Research › Search › Judgment

Madras High Court · body

2001 DIGILAW 516 (MAD)

C. A. Khabeer v. Abdul Mubeen and others

2001-04-23

PRABHA SRIDEVAN

body2001
Judgment : The 4th defendant is the petitioner and appellant. The respondents herein are the plaintiffs who filed O.S.No.5115 of 2000 for partition. The petitioner is in possession of the suit property and therefore, the respondents filed I.A.No.17084 of 2000 for interim injunction restraining the respondent from altering the physical feature of the property or putting up any construction etc. Injunction was granted. Against that the civil miscellaneous appeal has been filed. 2. The petitioner on the other hand filed I.A.Nos.17817 and 17818 of 2000 to decide the preliminary issue and for direction to furnish security for payment of all costs. Against the order deciding the preliminary issue, the civil revision petition has been filed. 3. The respondents are the children and the legal heirs of the paternal uncle of the petitioner. The suit property originally to one Ghulam Hussain who is the grandfather of the petitioner herein. According to the petitioner, the parties and the matters in issue and the property in the present suit were the same as that in O.S.No.7158 of 1981 and A.S.No.577 of 1985 between the same parties and the title to the suit property had been declared in favour of the petitioner in and by order dated 21.7.1976 in H.R.C.No.761 of 1975 between the respondent and the petitioners herein, the petitioners were directed to have their title declared in a Civil Court and they had not done so until 2000 which is the year of the suit. The suit itself is barred by limitation. It was also the petitioners case that in O.S.No.7158 of 1981 the title of the petitioner was declared and therefore, the present suit is barred by res judicata and the petitioner prayed that the question of res judicata and limitation should be tried as a preliminary issue. The Court below considered the application and came to the conclusion that the suit was neither hit by res judicata nor was barred by limitation and dismissed. I.A.No.17818 of 2000 and granted interim injunction. 4. Mr.C.A.Khabeer, who appeared as party in person referred to various decisions. • (1) Padmini Bai v. Tangavva and others Padmini Bai v. Tangavva and others Padmini Bai v. Tangavva and others (1979)4 S.C.C. 486 in which it was held that when a son holds land exclusively and in open possession adversely to his sister for more than 12 years, the son acquired ownership by prescription. • (1) Padmini Bai v. Tangavva and others Padmini Bai v. Tangavva and others Padmini Bai v. Tangavva and others (1979)4 S.C.C. 486 in which it was held that when a son holds land exclusively and in open possession adversely to his sister for more than 12 years, the son acquired ownership by prescription. • (2) Minor Ibramsa Rowther and others v. Sheik Moerasa Rowther and others Minor Ibramsa Rowther and others v. Sheik Moerasa Rowther and others Minor Ibramsa Rowther and others v. Sheik Moerasa Rowther and others , (1972)1 MLJ. 466 which arose out of a partition suit in a Muslim family and the plaintiff had instituted a suit for partition after 30 years of the death of the father, the Court held that an adverse inference has to be drawn against the plaintiff for the inordinate delay and the Division Bench which decided this case also held that, “if a co-owner does not assert his rights for a considerable length of time with the result that the other side is handicapped, by lapse of time and disappearance of evidence, from proving that his exclusive possession was coupled with the open denial and open repudiation of the title of the other co-owner either at the inception or subsequently, the co-owner who has been inactive must take the consequence for the long delay.” • (3) The Privy Council in Kalipada De and others v. Dwijapada Das and others Kalipada De and others v. Dwijapada Das and others Kalipada De and others v. Dwijapada Das and others A.I.R. 1930 P.C. 22 which deals with the question of res judicata, held that where a question of relationship of parties had been decided in a previous probate proceeding, a subsequent suit between the same parties involving the same question is barred. 5. The party also took great pains in reading from the pleadings and the other documents and also the counter filed in H.R.C.No.761 of 1975. C.M.P.No.2601 of 2001 was also filed for receiving additional documents which include property tax demand, tax payment receipt, Notice for ULT demand etc. He relied on the decision reported in Ishwardas v. The State of Madhya Pradesh A.I.R. 1979 S.C. 551 where the Supreme Court held that “in order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. He relied on the decision reported in Ishwardas v. The State of Madhya Pradesh A.I.R. 1979 S.C. 551 where the Supreme Court held that “in order to sustain the plea of res judicata it is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them, claim. Once the questions at issue in the two suits are found to be the same, the fact that the material which lead to the decision in the earlier suit was not again placed before the Court in the second suit cannot make the slightest difference. The plea of res judicata may be sustained.” 6. Then the decision reported in Isher Singh v. Sarwan Singh A.I.R. 1965 S.C. 948 was referred to which was again on the question of res judicata. 7. Mr.Hameed Mohideen, learned counsel for the respondent on the other hand referred to the judgment in A.S.No.577 of 1985 wherein he pointed out to the following para: “In this case, we are not called upon to decide as to who is the present owner of the suit property. In a regularly framed suit, where we are all the necessary parties are added, such a question has to be decided.” and said that in the earlier suit the title was not in issue and in any event that was a suit for declaration that the petitioner was a landlord within the meaning of the Tamil Nadu Buildings (Lease and Rent Control) Act. The learned counsel submitted that even if the title of the petitioner had been declared in the suit, it was only to the limited extent of establishing his right as a landlord under the Rent Control Act. So it will not operate as res judicata in a partition suit. He also referred to the following para in “Where Ghulam Hussain had any other property and whether his properties were divided among his heirs, and the other details of partition are not available in this suit. 8. Theparty in person had submitted that Abdul Razack, the predecessor of the respondent had been found to be his tenant in the previous proceedings which itself would militate against his right as a co-sharer. 8. Theparty in person had submitted that Abdul Razack, the predecessor of the respondent had been found to be his tenant in the previous proceedings which itself would militate against his right as a co-sharer. If Abdul Razack himself was not a co-sharer his successors can definitely not claim a share in a partition suit. To the submission made by the petitioner that Abdul Razack was only a tenant, the learned counsel for the respondents referred to the following para; “Thus the counter-foils in Ex.A-19 clearly indicate the plaintiff was collecting rents from Abdul Razack till a particular time and that the plaintiff was collecting rents from first defendant thereafter for the suit property.” and submitted that it was not a finding to operate as res judicata. He also referred to the following extracts in the judgment. “On the other hand, the very fact that Abdul Razack himself paid rents to the plaintiff for the suit property, as indicated in Exs.B-12 to B-21, will clearly indicate that Abdul Razack could not have been the owner of the suit property. 9. Thelearned counsel referred to the following decisions: • (1) Mohinder Singh v. Kashmira Singh A.I.R. 1985 P. and H. 215 wherein it was held that there is no partition, limitation which suits for possession on the basis of inheritance. • (2) Karbalai Begum v. Mohd. Sayeed and another Karbalai Begum v. Mohd. Sayeed and another Karbalai Begum v. Mohd. Sayeed and another A.I.R. 1931 S.C. 77 this was relied on to show that non-participation by co-sharers in rent and profits is immaterial to answer the petitioners submission that since he alone had collected the rents and was the” landlord“. He alone was the exclusive owner. (3) P.Sunderasan v. P.Venkatesiah P.Sunderasan v. P.Venkatesiah P.Sunderasan v. P.Venkatesiah (1948)2 MLJ. 431 for the proposition that an order passed without jurisdiction in an earlier stage of the proceedings was not res judicata in a subsequent proceedings. • (4) R.J.Mehta & Co. v. Prootam Singh R.J.Mehta & Co. v. Prootam Singh R.J.Mehta & Co. v. Prootam Singh (1979)2 MLJ. 19 was relied on for the manner in which the Court have directed the principle of res judicata to be applied. • (5) Murugan Naicker v. M. Sadayappa Naicker A.I.R. 1997 Mad. • (4) R.J.Mehta & Co. v. Prootam Singh R.J.Mehta & Co. v. Prootam Singh R.J.Mehta & Co. v. Prootam Singh (1979)2 MLJ. 19 was relied on for the manner in which the Court have directed the principle of res judicata to be applied. • (5) Murugan Naicker v. M. Sadayappa Naicker A.I.R. 1997 Mad. 4 was relied on that when the defendant was not a party to the earlier suit for injunction the subsequent suit was not res judicata. • (6) Karthian Kone v. Baghyathammal 82 L.W. 425 in which it was held that even if a finding adverse to a party had been arrived at in an earlier suit if that finding is not necessary for the disposal of the suit and it is not made the basis of the decree which is given in spite of it, that matter cannot be said to have bene substantially in issue between the parties and such finding would be more in the nature of obiter dicta. • (7) Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai (2000)3 MLJ. (S.C.( 78: (2000)6 S.C.C. 301 in which the Supreme Court held that, “It is the decision on an issue and not mere finding that is res judicata.” • (8) Pappammal v. Swamikannu Padayachi and others Pappammal v. Swamikannu Padayachi and others Pappammal v. Swamikannu Padayachi and others (1987)2 MLJ. 306 in which the learned Judge of our Court has held as follows: “Whether the will relied upon by the plaintiff was geneuine or not, was not in issue in th former proceeding, nor was it heard and finally decided by the Court. A mere expression of opinion in a judgment of an obiter dictum will not have the effect of res judicata.” So the learned counsel for the respondent submitted that the decision of the Court below was perfectly correct. 10. The application has been filed underO.14, Rule 2, C.P.C. This reads as follows: “2.2 Court to pronounce judgment on all issues: • (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. 10. The application has been filed underO.14, Rule 2, C.P.C. This reads as follows: “2.2 Court to pronounce judgment on all issues: • (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of Sub-rule (2), pronounce judgment on all issues. • (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, it it thinks fit, postpone the settlement of the order issues until after that issue has been determined, and may deal with the suit in accordance with the decision on their issue.” Therefore, even if a case can be disposed of on a preliminary issue the Court must, subject to the provisions of Sub-rule (2), pronounce judgments on all issues, Sub-rule (2) provides that when both issues of law and fact arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on a issue of law only it may try that issue first if that issue relates to the two contingencies specified inO.14, Rule 2(2)(a) and (b). Therefore, the Court may try the preliminary issues: (1) if it is an issue of law only and (2) if it may dispose of the entire suit or any part thereto. Even here a discretion is again to the Court because the Court is called upon to give judgment on all issues. A perusal of the judgment of the Court below shows that several exhibits had been marked and the Court had gone through the same to arrive at the conclusion that the suit was not barred by res judicata. The following paragraphs may be extracted: “In that petition the present respondent and the present petitioners were respondents. In that H.R.C.O.P. thenlearned Rent Controller held that there was bona fide dispute as to title between the rival claimants. The following paragraphs may be extracted: “In that petition the present respondent and the present petitioners were respondents. In that H.R.C.O.P. thenlearned Rent Controller held that there was bona fide dispute as to title between the rival claimants. Hence, the tenant was permitted to deposit rent into Court till the parties get their title declared by the competent Civil Court and which prompted the present respondents to file a suit on O.S.No.7158 of 1981 on the file of the City Civil Court, Madras arraying the then tenant one Hussain as the first defendant and one Fathimunnia and one Kareemunniza as the defendants 2 and 3. 11. From these paragraphs it is seen that the decision on the issue to res judicata was not purely of law but even on facts. The Court below has gone through Ex.R-9 and come to the conclusion that by no stretch of imagination can it be considered as a deed of partition. He has gone into a lengthy discussion about the effect of Ex.R-9 as to whether it would strengthen the case of the petitioner or not. He has read Ex.P-1 with Ex.R-9 to arrive at the finding that till the date of the Ex.R-9 there was no partition at all. “I do not find any other documents after Ex.R-9 so as to hold that the authorised sharer Abdul Jaleel effected partition between the sharers. The other documents such as patta issued by the Revenue Authorities in the name of respondents ancestor and various demands for payment of taxes issued by the authorities would not be of any help to decide the question of titles as it is a settled law that the mere entries of revenue records and municipal records are not conclusive documents of title. Hence, at this stage of the case such revenue records and the proceedings of the local bodies cannot be made use of for the purpose of deciding the question as to whether there was a partition in the family of the parties before us. Hence, I am of the view that from Ex.P-1 and R-9 and from the petition averments that the petitioners have made out a prima facie case that the petition property is the joint property of the plaintiffs and the defendants and that the respondent has been in effective management of the same on behalf of other sharers. Hence, I am of the view that from Ex.P-1 and R-9 and from the petition averments that the petitioners have made out a prima facie case that the petition property is the joint property of the plaintiffs and the defendants and that the respondent has been in effective management of the same on behalf of other sharers. On the contrary as I have already stated there is nothing on records to prima facie hold that the respondent alone is the absolute owner of the petition mentioned property”. Further the Court below had also rendered a finding that there is nothing on record to show that the respondent alone is the absolute owner of the petitioner mentioned property on the basis of entries in revenue records, municipal records etc. A bare reading of the judgment of the Court below makes it clear that the Court below rejected the case of the petitioner that the present suit was barred by res judicata and barred by limitation not as a purely legal issue but also on the basis of factual findings. The Court has further proceeded to decide whether the suit property was capable of partition as to whether there was a partition prior to Ex.R-9 and whether the petitioner was the absolute owner of the suit property. It must be remembered here that the petitioner in his written statement apart from raising the question of res judicata and limitation has also claimed that he had perfected title to the suit property by adverse possession. It was not open to the Court below to render a finding on all issues without the benefit of oral and documentary evidence. The Court has exceeded its jurisdiction and given its finding on issues which have to be decided only after evidence is recorded. The reading of the judgment shows he has virtually decided the case in favour of the respondent and as regards the partible nature of the property and it was not open to the Court to do so. In fact, once it is seen that these issues could not be decided as a pure question of law, the Court ought not to have decided the preliminary issue but ought to have given a judgment on all issues. I am therefore, setting aside the findings rendered by the Court below on all the issues including that of res judicata and limitation. I am therefore, setting aside the findings rendered by the Court below on all the issues including that of res judicata and limitation. The Interlocutory Application is remitted back to the Court below. The Court shall consider the issue of res judicata and limitation along with the other issues after a proper trial. The civil revision petition is therefore, allowed to this extent. 12. In the civil miscellaneous appeal against the order of injunction, it is the respondents claim that they have a share in the suit property and the Court below was prima facie satisfied that they have made out a case, regarding its aspect. Therefore, the C.M.A. is dismissed. 13. In view of the fact that the matter has been pending for a long time I direct the Court below to take up the suit for trial and dispose of the same within 6 months from the date of receipt of copy of this order. 14. I am deliberately not going into the merits of the submissions made by the party, on the one hand and the learned counsel for the respondent on the other hand and as to whether res judicata would apply to this case or not since I think it would prejudice the ultimate outcome.