Ram Nagendra Tiwary v. Jagdamba Ojhain — 1984 DIGILAW 45 (PAT)

Judgment Ashwini Kumar Sinha, J. 1. This second appeal is by the plaintiffs against the judgment of affirmance in a suit for declaration that the correct area of land comprised in Survey Plot Nos. 397 to 404 under Tauzi No. 17175 situate in village Rampur Balra was 1 Bigha 12 Kathas and 10 dhurs and not 5 Bighas 5 Kathas and 1 dhur. The plaintiffs asked for the further relief for permanent injunction restraining the defendants from taking out the delivery of possession over the said plots. 2. Earlier a partition suit between the same parties was filed in 1941. This partition suit was numbered as 158/67 of 1941/42. The defendants of the present suit were the plaintiffs in that partition suit and the plaintiffs of the present suit were the defendants in that partition suit. The plaintiffs share in Tauzi in question was to the extent of 8 annas a preliminary decree for partition was passed in the suit and after Pattibandi a final decree was also passed. It is pertinent to note here that before the final decree was prepared the plaintiffs of the partition suit (who are the defendants of the present suit) gave the area of the plots in question as 5 Bighas 5 Kathas 1 dhur for the first time to the Pleader Commissioner at the time of the preparation of the Rajibandi and thereafter the final decree was prepared on 15-5-1958 and the defendants of the partition suit (who are plaintiffs in the present suit) were allotted 4 Bighas 12 Kathas 18 dhurs of the plots in question. Thereafter, the final decree was signed on 3-10-1958 and the decree was put in execution in 1959 and it was numbered as Execution Case No. 8 of 1959. A Pleader Commissioner was deputed to effect the delivery of possession in accordance with final decree. On 1-5-1961 (vide Ext. 3) the Pleader Commissioner reported that the delivery of possession could not be effected to the defendants of the suit (who are the plaintiffs in the present suit) because the area of the plots in question was only 1 Bigha 12 Kathas and 10 dhurs. 3. On 1-5-1961 (vide Ext. 3) the Pleader Commissioner reported that the delivery of possession could not be effected to the defendants of the suit (who are the plaintiffs in the present suit) because the area of the plots in question was only 1 Bigha 12 Kathas and 10 dhurs. 3. Thus, the delivery of possession having not been effected in favour of the defendants (plaintiffs of the present suit), as the Pleader Commissioner had reported that the area was only 1 Bigha 12 Kathas 10 dhurs, the defendants of the partition suit filed an application (in the form of an objection) before the Executing Court and prayed that the mistake in area be corrected and the area as allotted to the defendants in the final decree be allotted to them by making proper adjustment. On this application a miscellaneous case was registered and it was numbered as Misc. Case No. 26 of 1962. Thereafter on 27-4-1963 this miscellaneous case was dismissed (vide Ext. 6) and the relevant extract of the order is as follows: "The matter is very contentious and needs thorough probe in the matter, which can be done only in a regular suit and not in this miscellaneous case. In the circumstances inherent power of the Court cannot be exercised in this case". (The words have been underlined by me for emphasis). Thereafter, the defendants of the aforesaid partition suit have brought the present suit and it was instituted on 9-12-1963. 4 In the present suit the plaintiffs case was that the correct area of the plots in question, according to survey khatian and map, was only 1 Bigha 12 Kathas 10 dhurs. But the Pleader Commissioner, Shri Joginder Sahay, who prepared the Barbarda gave wrong details of these plots as 5 Bighas 5 Kathas 1 dhur in collusion with the defendants. The plaintiffs of the present suit came to know this error when in Execution Case No. 8 of 1959, the Pleader Commissioner, Shri P. N. Verma, went to effect delivery of possession to the decree-holder and it necessitated filing a petition before him mentioning the facts regarding error in the decree and the Pleader Commissioner submitted the petition along with his report to the Court. As stated above, the plaintiffs (who were defendants in the aforesaid partition suit) filed a Misc. As stated above, the plaintiffs (who were defendants in the aforesaid partition suit) filed a Misc. Case No. 26 of 1962 for reopening of the final decree and for an order for proper adjustment to be made but the miscellaneous case was dismissed. The plaintiffs, main case was that on account of the entry of excess area in the Barbarda, the area allotted to them in the aforesaid plots had become lesser than their due share of 4 Bighas 12 kathas 18 dhoors as a result of which the plaintiffs had suffered a great loss and which necessitated the filing of the present suit. 5. The plaintiffs sought for the following relief: "13 (a) That on adjudication of the fates, the Court be pleased to declare that correct area of survey plots Nos. 397 to 404 is 1 Bigha 12 Kathas and 10 dhurs and not 5 Bighas 5 Kathas l dhur". It is relevant to quote a few paras from the body of the plaint also which paras are paras Nos. 7, 8 and 9 and they are as follows:- - (7) That the plaintiffs came to know of this error when the Pleader Commissioner, Shri Prabhu Narayan Verma, went to effect delivery of possession to Bishundeo Jha, decree-holder in Execution Case No. 8 of 1959. (8) That the plaintiffs had also, filed a petition mentioning all the facts regarding error in the decree before the Pleader Commissioner, Shri Prabhu Narayan Verma, which was submitted to the court along with his report. (9) That the plaintiffs filed a Misc. Case No. 26 of 1962 for reopening the final decree and ordering for proper adjustment to be made but the Misc. case was dismissed by the 2nd Addl. Sub Judge Court with the observation that the plaintiffs should seek their relief in a regular suit and hence the necessity of the suit. 6. ************* 7. The trial Court dismissed the suit and held as follows: (i) That the plaintiffs have miserably failed to prove their case that the area of the suit plots was 1 Bigha 12 Kathas 10 dhurs and not 5 Bighas 5 Kathas and 1 dhur; (ii) The right to sue accrued to the plaintiffs on 15-5-1958 when the final decree was passed and hence the period of limitation of three years as provided by Article 58 would run from that date. In that view of the matter, the plaintiffs suit having been filed in 1963 was barred by limitation; D (iii) That the suit was barred by Sec.34 of the Specific Relief Act and it was not maintainable. (iv) The valuation of the suit given by the plaintiffs was low and it is fixed at Rs. 1600.00 and the plaint will be amended accordingly. Though the Court in course of the valuation of the suit ordered amendment of the plaint yet the trial court held that the question of further court-fee did not arise as the suit was a declaratory suit and the fixed court-fee was already paid. With these findings the trial Court dismissed the suit. 8. The plaintiffs preferred an appeal against the judgment and decree of the trial Court. The Court of appeal below dismissed the plaintiffs appeal and held as follows: (i) The suit was barred by limitation and that it was governed by Article 96 of the old Limitation Act which prescribed the period of three years for the relief on the ground of mistake when the mistake becomes known to the plaintiff or plaintiffs. The Court of appeal below held that the right to sue accrued on 15-5-1958 when the final decree (Ext. E) in the partition suit was Passed or On 3-10-1958 when the said decree was signed by the Court and as such having not been filed till 2-10-1961, the suit was barred within the meaning of Section 96 of the old Limitation Act. (ii) The suit was barred by res judicata. (iii) The suit was barred within the meaning of Sec. 42 of the old Specific Relief Act inasmuch as the reliefs sought for, even if, granted, will remain wholly ineffective and will remain futile. (vi) The suit was not maintainable in view of the final decree in the partition suit. (v) That the area of the suit plots was 5 Bighas 5 Kathas and 1 dhur and not 1 Bigha 12 Kathas 10 dhurs as alleged by the plaintiffs. With the aforesaid findings, as stated above, the appeal preferred by the plaintiffs before the Lower Appellate Court was dismissed. 8A. (v) That the area of the suit plots was 5 Bighas 5 Kathas and 1 dhur and not 1 Bigha 12 Kathas 10 dhurs as alleged by the plaintiffs. With the aforesaid findings, as stated above, the appeal preferred by the plaintiffs before the Lower Appellate Court was dismissed. 8A. The learned counsel appearing for the appellants contended, firstly, that the Court of appeal below has wrongly relied upon the provision of Article 96 of the old Limitation Act and hence the finding to the effect that the suit was barred by limitation was not in accordance with law. The learned counsel contended that in view of the order passed in Misc. Case No. 26 of 1962 disposing of the Misc. case on 27-4-1963 with the observation as quoted above, the plaintiffs-appellants were entitled to file a regular suit; of course, within time from 27-4-1963 (Ext. 6) and the suit having been filed on 9-12-1963, it was well within time. 9. Article 96 of the old Limitation Act, now Article 59 of the new Limitation Act stood as below: "96. For relief on the ground of mistake. (Three years). When the mistake becomes known to the Plaintiffs". It is well settled that Article 96 referred to a mistake other than in a decree It is also well settled that this Article 96 of the old Limitation Act does not apply to a suit to set aside a decree on the ground of mistake. Article 96 of the old Limitation Act was only intended to apply in those cases in which the Courts were asked to relieve the parties from the consequences of the mistake committed by them (the words have been underlined by me for emphasis) in course of the contractual relations. This article did not refer to a suit for relief on the ground of some mistake other than that made in the decree. On the facts of the instant case, it is obvious that the reliefs sought for by the plaintiffs were not on account of the mis-take committed by either of the parties. It was the Pleader Commissioner, who re-Ported that the delivery of possession, as per the final decree, could not be effected to the defendants of the partition suit as the area of the plots in question was only 1 Bigha 12 Kathas 10 dhurs (vide Ext, 3). It was the Pleader Commissioner, who re-Ported that the delivery of possession, as per the final decree, could not be effected to the defendants of the partition suit as the area of the plots in question was only 1 Bigha 12 Kathas 10 dhurs (vide Ext, 3). It was thus that necessitated the filing of the miscellaneous case, as mentioned above, by the defendants of the aforesaid partition suit and which necessitated the filing of the present suit by the defendants of the partition suit after the order dated 27-4-1963 (Ext. 6) was passed in the aforesaid miscellaneous case. Thus, in the instant case, the mistake is not on the part of the parties. And hence the question of filing of the suit within three years of the mistake being known to the party does not arise in the present case. In that view of the matter, I am of the opinion that the Court of Appeal below took a wrong view of law to hold that the suit was governed by Article 96 of the old Limitation Act and that it was barred under that article. 10. There is yet another aspect of the matter. In Execution Case No. 8 of 1959, the Pleader Commissioner, who was deputed to effect the delivery of possession, reported (vide Ext. 3) to the effect that the area of the plots in question was only 1 Bigha 12 Kathas 10 dhurs and hence the delivery of possession could not be effected in favour of the defendants of the partition suit. This necessitated the defendants of the partition suit (plaintiffs of the present suit) to file Misc. Case No. 26 of 1962 and it was this Misc. case that the Court disposed of by observation that the matter was highly contentious one which could not be decided in the miscellaneous case and it could be done in a regular suit, and only thereafter the present suit was filed by the defendants of the partition suit. As the matter was being fought in the Misc. Case No. 26 of 1962 and the executing Court held that the matter could be fought out only in a regular suit, I have no hesitation to hold that the defendants of the partition suit (plaintiffs in the present suit) are entitled to invoke the provisions contained in Sec.14 of the Limitation Act for saving the bar of the limitation. Case No. 26 of 1962 and the executing Court held that the matter could be fought out only in a regular suit, I have no hesitation to hold that the defendants of the partition suit (plaintiffs in the present suit) are entitled to invoke the provisions contained in Sec.14 of the Limitation Act for saving the bar of the limitation. I am of further opinion that an objection filed by the defendants of the partition suit (Plaintiffs of the present suit) did not operate as a bar to the present plaintiffs invoking the aid of Sec.14 of the Limitation Act and in that view of the matter also the suit, having been filed on 9-12-1963, only about eight months after the Misc. Case No. 26 of 1962 was disposed of (i. e. within eight months from 27-4-1963), is well within time 11. The other contention raised by the learned counsel for the appellants was that the view taken by the Court of Appeal below to the effect that the suit was barred by the principles of res judicata was wholly wrong in law. 12. To invoke the doctrine of res judicata, the ingredients contemplated by Sec.11 of the Civil P. C. should be satisfied. The Court must see whether the elements that constitute res judicata are present in a given case; which means investigation into the facts bearing upon the several aspects contemplated by that section. It is not a pure question of law which could be debated at any stage. It is well settled that where the plea of res judicata was not put forward in the plaint but forms the subject of any Issue and could not even be debated at the trial stage, the case was prima facie excluded from the operation of the provisions embodied in Sec.11 of the Civil P. C. In the instant case, the point of res judicata was not raised in the trial Court. No issue was framed and naturally there was no decision on the question of res judicata. This point was raised for the first time before the Court of Appeal below. The Court of Appeal below, it is true, has gone into this question but in my opinion wrongly. No issue was framed and naturally there was no decision on the question of res judicata. This point was raised for the first time before the Court of Appeal below. The Court of Appeal below, it is true, has gone into this question but in my opinion wrongly. It is pertinent to quote Sec.11 of the Code which is as follows: "Sec.11, No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between Parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court". 13. The present suit has been filed before the Munsif, 1st Court, Monghyr and the earlier partition suit was filed before the Subordinate Judge and these two Courts, hence, had no concur rent jurisdiction. In that view of the matter, the defendants of the present suit (plaintiffs of the partition suit) could nut invoke the aid of Sec.11 of the Code. There is yet another aspect of the matter. The Executing Court also did not decide the point rather it said that the matter was highly contentious which could be fought out in a regular suit. There is yet one more aspect of the matter and that is, that the Court of Appeal below has not taken into consideration the effect of the order passed in Misc. Case No. 26 of 1962 (Ext. 6). In my opinion, the Court which tried the former partition suit was not competent to try the present suit and hence one of the conditions of Sec.11 of the Code was not satisfied. It is well settled that even where the parties in the two suits are the same and the matters in issue are directly and substantially identical, still the conditions of Sec.11 of the Code are not fully satisfied if the court which tried the former suit was not competent to try the subsequent suit. It is well settled that even where the parties in the two suits are the same and the matters in issue are directly and substantially identical, still the conditions of Sec.11 of the Code are not fully satisfied if the court which tried the former suit was not competent to try the subsequent suit. Thus, the second contention advanced by the learned counsel for the appellants also succeeds and I hold that the view taken by the Court of Appeal below that the suit was barred by the principles of res judicata was a wrong view in law. It is pertinent to note here at this stage that, the learned counsel appearing for the defendants-respondents very fairly conceded that the Court of Appeal below has, in fact, taken a wrong view of law on the point of limitation as also on the point or res judicata. 14. The learned counsel appearing on behalf of the appellants then contended that the view taken by the Court of Appeal below to the effect that the suit was barred under Sec. 42 of the old Specific Relief Act was also wrong in law. Section 42 of the old Specific Relief Act is now Sec.34 of the new Specific Relief Act 1963. Sec. 42 of the old Specific Relief Act was as follows: "Section 42. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make there in a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief ; Provided that no court shall make any such declaration where the plaintiff lining able to seek further relief than a mere declaration of title, omits to do so. Explanation:- - A trustee of property is a person interested to deny a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee". 15 It is really the proviso which, according to the Court of Appeal below, came as a hindrance to the maintainability of the suit. The proviso uses the words "able to seek further relief". 15 It is really the proviso which, according to the Court of Appeal below, came as a hindrance to the maintainability of the suit. The proviso uses the words "able to seek further relief". It is well settled that object of the proviso to Section 42 of the Specific Relief Act is to prevent the multiplicity of the suit by preventing a person from getting a mere declaration of right in one suit and then later seeking the remedy without which the declaration would be useless. The words "further relief" referred to in the proviso mean a relief flowing directly and necessarily from the declaration sought, a relief appropriate to and necessarily consequent on the right or title asserted. As Sec. 42 of the Act intends to avoid the multiplicity of the suits so, if possible, plaintiffs must conclude all possible reliefs in a single suit. The words "able to seek further relief" mean that the plaintiffs must be in a position to seek further relief. If it is not possible for him to seek further relief, the proviso is not attracted. The key to the proviso is that the plaintiff should be able to ask for a consequential relief then and there. In my opinion, the thrust of the words "being able to seek further relief" is firstly against the defendants. It is only when the plaintiff is able to seek further relief against the defendants that the proviso becomes applicable. The words under Sec. 42 arc "further relief" and not other relief. The term "further relief is meant not any other kind of relief but one which would complete the claim of the plaintiffs and not lead to a multiplicity of the suits. Further relief must flow necessarily from the relief of the declaration but if the relief is remote and is not connected with the cause of action I hen the plaintiff need not claim it. It is well settled that the words "further relief" in the proviso to Sec. 42 must be other relief against the defendant himself against whom the relief is sought. Reference may be had to the case of Humayun Begam V/s. Shah Mohammad Khan, AIR 1943 PC 94 and in the case of Autolite Financiers (P) Ltd. V/s. Swaslika Financial Corporation (p) Ltd., AIR 1971 Delhi 310. 16. Reference may be had to the case of Humayun Begam V/s. Shah Mohammad Khan, AIR 1943 PC 94 and in the case of Autolite Financiers (P) Ltd. V/s. Swaslika Financial Corporation (p) Ltd., AIR 1971 Delhi 310. 16. Thus, in view of the aforesaid well settled principles of law, I am of the opinion that the suit was not barred under the proviso to Sec. 42 of the old Specific Relief Act. In the instant case, the relief sought for was not against the defendants and the relief sought for could not be asked when the partition suit was filed. It is true that the relief sought for in the present suit was sought for in the Misc. Case No. 26 of 1962. But the executing court did not decide that point and left the highly contentious matter to be decided in a regular suit. In the present case, the plaintiffs have not prayed for the final decree passed in the partition suit to be set aside and, in my opinion, it was not necessary for the plaintiffs of the present suit to pray as such. The plaintiffs of the present suit have only sought for relief that the area of the plots in question be corrected and the plaintiffs defendants of the partition suit) he adjusted their share according to the final decree. Thus, I hold that the suit is not barred under Sec. 42 of the old Specific Relief Act and the view taken by the Court of Appeal below is erroneous in law. 17. Then remains the last contention of the learned counsel for the defendants appellants to be considered. The learned counsel has contended that the view taken by the Court of Appeal below that the suit was not maintainable in view of the final decree in partition suit was wrong in law. In my opinion, there is force in this submission of the learned counsel as well. The Court of Appeal below while deciding this point has not taken into consideration the impact of the order passed in Misc. Case No. 26 of 1962 i. e. the order dated 27-4-63 (Ext. 6). In my opinion, there is force in this submission of the learned counsel as well. The Court of Appeal below while deciding this point has not taken into consideration the impact of the order passed in Misc. Case No. 26 of 1962 i. e. the order dated 27-4-63 (Ext. 6). Having been held in the Miscellaneous case that the matter was highly contentious and it could be fought out in a regular suit; in my opinion, the present suit for the relief sought for was maintainable and the final decree in the partition suit was not a bar to the maintainability of the present suit. In my opinion ,view taken by the Court of Appeal below was wholly erroneous in law. 18. Thus, all the submissions advanced by the learned counsel for the appellants succeed. In the result the appeal is allowed. The judgment and decree of the Court of Appeal below are set aside and the case is sent back to the Court of Appeal below for fresh decision, in accordance with law, after hearing the parties, on the materials already on the record. In the circumstances of the case, there will be no order as to costs. 19. However one observation is necessary which must be kept in mind by the Court of Appeal below. If the plaintiffs of the present suit file an application for amendment of the plaint in order to avoid any objection on the part of the defendants of the present suit about the bar of Sec. 42 of the old Specific Relief Act then the Court of Appeal below will dispose of that application, after hearing the parties, on its own merit and if the amendment is allowed then the plaintiff will have to pay ad valorem court-fee thereon. 20. There is yet another observation which should be kept in mind by the Court of Appeal below. The Stamp Reporter of this Court has, by Ms report dated 16-7-1977, reported that the stamp was short by Rs. 181.85 paise for the plaint and Rs. 181.50 paise for the memo of appeal in the Lower Appellate Court i. e. the court-fee was short by Ru-363.35 paise. The Stamp Reporter of this Court has, by Ms report dated 16-7-1977, reported that the stamp was short by Rs. 181.85 paise for the plaint and Rs. 181.50 paise for the memo of appeal in the Lower Appellate Court i. e. the court-fee was short by Ru-363.35 paise. This matter was placed for consideration on 10-11-1982 and by Order No. 24 dated 10-11-1982 this Court ordered that it would be open to the Court hearing the second appeal finally also to consider regarding the payment of court-fee on the plaint and memo of appeal and pass order thereafter. As the matter is being sent back to the Court of Appeal below, the Court of Appeal below shall take into consideration the report of the Stamp Reporter of this Court (a copy of which will be sent separately) and then will decide as to whether the plaintiffs have to pay the court-fee on the plaint and the memo of appeal as demanded by the Stamp Reporter of this Court. The Court of Appeal below before proceeding to hear the parties on merit will decide this question first and if the Court of Appeal below holds that the plaintiffs were liable to pay the deficit court-fee on the plaint and the memo of appeal in the Lower Appellate Court, it shall order the plaintiffs to pay the same within a reasonable time and only on the payment of the same the Court of Appeal below shall proceed to dispose of the appeal on merit in accordance with law.