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Madhya Pradesh High Court · body

2011 DIGILAW 914 (MP)

Chanderbai v. State of M. P.

2011-08-10

A.K.SHRIVASTAVA

body2011
ORDER 1. This is plaintiff’s second appeal who has lost from both the Courts below since his suit for declaration of Bhumiswami right and injunction has been dismissed by learned Trial Court and the first appeal has also been dismissed by the impugned judgment and decree. 2. The facts necessary for the disposal of this second appeal lie in narrow compass. Prabhulal (original plaintiff) whose L.Rs. are present appellants filed civil suit for declaration of Bhumiswami right and injunction in the trial Court pleading in the plaint that he was Zaminidar of erstwhile Gwalior State. The Gwalior State was merged in Madhya Bharat Government. On 2.10.1951 “Madhya Bharat Zamindari Abolition Act Samvat 2007” (in short Abolition Act) came into force w.e.f. 2.10.1951. The suit property which is agriculture land and the description whereof is mentioned in the plant which is the subject matter of the suit was being possessed by plaintiff’s father Bhulaji and it did not vest in the State. The plaintiff Prabhulal along with his mother Jadavbai Wd/o Bhulaji filed a civil suit in the Court of Civil Judge Class-II Agar (Civil Suit No. 50-A/1969) earring State of M.P. and its functionaries as well as certain other persons as defendants for declaration of Bhumiswami right and injunction claiming in the earlier suit that the land in question did not vest in the State Government and on coming into force of M.P. Land Revenue Code, 1959 (hereinafter referred to as the Code) they became Bhumiswami. However, the said civil suit was dismissed on 7.4.1973 and the first appeal which was filed by plaintiffs was dismissed and the same result met in the second appeal filed by them which was also dismissed on 20.11.1989. 3. In para 3 of the plaint specifically it has been pleaded in the present suit that although his possession was obtained by the then Madhya Bharat Government on 2.10.1951 but on the same date he again encroached upon the lands in question and since then he is possessing the same as owner in the knowledge of the State Government and his possession is peaceful without interruption for a period of more than 30 years and still he is in possession of the suit property. 4. 4. In para 8 of the plaint specifically it has been pleaded that the name of plaintiff has been recorded as tresspasser in the revenue record and when plaintiff requested Patwari of the village to record his name in the column of Bhumiswami he did not agree and he also gave threat to dispossess him on 17.1.90. Hence, a suit for declaration and injunction has been filed by the plaintiff. The cause of action has been pleaded to be 17.1.90 after completion of 30 years of his possession, as according to plaintiff Bhumiswami right has been accrued in him by way of adverse possession. Hence, it has been prayed that plaintiff be declared as Bhumiswami on the basis of adverse possession and a decree of possession be also granted against the defendants not to interfer in his possession. 5. The State of M.P. filed written statement and denied the plaint averments. However, the factum of possession of plaintiff has been admitted in para 3 as well as in para 8 of the written statement although according to the defendant his possession is that of a trespasser. In special plea it has been pleaded by defendant that the present suit is barred by the dictum of res judicata because earlier civil suit for declaration of Bhumiswami right and injunction was filed by the plaintiff which was dismissed and the judgment and decree of dismissal was maintained up to this Court in Second Appeal. 6. Learned Trial Court framed necessary issues and tried issue No. 6 which is in respect of Res judicata was decided as preliminary issue. Vide order dt. 10.12.1991 the learned trial Court dismissed the suit holding that a bar of Res judicata is there in the present case. The plaintiff filed first appeal before learned Appellate Court which has been dismissed by the impugned judgment and decree. 7. In this manner this second appeal has been filed by the unsuccessful plaintiff. 8. This Court on 29.4.1997 admitted this second appeal on the following substantial question of law : “Whether the Courts below have committed an error of law in dismissing the suit on application of Order II Rule 2 and section 11 of the Code of Civil Procedure?” 9. 8. This Court on 29.4.1997 admitted this second appeal on the following substantial question of law : “Whether the Courts below have committed an error of law in dismissing the suit on application of Order II Rule 2 and section 11 of the Code of Civil Procedure?” 9. In his usual whims Shri Aditya Garg, submitted that matter which was in issue in the former suit was whether the suit property did not vest in the State on coming into force of the Madhya Bharat Zamindari Abolition Act since it was in the self cultivation of the Zamindar and, therefore, on coming into force of the Code firstly the plaintiffs father Bhulaji became Bhumiswami and after his death his mother and plaintiff became the Bhumiswami. That suit was dismissed and it was held that the land in question vested in the State on coming into force of the Abolition Act, 1951 and therefore, the father of plaintiff did not become a pakka tenant and thus did not become Bhumiswami on coming into force of the Code. But, in the present suit the issue in controversy is that whether the plaintiff had acquired Bhumiswami right against the State/Government on account of adverse possession since plaintiff is in possession of suit property for more than last 30 years as Bhumiswami in the knowledge of State and his possession is peaceful and without interruption. Thus, according to learned counsel the matter in issue of two suits is not directly and substantially similar to each other and the issues framed in the present suit were not directly and substantially in issue in the earlier suit and, therefore, the bar of Res judicata in the present case as held by learned first Appellate Court as well as by learned Trial Court dismissing the suit on the principle of Res judicata deserves to be set-aside. 10. Learned counsel further submits that whether plaintiff on the basis of subsequent cause of action acquired Bhumiswami right by way of adverse possession and whether in these facts and circumstances of the case the bar of res judicata would be applicable or not is a mixed question of fact and law and, therefore, the learned Trial Court erred in trying issue No. 6 as preliminary issue and thereafter dismissing the suit of plaintiff and the same error has been commmitted by learned first appellate Court. Hence, it has been prayed by learned counsel that by setting aside the impugned judgment of learned two Courts below the case be sent back to the trial Court to decide the matter afresh after recording the evidence of the parties. 11. Combating the aforesaid submission put forth by learned counsel for the appellants, Shri Pramod Mitha learned Government Advocate argued in support of the impugned judgment and submitted that the earlier suit was also for declaration of Bhumiswami right and injunction which was dismissed and the judgment of dismissal attained finality up to this Court and the present suit is also for declaration of Bhumiswami right and injunction, therefore, the same is barred by principles of Res judicata and if what would be the position, learned counsel submits that learned two Courts below did not err in dismissing the suit of plaintiff. To bolster his submission, learned counsel has placed reliance on the judgment passed in the earlier suit dated 7.4.1973 and the certified copy of the plaint of the earlier suit which are on record. 12. Learned Government Advocate further submits that in the earlier suit Survey No. 963 was not the subject matter of that suit, but, merely because in the preesent case the same is also put in dispute, it cannot be said that the present suit is not barred by Order II of Rule 2 CPC. On these premises, it has been put forth by learned Government Advocate that this appeal sans substance and the same be dismissed. 13. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed and the case is sent back to learned Trial Court. Regarding Substantial Question of Law No. 2 14. By keeping the plaint of the present suit in juxtaposition to the plaint of earlier suit (Civil Suit No. 50-A/1969) this Court finds that in the earlier suit the matter which was substantially in issue was whether plaintiff Bhulaji became ‘pakka krishik’ of the suit property on 2.10.1951 on the date of abolition of the abolition Act of 1951 and thereafter they became Bhumiswami on coming into the force of the Code, while in the present suit the contraversy between the parties and the matter in issue is whether plaintiff had become Bhumiswami by way of adverse possession. Hence, the issue in the earlier suit was quite distinct to the issue in the present suit and they are not directly and substantially identical to each other. It be seen that in present case the State of M.P. who is defendant has admitted the possession of the plaintiff in the written statement although according to it the status of plaintiff is that of a trespasser. 15. In order to attract the dictum of Res judicata as envisaged under section 11 CPC the bar is only if the suit or any issue in which the matter directly and substantially in issue has been already and substantially in issue in a former suit between the same parties should be there. Since in the present suit the matter is not directly or substantially in issue which was directly substantial in issue in former suit and, therefore, the bar of Res judicata would not be applicable. The plaintiff’s father did not acquire Bhumiswami right by way of adverse possession in the former suit when it was filed on 16.6.1969 and the issues in both the suits are quite distinct. 16. Section 11, CPC is based partly on the maxim of Roman jurisprudence, “interest reipublicae ut sit finis litium” it concerns the State that there be an end to law suits and partly on the maxim Memo debet bis vexari pro una et eadem cause which would mean that no man should be vexed twice over the same causal. The term “same cause of action” is having a great significance in the applicability of principal of Res judicata. In the present case as already pointed out hereinabove, the casue of action and the nature of cause of action are quite distinct in both the suits, for this additional reason also section 11 CPC would not be applicable in the present case. 17. So far as the bar of present suit under Order II Rule 2 CPC is concerned, the Survey No. 963 was not the subject matter of the earlier suit. 17. So far as the bar of present suit under Order II Rule 2 CPC is concerned, the Survey No. 963 was not the subject matter of the earlier suit. Ordinarily the bar as envisaged under this provision would have been applicable but since the present suit is filed altogether on different cause of action which is altogether distinct from earlier suit and the matter in controversy which is directly and substantially in issue is also together different in the present suit, as the plainitff is claiming Bhumiswami right by way of adverse possession on the basis of altogether different cause of action, that bar is also not applicable in the present case, because, alleging to become Bhumiswami by adverse possession accrued in only on 17.1.1990 when he completed his possession for last 30 years and earlier to it the cause of action was not mature. 18. However, the question still remains whether plaintiff had acquired Bhumiswami right by adverse possession or not and since it is a question of fact and law it can be decided only after a detailed enquiry by leading evidence on the issues framed. 19. The substantial questions of law is thus, answered that the two Courts below have committed an error of law in dismissing the suit on application of Order II Rule 2 and section 11 of the CPC. The substantial question of law is thus, answered in affirmative in favour of appellant and against the respondents. 20. For the reasons stated hereinabove, this appeal succeeds and is, hereby, allowed. The impugned judgment and decree passed by learned two Courts below is, hereby, set-aside. The preliminary issue No. 6 is decided in favour of plaintiff and it is hereby held that the present suit is not barred by Res judicata. The case is sent back to the trial Court who shall record the evidence of the parties and shall decide the suit of plaintiff on other issues independently without being influenced by any of the observations, if any, made by this Court in this order. The parties are hereby directed to appear before learned trial Court on 26.9.2011. 21. The Registry is hereby directed to send the record post haste so as to reach that Court much prior to 26.9.2011 and for this date of hearing no separate notice shall be issued.