Kuntala Bose v. Puspa Rani Ghosh — 1980 DIGILAW 108 (CAL)

JUDGMENT This appeal arises out of the judgment and decree passed by the learned Additional District Judge, 4th Court, Alipore, in Title Appeal No. 2 of 1975 affirming the judgment and decree passed by the learned Munsif, 3rd Court of Sealdah, in Title Suit No. 4 of 1973. The defendant No. 1, is the appellant and the said Title Suit. No. 4 of 1973 was instituted by the plaintiff-respondents Nos. 1 and 2, Smt. Puspa Rani Ghose and her husband, Jatindra Nath Ghose against the defendant No. 1, Sukumar Bose and also impleading his son, viz. Biswaranjan Bose for eviction of the defendant No. 1 from the suit premises and for recovery of possession of a shop room comprising the tenancy in question. 2. The case of the plaintiffs was, inter alia, that the defendant No. 1 was inducted as a tenant in respect of the said shop room but his tenancy was determined by a valid notice to quit but as the name of the son of the defendant No. 1 also appeared on a signboard of the said shop room he was also impleaded as a proforma defendant. It may be stated in this connection that prior to the institution of this suit, the plaintiffs also instituted another suit for eviction against the said defendant No. 1 which was numbered as Title Suit No. 225 of 1970. In the said suit, the present plaintiffs also claimed that the defendant, Sukumar Bose was a monthly tenant at a rental of Rs. 30/- payable according to the English Calendar and that the said tenancy was determined by a notice to quit. The defendant, Sukumar Bose also contested the said suit but the suit was decreed by the learned Munsif in favour of the plaintiffs and the defendant then preferred an appeal against the said judgment and decree of the learned Munsif and the appeal was registered as Title Appeal No. 216 of 1972. It was held by the Appeal Court that both the plaintiffs were the landlords of the defendant in respect of the disputed room but the appeal was allowed by the Appeal Court because it was held by the Appeal Court that the notice determining the tenancy on the basil of which the suit was instituted was invalid. It was held by the Appeal Court that both the plaintiffs were the landlords of the defendant in respect of the disputed room but the appeal was allowed by the Appeal Court because it was held by the Appeal Court that the notice determining the tenancy on the basil of which the suit was instituted was invalid. It may also be noted in this connection that in the plaint of the said suit, there was an averment to the effect that both the plaintiffs were the landlords but such averment was not disputed specifically by the said Sukumar Bose in his written statement made in the earlier suit and accordingly on the doctrine of non-traverse of pleadings, it was held that the defendant had admitted the case of the plaintiff, in the said suit that both the plaintiffs were his landlords. 3. However, after the unsuccessful attempt, in the said previous suit, both the said landlords instituted the instant Title Suit No. 4 of 1974. The defendant No. 1 in his written statement made in the instant suit contended that he was inducted as a tenant by the plaintiff No. 1, Sm. Puspa Rani Ghose but not by her husband Jatindra Nath Ghose and the defendant No. 1 also contended that the said Jatindra Nath Ghose and the said Biswaranjan Bose, namely, the son of the defendant No. 1 should not have been impleaded as plaintiff No. 2 and defendant No. 2 respectively. The learned Munsif observed that it was held in the earlier suit by the Court of Appeal below that both the plaintiffs were the joint landlords of the said defendant Sukumar Bose but the suit was dismissed by the Court of Appeal below only on the ground that the notice determining the tenancy was invalid. The learned Munsif was of the view that in such circumstances the finding made by the Court of Appeal below in the earlier suit that both the plaintiffs were the landlords of the defendant would operate as res-judicata on the similar question raised in the instant suit. The learned Munsif was of the view that in such circumstances the finding made by the Court of Appeal below in the earlier suit that both the plaintiffs were the landlords of the defendant would operate as res-judicata on the similar question raised in the instant suit. It was held by the learned Munsif that although in the earlier suit no specific issue was framed as to whether both that plaintiffs were the landlords of the defendant or not but the matter was considered both by the trial court and the Court of Appeal below and accordingly under Explanation (4) of Section 11 of the Code of Civil Procedure, such finding made in the previous suit that both She plaintiffs were the landlords would operate as res-judicata. In that view of the matter, the learned Munsif decreed the said suit and the defendant No. 1, Sukumar Bose preferred an appeal against the judgment and decreed passed by the learned Munsif, being Title Appeal No. 2 of 1975 to the 4th Court of the learned Additional District Judge of Alipore. The learned Additional District Judge came to the finding that although the said earlier suit was ultimately dismissed by the Court of Appeal below on the finding that the notice terminating the tenancy was invalid but, when specifically it was held in the said suit that both the plaintiffs were the landlords of the defendant, the defendant No. 1 in the said earlier suit ought to have preferred an appeal before this Court against the said findings made by the Court of Appeal below. The learned Additional District Judge was of the view that normally when a party had succeeded in a suit or in an appeal against the finding made on a particular issue or fact but in appropriate cases, when such finding of fact was likely to affect a party he was required to prefer an appeal and if he had not preferred such an appeal then he would be precluded from contending any further against the finding of fact made in the earlier proceeding. The Court of Appeal below also came to the finding that simply because the rent receipts were granted by the plaintiff No. 1, Smt. Puspa Rani Ghosh such grant of rent receipts by itself could not decide the issue as to whether both the plaintiffs were the landlords or not. The Court of Appeal below also came to the finding that simply because the rent receipts were granted by the plaintiff No. 1, Smt. Puspa Rani Ghosh such grant of rent receipts by itself could not decide the issue as to whether both the plaintiffs were the landlords or not. If the defendant No. 1 had been inducted as a tenant both by the plaintiffs then the grant of rent receipts by one of the landlords could not affect the induction of tenancy by both this landlords. The Court of Appeal below was however of the view that for the purpose of deciding as to whether the defendant No. 1 had been inducted by both the landlords or not, the findings made in the said earlier proceeding that both the plaintiffs were the landlords must be held to be a conclusive finding. Accordingly, the Court of Appeal below dismissed the appeal and affirmed the judgment and decree paned by the learned Munsif. The defendant No. 1 thereafter preferred the instant appeal before this Court. 4. Mr. Sukumar Mukherjee, the learned Counsel appearing for the appellant, contended that there could not be any question of res-judicata so far as finding made in the earlier appeal that both the plaintiffs were the landlords of the defendant No. 1, was concerned. Mr. Mukherjee contended that no such issue was framed specifically in the earlier suit and it was also not necessary to frame such issue. Mr. Mukherjee contended that if on the principle of the doctrine of non-traverse it was to be found that the defendant No. 1 in the said earlier suit had admitted the case of the plaintiffs that both the plaintiffs were his landlords, then there was no occasion in the said earlier proceeding to frame any issue either expressly or by necessary implication as to whether both the plaintiffs were the landlords or not. Mr. Mr. Mukherjee in his fairness submitted that even when an issue was not framed specifically but if such issue was germane for consideration on the basis of pleadings of the parties and as a matter of fact such issue was also decided then the finding on such issue though not framed specifically would operate as resjudicata in the subsequent suit but he contended that in the facts of the case the said issue as to whether both the plaintiffs were the landlords of the defendant or not was not required to be railed and/or decided in the earlier suit because on the doctrine of non-traverse, it could be held that the defendant had admitted the case of the plaintiffs that both the plaintiffs were his landlords. Accordingly Mr. Mukherjee contended that there was no occasion for the defendant tenant to prefer any appeal against the said finding made by the Court of Appeal below. In this connection, Mr. Mukherjee referred to a Bench decision of the Bombay High Court made in the case of (1) Rambai Shriniwas Nadgir v. Government of Bombay, reported in AIR 1941 Bombay page 144. Chief Justice Beaumount speaking for the Court held that a party was not bound by an admission in his pleading except for the purpose of the suit in which the pleading constituting admission was made. Relying on the said decision, Mr. Mukherjee contended that even assuming that on the principle of doctrine of non-traverse, it could be held in the earlier proceeding that the defendant admitted the case of the plaintiffs in the earlier suit that both the plaintiffs were his landlords, such admission was only binding for the purpose of that suit, but it could not be contended that the said admission was also binding for the purpose of the instant suit where the defendant specifically disputed the case of the plaintiffs that both the plaintiffs were his landlords. Mr. Mukherjee also referred to a decision of this Court made in the case of (2) Smt. Tarabat Mohata and ors. v. Union of India, reported in AIR 1971 Calcutta page 225. It was held in the said decision of a Division Bench of this Court that the finding of the Court however adverse against the judgment debtors who were successful parties in the litigation, could not operate as resjudicata. Mr. v. Union of India, reported in AIR 1971 Calcutta page 225. It was held in the said decision of a Division Bench of this Court that the finding of the Court however adverse against the judgment debtors who were successful parties in the litigation, could not operate as resjudicata. Mr. Mukherjee also referred to another Bench decision of this Court made in the case of (3) Rajendra Kishore Chowdhury v. Kumud Ban Mahata, reported in AIR 1923 Calcutta, page 297. The facts considered in the said decision were that in the first suit for ejectment the defendant had pleaded that he was a permanent tenant and that the suit must fall as no notice was served upon him. The Court in that event, held that the suit must fail for want of notice to quit. But it also came to the finding that the defendant had failed to prove that he had a permanent tenancy. The decree was one of dismissal and the defendant could not appeal against that finding. It was held in the said decision of the Division Bench of this Court that the decree of dismissal passed in the said suit could not operate as resjudicata on the question whether the defendant had a permanent tenancy or not. Mr. Mukherjee also referred to a decision of the Privy Council made in the case of (4) Midnapore Zamindari Co. Ltd., v. Naresh Narayan Ray reported in AIR 1922 P.C. page 241. It was held in the said case that the question of occupancy raiyat was not decided in the subsequent suit because the tenant having succeeded on other pleas had no occasion to go further as to the finding, against him but that it was appellant landlords paramount duty to displace the said finding. Mr. Mukherjee also contended that on the doctrine of non-traverse it could be held in the said earlier suit that the defendant had admitted in the said suit the case of the plaintiffs that both plaintiffs were his landlords and as such the issue as to whether both the plaintiffs were landlords or not could not arise in the said earlier proceeding. Hence, the Court was not called upon to decide such issue and if the Court had, in fact, made any finding incidentally though such issue did not arise directly or by necessary implication, the decision on such issue could not operate as res-judicata. For this contention, Mr. Mukherjee referred to a Bench decision of this Court made in the case of (5) Sri Sri Gopal Jew Thakur v. Narendra Nath Mondal, reported in 41 Calcutta Law Journal, page 396. It was held in the said decision that if the issue could not directly arise upon the plaint as framed but the issue was necessary to be decided in order to frame a scheme which was the relief claimed in a suit, the decision of that issue was only incidental and as such the decision on the said issue could not operate as resjudicata. 5. Mr. Saktinath Mukherjee, the learned Counsel appearing for the plaintiffs respondents, however contended that if the finding, in question would go to support the judgment and decree, then such finding would be resjudicata but if such finding dehors the judgment and decree then such finding would not be resjudicata. Mr. Mukherjee has contended that in the previous suit the notice on the basis of which the suit was instituted was found invalid on a finding that previously a valid notice determining the tenancy was given and the finding about the validity of the earlier notice depended on the finding that there was relationship of the landlord and tenant between the parties. Accordingly whether or not there was a relationship of landlords and tenant between the plaintiffs and the defendant, was required to be found in order to support the ultimate decision in the said earlier suit. Accordingly, the Court of Appeal below had to decide in the said appeal as to whether both the plaintiffs were landlords or not. In the aforesaid circumstances, Mr. Mukherjee contended that the finding that both the plaintiffs were the landlords must operate as resjudicata in the subsequent suit. Mr. Mukherjee also referred to in this connection a Bench decision of this Court made in the case of (6) Hara Chandra Das & Ors., v. Bhola Nath Das & Ors. reported in 39 CWN page 567. Mukherjee contended that the finding that both the plaintiffs were the landlords must operate as resjudicata in the subsequent suit. Mr. Mukherjee also referred to in this connection a Bench decision of this Court made in the case of (6) Hara Chandra Das & Ors., v. Bhola Nath Das & Ors. reported in 39 CWN page 567. It was held in the said decision that though no appeal by a party would lie in whose favour a decree had been passed against the finding contained in the judgment according to letters of the Code of Civil Procedure, but yet on ground of justice it was justifiable and some time even necessary to read in the provision of the Code of Civil Procedure an implication in favour of suitable exceptions. It was further held in the said case that rule in this respect which had been followed by current of judicial decisions and which was also right to follow was that a party in whose favour a decree had been made, had nevertheless the right of appeal, against a finding adverse to him, the test to be applied in each particular case being whether the finding sought to be appealed against, was such a finding to which the rule of resjudicata might be held applicable, so as to disentitle the aggrieved party to agitate the question, governed by the finding, in any other proceeding. Mr. Mukherjee also referred to another decision of this Court made in the case of (7) Tarapada Ghosh v. Sakti Kanta Behara, reported in 42 CWN page 492. In the said decision, reliance was also placed on the aforesaid decision made in the Hara Chandra's case (supra) and it was held that although normally there would not be any appeal by a party in whose favour a decree was passed but in appropriate cases the successful party could also prefer an appeal to set aside a finding of fact which would otherwise adversely affect against him in a subsequent proceeding. Relying on the said decision, Mr. Relying on the said decision, Mr. Mukherjee contended that although the defendant in the said earlier suit ultimately succeeded on the score of invalidity of the notice but when a specific finding was made in the said earlier suit that both the plaintiffs were his landlords and when such finding was likely to affect the defendant in the subsequence proceeding, the defendant was competent to prefer an appeal to get the said finding set aside and if the defendant had not done so, he was precluded from contending any further in the subsequent proceeding that both the plaintiffs were not his landlords. Mr. Mukherjee also submitted that even on the merits of the case, it would appear that the plaintiff No. 2 deposed in the subsequent suit and in the cross-examination, a suggestion was given on behalf of the defendant No. 1 that the rent was sent to him. Mr. Mukherjee contended that by itself the said suggestion might not appear to be of such importance but in the backdrop of the dispute raised in the instant suit as to whether both the plaintiffs were landlords or not, the said suggestion given on behalf of the defendant that rent was sent to the plaintiff No. 2 was also of considerable significance and it must be held that by the said suggestion the defendant had admitted that the plaintiff No. 2 was also one of the landlords and as such the rent was sent to him. I am, however unable to accept this contention of Mr. Saktinath Mukherjee. It should be noted in this connection that plaintiff No. 2 is the husband of plaintiff No. 1 and simply because in the cross-examination a suggestion was given on behalf of the defendant that the rent was sent to the said husband, it cannot be held that by giving the said suggestion the defendant had admitted that the said husband was one of the landlords and as such he had sent the said rent to the husband. 6. Considering the respective submissions of the learned Counsel on the question of res-judicata, I am of the view that the said finding made by the appellate Court in the previous proceeding that both the plaintiffs were landlords did not operate as resjudicata in the subsequent suit. 6. Considering the respective submissions of the learned Counsel on the question of res-judicata, I am of the view that the said finding made by the appellate Court in the previous proceeding that both the plaintiffs were landlords did not operate as resjudicata in the subsequent suit. If the averment of the plaintiffs that both the plaintiffs were the landlords could be held to have been admitted by the defendant tenant on the doctrine of non-traverse of pleadings the issue as to whether both the plaintiffs were landlords or not could not arise in the earlier suit on the basis of pleadings of the parties because an issue arises on the contentions where the parties are at variance in their pleadings. In my view, Mr. Sukumar Mukherjee is also justified in his contention that admission even if any, of the tenant on the question of relationship of the landlords and tenant between the parties was made in the earlier suit and the party making such admission was bound by the admission in the said suit but not in the subsequent proceeding and I respectfully agree with the view expressed by the Chief Justice Beaumount in Rambai Shriniwas Nadgir's case (supra). In the facts and circumstances of the case, it cannot be contended that the defendant was under an obligation to prefer an appeal to set aside the said adverse finding that both the plaintiffs were his landlords although a decree for dismissal of the suit instituted against him was passed by the Court of Appeal below. In the instant proceeding the Courts below did not make any specific finding as to whether the defendant No. 1 was inducted by both the plaintiffs because the Courts below proceeded on the footing that the admission made by the defendant in the earlier suit leading to ultimate finding of the Court of Appeal below that both the plaintiffs were the landlords of the defendant had operated as resjudicata on the said issue as to whether both the plaintiffs were the landlords of the defendant or not. It is, therefore, necessary to decide afresh as to whether both of the plaintiffs are the landlords of the defendant or not. It is, therefore, necessary to decide afresh as to whether both of the plaintiffs are the landlords of the defendant or not. This appeal, therefore, succeeds and the judgments and decrees passed by the Courts below are set aside and the matter is sent back before the trial Court for fresh adjudication on the basis of the materials on record. There will be, however, no order as to costs in this appeal. Let the records be sent down as expeditiously as possible and the trial court is directed to decide the suit within 4 months from the date of receipt of the records from this Court.