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2008 DIGILAW 272 (CAL)

Brij Raj Pandey v. Padmabati Dass

2008-03-06

BHASKAR BHATTACHARYA, RUDRENDRA NATH BANERJEE

body2008
Judgment : BHASKAR BHATTACHARYA, J. (1). THIS first appeal is at the instance of a defendant in a suit for permanent injunction and recovery of possession and this appeal is preferred against the judgment and decree dated 25th November, 2005 passed by the learned Judge, 11th Bench, City Civil Court at Calcutta in Title Suit No. 2038 of 1983 thereby passing a decree for Khas possession by evicting the appellant from the suit property. (2). THE case made out by the plaintiff-respondent may be summed up thus: (a) The respondents purchased the property from the then owner and subsequently, the appellant and three other illegal occupants of the house instituted a suit being Title Suit No. 893 of 1979 in the City Civil Court at calcutta impleading the respondents as the defendant nos. 2 and 3 respectively and their vendor as the defendant no. 1. In that suit, the present appellant along with three others prayed for injunction restraining the respondents and their vendor from interfering with the possession of the plaintiffs therein and for mandatory injunction to demolish a room described in schedule b to that plaint. (b) The present respondents contested the said suit thereby contending that by virtue of their purchase from the previous owner, they acquired absolute title to the property and that the present appellant as well as the other three plaintiffs of the earlier suit had no right of tenancy as falsely claimed therein. (c) The learned Trial Judge on contested hearing dismissed the said suit holding that the present appellant and the other three plaintiffs therein had no right in the said property. (d) Being dissatisfied, the plaintiffs of the earlier suit including the present appellant preferred an appeal before this Court and a Division Bench of this Court on contested hearing dismissed the appeal thereby affirming the judgment and decree passed by the learned Trial Judge. (e) During the pendency of the said first appeal, the respondents before us filed the suit for eviction and permanent injunction against the appellant as mentioned earlier out of which the present appeal arises. (e) During the pendency of the said first appeal, the respondents before us filed the suit for eviction and permanent injunction against the appellant as mentioned earlier out of which the present appeal arises. The suit was contested by the appellant by filing written statement thereby denying the material allegations made in the plaint and the specific defence taken by the appellant was that he and the other occupants were the sub-tenants in the property with the consent of the vendor of the respondents before us and after the surrender of tenancy by their immediate landlord, they became direct tenants. Such defence was also taken in the earlier suit filed by the appellant and the three other occupants. (3). THE learned Trial Judge on consideration of the materials on record came to the conclusion that the respondents had acquired right, title and interest over the property by virtue of their purchase and that the appellant had no right in the property and his defence of tenancy was disbelieved. The learned Trial Judge, thus, decreed the suit by granting a decree for recovery of possession against the appellant. (4). BEING dissatisfied, the defendant of the second suit has come up with the present first appeal. After hearing the learned counsel for the parties, we were prima facie of the view that the learned Trial Judge in the present case had no necessity of considering the evidence adduced by the parties and should have simply decreed the suit in view of the earlier judgment passed in the previous suit filed by the appellant and three others wherein the status of the appellant and the other three occupants was declared to be that of trespasser. We, accordingly, in exercise of our power conferred under Order XLI Rule 24 of the Code of Civil procedure framed an additional issue as to whether the judgment passed in the earlier suit filed by the appellant and the other occupants was res judicata in the present suit and accordingly, we invited the learned counsel for the parties to make submission on that issue. (5). MR Dasgupta, the learned senior advocate appearing on behalf of the appellant strenuously contended before us that the judgment passed in the previous suit or in the appeal preferred against such decision could not be res judicata in view of specific observation made by this Court while dismissing the first appeal. (5). MR Dasgupta, the learned senior advocate appearing on behalf of the appellant strenuously contended before us that the judgment passed in the previous suit or in the appeal preferred against such decision could not be res judicata in view of specific observation made by this Court while dismissing the first appeal. Mr Dasgupta points out that his client along with the three other occupants in the earlier first appeal filed an application under Order XLI Rule 27 of the Code of Civil Procedure for bringing on record some additional evidence. Although, the said application was dismissed, Their Lordships after dismissal of the application under Order XLI Rule 27 made the following observation: "accordingly, the application for acceptance of additional evidence is rejected. However, it would be open to the plaintiffs/appellants to rely on those documents which are sought to be admitted by filing the present application under Order 41 Rule 27 of the Code of Civil Procedure before the court in which the eviction suit as mentioned herein before is now pending. We, however, make it clear that the findings and/or observation made by the Trial Court as well as by the court in appeal would be construed to have been made only for the purpose of findings the suit presently dealt with and all questions are kept open to be decided by the Court before which the eviction suit is pending. For the reasons aforesaid, the appeal is dismissed and the application for acceptance of additional evidence under Order 41 Rule 27 of the Code of civil Procedure is also rejected. " (6). BY relying upon the aforesaid observation, Mr Dasgupta contends that the question whether his client was really a lawful sub-tenant was, thus, kept open by the Division Bench while dismissing the previous appeal and as such, the earlier judgment cannot operate as res judicata. (7). AFTER going through the judgment dated 18th July, 1998 passed by a division Bench of this Court in F.A. No. 222 of 1983 preferred by Mr. Dasguptas client along with the other three occupants, we find that the Division Bench, as indicated at page 57 of the paper book, specifically recorded that the plaintiffs therein could not satisfy the Court about the existence of their any legal right. Dasguptas client along with the other three occupants, we find that the Division Bench, as indicated at page 57 of the paper book, specifically recorded that the plaintiffs therein could not satisfy the Court about the existence of their any legal right. The Division Bench specifically recorded the following observations: "in order to get a decree for injunction it is for the plaintiffs to prove that they have a legal right. In our view, the plaintiffs could not satisfy us about the existence of such a legal right. They made out a case that they were subtenants under Rajwanti Devi and that they were inducted as subtenants by Rajwanti Devi in the suit property and after surrender of tenancy by Rajwanti Devi they became direct tenants under the original landlord Saral Kumar Ghosh, However, in our view, such a case could not be proved by them. From the case pleased by the plaintiffs/appellants, it is clear that they alleged that they became sub-tenants after the coming into force of the West Bengal Premises Tenancy Act, 1956. There is no dispute that notice under Section 16 (1) of the West Bengal Premises Tenancy Act was not at all served on Saral Kumar Ghosh. In our view, Section 16 (1) of the Act imposes bar of becoming a direct tenant under the landlords after the surrender or tenancy by Rajwanti Devi. Law is well-settled that only because the plaintiffs are found to be in possession of the suit property, inference must be drawn that they are in occupation of the suit premises locally. There is no dispute that Sajal Kumar Ghosh did not accept the present plaintiffs/appellants as direct tenants under him. From the record, it appears that after the surrender of tenancy by Rajwanti Devi, rents were sent by money orders to Saral Kumar Ghosh, but he refused to accept the same. Therefore, it is clear that the Trial Court was fully justified in coming to a conclusion that since the notice under Section 16 (1) of the Act was not served upon the plaintiffs/appellants the question of becoming direct tenants would not arise in the facts of this case. " (8). Therefore, it is clear that the Trial Court was fully justified in coming to a conclusion that since the notice under Section 16 (1) of the Act was not served upon the plaintiffs/appellants the question of becoming direct tenants would not arise in the facts of this case. " (8). WHILE dismissing the application under Order XLI Rule 27 of the Code of civil Procedure the Court made the following observation: "in our view, the application for acceptance of additional evidence filed under Order 41 Rule 27 of the Code of Civil Procedure was neither bona fide nor it satisfies the conditions mentioned above for acceptance or additional evidence by the appellant. We have carefully examined the statements made in the said application. After examining the statements made in the said application, we are of the view that statements made therein were neither bona fide nor the appellate courts would require such document to be permitted in evidence at the appellate stage for the purpose of pronouncing judgment. " (9). AFTER going through the aforesaid materials which are exhibited in the present suit, there is no doubt that the second suit has been filed by the two of the defendants of the earlier suit claiming a decree for recovery of possession on the basis of the judgment passed in the earlier suit. At that stage, the appeal against such decree was of course pending before this Court. We have already pointed out that the Appellate Court dismissed the appeal with the aforesaid observations and the judgment of the Appellate Court was marked as exhibit in the present suit along with the judgement of the earlier suit. (10). IN view of the clear findings regarding the status of the appellant and the three other occupants in the previous suit, there was no scope of taking into consideration fresh evidence for the purpose of adjudicating the selfsame title of the appellant asserted in his defence of the second suit. The earlier proceeding stood res judicata as the issue therein was whether the defendant of the present suit was tenant or not. (11). The earlier proceeding stood res judicata as the issue therein was whether the defendant of the present suit was tenant or not. (11). IT is true that while rejecting the application under Order XLI Rule 27 of the Code of Civil Procedure, the Division Bench in the earlier proceeding recorded that finding and/or observation made by the Trial Court or the Appellate Court in that appeal should be construed to have been made only for the purpose of filing of the suit then dealt with. By making such observation Their Lordships made it clear that Their Lordships had no occasion to go to the question involved in the second suit for eviction then pending; but Their Lordships never kept the question of status of the appellant and three other occupants open as Their lordships specifically affirmed the decree passed by the learned Trial Judge with the observation that the appellants therein were not entitled to get injunction as they failed to prove the right asserted therein. (12). MR Dasgupta, in this connection, placed strong reliance upon the following decisions of the Supreme Court and Privy Council in support of his contention that the decision in the earlier suit could not be said to be res judicata in the present proceeding: 1. V. Rajeshwari vs. T. C. Saravanabava reported in (2004) 1 SCC 551 ; 2. Sheosagar Singh and Ors. vs. Sitaram Singh and Ors. reported in 24 Indian appeals 50. 3. Parsotam Gir vs. Narbada Gir reported in 26 Indian Appeals 175. (13). IN the case of V. Rajeswari (supra), a two Judges Bench of the Supreme court reiterated the law of res judicata. It was held therein that the plea of res judicata must be laid in the pleadings and then an issue must be framed and tried. According to the said decision, a plea not properly raised in the pleadings or in issue at the stage of the trial should not be permitted to be raised for the first time in appeal. It was held therein that the plea of res judicata must be laid in the pleadings and then an issue must be framed and tried. According to the said decision, a plea not properly raised in the pleadings or in issue at the stage of the trial should not be permitted to be raised for the first time in appeal. The Bench at that stage, however, took note of the earlier decision of that Court in the case of State of Punjab vs. Bua Das Kaushal reported in (1970)3 SCC 656 where the said Court carved out an exception and permitted such plea to be raised in appeal though not taken in the pleading nor covered by any issue because the necessary facts were present in the minds of the parties and were gone into by the Trial Court. In paragraph 13 of the judgment, the Court further held that the plea is not only to be taken but also to be substantiated by producing the copies of the pleadings, issue and the judgment of the previous suit. The Court, however, made it clear that in a given situation, only the copy of the judgment in the previous suit if the same contained exhaustive or in requisite details the pleadings and the issue may be taken as enough proof. In the case before Their Lordships, however, the plea of res judicata was not taken in the Trial Court and the first Appellate Court by raising necessary pleadings. In the first Appellate Court, the plaintiff sought to bring on record the judgment and decree in the previous suit, wherein his predecessor-in- interest was party, as a piece of evidence. He wanted to urge that not only he had succeeded in proving his title to the suit property by series of documents but the previous judgment which related to the part of that very suit property had also upheld his predecessor-in-interests title which strengthened his case. The defendant thereat, apprised of the documents, still did not choose to raise the plea of res judicata. Such being the position, the Apex Court held that the High Court should not have entered into the misadventure of speculating what was the matter in issue and what was heard and finally decided in the said suit. The defendant thereat, apprised of the documents, still did not choose to raise the plea of res judicata. Such being the position, the Apex Court held that the High Court should not have entered into the misadventure of speculating what was the matter in issue and what was heard and finally decided in the said suit. In the case before us, the second suit was filed on the basis of the judgment of the earlier suit where the defendant was branded as trespasser. The plaintiff filed the judgment and decree of the previous suit and also the judgment of the first Appellate Court arising out of the said judgment. Those judgments exhaustively deal with the respective cases of the parties in the previous litigation and prove beyond doubt that the issue was substantially the same. In spite of such fact, the Trial Court did not frame any issue as to res judicata and decided the title in favour of the plaintiff on the basis of materials on record. In such a situation, we in exercise of our power under Order XI Rule 24 of the Code framed an issue of res judicata and invited the parties to argue on the basis of materials on record and found that there was no justification of reappreciating the evidence adduced and concluded that the present suit should be decreed on the basis of the earlier judgment as the parties were litigating under the same title. The aforesaid decision, therefore, does not help the appellant in anyway. (14). IN the case of Sheosagar Singh and others (supra), the question was whether the defendant was the son of a and such issue was decided against the plaintiff in the former suit by the Trial Court. The appeal against such decree was dismissed not on merit but on the ground that the suit was not properly constituted in the absence of necessary party. Subsequent suit was filed after curing the defect. In such a case, it was held that the previous decision on merit was not res judicata. We fail to appreciate how the said decision can be of any help to the appellant when in the case before us the Appellate Court had in the previous litigation upheld the finding that the appellant before us had no title to the property. (15). We fail to appreciate how the said decision can be of any help to the appellant when in the case before us the Appellate Court had in the previous litigation upheld the finding that the appellant before us had no title to the property. (15). IN the case of Parosotam Gir (supra), it was held that where a former suit between the same parties in the same Court and for the same relief resulted in dismissal with the observation that it would be open to the plaintiff to file a fresh suit leaving "untouched and undecided all matters affecting the right and title of the parties", such dismissal would not operate as res judicata. In the case before us, in the previous litigation, the Appellate Court affirmed the finding on the question of title of the appellant in the same property and did not make any comment on the merit of the pending second suit for eviction. Such observation did not amount to keeping all the question of title open. It is obvious that the appellate Court in appeal against the dismissal of the first suit could not make any comment on the merit of the second suit for eviction which was then pending and as such, did not make any observation on the admissibility of the documents in the second suit although those were not permitted to be adduced in the appeal as the application for additional evidence was not bona fide. (16). THE decisions cited by Mr. Das gupta are, thus, of no avail to his client. We, therefore, find no merit in this appeal and hold that the issue as to the title of the appellant before us is concluded by the principle of res judicata in view of the decision in the earlier suit since affirmed on merit by a Division Bench of this Court. The decree for eviction passed by the learned Trial Judge is affirmed. In the facts and circumstances, there will be, however, no order as to costs.