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2015 DIGILAW 320 (GAU)

Abinash Chandra Ghosh v. Prabhat Ram Das and Ors.

2015-03-17

MANOJIT BHUYAN

body2015
Heard Mr. B.R. Dey, learned senior counsel appearing for the appellant, assisted by Mr. P.K. Deb Roy. Also heard Mr. S.P. Choudhury, learned counsel appearing for the respondents. 2. The substantial question of law formulated for deciding this appeal is “whether the suit is barred by the principles of res judicata?” 3. Turning briefly to the facts of the case, Title Suit No. 164 of 1995 was instituted by the appellant/plaintiff in respect of the land described in the schedule of the plaint. While making prayer for declaration of possessory right and confirmation of possession over the suit land, the appellant/plaintiff had also referred to the institution of Title Suit No. 148/1979 over the same suit land. According to the appellant/plaintiff whereas the earlier Title Suit No. 148 of 1979 had been instituted claiming occupancy right and confirmation of possession over the suit land on the basis of a gift deed, in the present suit i.e. 164 of 1995 the claim over the suit land is based on Final Khatian No. 132. The subject matter in both the suits being different, the appellant/plaintiff urged that the adjudication of the suit would not suffer or be hit by the principles of res judicata. 4. The respondents-defendants contested the suit and filed written-statement and had categorically taken the stand that the said suit was barred by the principles of res judicata. In fact, in the said written-statement a stand taken that besides the aforesaid Title Suit No. 148/1979, the appellant/plaintiff had also filed Title Suit No. 233 of 1972 and Title Suit No. 109 of 1977 in respect of the suit land. 5. The Trial Court framed as many as 7 issues, out of which Issue No. 3 pertain to as to whether the suit was barred by limitation as well as hit by the principles of res-judicata. In the course of the proceeding the Trial Court examined witnesses on behalf of the plaintiff and also documentary evidence produced by either parties, besides, examining the District Commissioner as a court witness. 6. The said Issue No. 3 was decided against the appellant/plaintiff and while doing so the Trial Court examined Ext. B & C, being the judgment and decree filed in Title Appeal No. 68 of 1983 arising out of Title Suit No. 148 of 1979. 6. The said Issue No. 3 was decided against the appellant/plaintiff and while doing so the Trial Court examined Ext. B & C, being the judgment and decree filed in Title Appeal No. 68 of 1983 arising out of Title Suit No. 148 of 1979. The Trial Court took note of the fact that the Final Khatian No. 132 was available with the appellant/plaintiff on the date of filing the earlier Tile Suit No. 148 of 1979, in that, the said Khatian was issued in the year 1978. The Trial Court also took note of the fact that the said Khatian was duly considered by the appellate Court in Title Appeal No. 68 of 1983, although the same had not been produced as an exhibit. By relying upon the provision of Section 11, Explanation-IV of the Code of Civil Procedure, the Trial Court held that the appellant/plaintiff's claim of possessory right over the suit land on the strength of the final Khatian is clearly barred by the said Explanation-IV to Section 11 of the Civil Procedure Code. Accordingly, the Title Suit No. 164/1995 was dismissed on contest. 7. The Title Appeal 13/2002 preferred by the appellant/plaintiff primarily revolved upon the findings of Issue No. 3 relating to the principles of res judicata. Upon appreciation of the evidence on record, the first appellate court concurred with the findings and decisions of the Trial Court, having found that the suit land as described in the earlier suit i.e. Title Suit 148/1979 and in the present suit i.e. Title Suit 164/1995 are the same and by virtue of the provision of Section 11, Explanation-IV as well as Order XXIII Rule 1(4) and Order II Rule 2 of the CPC, the said Title Suit 164/1995 is barred. 8. On second appeal before this Court, and as indicated earlier, the substantial question of law so formulated while admitting the appeal for hearing on 29.07.2004, pertains to as to whether the suit is barred by the principles of res judicata. 9. Before answering the substantial question of law, vis-a-vis, the facts and circumstances of the suits in question, it would be apposite to extract the provision of Section 11, Explanation-IV of the Code of Civil Procedure. “11. 9. Before answering the substantial question of law, vis-a-vis, the facts and circumstances of the suits in question, it would be apposite to extract the provision of Section 11, Explanation-IV of the Code of Civil Procedure. “11. Res judicata.- No. Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, the a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.” 10. Mr. B.R. Dey, learned senior counsel appearing for the appellant submits that the principle of res judicata do not come in the way of Title Suit No. 164/1995. Mr. Dey submits that procedural law cannot do away with vested rights, inasmuch as the said Final Khatian No. 132 having been issued in favour of the appellant /plaintiff cannot be nullified and/or rights accruing out of it cannot be done away with. While maintaining the stand, Mr. B.R. Dey, learned senior counsel also relies upon the decision rendered in Sangram Singh v. Election Tribunal, Kotah reported in AIR 1955 SC 425 as well as in the case of Bhagaban Swaroof & Others v. Mulchand & Others reported in AIR 1983 355 to drive home the point that the Code of Civil Procedure is designed to facilitate justice and further its ends. 11. On the other hand Mr. S.P. Choudhury, learned counsel for the respondents while taking this court to the findings and decisions rendered by the first appellate court and the Trial Court submits that there is no perversity in the findings and decisions of the courts below. 12. 11. On the other hand Mr. S.P. Choudhury, learned counsel for the respondents while taking this court to the findings and decisions rendered by the first appellate court and the Trial Court submits that there is no perversity in the findings and decisions of the courts below. 12. Having considered the submissions of the parties in lis and the provisions of law, the fate of this appeal clearly appears to be dependent on the determination as to whether the subject matter in Title Suit No. 164/1995 was a matter directly and substantially in issue in Title Suit No. 148/1979 and if so whether the suit was hit by Section 11, Explanation-IV of the CPC, which relates to constructive res judicata. The records apparently disclose that the Final Khatian No. 132 had been issued in the year 1978 and as such the same was available with the appellant/plaintiff on the date of filing the earlier suit i.e. Title Suit 148 of 1979. The said Final Khatian which could have been made a ground of defence or attack in Title Suit No. 148 of 1979 but not set up as a ground of attack or defence has to be deemed and be regarded as having been constructively in issue directly and substantially in the earlier suit. This is the scope and ambit of Explanation-IV read with Explanation-III to Section 11 of the Code of Civil Procedure. 13. There is no denying the fact that both the suits i.e. Title Suit 148/1979 and 164/1995 pertain to the same suit land. The difference sought to be introduced by the appellant/plaintiff is that whereas the claim in the earlier suit was based on a gift deed the later suit is based on the Final Khatian. However, as indicated above the Final Khatian No. 132 being available with the appellant/plaintiff on the date of institution of the earlier suit, therefore by virtue of the provisions under Section 11, Explanation-IV to the Civil Procedure Code, the issue in both the suits must be deemed to be directly and substantially the same. Accordingly, the findings and decisions of the courts below that the said Title Suit 164/1995 was not maintainable on account of being hit by the principles of res judicata does not warrant interference. The case laws relied upon by Mr. B.R. Dey, learned senior counsel are wholly inapplicable in the determination of this appeal. 14. Accordingly, the findings and decisions of the courts below that the said Title Suit 164/1995 was not maintainable on account of being hit by the principles of res judicata does not warrant interference. The case laws relied upon by Mr. B.R. Dey, learned senior counsel are wholly inapplicable in the determination of this appeal. 14. In view of the above, the substantial question of law so formulated is decided against the appellant/plaintiff. Resultantly, the second appeal stands dismissed, however, without any order as to costs.