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2007 DIGILAW 415 (UTT)

Kallu Ram v. Jai Bhagwan

2007-08-02

RAJESH TANDON

body2007
ORDER :- Heard Shri Rajendra Dobhal, counsel for the appellants and Shri Vivek Shukla, counsel for the respondent. 2. By the present Second Appeal filed under Section 100 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 26-9-1991 passed by the District Judge, Dehradun in Civil Appeal No. 4 of 1991. 3. Second appeal was admitted on the following substantial question of law :- "Whether the subsequent suit based on the different cause of action is barred by res judicata?" 4. Briefly stated, a suit was filed by the plaintiff Surja Ram for declaration as the owner of the property in suit in pursuance of the sale deed dated 19-3-1984 and for possession of the said property along with mesne profit. 5. According to the case of the plaintiff, Smt. Krishna Devi was the owner of the house i.e. property No. 30 D.A.V. College Road, Dehradun. A portion the aforesaid property was let out to the defendant @ Rs. 50 per month. Smt. Krishna Devi sold the whole property No. 30, D.A.V. College Road, Dehradun to the plaintiff by means of sale deed dated 19-3-1984 which was registered in the office of the Sub-Registrar, Dehradun in Book No. 1 Vol. No. 2206 pages 183/186 Sl. No. 2059 on 22-3-1984 and delivered the possession of remaining portion to the plaintiff. A boundary wall was constructed in order to keep privacy of the family of the plaintiff. Smt. Krishna Devi died on 2-2-1985. It has been stated that in spite of repeated demands, the defendant did not pay any rent to the plaintiff. The defendant started to raise illegal construction on 19-3-1995 and attempted to put a gate. The plaintiff warned the defendant from making such construction but the defendant did not stop. The plaintiff then lodged an FIR. On 20-3-1985 and 21-3-1985, the defendant again made attempt to raise construction of a gate at the place shown by the letters C, G in the plaint map. The plaintiff then filed a Suit No. 89 of 1985 in the Court of the Munsif, Dehradun for a decree for injunction. 6. The Additional Munsif has wrongly concluded that any issue arose about the ownership of the plaintiff and have wrongly framed issue on the title of the plaintiff. The plaintiff then filed a Suit No. 89 of 1985 in the Court of the Munsif, Dehradun for a decree for injunction. 6. The Additional Munsif has wrongly concluded that any issue arose about the ownership of the plaintiff and have wrongly framed issue on the title of the plaintiff. It has been stated that in view of the sale deed dated 19-3-1984, the admission of execution of the alleged Will shall not affect the rights of the plaintiff over the disputed property. The appellate Court has also held that the sale deed dated 19-3-1984 was not legally proved which has cast clouds upon the rights of the plaintiff, hence this suit. It has been prayed that the plaintiff be declared as the owner of the property in dispute on the basis of the sale deed dated 19-3-1984. The plaintiff has also sought the relief of possession over the disputed property along with mesne profits @ Rs. 50/- per month with effect from 19-3-1984 i.e. the date of execution of the sale deed. The plaintiff has prayed to the following effect :- (A) For a decree declaring that the plaintiff is the owner of the property in suit in pursuance of the sale deed dated 19-3-1984 registered in the office of the Sub-Registrar, Dehradun in Book No. 1, Volume No. 2206 pages 183/186 Sl. No. 2059 on 22-3-1984 executed by Smt. Krishna Devi w/o Shri Laxmi Chand, r/o 30-D.A.V. College Road, Dehradun. (B) For a decree for possession of the property in suit. (C) For a decree for mesne profits w.e.f. 19-2-1985 to 18-3-1988 amounting to Rs. 1800/- @ Rs. 50/- per month. (D) For a decree for pendente lite and future mesne profits @ Rs. 50/- per month from 19-3-1988 to the date of delivery of the possession of the property in suit. (E) For full costs of the suit. (F) Any other relief or reliefs for which the plaintiff is found entitled may also be awarded to him. 7. A written statement was filed by the defendant submitting therein that he is not the tenant of the suit property. He is the owner of the suit property in pursuance of the Will dated 13-9-1982 executed by Smt. Krishna Devi. (F) Any other relief or reliefs for which the plaintiff is found entitled may also be awarded to him. 7. A written statement was filed by the defendant submitting therein that he is not the tenant of the suit property. He is the owner of the suit property in pursuance of the Will dated 13-9-1982 executed by Smt. Krishna Devi. In paragraph 19 of the written statement, the defendant has submitted that the plaintiff has got executed the sale deed in his favour by Smt. Krishna Devi by playing fraud. In paragraph 20 of the written statement, the defendant has admitted about his denial with regard to the relationship of landlord and tenant between the plaintiff and the defendant. In paragraph 24 the defendant has admitted as under :- "24. That the plaintiff Sri Surja Ram is the Uncle of the defendant. In the lifetime of Smt. Krishna Devi, both the plaintiff and the defendant lived in portions of the said house No. 30 D.A.V. College Road, Dehradun." 8. The defendant has further submitted that late Smt. Krishna Devi was the sister of the plaintiff Surja Ram and Bua (aunt) of the Defendant and she was issueless. Smt. Krishna Devi executed a Will dated 13-9-1982 giving half of the share each to the plaintiff and the defendant. Paragraph 25 is quoted below :- "25. The late Smt. Krishna Devi was the sister of the plaintiff Sri Surja Ram and Bua of the defendant. She was issueless and lived with the defendant. Late Smt. Krishni Devi by a Registered Will dated 13-9-1992 gave equal half and half share of the property No. 30, D.A.V. College." 9. It has been submitted in paragraph 26 of the written statement that the defendant was the owner of the half property and, as such, he tried to put a gate but the plaintiff had filed a suit bearing Suit No. 89 of 1985 in the Court of Munsif, Dehradun which was transferred to the Court of Additional Munsif, Dehradun. It has been submitted that the Additional Munsif, Dehradun has believed the Will and disbelieved the sale deed. It has been submitted that the Additional Munsif, Dehradun has believed the Will and disbelieved the sale deed. It has been submitted in paragraphs 29 and 30 of the written statement that feeling aggrieved by the judgment of the Court of the Additional Munsif, the plaintiff filed the appeal in the Court of the IInd Upper Civil Judge, Dehradun wherein the appellate Court held that the plaintiff and the defendant both are entitled for ½ and ½ share of the disputed property. The appellate Court has also held that after the division, the defendant-respondent can make the gate in his portion of the disputed property. It has been submitted that the suit is barred by the principle of res judicata. The suit is not maintainable as the Small Cause Court is competent to entertain and decide the suit for eviction of the tenant and for recovery of arrears of rent and mesne profits etc. 10. On the pleadings of both the parties, following issues were framed :- 1. Whether the plaintiff is the owner of the property in suit in pursuance of the sale-deed dated 19-3-1984 executed by Smt. Krishna Devi? 2. Whether the suit is barred by the principle of res judicata? 3. To what relief the plaintiff is entitled to? 11. The plaintiff has examined himself as P.W. 1 and has also recorded the deposition of Arun Kumar Pandey. The plaintiff has produced paper Nos. 8 ga/1, 9ga/1 and 18 ka/1. 12. The defendant has examined himself as D.W. 1 and has produced paper Nos. 36 ga 2 to 39 ga 2. 13. So far as issue Nos. 1 and 2 are concerned, the trial Court has recorded the finding, the suit is barred by the principle of res judicata and consequently the plaintiff cannot be declared to be the owner of the property in question. The findings recorded by the Court below is quoted below :- (Vernacular matter omitted.....Ed.) 14. On the basis of aforesaid findings, the trial Court has dismissed the suit. Feeling aggrieved by the said findings, the plaintiff went in appeal. The appellate Court has also confirmed the findings of the trial Court and has dismissed the appeal. 15. The appellate Court has recorded the findings to the following effect :- "The former Suit No. 89 of 1985 was between the same parties. They also litigated under the same title in the former Suit. The appellate Court has also confirmed the findings of the trial Court and has dismissed the appeal. 15. The appellate Court has recorded the findings to the following effect :- "The former Suit No. 89 of 1985 was between the same parties. They also litigated under the same title in the former Suit. The Court which decided the former Suit i.e. the Court of Munsif, Dehradun was competent to try the present Suit also. The matter is further clarified by Explanation VIII to S. 11 of the Code of Civil Procedure that an issue heard and finally decided by a Court of limited jurisdiction competent to decide such issue shall operate as res judicata in subsequent Suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent Suit as the Suit in which such issue has been subsequently raised." "Now the question is whether the matter raised in the present Suit was directly and substantially in issue in the former Suit or not. The question whether a matter was directly and substantially in issue in the former Suit has to be decided. (a) On the pleadings in the former Suit; (b) the issues struck therein, and (c) the decision in the Suit." "In the two Suits i.e. earlier Suit No. 89 of 1985 and the present Suit No. 182 of 1988 the real controversy between the parties is whether the plaintiff Suraj Ram is the owner of the entire house No. 30 D.A.V. College Road, Dehradun, in pursuance of the sale deed dated 19-3-1984 executed in his favour by Smt. Krishna Devi previous owner and whether the defendant Jain Bhagwan is in occupation of a portion of the said house as a tenant. This controversy was the subject-matter of issue No. 1 which was framed in Suit No. 89 of 1985. Surja Ram plaintiff in both the Suits has alleged that in pursuance of the sale-deed dated 19-3-1984 he is the owner of the entire house and that the defendant Jai Bhagwan is his tenant in a portion of the said house. Jai Bhagwan in his turn took the plea that he is not the tenant of the portion in his occupation but is the owner of his portion in pursuance of the registered Will dated 12-9-1982 executed by Smt. Krishna Devi. Jai Bhagwan in his turn took the plea that he is not the tenant of the portion in his occupation but is the owner of his portion in pursuance of the registered Will dated 12-9-1982 executed by Smt. Krishna Devi. Both the parties led evidence in support of their respective contentions in earlier Suit No. 89 of 1985 which gave rise to issue No. 1 in that Suit to the effect "whether the plaintiff (Surja Ram) is the owner of the suit property and the defendant (Jai Bhagwan) is the tenant?" The findings of the trial Court in Suit No. 89 of 1985 was that the plaintiff was not the owner of the entire house as alleged and that the defendant was not the tenant of the portion in his occupation. The unequivocal finding of the trial Court was that the defendant was the owner of the portion in his occupation in pursuance of the registered Will executed by Smt. Krishna Devi on 13-9-1982. The defendant had filed the Will in that Suit and had proved the same. Not only this, the plaintiff Surja Ram also admitted execution of the registered will by Smt. Krishna Devi. From the various reasons stated in the judgment of the trial Court the sale deed set up by the plaintiff was not accepted. It was also held that the plaintiff had failed to prove the sale deed. These finding were accepted in toto and confirmed by the appellate Court which decided Civil Appeal No. 22 of 1987. The appellate Court, however, came to the conclusion that though the parties are the owners of the house in pursuance of the registered Will dated 13-9-1982, no partition has taken place between them and unless the house is partitioned by metes and bounds, neither of the parties can raise any construction on the joint property without the consent of the other. On this analogy the relief for injunction was granted. 16. With regard to the issue as to whether the Suit is barred by the principle of res judicata, both the Courts below have recorded the finding that in view of the decision in Suit No. 89 of 1985, the plaintiff-appellant is not the owner of the entire house in pursuance of the sale deed dated 19-3-1984 executed in his favour by Smt. Krishna Devi. 17. 17. Civil Appeal No. 22 of 1987 filed against the judgment and decree passed in Suit No. 89 of 1985 was partly allowed on 17-12-1987 confirming the findings on issue No. 1 to the effect that the plaintiff Surja Ram was the owner of the disputed portion of the property in dispute in pursuance of the sale deed executed by Smt. Krishna Devi and it was held that the plaintiff has failed to prove the sale deed of the entire house in his favour. Further, the appellate Court has partly allowed the appeal inasmuch as the relief of Injunction was granted on the ground that in pursuance of the Will executed by Smt. Krishna Devi, both the parties have became the joint owner of the house and unless the partition of the house took place to be metes and bounds, the defendant has no right to make the constructions on the joint property to the exclusion of the another owner i.e. the plaintiff-appellant. 18. Counsel for the appellant has argued that since the relief of injunction as prayed by the appellant had been granted by the appellate Court in Civil Appeal No. 22 of 1987, the plaintiff-appellant could not have filed an appeal against the adverse finding and consequently the adverse finding recorded in the earlier suit cannot operate as res judicata in the present suit to the loss of the plaintiff-appellant. 19. On the aforesaid proposition, the counsel for the appellants has submitted that the principle of res judicata does not apply to the facts of the case. 20. However, counsel for the respondent has referred the judgment of Banarsi v. Ramphal, reported in 2003 (94) RD 541 with regard to the proposition that the entire decree has to be challenged and not the finding and, therefore, Order 41, Rule 33 cannot be applied. Paragraphs 5 and 12 are relevant and the same are quoted below :- "5. The appeals raise a short but interesting question of frequent recurrence as to the power of the Appellate Court to interfere with the reverse or modify the decree appealed against by the appellants in the absence of any cross-appeal or cross-objection by respondent under Order 41, Rule 22 of the CPC and the scope of power conferred on Appellate Court under Rule 33 of Order 41 of the CPC. 12. 12. We are therefore, of the opinion that in the absence of cross-objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross-objection." 21. In view of the above, conclusion of the appellate Court that the decision in suit No. 89 of 1985 with regard to the ownership of the present plaintiff-appellant, where it has been held that the plaintiff-appellant is not the owner of the entire house by virtue of sale deed dated 19-3-1984 executed in his favour by Smt. Krishna Devi, operates as res judicata and, therefore, present suit is barred by principle of res judicata, requires no interference. 22. In view of the above, I find no illegality in the order passed by the Courts below. It is held that the suit of the plaintiff was barred by the principles of res judicata and, as such, the substantial question of law involved in the second appeal is decided against the appellant and Second Appeal is liable to be dismissed. 23. In Commissioner, Hindu Religious and Charitable Endowments v. P. Shanmugama, (AIR 2005 SC 770) it has been held under :- "14. In our view, High Court has no jurisdiction in the Second Appeal to interfere with the finding of facts recorded by the first appellate Court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of facts as it has done." 24. In our view, High Court has no jurisdiction in the Second Appeal to interfere with the finding of facts recorded by the first appellate Court after careful consideration of the evidence, oral and documentary, on record. It was not open to the High Court to reverse the findings of facts as it has done." 24. Consequently, Second Appeal is dismissed with costs. Appeal dismissed.