Samatia and Another vs Krishna Chand and Others

T.P. Sharma, J.—By this second appeal, the appellant has challenged the legality & propriety of the judgment and decree of dismissal of appeal dated 6-9-1993 passed by the Additional District Judge, Manendragarh in Civil Appeal No. 7A/90, affirming the judgment and decree of dismissal of suit dated 3-5-90 passed by the Civil Judge Class-II, Manendragarh in Civil Suit No. 16A/86 whereby suit filed on behalf of the appellants for declaration of title, possession and permanent injunction was dismissed. The present appeal has been admitted for consideration on the following substantial question of taw:-

Whether the Courts below committed an error in holding that the judgments and decrees passed in Civil Suit No. 11-A/1960 & Civil Appeal No. 32-A/1968, operate as res judicata in the present suit.?

As per pleadings of the parties, original plaintiff Ramcharan, father present appellant No. 1 Samatia and appellant No. 2 Sugreev was owner of the suit property bearing khasra No. 145 area 0.32 acre situated at Manendragarh, Tahsil Manendragarh. Out of the aforesaid area, 0.03 acre land was sold by them to Baijnath Soni and they were in possession of rest land i.e. 0.29 acre. On 31-7-80, respondents No. 1 and 2 have forcefully entered into the land of the appellants and started digging for construction of the house. The plaintiffs opposed the same but they were not succeeded. Finally application u/s 250 of the C.G. Land Revenue Code was filed before the revenue authority, then on 6-8-80, the plaintiffs came to know that the land 0.03 acre is mutated in the names of respondents No. 1 and 2. The plaintiffs have never sold the property to respondents No. 1 and 2. On the aforesaid basis, suit for declaration of title, possession and permanent injunction was filed on 7-8-90. After filing written statements on behalf of the respondents No. 1 to 3, the plaintiffs have amended their plaint and pleaded that plaintiff No. 2 i.e. present appellant No. 2 Sugreev was minor in the year 1960, therefore, he was not competent to file civil suit and decision in Civil Suit No. 11-A/1960 is not binding upon him, even otherwise at the time of attaining majority of appellant No. 2, the land encroached by respondents No. 1 and 2 was fallen vacant and respondent No. 3 has taken the construction material from the alleged construction and the same was within exclusive possession of the appellants till 31-7-1980.

First civil suit was between appellant No. 2 and respondents, therefore, second civil suit is not barred under the principle of res judicata, the suit was within limitation. By filing specific written statement, respondents No. 1 to 3 have denied the claim of the appellants and have specifically pleaded that the land in possession of the respondents was never owned and possessed by the plaintiffs. Respondents No. 1 and 2 have derived the title on the basis of sale deed executed by respondent No. 3 Smt. Sona Bai. Civil Suit No. 11-A/1960 was tried and decided between plaintiffs of the present case, husband of respondent No. 3 and Amritlal. Finally suit was dismissed. Same was challenged before the Additional District Judge, Ambikapur. Same was also dismissed. In previous suit No. 11-A/1960, present appellant No. 2 Sugreev and deceased plaintiff Ramcharan were parties and they have filed civil suit for recovery of possession of the same land on the basis of title. On the aforesaid basis, the respondents have pleaded that the present suit is barred u/s 11 of the Code of Civil Procedure, 1908 (for short ''CPC'') and decision of first civil suit operates as res judicata in the present suit.

After providing opportunity of hearing and adducing evidence, the Civil Judge Class-II, Manendragarh has arrived at a finding that the present suit is barred by principle of res judicata and dismissed the suit. Same was challenged before the lower appellate Court and vide judgment and decree impugned, learned lower appellate Court also dismissed the appeal.

I have heard learned counsel for the parties, perused the judgment and decree impugned, judgment and decree of the trial Court and records of the Courts below.

Learned counsel for the appellants argued that in order to attract the bar created u/s 11 of the CPC as res judicata, the defendants/respondents were required to prove the fact that any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, 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, but in the present case, the respondents have failed to discharge their burden that the parties, property in dispute and issues in both suits are directly or substantially one and the same and former suit has been decided finally by the competent Court. Learned counsel further argued that in the present case, in the plaint of former suit Ex. D/1 name of present appellant No. 2 has shown as plaintiff No. 2 but at that time he was minor and suit was not filed on behalf of the minor through his next friend, therefore, entire proceeding and judgment in former suit is illegal and void. Learned counsel contended that Exs. D/2 and D/3 judgment and decree of the former suit clearly reveal that while deciding the issue relating to ownership over plot No. 146 as part of khasra No. 145, the Civil Judge Class-II has held in deciding Issue No. 1 and additional issue No. 1 (a) and 1 (b) that "it is not proved that suit house was situated on plot No. 146". "It is probable that it was plot No. 145, but it will not help the plaintiff", shows that issue was not decided finally against the appellants, inter alia, issues were not proved, therefore, the appellants are not precluded from filing civil suit even on the same cause of action.

On the other hand, learned counsel for respondents No. 1 to 3 opposed the appeal and argued that Ex. D/1 copy of the plaint of former suit, Exs. D/2 and D/3 judgment and decree of the former suit, Ex. D/4 judgment in First Appeal No. 32-A/68 dated 17-1-1969 passed by the Additional District Judge, Ambikapur and decree passed in the aforesaid appeal Ex. D/5 are sufficient to prove the fact that in the former suit and the present suit, suit property, issues and parties are directly and substantially one and the same and after final decision of the former suit, present appellants/plaintiffs are precluded from filing second suit on the same cause of action.

Bar created u/s 11 of the CPC as principle of res judicata has been pleaded by the respondents. Burden was upon respondents No. 1 to 3 to prove the aforesaid fact by adducing cogent evidence. Respondents No. 1 to 3 have filed copy of the plaint of former suit Ex. D/1 and copies of the judgments and decrees of the former suit Exs. D/2 to D/5 which reveal that original plaintiffs of that case i.e. Ramcharan and Sugreev had filed civil suit for possession on the basis of ownership against Amritlal and Mahesh Prasad, husband of present respondent No. 3 and which was finally heard and decided by the competent Civil Court, in which issue of ownership over Khasra No. 145 and plot No. 146 was directly and substantially under dispute. Issue No. 1 and additional issues No. 1. (a) and 1. (b) were framed by the Civil Judge Class-II, Manendragarh and decided as follows:

The present suit is also for possession in which the plaintiffs have claimed declaration of title and permanent injunction in the absence of possession over the property. Relief of permanent injunction is virtually redundant relief.

In the present case, originally present suit was filed by deceased Ramcharan and appellant No. 2 Sugreev, plaintiffs of former suit against respondents No. 1 & 2 and Sonabai whose husband was party in the former suit. Respondent No. 3 has also claimed and derived the title over the property from Mahesh Prasad, her husband and defendant of former suit. During pendency of trial on account of death of Ramcharan, his daughter present appellant No. 1 Samatia was impleaded as appellant No. 1.

In both the cases, parties are substantially one and the same. Appellant No. 1 is claiming and derived her title from Ramcharan, plaintiff of former suit. Respondent No. 3 is claiming right and title from Mahesh Prasad, defendant No. 2 of former suit and respondents No. 1 and 2 are claiming and had derived their title from respondent No. 3.

As regards the question of issue and the suit property, in former suit the suit property was plot No. 146, khasra No. 145 area 0.03 acre. In the present case, khasra number is also 145 and area 0.03 acre.

In order to differentiate the property, the plaintiffs were under obligation to prove that they are not claiming any relief relating to plot No. 146 or suit property of previous suit, but instead of proving such fact, by amending the plaint as paras 1 A and 1 B that the plaintiffs/appellants have pleaded that in former suit, appellant No. 2 who was minor and had not filed suit. The plaintiffs have also pleaded that at the time of attaining majority of appellant No. 2, the suit property was fallen vacant. The house was not standing on the suit property and construction material (malma) was taken out by husband of respondent No. 3, thereafter, appellant No. 2 started using the suit land as vegetable garden. This pleading clearly shows that the suit property in both suits are one and the same, but appellant No. 2 has tried to show that previous suit was not filed by him because he was minor and before 1980 the land was fallen vacant. In the year 1964, the land was fallen vacant and appellant No. 2 is in continuous possession over the land since 1964, thereby he has perfected his title even on the basis of adverse possession.

By this pleading, appellant No. 2 has tried to establish the fact that cause of action was not one and same and right of the respondents have been extinguished on the basis of adverse possession of appellant No. 2 over the suit property since 1964 till July, 1980.

Burden to prove the different cause of action of both suits was solely on the plaintiffs/appellants. Appellant No. 2 has examined himself as a witness. He has specifically deposed in paras 2, 3 and 4 of his evidence that he is in possession over the suit property since 1964 and the respondents dispossessed him on 31-7-1980. He has not stated anything relating to his minority at the time of filing of first civil suit. As per para 8 of his cross-examination, as per his knowledge there was no house over the suit property. He has also deposed that he did not know whether construction material (malma) was taken by husband of respondent No. 3 or not. He has denied the pleading of para 1 B of the plaint relating to the aforesaid fact. He has deposed that he did not know whether his uncle Ramcharan had filed any civil suit in the year 1960 or not. He has further admitted in para 8 that in the year 1960, his age was 16 years and not 19 years. Ex. D/1 copy of the plaint of former suit reveals that the same was filed in the year 1960, in which it was pleaded that Amritlal and Mahesh Prasad have dispossessed the plaintiffs from the house situated over the suit property on 23-3-1960 and have filed the suit for possession on the basis of title. Suit was decided on 7-7-1964. The appeal was dismissed on 17-1-1969. As per judgments and decrees of the Courts below in former suit Exs. D/2 to D/5, the house was situated over the suit property and was in possession of the respondents i.e. Amritlal and Mahesh Prasad, but against the aforesaid documentary evidence, appellant No. 2 has deposed that he was in possession of the suit property since 1964 and Mahesh Prasad has taken building material i.e. Malma in the year 1964. This evidence does not find support from any other sources and is in contradiction to the documentary evidence in which the appellant No. 2 himself was party.

As per present suit, the respondents dispossessed the appellants on 31-7-1980 and have constructed the house. As per evidence of appellant No. 2 Sugreev (PW-1), respondents No. 1 to 3 have constructed the house over the suit property. In the light of documentary evidence of Exs. D/1 to D/5, unfounded and uncorroborated evidence of appellant No. 2 Sugreev are not sufficient to prove the fact that he was in possession over the suit property since 1964 and the respondents have dispossessed him in the year 1980. The previous suit was for possession on the basis of title of plot No. 146 situated upon khasra No. 145. The plaintiffs were having complete opportunity to prove their claim but they have failed to prove their title or right over the suit property and issue was finally decided by the competent Court.

In the present case, allegation made in the plaint is sufficient to prove the fact that the suit property, issues and parties are directly and substantially one and the same. Subsequent suit is also not based on subsequent event or different cause of action, therefore, subsequent suit was barred u/s 11 of the CPC. Both the Courts below have arrived at a finding on the basis of oral and documentary evidence that subsequent suit is barred by principle of res judicata and have dismissed the suit as well as the appeal. Documentary and oral evidence are sufficient for drawing inference that the present suit is barred by principle of res judicata.

Consequently, substantial question of law formulated for the decision of the appeal is decided as negative. On the basis of decision on the substantial question of law formulated for the decision of the appeal, the appeal is liable to be dismissed and it is hereby dismissed. The appellants shall bear their own cost and cost of the respondents.

Advocate fee as per schedule. A decree be drawn accordingly.