Research › Search › Judgment

Orissa High Court · body

2015 DIGILAW 174 (ORI)

Pitambar Sarangi v. Rukuni Sarangi

2015-03-16

D.DASH

body2015
JUDGMENT This appeal has been preferred challenging the judgment and decree passed by the learned District Judge, Bolangir in Title App4eal No.28 of 1997 confirming the judgment and decree passed by the trial Court in Title Suit No.91 of 1993.The suit of the present applicant has been decreed in part refusing the relief of declaration of right, title and interest over Ac.0.09 dec .of land under Plot No.393 assigned with hoking no.59 of village Raximunda. The appellant had challenged that part of the decree in the lower appellate Court and after having been unsuccessful has approached this Court as above. 2.Facts of the case are stated hereunder: The suit was filed by the appellant as plaintiff for declaration of his right, title and interest over land measuring Ac.0.16 dec under Plot No.393 assigned with holding no.59 as per the record of the current settlement corresponding to plot no.251 and holding no.24 of village Raximunda as per the record of right of 1936 settlement. The parties are Hindus governed by Mitakshara School of Hindu Law and had a common ancestor. The suit land is claimed to be the ancestral properties. Prior to 1936, there was a partition amongst the plaintiff’s grandfather and his brothers. The suit land fell to share of grandfather of the plaintiff. So, there remained separate note of possession in the Record of Rights of 1936 settlement. When the grandfather was thereafter continuing to possess his allotted land, further partition was made between the plaintiff’s father and his brother and the suit land came to the hands of plaintiff’s father who possessed the same. It is stated that on 20.08.1979, the plaintiff’s father sold the suit land along with other land to his son, the plaintiff, by registered sale deed for a consideration of Rs.4,000/- and delivered possession. There was a mistake in the sale deed with respect to the holding number which was corrected by another deed and affidavit. The recording of the land in current settlement is siad to be incorrect. The defendant no.1 had filed Title Suit No.82 of 1984 in the Court of Sub-ordinate Judge, Bolangir for declaration of his right, title and interest over the suit land with alternative prayer for partition. The recording of the land in current settlement is siad to be incorrect. The defendant no.1 had filed Title Suit No.82 of 1984 in the Court of Sub-ordinate Judge, Bolangir for declaration of his right, title and interest over the suit land with alternative prayer for partition. The plaintiff was not a party to the said suit and, therefore, it is his case that he is not bound by the said judgment and decree wherein the defendants’ right, title and interest over the suit land has been declared. 3.Defendant no.1 having died during the suit, defendant no.2 filed the written statement. The challenge is to the effect that the suit land fell to the share of his grandfather Brahmananda Sarangi and not to the share of plaintiff’s grandfather-Madan Mohan in the partition. They also denied the subsequent partition between the plaintiff’s grandfather and his brother and allotment of the suit land therein as avered by the plaintiff. The plaintiff’s father was a party to the suit, i.e. Title Suit No.82 of 1984 and he has not disclosed about any sale to have been made in favour of the plaintiff. So, it is stated that since the plaintiff claims the suit land through his father who was a party to the said suit although the plaintiff was not a necessary party to it, he is bound by the decree. 4.The trial Court as well as the lower appellate Court have rendered the concurrent finding that the suit land was never exclusively allotted in favour of the plaintiff’s grandfather in the partition prior to 1936. 5.It has next been held that in the earlier suit plaintiff’s father was a party as defendant no.7 and that was filed by the father of the present defendant no.2 claiming title over this suit land which has been so declared. The decree has become final and conclusive. So lit operates as ‘res judicata’ for the present suit filed by the plaintiff for the reliefs claimed. 6.Learned counsel for the appellant submits that the substantial question of law involved in the appeal is as under: “ Whether the findings of the lower appellate Court are justified in holding that the findings rendered in Title Suit No.82 of 1984 operate as res judicata and as such is sustainable in the eye of law when the claim of the plaintiff is not based on succession but purchase”. He contends that the purchase by the plaintiff from the father was not disclosed in the earlier suit and, therefore, he was not made a party and is not bound by the said judgment and decree. So the findings cannot operate as res judicata in the present suit of the plaintiff. 7.The position of law has been fairly well settled in case of Boodireddy Chandralah vrs. Arigela Laxmi, (2007) 8 SCC 155 :- “The phrase “substantial question of law”, as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying “question of law”, means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “ of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133 (1) (a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance in Guran Ditta v. T. Ram Ditta, the phrase “substantial question of law, as it was employed in the last clause of the then existing Section 110 CPC (since omitted by the Amendment Act, 1973 came up for consideration and their Lordships held that it did not mean a substantial question of general importance but a substantial question of law which was involved in the case as between the parties. In Sir Chunilal v.Mehta @ Sons Ltd. v. Century Spg. And Mfg. Co. Ltd. the Constitution Bench expressed agreement with the following view taken by a Full Bench of the Madras High Court in Rimmalapudi Subha Rao v. Noony Veeraju. “5 ..... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. “5 ..... when a question of law is fairly arguable, where there is room for difference of opinion on it or where the Court thought it necessary to deal with that question at some length and discuss alternative views, then the question would be a substantial question of law. On the other hand if the question was practically covered by the decision of the highest Court or if the general principles to be applied in determining the question are well settled and the only question was of applying those principles to the particular facts of the case it would not be a substantial question of law”. xxxxxx 24. The principles relating to Section 100 CPC relevant for this case may be summarized thus : (i)An inference of fact from the recitals or contents of a document is a question of fact. Burt the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii)The High Court should be satisfied that the case involves a substantial question of law, land not a mere question of law. A question of law having a material bearing on the decision of the case ( (that is, a question, answer to which affects the rights of parties to the suit will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principles merging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the Court below has decided the matter, either ignoring or acting contrary to such legal principles. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question of law. (iii)The general rule is that the High Court will not interfere with the concurrent findings of the Court below. But it is not an absolute rule. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question of law. (iii)The general rule is that the High Court will not interfere with the concurrent findings of the Court below. But it is not an absolute rule. Some of the well-recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the laws erroneously; or (iii) the Courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the findings”. 8.in the said suit, the defendant no.2 had claimed that the suit land was jointly allotted in favour of plaintiff and his grandfather, namely, Madan Mohan and Brahmananda and that joint note of possession has been made in the settlement record of the year 1936. The plaintiff’s father in that suit besides claiming title over the purchased land of the plaintiff measuring Ac.0.07 dec had also stacked his claim over other lands. Specifically in the suit right, title and interest of defendant no.1 was declared so far as this land of Ac.0.07 dec. is concerned. So, accepting for a moment that there was a sale by the plaintiff’s father to the plaintiff so far as that Ac.0.07 dec is concerned and thus plaintiff’s claim over the said land is not based on succession, then also there remains no escape from saying that plaintiff’s father and the plaintiff sail in the same boat and the plaintiff’s father was litigating under the same title. The question in the suit was whether that suit land and other land had fallen in the share of the plaintiff’s father or not. So that having been answered in the negative not only in respect of this land of Ac.0.07 dec but also other lands the decision rendered in the said suit squarely operates as res judicata for the suit filed by the plaintiff even though he was a party in the earlier suit. So that having been answered in the negative not only in respect of this land of Ac.0.07 dec but also other lands the decision rendered in the said suit squarely operates as res judicata for the suit filed by the plaintiff even though he was a party in the earlier suit. So far as this plaintiff is concerned, he should be deemed to have been completely represented in the earlier suit by his father. The present suit thus is barred by res-judicata. It may further be stated here that the sale deed in favour of the plaintiff concerns with Ac.0.09 dec of land. So far as Ac.0.07 dec land is concerned, the finding being that it was not that of his grandfather. Therefore, plaintiff’s father was having no right to sale and even if such a sale was made it is nonest in the eye of law to that extent of land. Now, so far as the rest of land is concerned, the sale deed in favour of the plaintiff stands. The Courts below have also concurrently so found. 9.The decision cited by learned counsel for the appellant in case of ‘Amar Kumar Satpathy vrs. Sitakanta Mohapatra and another, 84 (1997) CLT 114 clearly lays down the principle that a previous decision of a competent Court on facts which are foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. This principle being applied to the facts of the present case as discussed in the foregoing para in my considered view rather repels the contention of the learned counsel for the appellant as regards the involvement of substantial question of law as placed by him for admission of the appeal. Therefore, the decision does not come to the rescue of the appellant. Similarly, the facts and circumstances of the case of Vallabh Das vrs. Dr. Madanlal & ors, AIR 1970 SC 987 and Neki S/o. Bakhatawar vrs. Satnarain and others, AIR 1997 SC 1334 are clearly distinguishable. For the aforesaid discussion and in the back drop of settled law, this Court finds no such substantial question of law for being formulated to be answered in this appeal so as to admit the same. 10.In the result, the appeal stands dismissed. No order as to costs. Appeal dismissed.