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1989 DIGILAW 5 (PAT)

Lachman Kaur v. Gopal Sanyal

1989-01-04

S.B.SINHA

body1989
JUDGMENT S. B. Sinha, J.- This is an appeal arising out of a judgment and decree dated 4.1.1983 passed by Sri Nawal Kishore Prasad, No.2, Second Additional District Judge, Dhanbad in Title Appeal. No. 125 of 1978, whereby and where under the said learned court dismissed the said appeal and affirmed the judgment and decree dated 16.8.1978 passed by Sri Sobha Kant Pathak, Munsif, Second Court, Dhanbad in Title Suit No. 180/23 of 1977-78 dismissing the plaintiffs-appellants suit. 2. The facts of the case are not much in dispute. The plaintiffs who are the appellants in this appeal filed the aforementioned suit for a declaration of their title with regard to the suit premises. According to the plaintiffs they purchased the suit land from one Sumerendra Nath Gupta by virtue of a sale deed dated 22.2.1969. It is the further case of plaintiffs that father of their vendor acquired the said property from one Mochal Mahto who in turn purchased the same by reason of a deed of sale dated 26.7.1942 from Mochal Mahato, Tilak Mahato and Sundari Mahatani. 3. It is admitted that the defendant-respondent, had earlier instituted a suit against the appellant no. 1 for eviction on the ground that the appellant no. 1 was his tenant and she had defaulted in payment of rent. The said suit was marked as Title Suit No. 656 of 1965. It is further admitted that in the said suit appellant no.1 denied the relationship of landlord and set up title in respect of the premises in suit in herself. 4. The said suit was decreed. The appellant no.1 preferred an appeal from the said decree which was also dismissed. Thereafter, the present suit was filed. Both, the courts' below dismissed the plaintiffs suit, inter alia, on the ground that the suit is barred under the principles of res judicata. It may be mentioned here that the defendant bases his title on a deed of sale dated 19. 2. 1946 executed by Machal Mahato who was also a party to the aforementioned deed of sale dated 26.2.1942. 5. At the time of admission, the foIlowing substantial question of law was formulated :- "Whether the non-consideration of the fact that the predecessor in interest of the appellants had purchased the property in 1942. 2. 1946 executed by Machal Mahato who was also a party to the aforementioned deed of sale dated 26.2.1942. 5. At the time of admission, the foIlowing substantial question of law was formulated :- "Whether the non-consideration of the fact that the predecessor in interest of the appellants had purchased the property in 1942. whereas one of the vendors of the predecessor in interest of the appellants had transferred the property in 1944 to the respondents, has vitiated the finding of the court below." 6. It may be mentioned that figure 1944' has wrongly been mentioned in the aforementioned substantial question of law which should be 1946. 7. Mr. Debi Prasad, learned counsel appearing on behalf of the appellant submitted that in the facts and circumstances of the case, another substantial question of law would arise for consideration in this appeal which is in the following terms :- "Whether the judgment and decree passed in Title Appeal No. 656 of 1965 having been rendered in a suit for eviction under the provisions of Bihar Buildings (Lease Rent & Eviction) Control Act, the suit hid by the plaintiffs will be barred under the principle of res judicata inasmuch as in the said suit the plaintiffs-appellants' bad prayed for a declaration of title." 8. Mr. Prasad, submitted that the earlier suit was a pure suit for eviction, and, in that view of the matter therein the question of title could have been gone into only incidentally; whereas the present suit being a suit for declaration of title the question with regard to the title was required to be gone into this case, and, in that view of the matter, the judgment and decree passed in the earlier suit shall not operate as res judicata so far the present suit filed by the plaintiff is concerned. True, it is that in certain circumstances, the question of title in an eviction suit is gone into merely incidentally i.e. only for the purpose of finding out as to whether their existed a relationship of landlord and tenant or not. 9. True, it is that in certain circumstances, the question of title in an eviction suit is gone into merely incidentally i.e. only for the purpose of finding out as to whether their existed a relationship of landlord and tenant or not. 9. However, in the instant case, the plaintiff-appellant no.1, who was defendant in the aforementioned Title Suit No.656 of 1965 not only set up a title in herself but also contended that she had been in possession of the suit land by reason of an agreement in sale executed in her favour by the real owner in the year 1964. In the said suit, she further contended that she constructed the building in question. In the earlier suit, the deed of sale dated 20th February, 1969 on the basis whereof the present suit has been filed was also proved and marked as Annexure (c) therein. 10. The learned courts below took all these facts into consideration and come to the conclusion that the question of title of the defendants-respondents vis-a-vis the plaintiff-appellant No.1 was directly and substantially in issue in the aforementioned Title Suit No.656 of 1965. 11. In view of the fact that in the earlier suit also the plaintiff no. 1 claimed title on the basis of the deed of sale dated 20th February, 1969 which was obtained during the pendency thereof, in my opinion, it must be held that the parties have been litigating under the same title. 12. Further, the very fact that the plaintiffs had full knowledge about the source of the title so far as defendant no. 1 is concerned, she could and ought to have brought to the notice of the court that the defendant respondent did not acquire any title in respect of the property in suit in view of the fact that Machal Mahato had already transferred his interest in respect of the property in suit by reason of the aforementioned deed of sale dated 26.2.1942, and as such he had not subsisting interest to convey while he executed the deed of sale dated 19.2.1946 in favour of Rafaquat Hussain. It is, thus, evident that the plea of defect in the title of the defendant-respondents of this case, could and ought to have been raised by the plaintiff-appellant no. 1 in the present case in the earlier suit. It is, thus, evident that the plea of defect in the title of the defendant-respondents of this case, could and ought to have been raised by the plaintiff-appellant no. 1 in the present case in the earlier suit. The issue which (is sought to be raised at this stage would therefore be barred under the principles of constructive res judicata as enshrined under Explanation IV appended to section 11 of the Code of Civil Procedure. 13. Further, the suit was filed by the plaintiffs-appellants on 7.12.1977 i.e. after coming into the force of Code of Civil Procedure (Amendment) Act, 1976. By reason of the said amendment Explanation VIII to section 11 of the Code of Civil Procedure was inserted. Even if, it be held that the Court while passing a decree in Title Suit no.656 of 1965 was exercising a limited jurisdiction, decision in an issue rendered by it shall also operate as res Judicata in view of the aforementioned provisions. 14. It is now well settled by reason of various decisions of this Court that an issue of title can be gone into even in a suit for eviction filed under the provisions of Bihar Buildings (Lease, Rent & Eviction) Control Act. It has been held by this Court repeatedly that in such a suit also the plaintiff may be found to be entitled to obtain a decree for eviction on the basis of his general title when he fails to establish the relationship of landlord and tenant. 15. However, in the instant case, the plaintiff no.I was found to be a tenant under the defendants-respondents in the aforementioned Title Suit No.656/65. In that view of the matter the plaintiffs could not have challenged the defendant-respondent without delivering the possession of the tenanted premises in favour of the landlord as is required under Section 116 of the Evidence Act. Taking into consideration, the case from all its ramifications, I am of the view that the judgment and decree passed by learned courts below can not be assailed. 16. In view of my aforementioned finding that the present suit is barred under the principles of res judicata, in my opinion, first substantial question of law formulated at the time of admission does not arise fur consideration. 17. 16. In view of my aforementioned finding that the present suit is barred under the principles of res judicata, in my opinion, first substantial question of law formulated at the time of admission does not arise fur consideration. 17. However, before parting with the case, it may be mentioned that had this plea been raised by the present plaintiffs in the earlier suit being Title Suit No. 656 of 1965, it would have been open to the defendants-respondents who were plaintiffs in the said suit to contend that the predecessor in interest of the plaintiffs have lost their title as the defendants-respondents had been in possession of the land in suit for a period of more than 12 years, and, thus acquired title by prescription. 18. In this view of the matter the question of law formulated at the time of admission is not relevant to be considered in the instant case. 19. In the result, there is no merit in this appeal, which is accordingly dismissed with costs.