the plaintiff appellant had already beendecided in the ealier suit inasmuch as the

issue in the subsequent suit was already in issue wherein the earlier court refused to grant the relief of confirmation of possession. The issue of

possession had already been heard and finally decided by the earlier Court. Moreover Section 11 CPC specifically stipulates that no court shall try any

suit or issue in which the matter has been directly and substantially in issue in a former suit between the same parties 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.

The other limb of submission of Ms Choudhury that the defendants respondents cannot adduce evidence where no such plea of Res-Judicata was

specifically pleaded by them. In the present case in hand from the defendants side a court official was adduced as the witness who exhibited the case

record of Title Suit No. 18/1989. The case record was exhibited as Ext.’Ka’ and plaint and the written statement and the judgment were

exhibited specifically by the defendants respondents. Before discussing the legality of the submission of Ms.Choudhury it would be appropriate to

consider the ratio laid down by the Hon’ble Apex Court in Modula India Vs. Kamakshya Singh Deo reported in (1988) 4 SCC 619 reproduced

herein below:

“20. We therefore, think that the defendant should be allowed his right of crossexamination and arguments. But we are equally clear that this right

should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the

observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can

adduce evidence of his own or try to substantiate his own case.†In the aforesaid decision the Hon’ble Apex Court considered the case of a

tenant with respect to his defence against the delivery of possession which was struck off and under such circumstances to what extent such

defendant has his role in the suit. The Hon’ble Apex Court in the aforesaid decision further held as follows

†24. For the above reasons, we agree with the view of Ramendra Mohan Datta, Acting C.J., that, even in a case where the defence against

delivery of possession of a tenant is struck off under Section 17(4) of the Act, the defendant, subject to the exercise of an appropriate discretion by

the court on the facts of a particular case, would generally be entitled:

(a) to cross-examine the plaintiff’s witness; and

(b) to address argument on the basis of the plaintiff’s case.We would like to make it clear that the defendant would not be entitled to lead any

evidence of his own nor can his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weaknesses of

the plaintiff’s case. In no circumstances should the cross-examination be permitted to travel beyond the legitimate scope and to convert itself

virtually into a presentation of the defendant’s case either directly or in the form of suggestions put to the plaintiff’s witnessesâ€​

Now let us consider the submission keeping in view of the ratio of the aforesaid decision of the Hon’ble Apex Court. It is a fact that the

defendants/respondents did not file their written statement pleading their defence. However through the court officials the case record of Title Suit

No. 18/1989 was exhibited by the defendants respondent. The fact of filing the Title Suit No. 18/1989 was very much pleaded by the plaintiff

appellant. The act of exhibiting the said case record of T.S.No. 18/1989 by the defendant/respondent cannot be considered that the defendants

respondents had led the evidence on their own putting up their defence. From perusal of the cross examination of the plaintiff appellant as PW 1 it is

seen that in his cross-examination he was confronted with the said case record to which he admitted the judgment and decree alongwith the plaint and

written statement so exhibited. From the perusal of the said cross-examination the courts below had rightly considered the same and gave the

conclusive findings that the suit is barred under the principles of ResJudicata. Accordingly the said limb of submission of Mr.Choudhury also cannot be

accepted inasmuch as there is no extraneous piece of evidence forming defence of the defendants/respondents.

Accordingly the Courts below had rightly held that the suit is barred by principles of Res-Judicata and substantial question of law is decided against

the present plaintiff appellant resulting dismissal of the second appeal.

No cost. Send back the LCR.