Shoukhi Sao vs Gaibi Sao and Others

Das, J.—This appeal arises put of a suit for partition and the only question is what is the share of the plaintiff in the disputed properties. It is the common case that the properties in question were purchased by the plaintiff and the defendant jointly and that the kabala by which they made the purchase does not contain any specification of shares. It appears that the plaintiff subsequently demised his share of the properties to the defendant. A. suit for rent was brought by the plaintiff against the defendant, and in that suit an issue was raised as to what were the shares of the parties in the disputed properties. The plaintiff claimed that he had a 12 anna interest in the properties and the Court in seisin of the rent suit decided the issue in favour of the plaintiff. The. plaintiff in this litigation relies upon that decision and contends that he is entitled to a 12-anna share in the disputed properties. The learned District Judge has held that the decision in the rent suit does not operate as res judicata between the parties. Examining the evidence he finds that there is no sufficient evidence either on the side of the plaintiff or on that of the defendant to establish what were the shares of the parties. He has come to the conclusion that in the absence of a specification of shares in the ''kabala, it must be assumed that each of the parties had a half" share in the "properties. In that view he has given the plaintiff a decree for 8 annas share Of the properties.

The learned Government Pleader appearing on behalf of the appellant contends that the decision of the learned'' Munsif in the rent suit operates as res judicata He concedes, however, that the learned Munsif had no pecuniary jurisdiction to decide the present suit. It is not disputed that if we were to decide this case on the terms of Section 11 of the CPC we must overrule the contention of the learned Government Pleader. But it is contended that the principle of res judicata is of general application and is not limited by the specific words of the Code in this respect. I entirely agree with this contention, but, in my opinion, in order to succeed it must be established by the appellant that the learned Munsif in seisin of the rent suit had jurisdiction to try the present Suit between the parties.

Mr. Abani Bhusan Mukharji has referred us to three cases. The first is the case of George Henry Hook v. Administrator General of Bengal 60 Ind. Cas. 631 : 48 C. 499 : 19 A.L.J. 366 : 40 M.L.J. 423 : 29 M.L.T. 336 : (1921) M.W.N. 313 : 33 C.L.J. 405 : 3 U.P.L.R. (P.C.) 17 : 23 BL.R. 648 : 25 C.W.N. 915 : 14 L.W. 221 : 48 I.A.187. The question in that case arose out of an administration suit which had been instituted in the Calcutta High Court. A certain issue was raised in that suit and it was decided by Chowdhury, J., in a particular way. The proceedings in which the decision now relied upon by Mr. Abani Bhusan Mukharji was pronounced were commenced later on by a petition in that very suit, and it was contended that that issue was wrongly decided and should have been decided in another way. Chowdhury, J., dealt with the matter and came to the conclusion that his former decision was perfectly correct. The case was carried to the Court of Appeal, and it was contended on behalf of the respondents that the decision of Chowdhury, J., in the suit operated as res judicata and that it was not competent to the appellant to reagitate the matter by another proceeding before him. The contention was disallowed and the matter was carried to the Privy Council.

Now the objection as to res judicata was based on the view that there were not two suits before the Court, and reliance was placed upon the terms of Section 11 of the Civil Procedure Code. It was pointed out by the Judicial Committee that the plea of res judicata remained apart from the limited provisions of the Code and that the binding force of such judgment in such a case depends not upon Section 11 of the Code but upon general principles of law. But it is to be pointed out that the learned Judge who decided the matter in the first instance was perfectly competent to deal with the question in the form in which it was raised subsequently before him. The other decision of the Judicial Committee to which we have been referred is that of Ramachandra Rao v. Ramachandra Rao 67 Ind. Cas. 408 : 45 M. 320 : 30 M.L.T. 154 : 26 C.W.N. 713 : 35 C.L.J. 545 : 16 L.W. 1 : (1922) M.W.N. 359 : 20 A.L.J. 684 : 43 M.L.J. 78 : 24 Bom. L.R. 963 : AIR 1922 P.C. 80 : 49 I.A. 129 (P.C.). In that case there were certain Land Acquisition proceedings and a question arose as to who was entitled to withdraw the money. The Land Acquisition Deputy Collector being unable to decide the question of title referred it to the principal Civil Court, that is to say to the Court of the District Judge. The District Judge decided the question of title. The matter went to the Madras High Court and the question was again decided by the Madras High Court. There upon a civil suit was instituted which raised the very question which had once been decided by the Madras High Court and it was contended that the decision in the first mentioned suit did not operate as res judicata inasmuch as that decision was pronounced not in a suit but in a proceeding under the Land Acquisition Act. It is important to remember that the contention, was again founded upon the terms of Section 11 of the Civil Procedure Code, and the Judicial Committee had no difficulty in pointing out that that contention could not prevail. But in giving effect to the plea of res judicata Lord Buckmaster was careful to point out that the Court in seisin of the earlier proceeding had complete jurisdiction to try the second case. That appears to me to be the foundation of the principle upon which the doctrine of res judicata rests. In order to succeed it has to be established that the decision claimed to operate as res judicata was pronounced by a Court competent to try the later proceeding. Now in this case it is admitted that the learned Munsif was not competent to try the present suit. That being the position the learned District Judge was right in overruling the plea of res judicata.

It was next contended that although the decision in the earlier suit does not operate as res judicata, still it, is a, strong piece of evidence and the learned District Judge" should have called upon the plaintiff to give evidence in support of his case. But the learned District Judge has actually dealt with the decision in the rent suit. He points out that that decision was based entirely on a particular vakalatnamah which was produced and on the evidence of a Pleader. Be dealt with the vakalatnamah and the evidence of the Pleader exhaustively in his judgment and came to the conclusion that those two items of evidence are not sufficient to turn the scale in favour of the plaintiff.

The only other point that was urged before us is that there is no specification of shares in the kabala and that there is no presumption that the parties had equal shares. I am unable to agree with this contention. The authorities are unanimouson this point and I entirely agree with 1he view of the learned District Judge.

This appeal must be dismissed with costs.

Wort, J.

I agree.