MOHD AYUB v. MOHD SHARIF — 1976 DIGILAW 563 (ALL)

MEHROTRA, J. This second appeal arises out of a suit for declaration and possession. It is alleged that old plot no. 444 was subsequently changed to new number 761. It was originally the fixed rate tenancy of Bhagwan Singh, Harnam Singh and Mahadeo Singh who transferred it to Ghisiyawan on April 18, 1907. The south- eastern portion of that plot was just appurtenant to the land of the plaintffs and therefore, the heirs of Ghisiyawan sold 8 1/4 biswas of land in the said plot to the plaintiffs on 4-4-1946. The defendants had their house situated towards the west of the land purchased by the plaintiffs and had no concern with the same. After the plaintiffs took the same, the defendants encroached on a portion of the said land and the plaintiffs filed suit no. 82 of 1947 in the court of the Munsif, Hawaii which was decided against them and an appeal against the trial courts decree abated. As regards rest of the portion purchased by the plaintiffs they were in possession, cultivated it, produced vegetables and used it as Sahan. Later, on the defendants had some ill motive and they wanted to usurp this land also and started proceedings under section 145 or. P. C. which re suited in the attachment of the property. The said criminal proceedings ended in favour of the defendants and hence the plaintiffs had to file the suit in question. The defendants jointly contested the suit, denied the plaintiffs allegations and pleaded that the plaintiffs were not in possession within 12 years from the date of the suit and the suit was barred by Articles 142 and 144 of the (old) Limitation Act. It was also contended that the suit was barred by section 11 C. P. C. Certain other pleas were also taken. The trial court framed the neces sary issues and tried the suit. The suit was decreed. An appeal was taken to the lower appellate court but the same also failed. Now, the defendants have come up in the instant second appeal and in support thereof Shri Sankatha Rai, learned counsel for the appellants, has made his submissions. In opposition, Sri K. P. Singh, learned counsel for the plaintiffs respondents, has been heard. Sri Sankatha Rai raised four contentions in support of the appeal. Now, the defendants have come up in the instant second appeal and in support thereof Shri Sankatha Rai, learned counsel for the appellants, has made his submissions. In opposition, Sri K. P. Singh, learned counsel for the plaintiffs respondents, has been heard. Sri Sankatha Rai raised four contentions in support of the appeal. Firstly, he contended that the courts below erred in holding that the judgment in the earlier suit No. 82 of 1947 did not operate as res judicata in the instant suit in question. Secondly, he contended that there was an inconsistancy between the body of the judgment of the lower appel late court and the operative part of the said judgment. Thirdly, it was contended that plot no. 761/1 claimed by the plaintiffs-respondents was not demarcated with the help of partali map by the trial court. Lastly, it was argued that it was obligatory for the trial court to have framed an issue under Section 331a of the U. P. Act I of 1951 and should have referred the matter to the revenue court for its decision under the said provision of law. The trial court failed to do so and hence its judg ment and decree stood vitiated. I shall deal with these contentions is seriatim. So far as the first argument is concerned, learned counsel placed reliance on the following decisions: 1. AIR 1971 Supreme Court 442 (Gangappa v. Rachawwa) 2. AIR 1971 Supreme Court 664 Ram Gobinda v. Bhakta Bald) 3. AIR 1963 Supreme Court 385 (Vithal Yashwant v. Shikandarkhari) 4. AIR 1953 Supreme Court 33 (Birmati Raj Lakshmi Dasi & others v. Banamalisen and others) 5. 1973 Revenue Decisions 464 (Smt. Banto v. Smt. Yashoda) On the basis of the said authorities, it has been contended that for applying the principle of res judicata, what is relevant is not the identity of the subject-matter but the identity of title under which the subject-matter of the suit is claimed. Referring to the judgment in the former suit No. 82 of 1947 a true copy of which was filed in the instant suit and marked as Ext. Referring to the judgment in the former suit No. 82 of 1947 a true copy of which was filed in the instant suit and marked as Ext. A-1, attention was drawn to the following observation appearing in the said judgment: "it may further be pointed out that the plaintiffs did not produce any documentary evidence to establish that defendants 8 to 11 are tenants of plot No. 761; the defendants had denied para one of the plaint and it was the duty of the plaintiffs to prove that defendants 8 to 11 were tenants of the land in suit. " It is contended that the said observation is in the nature of a finding recorded by the court in the earlier suit that the plaintiffs vendors, namely, defendants 8 to 11 of the said suit, lacked title to transfer any land by the sale deed dated 8th April, 1946. It may be observed that the plaintiffs in the subsequent suit have claimed title on the basis of the aforesaid sale deed. It is, therefore, the contention that in view of the finding of the trial court in the earlier suit that the vendors of the plaintiffs lacked title, therefore, the sale deed in question should be held to be null and void and the plaintiffs stood-non-suited in the subsequent suit on the basis of the principle of res judicata. In my view, this contention is not correct. The courts below have recorded a finding, which has not been challenged before me, that the subject- matter of the two suits are different. In other words, the portion of the plaintiffs land which was in dispute in the earlier suit is not the portion which is in dispute in the subsequent suit from which this appeal has arisen. In my, view, in the earlier suit, the real finding is that the plaintiffs did not purchase any land to the west of the line shown in the map prepared by the Commissioner. A reference to the Commissioners map of the earlier suit, a true copy which also was filed in the subsequent suit, would show that on the East of the line in the said map the plain tiffs land has been shown and the same is also shown to be a part of settlement plot no. 761. A reference to the Commissioners map of the earlier suit, a true copy which also was filed in the subsequent suit, would show that on the East of the line in the said map the plain tiffs land has been shown and the same is also shown to be a part of settlement plot no. 761. The real controversy in the earlier suit was thus resolved by holding that the disputed portion of the land in the said suit was not shown to be a part of the land purchased by the sale deed dated 8th April, 1946. There was no occasion for the trial court in the earlier suit to decide the question whether the vendors of the plaintiffs had any title to the portion of plot no. 761 sold by them in favour of the plaintiffs. Indeed, a reference to the written statement of the earlier suit, a certified copy of which was also filed in the subsequent suit, will show that there was no such plea in the written statement that the plaintiffs vendors lacked title to sell the property to the plaintiffs. Undoubtedly, there is a plea that the sale deed was a fictitious document but that is different from a plea that the vendors of the sale deed lacked title to transfer the property in favour of the vendees, namely, the plaintiffs. Having accepted the Commissioners map in the earlier suit, which clearly disclosed that on the east of line PQ lay the plaintiffs land, it would have been wholly contradictory if the trial court in the said suit had recorded a finding that no title passed in favour of the plaintiffs under the aforesaid sale deed. In my view, therefore, the aforesaid isolated sentence which has been extracted from the judgment of the trial court in the earlier suit, cannot be treated as a clear finding recorded by the said court to the effect that the sale deed in favour of the plaintiffs did not have the effect of passing any title in their favour. It is well known that a finding is different from a mere isolated observation which was not called for either on the basis of the pleadings of the parties or on the basis of the evidence led by them. It is well known that a finding is different from a mere isolated observation which was not called for either on the basis of the pleadings of the parties or on the basis of the evidence led by them. The principles of resjudicata cannot be applied merely on the basis of isolated obser vations in the judgment but there should be a clear cut finding on the basis of a controversy between the parties and on the basis of the issue being raised between them. I am, therefore, satisfied that the principle of resjudicata would not apply in the instant case. So far as the second contention is concerned, it is true that in the body of the judgment of the lower appellate court, statement of the respondent counsel has been recorded which had the effect of clarifying the trial courts decrees I think it is desirable that the decree passed by the courts below should accordingly be modified in the light of the state ment of the learned counsel for the respondents made on 20th December, 1965 and recorded on paper No. 38-A (2) by the lower appellate court. This will be done in the operative part of my judgment hereafter. So far as the third contention is concerned, I do not think there is any substance in the same. No such objection was taken in the courts below and the map prepared by the Amin in the trial court was agreed to be led in evidence by both the parties. This is clear from the trial courts order sheet dated 10th October, 1963 which is as follows: "parties counsel state that the map and the report of the Amin be read subject to the evidence to be adduced by the parties. " No plea was taken before the lower appellate court that the portion of plot no. 761/1 said to the plaintiffs was not identifiable. Even in the trial court, no issue was raised to that effect. So far as the fourth contention is concerned, again, in my opinion, the courts below have rightly repelled the same. The lower appellate court rejected the plea on the ground that in the written statement no such plea was taken by the defendants and no amendments of the pleadings was sought by the defendants even in the appeal in the lower appellate court. The lower appellate court rejected the plea on the ground that in the written statement no such plea was taken by the defendants and no amendments of the pleadings was sought by the defendants even in the appeal in the lower appellate court. In the absence of such a plea, the lower appellate court held that it was not necessary for the court to go into the said question suomotu. Learned counsels contention is that section 331-A of U. P. Act I of 1951 uses the phraseology "the question arises or is raised. " He, therefore, submits that even if the question is not raised by the defendants in the written statement, still, if the question did arise on the basis of the plaintiffs own pleadings, the trial court was bound to enter into the said controversy. In this connection, he referred to para 8 of the plaint there it is stated that the plaintiffs are using the land in dispute by raising structures therein, by cultivating vacant portion of the land and also by using the same as Sahen land. In my opinion, this paragraph is not capable of the interpretation which the learned counsel for the defendant appellant seeks to put on the same. It is not admitted in the said para graph that the nature of the land was undergone a change. The mere fact that certain structures are set up will not mean that the Bhumidhari land has ceased to be a cultivatory land. The structures might have been set up with a view to be of aid to cultivation. It is also not clear as to when the structures were set up by the plaintiffs and what was the nature of the structure. In this view of the matter, unless the defend ants raised a controversy, I do not think that merely on the basis of the allegations made in para 8 of the plaint, the court was bound to have gone into the said controversy. Moreover, it was conceded that the defendants were in no way prejudiced by the non-framing of an issue under section 331-A. In reality they had no locusstand in respect of a controvesy which might arise under the said provision of law. Sri Sankatha Rai contended that the plea under section 331-A was in the nature of a jurisdictional plea and, therefore, the question of prejudice was not relevant. Sri Sankatha Rai contended that the plea under section 331-A was in the nature of a jurisdictional plea and, therefore, the question of prejudice was not relevant. In my opinion, this is not so. I do not think that a controversy under section 331-A can be equated with a controversy touching on the courts jurisdiction to decide a dispute. I, therefore, find no substance in this contention also. It was conceded by the learned counsel for the defendant appellant that in view of the amendment of section 331-A of U. P. Act 1 of 1951 by U. P. Act IV of 1969, he could not question the civil courts jurisdi ction to try the suit and, therefore, it is not necessary to go into the said controversy. In the result, the appeal is partly allowed. The decree of the trial court is modified. The modified decree will read as under: "the plaintiffs suit for declaration and for possession of the land east of the line XI-X2 as shown in the Amins map dated 14-9-63 (which is made a part of the decree) is decreed with costs throughout. The constructions to the east of the said line XI-X2 shall be demoli shed by the defendants within two months of the decree of the court and on their failure, the same shall be got demolished by the court at the costs of the defendants. Possession of the disputed land to the east of the line XI-X2 as shown in the Amins map shall be delivered to the plaintiffs respondents within the said period of two months by the defendants. On their failure to do so, the executing court shall deliver such possession to the plaintiffs respondents. " .