Sultan Ahmad and Another vs Irshad Ahmad and Others

A.P. Singh, J.—In the present appeal, judgment and decree passed by the lower appellate Court dismissing Suit No. 344 of 1971 filed by the appellant, is under challenge on the ground that the lower appellate Court apart from misreading the statement of P.W. 1 and P.W. 2 which they made to prove the plaint case has also wrongly applied the bar of res judicata against them on the basis of the judgment and decree passed earlier in Original Suit No. 132 of 1962.

In brief the case of the plaintiffappellant was that the land in suit was being used by the entire residents of the locality (Mohalla Domanpura, in Maunath Bhanjan City) as Rasta connecting the Government road but the defendant tried to obstruct the Rasta by putting construction over it. He, therefore, sought injunction so as to restrain the defendants from making the construction and obstructing Rasta from the land in dispute. The case of the defendantrespondents on the other hand was that the land in suit was ChowkTkziya which was never used as Rasta. The Rasta according to the defendant lay towards east of the disputed land. The plaintiffappellants got no right to file the suit for seeking injunction. It was further pleaded that one Abdul Karim was the real person who has filed the suit by procuring the signatures of the plaintiffs. The said Abdul Karim has first filed Suit No. 1311 of 1957 for the same earlier but despite fighting up this Court (High Court) he failed whereafter he got another suit filed through his mother Jasima Bibi being Suit No. 132 of 1962 but he again lost up to this Court (High Court). Before the trial Court the parties led evidence P.W. 1, Abdu! Majid was examined by the plaintiffs who stated that since the time of his childhood the land in suit was being used as Rasta which connected the Government road with the village and people of the village too used it for going to the Government road. He also denied the suggestion that the Rasta did not exist there. Mohd. Ilyas, P.W. 2 (Plaintiff No. 2) also got himself examined. He also proved the plaint case asserting, inter alia, that the land in suit was being used as Rasta since the time he attained the age of discretion and the Rasta was being used by him as well as by all the residents of the locality for going to the Government road and the said right of Rasta from the land in suit was never obstructed by the defendants. The Rasta was being used without the permission of anyone, there was no other Rasta for going to the Government road from the village.

From the aforesaid evidence and also from other supporting documentary evidence trial Court recorded a finding that the land in suit was being used as public Rasta for connecting the village, where the parties resided, with the Government road and the said Rasta lay towards west of the ChowkTaziya and the said Rasta existed for a long time. With these findings the suit was decreed. Right by way of easement which too was pleaded in the plaint was found proved and the suit was accordingly decreed.

Aggrieved by it the defendantrespondents filed appeal under Section 96 of Code of Civil Procedure. The said appeal was decided by the Civil JudgeII, Azamgarh. The Civil Judge, however, allowed the appeal by holding that the suit filed by the plaintiffs was barred by res judicata and further that the plaintiffs have not been able to prove from evidence the existence of the Rasta over the land in dispute.

While coming to the aforesaid conclusions the lowerappellate Court observed that P.Ws. 1 and 2 did not assert, in their examinationinchief, that the said Rasta passed from the land in suit. The observations made in this respect by the lower appellate Court are as follows :

"In the first place P.W 1 has not stated in his examinationin chief about the plaintiffs right of way over the land in suit."

"In the first place P.W. 2 (wrongly written as P.W. 1) has not stated the period of user as required by Section 15 of Easement Act."

Both the aforesaid observations made by the lower appellate Court on being compared with the statement in chief of P.W. 1 and 2 is found incorrect. In this respect of the statementinchief made by P.W. 1 and 2 are as follows :

The above statement of P.W. 1 made in his examinationinchief is sufficient to prove that the witness and all others living in the village which will obviously include plaintiff No. 1 has been using the land in suit as Rasta. Therefore, the lower appellate Court was not correct in its observation that P.W. 1 did not state in his examinationinchief that plaintiff had been using the land as Rasta. Similarly the lower appellate Court is also not correct in observing that the period of user of the Rasta has not been stated by P.W. 2 in his examinationinchief. The statement of P.W. 2 in his examinationinchief is to the effect"HUM LOG BACHPAN SE IS RASTE SE AATE HAIN". In this statement the period of user is clearly indicated by P.W. 2. The age of P.W 2 when the made the statement in Court was 45 years, therefore, there could have been no room for confusion in his statement about the period of user of the land in suit as Rasta. The lower appellate Court, thus was wrong in.its observation that P.W. 2 did not specify the period of user of the land in suit by way of Rasta.

Suit No. 132 of 1962 was filed by Smt. Jasima Bibi against Municipal Board in which plaintiff No. 1 was defendant No. 44 and plaintiff No. 2 was defendant No. 144. They were supporting parties to the claim set up by Smt. Jasima Bibi. Jasima Bibi had claimed that the land involved in the suit which lay near the Chabutra was her SEHAN LAND. Her suit was dismissed and it was held that the land of the suit was not her sehan land. The question as to whether the land involved in the present appeal was a public Rasta or not admittedly did not fall for decision by the Court in Suit No. 132 of 1962. The dispute which is involved in the suit from which the present appeals arises is confined to the obstruction which was put by defendant in, the Rasta which connects the village with the Government road from the western side of the ChowkTazia. No such dispute was involved in former Suit No. 132 of 1962. Suit No. 132 of 1962 was not fought directly between the plaintiffappellant and plaintiff or defendant of the former suit. As a matter of fact the issue involved in the former suit was directly between Smt. Jasima Bibi and people in general of the village. There was no direct issue between her and the plaintiffs who did not contest her suit too.

Sri Sharad Malviya learned Counsel who argued the appeal on behalf of the respondents, however contended that the lower appellate Court rightly applied the bar of res judicata as in two previous suits; Suit No. 1311 of 1957 and Suit No. 132 of 1962 the question (issue) involved in the present suit, from which this appeal has arisen was finally decided and both of the above cases it was held that Rasta for connecting Mohalla Domanpura with the Government road towards south passed from the eastern side of the ChowkTazia therefore according to Sri Malviya decision in those suits would have the effect of bar against filing of another suit in view of the provisions of Section 11 of the Code of Civil Procedure, specially decision in Suit No. 132 of 1962 in which incidentally plaintiffs too were defendants who were however supporting the plea which was set up in that suit by Jasima Bibi. P.W. 1 who too was a party in that suit who too supported the case of Jasima Bibi by appearing as witness on her behalf.

The lower appellate Court also disbelieved the statement of P.W. 1 for the reason that he had appeared as a witness for Jasima Bibi in the former Suit No. 132 of 1962. Sri Malviya sought support to his above contention by placing reliance on a Supreme Court judgment in Ahmad Adam Salt v. M.E. Makhari and Others., AIR 1964 SC 107 ; P.V. Sreekumaran v. Kerala Agricultural University, 1984 Lab, I.C. 1516. Sri S.N. Singh, appearing for appellant however placed reliance on Ambrish Kumar Singh v. Raja Abushan Bran Bramhshah, AIR 1989 All 194 ; 1984 ALJ p. 758.

Before adverting to the respecting contentions raised by the Counsel for the parties and the case law relied by them it is necessary to notice in brief the controversy (issue) which has been raised in the suit (present one) and whether the controversy (issue) which was raised in the former Suit No. 132 of 1962 was the same which is involved in the present suit.

In the present suit plaintiff Sultan Ahmad and Mohammed Iliyas asserted that from place ABCDEF as shown in the plaint map, which depicts the topography of the area where the land in suit is situate, had been used as passage for a long time where from plaintiffs as well as other residents of Mohalla Domanpura were passing without any hindrance as of right for more than 2 years with the result the plaintiffs have acquired easementary right of passage over the said land. It is strange that though the plea of bar of res judicata was raised by the defendantsrespondents to oppose the reliefs claimed by the plaintiffs in the suit but they have not filed either the copy of the plaint of the written statement which constitutes pleadings of the parties. Issue (matter of controversy), which arises for decision by a Court or Tribunal, is to be ascertained from the pleadings of the parties. That constitutes res judicata is the decision given by Court of competent jurisdiction on an issue (controversy of fact, or of mixed question of fact and law) on which parties to a case are in disagreement and have contested the issue. Before decision on that issue has been given by a Court or by a tribunal, parties have been heard on that issue and that the issue has been finally settled between them. Therefore, it will not be possible for this Court to find out, without the aid of the pleadings of the parties in former Suit (No. 132 of 1962) as to what was the exact matter of controversy which fell for decision in that suit and was decided by the Court in that suit including this Court in Second Appeal No. 70 of 1965.

Before proceeding further it is also necessary to notice the provisions of Sections 40,41,42 and 43 of the Evidence Act, 1872. These Sections fall in Chapter II dealing with "Relevancy of facts". Section 40 is referable to such judgments which constitute res judicata between the parties under Section 11, Code of Civil Procedure and are therefore stated to be relevant. Section 41 is not relevant here as it refers to the relevancy of judgments of Courts in exercise of probate, matrimonial, admiralty or insolvency jurisdiction. This Section too is on the lines of the principle of res judicata and estoppel by record.

Section 42 deals with the judgments which are not res judicata but are still relevant because they relates to a matter of public nature which is relevant to the enquiry in the suit but such judgments are not conclusive proof of what is staled (decided) in the judgment. Section 45 provides that except for judgments which are relevant under Sections 40,41 and 42 other judgments are irrelevant except for offering a proof of existence of the judgment if it is in issue and also whereunder some other law such judgments have been relevant.

No reverting back to the pleadings of the parties in the earlier Suit No. 132 of 1962 nothing can be said with certainty as to what was pleaded in that suit by the partiesPrimary evidence of the pleadings of the parties in a suit will be the plaint and the written statement which the parties to the suit filed. In absence of these documents any quest about it will be hazardous. What is resjudicata is judgment in the former suit between the parties on matter of controversy between them which is substantially in issue between them. Word ''Judgment'' has been defined in the Code of Civil Procedure in Section 2(9). It is statement given by the judge of the grounds of decree or order. ''Decree'' is formal expression of an adjudication. Which so far, as regards the Court expressing it, conclusively determines as the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. ''Order'' is formal expression of any decision'' of a Civil Court other than decree. The word ''Judgment'' and ''Order'' respectively are therefore formal expression of an ''adjudication'' or of a ''decision'' which is given on the rights of parties in controversy in the suit or in the proceeding. The relevancy of ''Judgment'' or ''Order'' therefore has to be kept confined to the adjudication made by the Court or to the decision given by it in respect of the rights of the parties; which maybe in controversy in the suit. What was in controversy between the parties in the suit will have to be found but from the (plaint) filed and what was resisted by the other side opposing the suit in his pleadings (written statement). No doubt a hint as to the nature of the pleadings of the parties may be found out from the statement of facts, given in the judgment but it is very unsafe to take statement of facts in a judgment as a proof of the facts and the rights pleaded by the parties in their pleadings. For knowing what was the right claimed in a suit and the basis on which that right was asserted to exist and on what basis that right was denied and what counter claim was made in the suit by the defendant reference will have necessarily to be had to the pleadings of the parties in that suit. In my opinion judgment bears no relevancy for such matters and as provided by Section 42 the judgment for this purpose is irrelevant.

Judgment of this Court in Second Appeal No. 70 of 1965 which arose from suit No. 132 of 1962 is Exbt. A5 whereas trial Courts judgment in that suit is Exbt. A13. From perusal of A13 what appears is that there were 3 sets of defendants, 1st the Municipal Board of Maunath Bhanjan, which presumably wanted to open a pathway from the Sehan land of the plaintiff were on a Pakar tree existed. IInd set of the defendant were defendants 2 to 14, who with defendant No. 1, were interested in the opening and use of the passage from plaintiff''s Sehan land. According to the plea as could be deduced from the judgment the land in suit was Sehan Land of the Chowk Tazia being its appurtenant land and that it was always used as rasta. Defendants of 1st set and Ilnd set offered common opposition against the relief which plaintiff of that suit claimed. The third set of defendants were defendants 15 or 408, all of whom filed their separate written statement supporting plaintiffs case. The suit was dismissed and its dismissal was upheld by this Court in Second Appeal No. 70 of 1965. The question which, on the above facts arises, is whether present plaintiffs who fell in the third category of defendants in the former suit and had supported by the plea of the plaintiff of that suit will also be bound by the final judgment given against the plaintiff of that suit. 17. Section 11, Code of Civil Procedure bars trial of any suit or of an issue in that suit in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the parties. The test therefore is whether the matter which is directly and substantially in issue between the appellants and the respondents in the present suit was also directly and substantially in issue between them or between parties under whom they are any of them claim were litigating under the same title. From the facts stated by Munsif in judgment A13, it is clear that there was nothing either directly or substantially in issue between the present plaintiffs and the plaintiff of the former suit. Nothing fell for being decided by the Court in Suit No. 132 of 1962 between plaintiff and defendants of the IIIrd set. What fell for decision in that suit was the rights claimed and denied between plaintiffs of that suit on the one hand and defendants 1st and IInd set on the other side. Between them arose the question (issue) about the existence of Rasta towards east or west of the Chowklazia. Though defendants of the IIIrd set too filed their separate written statement but since they did not resist the claim of the plaintiff their filing of written statement was no avail. No.1A is therefore arose between plaintiff and defendants of IIIrd set in that suit. No issue arose to be determined by the Courts between the defendants of the IIIrd set on the one hand and the plaintiff on the other. Similarly between defendants 1st set and IInd set, who alone resisted the relief claimed by the plaintiff in that suit, and the defendants of the IIIrd set no issue arose for being determined by the Court in the former suit. Necessary ingredient for applicability of Section 11 of Code of Civil Procedure therefore is wanting.

Sri Malviya, however, placed reliance on Explanation VI to Section 11. It provide "where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall,..........., be deemed to claim under the persons so litigating."

There should have been no problem in attracting Explanation VI to the aid of the respondents provided the defendants of the IIIrd set had notified their separate written statement and had not been parties and were represented by defendants 1st and IInd set in the former suit in a representative capacity as a common claim of all the defendants then certainly the judgment of that suit (A13) would have been a bar to plaintiff''s claim from which this appeal arises has been noticed by the lower appellate Court, still strangely the lower appellate Court decided to disbelieve that witness. This too cannot be permitted.

The task of believing or disbelieving a witness is essentially of the trial Court and not of the appellate Court. It is the trial Court which is in a better position to understand and appreciate the falsehood and truthfulness of the statement made by a witness. It however cannot be said on that basis that appellate Court, which is not placed in the position as the trial Court is placed, cannot for good reasons disbelieve a witness who was believed by the trial Court. If there is some apparent infirmity in the statement of the witness concerned appellate Court too could discard the testimony of a particular witness but it should happen only for good reason when reliance on the testimony of the witness is not legally permissible on well established principles of law. The reason why the lower appellate Court discarded the testimony of R W. 1, was neither justified on the facts nor it is booked by law. The lower appellate Court thus was not right in discarding the oral testimony of P.W. 1.

For the reasons given hereinabove, this appeal must succeed and is accordingly allowed. In the result the judgment and decree passed by the lower Appellate Court, Civil Judge, II, Azamgarh in Civil Appeal No. 387 of 1975 is set aside and the judgment of trial Court in Suit No. 344 of 1971, III Additional Munsif, Azamgarh is restored.

The appellant shall also be entitled to costs of this as well as first Appellate Court. Appeal allowed.