Bibi Naseema Khanam v. Bhagwan Prasad Sah — 1998 DIGILAW 150 (PAT)

Judgment R.N.Sahay, J. 1. This revision application has been preferred by the defendant (1st set) in a suit for declaration of title and consequential reliefs against the order of the trial Court dismissing the petitioners application questioning the jurisdiction of the Court on the ground that the suit in question was barred by res judicata. 2. In order to decide whether the trial Court has committed an error of jurisdiction as contended by the learned Counsel for the petitioner, it would be necessary to bring on record the salient facts of the case. Petitioner Bibi Naseema Khanam, who is defendant 1st set in the present title suit, had. brought Title partition Suit No. 33/1968 before the Subordinate Judge, Munger claiming one-sixth share in the suit property. On 19.9.1973 partition suit was decreed ex-parte and no appeal was preferred against the decree. Some of the defendants including one Sarju Singh, who had not appeared and contested the suit filed application under Order IX, Rule 13 C.P.C. for setting aside the ex-parte decree but the application was dismissed. An appeal against that order was also dismissed. 3. Sarju Singh filed a Civil Revision against the appellate Order before this Court bearing C.R. No. 1404/83. The revision application filed by Sarju Singh was dismissed by this Court. However, the learned Judge who disposed of the revision application without issuing any direction made the following observations: The petitioners only anxiety is that by this partition he may be dislodged from the house in which he is living. Needless to say that any Court at the drawing of the final decree will remember that on partition, subject to equitable adjustment, each party has to retain the property in his possession. The apprehension is, therefore, not well founded. 4. It appears that after the decree was passed the plaintiff in the present suit purchased 10 kathas land pertaining to plot No. 501 of Khata No. 27 of Mouza Murade Tola Khajechak P.O. and P.S. Kharagpur, District Munger which was one of the subject matters of the partition suit referred to above from defendants 14, 15 and 16. The purchasers did not get themselves impleaded in the Execution case. Sarjug Singh continued to be party in the Execution case. Final decree was prepared on 14.12.1984 on the report of the Pleader Commissioner. The remaining defendants including vendors of present plaintiff were allotted their share. The purchasers did not get themselves impleaded in the Execution case. Sarjug Singh continued to be party in the Execution case. Final decree was prepared on 14.12.1984 on the report of the Pleader Commissioner. The remaining defendants including vendors of present plaintiff were allotted their share. It appears that the vendors of the present plaintiff filed an application before the Executing Court on 12.6.1989 i.e. after final decree was given effect that the takhta allotted to the said defendant be allotted to the present plaintiff in view of the fact that they have purchased their share during the pendency of the partition suit. 5. It is contended on behalf of the petitioner that takhta was allotted to the plaintiff and no grievance was made at that time. As stated earlier observations were made by this Court in Civil revision application filed by Sarjug Singh. The grievance of the plaintiff was that the Executing Court had not kept in mind the observations made by the Court referred to above. The plaintiff filed revision application before this Court which was summarily dismissed on 24.10.1989. Thereafter the present application has been filed for declaration. As the plaintiff was the owner of the described property of Schedule I (4 bighas 3 Kathas 11 dhurs and 16 dhurki in plot No. 501) situated in village Mouza Murade. 6. The cause of action as alleged is dated 20.10.1974. In para-6 of the plaint of the present suit it is mentioned: That the plaintiff of the aforesaid T.S. No. 33/68 filed T.E. No. 5/87 for delivery of possession as detailed in Schedule No. 1 of his execution petition. In this execution the judgment debtor No. 15 and 16 sons of the aforesaid Kartik Singh filed a petition to the effect that he has sold his interest to Bhagwan Sah and Mukund Sah. Mukund Sah had died and so the aforesaid judgment debtor Nos. 15 and 16 Shib Narain Singh and Sarjug Singh submitted that the aforesaid Bhagwan Sah and heirs of Mukund Sao to whom he has sold his interest and who are in possession of his interest should not be disturbed while the decree was executed. Defendant No. 1 objected the aforesaid petition of aforesaid Shib Narain Singh and Sarjug Singh. 15 and 16 Shib Narain Singh and Sarjug Singh submitted that the aforesaid Bhagwan Sah and heirs of Mukund Sao to whom he has sold his interest and who are in possession of his interest should not be disturbed while the decree was executed. Defendant No. 1 objected the aforesaid petition of aforesaid Shib Narain Singh and Sarjug Singh. This matter has been disposed off on 29.4.88 by this Court in which it has been made clear that the decree holder have not denied the facts that the judgment debtor Nos. 15 and 16 have transferred his interest to the person stated above. The fact is that the purchasers are in possession have also not been denied. Moreover Hon ble High Court in civil revision No. 1404/83 has very clearly directed that the party in possession has to retain the portion in his possession. This learned Court directed by the said order dated 29.4.88 that the pleader commissioner affecting the decree for partition be directed to take the above facts allotting patti. The purchasers from judgment debtor Nos. 15 and 16 are not to be disturbed in their possession and the portion in their possession shall be allotted in the patti of judgment debtor Nos. 15 and 16. As the transferee have stepped into the shoes of judgment debtor Nos. 15 and 16, the patti of judgment debtor Nos. 15 and 16 shall be deemed to be the patti of purchaser. The petition filed by the decree holder, now defendant No. 1 was held not maintainable in the eye of law and was rejected. 7. It appears from the plain reading of the above paragraph that the whole suit is based on the observations made in C.R. No. 1404/83. The petitioner also came to this Court submitting that the executing Court had not given due weight to the observation made by this Court. 8. In the light of these facts, question for consideration is whether the principle of res judicata under Sec. 11 C.P.C. is applicable in the facts and circumstances of the case. 9. In this connection, condition II of Sec. 11 C.P.C. for application of res judicata is that the parties or privies under whom any of them claim. This condition is the principle that judgments and decrees bind only parties and privies. 9. In this connection, condition II of Sec. 11 C.P.C. for application of res judicata is that the parties or privies under whom any of them claim. This condition is the principle that judgments and decrees bind only parties and privies. A privy is a convenient term of English Law to describe a person who claims under a party. Latham, J. in a case decided in Bombay High Court Ahmedbhoy V/s. Vullsebhoy (1982) 6 Bom. 703 held classified persons other than parties as (1) privies, (ii) persons not claiming under parties but represented by them and (iii) strangers. 10. In the instant case, the plaintiffs were privies. They were claiming through one of the defendants in previous partition suit. To make a person a privy he must have acquired an interest in the subject matter of action by inheritance, succession or purchase subsequently to the action or he must hold the property subordinately, e.g. as a sub-leases. 11. Here the decree in the previous suit become final. It is well settled that in absence of fraud a final adjudication cannot be made. 12. Under Sec. 44 of the Indian Evidence Act, any party to a suit show that any judgment or decree which is relevant under Secs. 40, 41 or 42 of the Act was obtained by fraud or collusion. That is not the case here. 13. In Talluri Venkata Seshayya V/s. Thadikonda Kotiswara Rao, A.I.R. 1937 Privy Council 1, suit was filed in 1891 by two persons claiming five temples at Vellatur to be public temples and praying for removal of the defendants from the office of Dharmakarta. The main defence was that the temples and lands were private property and were not covered by Sec. 18 of the Religious Endowments Act. The suit was dismissed by the District Judge holding that the temples were private and that the lands were a private foundation and that Act 20 of 1863 did not apply. Appeal preferred against the said decree was dismissed by the High Court of Madras. Subsequently, another suit was filed against the persons who were also the parties in the previous suit, again for a declaration that some of the properties were subject matter of the previous suit relating to public trust. 14. The matter in issue in both the suits were subsequently the same. Subsequently, another suit was filed against the persons who were also the parties in the previous suit, again for a declaration that some of the properties were subject matter of the previous suit relating to public trust. 14. The matter in issue in both the suits were subsequently the same. The plaintiff of later suit contended that the previous suit was not a bona fide litigation; that it was brought by the plaintiffs in collusion with the defendants; that there was gross negligence in the plaintiffs conduct of the suit; and that accordingly it could not form res judicata against the present plaintiffs. The subsequent suit was decreed by the subordinate Judge rejecting the plea of res judicata advanced by the defendants on the ground that the plaintiffs in the suit of 1891 was guilty of gross negligence in the conduct of the proceedings before the Courts and, therefore, the decision in such a suit could not bind the present plaintiffs or the worshippers at large. The High Court reversed the decree of the subordinate Judge. In both the Courts the principles relating to negligent conduct of a former litigation by a guardian in the name of a minor were accepted as applicable to the case of the parties litigating on behalf of the public interest. 15. Privy Council observed that protection of minors against the negligent acting of their guardians is a special one and in these cases the plaintiff in the second suit was also the plaintiff in the former suit, although in the earlier suit he or she had sued through a guardian. Their Lordships held that principle of Sec. 44 Evidence Act can be extended to cases of gross negligence. Their Lordships observed the provisions of Sec. 11, Civil P.C. are mandatory, and the ordinary litigant, who claims under one of the parties to the former suit can only avoid its provisions by taking advantage of Sec. 44, Evidence Act, which defines with precision the grounds of such avoidance as fraud or collusion. It is not for the Court to treat negligence or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts, under Sec. 11, Expln. It is not for the Court to treat negligence or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts, under Sec. 11, Expln. 6 Civil P.C. the plaintiffs in the present suit are deemed to be claiming under the plaintiffs in the 1891 suit and again the statute defines a condition as necessary to the applicability of the section, namely that the plaintiffs of 1891 litigated bona fide". Second suit was founded on the ground that the plaintiffs of the earlier suit had not produced certain documents. If those documents were filed, the result would have been different. It was held that the subsequent suit was barred by res judicate. 16. In the instant case the subordinate Judge held that the suit was not barred by res judicata because the executing Court had not obeyed the direction of High Court. The Subordinate Judge has not considered the question whether the decree had become final and then what would be the effect of that finality in a subsequent suit. The decree which has become final can only be challenged on the ground of fraud or on the ground that the decree was not binding on the parties challenging the decree. In the instant case, the purchasers who are plaintiffs in the suit had intervened in the execution proceeding and their objection was rejected. The observation of the High Court was not given effect to by the executing Court and the aggrieved party had right to come to this Court. This fact had not been considered by the learned Subordinate Judge. Learned Counsel for the petitioner submitted that the decree was challenged also on other grounds which has not been considered by the learned subordinate Judge. 17. In my view, the order of the Subordinate Judge is not in accordance with law. He has not considered the pertinent question i.e. the finality of the order of the executing Court. However, there is other ground also on which the suit is founded and the suit can proceed. 18. This revision application is accordingly allowed and the order of the Subordinate Judge I, Munger is set aside and he is directed to reconsider the matter afresh within two months of receipt of this order. The Subordinate Judge will keep in mind that he will deal with only legal question with regard to res judicata. 18. This revision application is accordingly allowed and the order of the Subordinate Judge I, Munger is set aside and he is directed to reconsider the matter afresh within two months of receipt of this order. The Subordinate Judge will keep in mind that he will deal with only legal question with regard to res judicata. It is, however, made clear that I have not made any observation on the merits of the case. No costs.