Vaman Keshav Godse vs Laxman Keshav Godse and Others

M.F. Saldanha, J.—The present appellant had instituted Regular Civil Suit No. 86 of 1973, whereby he had claimed partition and separate possession of his share. The Respondent Nos. 1 and 2 are his brothers and Respondent Nos. 3 to 5 are his sisters. The suit in question was resisted essentially by the brothers and one of the contentions raised was that the defendant No, 1 had earlier instituted a Civil Suit in respect of his share in the rent of a house that had been jointly held by the parties and the first floor of which had been given on rent. The learned trial Judge framed the issued on the basis of the pleadings and one of the issue was with regard to the question as to whether the present suit was at all maintainable in law in view of the fact that the earlier Civil Suit No. 89 of 1962 between the same .parties and in respect of the property in dispute had been tried and decided on merits. It is this aspect of the matter alone that we are concerned with, in the present proceeding.

The learned trial Judge after hearing the parties came to the conclusion that the earlier Civil Suit No. 89 of 1962 referred to by me would operate as res-judicata to the present proceeding. The reason for this was principally because in the earlier proceeding undoubtedly there was a dispute with regard to the apportionment of the rent recoverable from the premises and there were references to the fact that the house in question had been constructed out of the joint funds. The learned trial Judge also came to the conclusion that since there were references in the earlier judgment to the so called partition that is alleged to have taken place in the year 1957 that the present suit was not maintainable in law. He accordingly dismissed the suit on this ground alone. Effectively, the Appeal Court has confirmed this decision. The present Second Appeal is directed against the appellate Judgment and order and assails the correctness thereof.

At the hearing of the present appeal, learned Counsel appearing on behalf of the appellant has, in the first instance, placed reliance on a Division Bench decision of this Court in the case of Laxman Shivshankar, Kumbhar v, Saraswati Chanbasappa Kumbhar, 63 Bom. L.R. 152. The Division Bench while considering the Bar u/s 11 of the CPC observed as follows :-

It cannot be laid down as a general proposition that where a previous decision is supported on two or more findings, all the finding will necessarily operate as res-judicata. Where the previous suit was dismissed on a technical ground which made the suit untenable, the findings recorded on the merits would normally be obiter dicta. Similarly, if the Court which decided the prior suit had itself based the decision on only some of the findings recorded by it, or if under the circumstances of the case its decision can be fairly attributed to only some of the findings so recorded,, the other findings would not operate as res-judicata. In other cases, where the previous decision is based upon, and is attributable to, several findings, all the findings will have the force of res-judicata.

Relying on this decision, it is submitted that merely because there was some litigation between the parties at an earlier point of time and because there are some references to one of the properties i.e. the subject-matter of the present dispute that the bar of res-judicata cannot be pleaded either in respect of this property or in respect of the remaining ones. All that learned Counsel submits is that the suit ought to have been decided on merits in which case it was open to the trial Court to decide whether the plaintiff was entitled to the share that he is claiming or not. He submits that having been thrown out at the threshold by the Appeal Court that the matter will require reconsideration at that stage on merits. The alternate submission canvassed is that even if the Appellate Court was of the view that the bar u/s 11 was to be upheld that in the alternative the Court should have also examined the matter on merits. As far as this last aspect of the matter is concerned. I am not in agreement with the submission for the simple reason that if the Appeal Court rightly came to the conclusion that the suit was not maintainable there was no necessity whatsoever of examining the matter on merits. However, that is a separate issue in so far as normally the Appeal Court have been obliged to hear the matter on merits which it has not done since the issue regarding maintainability was upheld.

Mr. Anturkar, learned Counsel, appearing on behalf of the respondent has vehemently contested this position. He has drawn my attention to certain passages in the earlier judgment and more importantly to the issue No. 1 in the suit of 1969 whereby the Court had not only framed the issue with regard to the question as to whether the partition had taken place in 1957 but had also recorded a finding in the course of the judgment that all the properties had in fact been partitioned between the brothers in 1957 which explains why their names appear separately in the Khatas. The Court, however, came to the conclusion that there was no partition in respect of the house in question and the same continued to be joint. Mr. Anturkar submits that in law once a partition has in fact been effected and once there is a finding of the Court upholding that position, that the trial Court and the Appeal Court were fully justified in having applied the principle of res-judicata to the present suit and to have refused to re-open the issue. Under these circumstances, he submits that the present appeal is liable to be dismissed.

As indicated by me earlier the narrow issue that arises is as to whether the Appeal Court is justified in having applied the doctrine of res-judicata. Everything will depend on what happened in the 1969 suit and for this purpose, I have gone through a copy of the judgment which has been produced by the parties. It is true that the suit in question related to an apportionment of the rent that was recoverable from the house and the plaintiff in that suit was the present defendant No, 1. For the purpose of ascertaining as to whether that plaintiff was entitled to a pro-ratashare, the Court necessarily had to examine the question as to whether the partition had taken place and if so, what was the share of that plaintiff. For this purpose, the Court did frame issue No. 1 and after discussing the evidence before the Court in detail, the Court has recorded conclusive findings in paragraph No. 8 as follows :

Suffice it to say that the evidence clearly points out that there was partition in respect of all the properties and in respect of the suit property, the house, there was no partition and is jointly kept.

It was submitted on behalf of the appellant before me that this is no more than a passing observation made by the Court and that having regard to the Division Bench decision this particular observation cannot be treated as a finding and that the bar of res-judicata would not apply. The contention is supported by the fact that the suit in 1969 was not a suit for partition and secondly that the shares of various parties were neither apportioned nor was there a decree passed in respect of the same. Under these circumstances, the contention advanced is that the aforesaid finding cannot bar the present proceeding.

A perusal of the Judgment in question will indicate that regardless Of whether the necessity arose or not the issue with regard to the partition was raised in that proceeding and that the Court recorded a finding to the effect that all the properties other than the house had been partitioned. It is true that no shares were carved out nor was a decree passed in respect of the respective shares but this was unnecessary because that was not the prayer before the Court but more importantly, because of the fact that the material produced before the Court indicated very clearly to the learned Judge that the partition which has been mutually done had been given effect to and that the properties had in fact been divided and were under separate holdings. It was only the house that was excluded. In the light of this situation, the position that emerge is that the learned Appellate Judge was wrong in holding that a bar of res-judicata applied completely as far as the present proceeding is concerned. The plaintiff had approached the Court for partition in respect of all the properties but having regard to the fact that the remaining properties had already been partitioned those would have to be excluded from consideration. It would certainly be open to the Court to consider the material before it and to grant appropriate relief to the plaintiff if he so qualifies for it in respect of his share in the house property alone. To this extent the learned Appellate Judge was in error.

Under these circumstances, to my mind, it would be necessary to set aside the Appellate order and remand the matter to the Appeal Court with a direction that the Court should hear the parties on the limited question as to whether the original plaintiff who is the appellant before me is entitled to partition of the jointly held house and if so, what consequential orders are necessary. The matter was vehemently contested on behalf of the appellant in this Court and a submission was vigorously canvassed that it would be unfair to bind the plaintiff down to that one property alone principally because the suit of 1969 was not a partition suit and consequently, that what is treated as a finding in that proceeding should be held to be obiter dicta and therefore not res-judicata. It would not be permissible for this Court to uphold that point of view. I concede that the proceeding of 1969 concerned a limited issue and to that extent it may not have been necessary for the trial Court to have gone into the omnibus question with regard to the generality of partition of all the properties. The Court however did frame that issue and did record the conclusive findings and that judgment has now become final between the parties. Under these circumstances, one cannot ignore the legal bar that is prescribed u/s 11 of the Code of Civil Procedure, whereby for good reasons it has been laid down that once an issued is finally concluded that it cannot be re-opened. In this view of the matter, as indicated by me earlier, the scope of the remand is necessarily limited to the house alone.

The appeal partially succeeds. The appellate order is set aside and the matter is remanded to the Appeal Court. In the circumstances as indicated above, the learned Judge before whom the Appeal is placed shall however endeavour to hear and dispose of the matter before 30-9-1994 at the very latest. In the circumstances of the case, there shall be no order as to costs.