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1987 DIGILAW 22 (ALL)

Tafazzul Husain v. Nankau Lal

1987-01-07

D.S.BAJPAI

body1987
JUDGMENT D.S. Bajpai J. 1. Second Appeal No.65 of 1987 has been filed by Tafazzul Husain against Nankau Lal and another against the judgment and decree dated 17th December, 1985 passed by the 9th Additional District Judge, Lucknow dismissing the regular civil appeal no. 330 of 1981 and confirming the judgment and decree dated 16.10.1981 passed by the 3rd Additional Munsif, Lucknow in Regular Suit No. 76 of 1979. Second Appeal No. 67 of 1986 has similarly been filed by Tafazzul Husain against the judgment and decree of the 9th Additional District Judge, Lucknow who by a common judgment and decree dismissed regular suit no 331 of 1981 and confirmed the judgment and decree of the 3rd Additional Munsif. Lucknow passed in regular suit no. 120 of 1977. The facts for decision of both the suits were the same and they related to the same property and that is why both these appeals are connected and are being disposed of by a common judgment and order. 2. Briefly stated the facts are that a regular suit no. 120 of 1977 was filed by one Inder Prasad Rastogi, the respondent no. 2 in Second Appeal no. 65 of 1986, for declaration that he was the owner in possession of the house in suit till 20th November, 1970 and that he had a right to transfer by sale the said house in favour of Nankau Lal, respondent no. 1. Nankau Lal, the plaintiff in regular suit no. 76 of 1979 had claimed for possession of the house in suit from Tafazzul Husain and in the alternative it was prayed that incase it was not possible he should be given a decree for realisation of Rs. 4,000 from defendant no. Inder Prasad Rastogi, since he had got the house in suit by registered saledeed dated 20th November, 1970 from Inder Prasad Rastogi. According to the plaint allegations one Sher Ali was the original owner of the house in suit and he had sold the house to one Sadhu alias Sadiq Ali through a registered saledeed dated 24.7.1925. Thereafter Sadhu took a loan of Rs. 150 from one Hira lal Rastogi, the father of Inder Prasad Rastogi on 25 10.1926. According to the plaint allegations one Sher Ali was the original owner of the house in suit and he had sold the house to one Sadhu alias Sadiq Ali through a registered saledeed dated 24.7.1925. Thereafter Sadhu took a loan of Rs. 150 from one Hira lal Rastogi, the father of Inder Prasad Rastogi on 25 10.1926. Thereafter he executed a deed of possessory mortgage in favour of Hira Lal Rastogi and handed over the possession of the house to Hira Lal Rastogi and since Sadhu alias Sadiq Ali was living at that time in the house in suit he executed a rent note in favour of Hira Lal Rastogi for payment off rent at the rate of Rs. 3 per month. Sadhu could not pay the amount of mortgage and subsequently on 19th April, 1927 he took a further loan of Rs. 50 from Hira Lal Rastogi and executed another mortgage deed in favour of Hira Lal Rastogi. Finally a saledeed was executed by Sadhu in favour of Hira Lal Rastogi for a total consideration of Rs. 488 and Hira Lal Rastogi became the owner of the house in his capacity as head of the joint Hindu family of which he was Karta. This registered saledeed is dated 19th July, 1932. thereafter continued to pay the rent regularly to Hira Lal Rastogi till he died in the year 1953. Thereafter Inder Prasad Ristogi, defendant no. 2 became the Karta of the joint Hindu family and on 1st July, 1968 there was a partition between Inder Prasad Rastogi and Gaya Prasad Rastogi in which Inder Prasad Rastogi became the owner of the house since the said house fill in his share. The new owner Inder Prasad Rastogi filed a Civil Suit No. 434 of 1970 for realisation of rent and ejectment against Tafazzul Husain after terminating his tenancy. During the pendency of this suit the defendant no. 2,Indejr Prasad Rastogi, executed a registered saledeed dated 20th November, 1970 in favour of Nankau Lal in respect of the house in suit and Nankau Lal became a party in suit no. 434 of 1970. The suit was contested and it was dismissed on 18th October, 1976 and the revision preferred thereafter was also dismissed on the finding that Inder Prasad Rastogi was not the lessor of Tafazzul Husain and that there was no relationship of landlord and tenant between the parties. 434 of 1970. The suit was contested and it was dismissed on 18th October, 1976 and the revision preferred thereafter was also dismissed on the finding that Inder Prasad Rastogi was not the lessor of Tafazzul Husain and that there was no relationship of landlord and tenant between the parties. A plea that has been urged before this Court is that the finding recorded in the said suit was resjudicate and the courts below have erred in decreeing the two suits. The trial court having decreed the two suits one for declaration and the other for possession, and the appeals arising out of the two suits having been dismissed, the second appeal has been pressed only on the point of resjudicata and the learned counsel for the appellant has not assailed the findings of fact which are concurrent findings of fact. I find no error in the findings which have been confirmed by the lower appellate court on a thorough examination of evidence brought on record and the courts below have rightly held that Inder Prasad Rastogi had the right and power to transfer the suit property to Nankau Lal who was entitled to possession of the house in suit. 3. I have heard learned counsel for the parties at some length and perused the lower court record and also considered the case law cited before me. To attract the principle of resjudicata it is necessary that the matter directly and subtenant ally in issue had been directly and substantially in issue in a former suit between the same parties, or between the 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 & finally decided by such court and cannot be tried and decided in the subsequent suit. The question here is assuming that all ingredients of the provisions of Section 11 of the Code of Civil Procedure are attracted, the most important ingredient that the point raised in the subsequent suit should have been heard and finally decided in the previous suit is missing in as much as the only issue before the small causes court was regarding relationship of landlord and tenant between the parties and not regarding the title of the plaintiff. This is also an equally well settled principle that small causes court does not have the power and jurisdiction to enter into the title of the parties and record a finding thereon and in fact neither the question of title was before the small causes court in suit no. 434 of 1970 nor could it be considered and raised before that court The enquiry before the small causes court was a limited one and that enquiry was only to th.3 effect as to whether any contract . of tenancy was entered into between the parties and the plea taken was that since the defendent Tafazzul Husain never came to know about Nankau Lal having become the landlord he was not entitled to pay arrears of rent to him and as such he was not entitled to ejectment and on consideration of this plea the suit was dismissed. I, therefore, hold that the principle of res judicata on facts indicated in the pleadings of the parties as also in the judgment of the Small Causes Court cannot be sustained. The learned counsel has relied on a decision of their Lordships of the Supreme court in Associated Cement Staff Union v. Associated Cement Co. ( AIR 1964 SC 914 ) which was a matter under the Industrial Disputes Act and in which their Lordships did not lay down any rule of law by which it could be said that even if the matter in issue was not similar in the previous suit it could operate as resjudicate in the subsequent suit. He next placed reliance on a Full Bench decision of the Kerala High Court in Koran v. Kamla Shetty (AIR 1978 Kerala 172) in which it has been held that the principle of finality or conclusiveness of a prior decision on the general principle of resjudicate is applicable even to quasijudicial bodies like Land Tribunals functioning under the Kerala Land Reforms Act. There is no gainsaying the fact that this general rule of law applied but here in the case in hand the question of title of Inder Prasad or Nankau Lal not having been involved in the S.C.C. suit the Full Bench decision is not applicable. 4. No other point has been urged. The appeals are dismissed with costs, and the decrees of the court below confirmed. 4. No other point has been urged. The appeals are dismissed with costs, and the decrees of the court below confirmed. Learned counsel for the appellant urged that in any case the appellant, Tafazzul Husain may be given some time to vacate she premises. Learned counsel for the respondent has strongly opposed this prayer on the ground that the appellant is occupying the premises without paying any rent since 1.1.1968 and that he was not entitled to any indulgence. In the interest of justice I, however, grant one month's time to the appellant, Tafazzul Husain to vacate the premises and hand over its possession peacefully to the respondent Nankau Lal. (Appeals Dismissed)