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2017 DIGILAW 1082 (ORI)

Kumud Chandra Patel v. Sushila Naik

2017-09-18

A.K.RATH

body2017
JUDGMENT : Dr. A.K. RATH, J. 1. This appeal is filed by the plaintiffs against the judgment and decree dated 3.4.2002 and 12.4.2002 passed by the learned Ad hoc Addl. Dist. & Sessions Judge, Sundargarh in Title Appeal No.14/4 of 1994, whereby and whereunder, the learned Ad hoc Addl. Dist. & Sessions Judge, Sundargarh dismissed the appeal and confirmed the judgment and decree dated 25.2.1994 and 4.3.1994 passed by learned Sub-Judge, Sundagargarh in Title Suit No.61 of 1991. 2. In order to understand the dispute between the parties, the family trees of the parties needs to be mentioned. Janardan Patel Late Harihar =Lalita Late Nilambar (Deft.1) Late Khiradhar wife-Janhabi Patel (D-3) Daughter Bedamati = Jadaba Baikuntha (D-2) Madhab Chandra Patel (D-4) Jimuta(D-7) Kumuda(P-1) Pramod(P-2) Bikram(P-3) Paresh (D-8) Dibyalochan(D-5) Dulachand(D-6) The case of the plaintiffs is that Janardan Patel is the common ancestor of the parties. He was the original recorded tenant of the lands appertaining to sabak khata no.17, area Ac.29.90 dec. of village-Chitabhanga and sabak khata no.32, area Ac.8.25 dec. of village Talasankara. He had three sons, namely, Nilambar, Harihara and Khiradhara. During his life time, there was a Panch Faisala on 21.4.1931. In the said Panch Faisala, temporary arrangement was made with regard to distribution of property. In the year 1945, defendant no.4 through his mother, defendant no.3 filed O.S.No.133 of 45-46 in the court of the learned Sub-Judge, Gangpur State against the members of other two branches for declaration of his right, title and interest over schedule ‘A’ land. The suit was decreed. The same was confirmed in appeal. The defendants 3 and 4 did not take any steps for delivery of possession. They are still now in possession of some other land beyond the decreetal land. During the hal settlement, the parties failed to produce documents for preparation of separate parcha in their respective names for which the entire land was recorded jointly in their names. In the year 1964, Harihar Patel filed T.S.No.12/32 of 1964 against defendant nos.1 & 4 for permanent injunction with regard to a passage. The suit was decreed. The same was confirmed in appeal. The further case of the plaintiffs is that schedule ‘B’ and ‘C’ lands have been recorded jointly in the names of the daughter of Harihar, defendant nos.1 & 4. There is no partition of ‘B’ and ‘C’ schedule lands by metes and bounds. The suit was decreed. The same was confirmed in appeal. The further case of the plaintiffs is that schedule ‘B’ and ‘C’ lands have been recorded jointly in the names of the daughter of Harihar, defendant nos.1 & 4. There is no partition of ‘B’ and ‘C’ schedule lands by metes and bounds. Since the defendants created disturbance in their possession, they instituted the suit for partition. 3. The defendants 1 to 6 & 8 filed written statement denying the assertions made in the plaint. The specific case of the defendants is that in the earlier suits, it had been conclusively decided that there was a full fledge partition by metes and bounds among the three branches of the family since 1931. Defendant nos.3 and 4 levied Execution Case No.17 of 1948-49 in the court of the learned Sub-Judge, Sundargarh. The Court Amin had delivered the possession of the land to the plaintiffs on 28.9.1948, whereafter the execution case was dismissed on 4.10.1948 on full satisfaction. The suit was barred by principles of res-judicata. Defendant no.7, brother of the plaintiffs filed written statement supporting the stand of the defendants. 4. On the basis of the inter se pleadings of the parties, the learned trial court framed six issues. Both parties led evidence, oral and documentary to substantiate their case. The learned trial court came to hold that there was a full-fledged partition among the three branches of the family. It rejected the prayer for fresh partition of the plaintiffs of the suit schedule land, but then permitted the plaintiffs either amicably or through Amin to get their possession along with defendant no.7 confirmed in accordance with final decree and orders passed in T.S.No.133 of 1945-46 and T.S.No.12/32 of 1964. Held so, it decreed the suit preliminarily. The unsuccessful plaintiffs challenged the said judgment and decree before the learned District Judge, Sundargarh, which was subsequently transferred to the court of the learned Ad hoc Addl. Dist. & Sessions Judge, Sundargarh and renumbered as Title Appeal No.14/4 of 1994. The same was eventually dismissed. The learned trial court held that there was a partition between the parties. The suit is hit by principle of res judicata. 5. The Second Appeal was admitted on the following substantial questions of law. The same are :- “(D) Whether Exts. Dist. & Sessions Judge, Sundargarh and renumbered as Title Appeal No.14/4 of 1994. The same was eventually dismissed. The learned trial court held that there was a partition between the parties. The suit is hit by principle of res judicata. 5. The Second Appeal was admitted on the following substantial questions of law. The same are :- “(D) Whether Exts. A and B series in any way prove the claims of the defendants-respondents that the decree in T.S.No.133 of 1945-46 had been fully executed to bar the present suit by res-judicata ? (E) Whether after having allowed a petition (under Order 6 Rule 17, C.P.C) to amend the paint (before the learned lower appellate court and without objection by the defendants-respondents) was it proper to reject the petition U/s.41 Rule 27 of C.P.C. ?” 6. Heard Mr. Birendra Kumar Nayak on behalf of Mr. Basudev Pujari, learned Advocate for the appellants. None appeared for the respondents. 7. Mr. Nayak, learned Advocate for the appellants submitted that T.S.No.133 of 1945-46 was instituted by Madhab Patel against Harihar Patel and Nilambar Patel in the court of the learned Sub-Judge Gangpur. T.S.No.61 of 91 was filed by Kumud, Pramod and Bikram, grandsons of Harihar through their daughter Bedamati against defendant no.1(a) to 1 (e) and defendant nos.3 to 6. Defendant no.7 is the grandson of Harihar. Defendant no.2 is the son of Nilambar. The former suit was decided by another Court, which had no jurisdiction to try the subsequent suit. The issue in former suit was whether the land mentioned in ‘A’ schedule of the plaint comprised the share of the father of the plaintiffs and the issue in subsequent suit was whether there was partition between the parties by metes and bounds? In the former suit, the learned trial court held that by virtue of a partition between the parties, the land in question fell to the share of the father of the plaintiffs. But no issue was framed with regard to the partition of the property. In the present suit, it is the issue. Issues are not same in both the suits. The former suit was filed for declaration of right, title and interest of the plaintiffs over their father’s share, whereas the subsequent suit had been filed for partition leaving the share of the plaintiffs. Parties in both the suits had not litigated under the same title. Issues are not same in both the suits. The former suit was filed for declaration of right, title and interest of the plaintiffs over their father’s share, whereas the subsequent suit had been filed for partition leaving the share of the plaintiffs. Parties in both the suits had not litigated under the same title. As per the pleadings in the subsequent suit, the branch of Nilambar is creating trouble in smooth possession of the plaintiffs (Harihar Branch). So, there is conflict of interest between the codefendants. The courts below committed a manifest illegality in dismissing the suit. He relied on the decisions of the apex Court in the case of Mahboob Sahab Vrs. Syed Ismail and others, (1995) 3 SCC 693 and this Court in the case of Arikhita Sahu and others Vrs. J.Krishnaveni and others, 2008 (Supp.-I) OLR-521. 8. In Arikhita Sahu and others (supra), this Court in paragraph-10 of the report held as follows: “10. xxx xxx xxx A careful reading of the provisions of Section 11 of the C.P.C. would reveal that the following contingencies must be satisfied to constitute res judicata. (i) There must be two suits-one former suit and the other subsequent suit; (ii) The Court which decided the former suit must be competent to try the subsequent suit; (iii) The matter directly and substantially in issue must be the same either actually or constructively in both the suits; (iv) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the Court in the former suit; (v) The parties to the suits or the parties under whom they or any of them claim must be the same in both the suits. It is not necessary that all the parties to the two litigations must be common. All that is necessary is that the issue should be between the same parties or between parties under whom they or any of them claim; (vi) The parties in both the suits must have litigated under the same title.” 9. The learned appellate court came to hold that in the year 1931, there was partition of the properties in presence of the village punch and accordingly a punch faisala was prepared to that effect. Shares were allotted to three brothers. They were in possession of their respective shares. The defendant no.4 was a minor. The learned appellate court came to hold that in the year 1931, there was partition of the properties in presence of the village punch and accordingly a punch faisala was prepared to that effect. Shares were allotted to three brothers. They were in possession of their respective shares. The defendant no.4 was a minor. He instituted T.S.No.133/45-46 through his mother guardian in the court of the learned Sub-Judge, Gangpur State for declaration of his right, title and interest over ‘A’ schedule land against Harihar and Nilambar. There was a partition between the plaintiffs’ father and defendants. Schedule ‘A’ land fell to the share of the father of the plaintiffs. The suit was decreed. Further Ext.B reveals that delivery of possession was made to the parties in Execution Case No.12 of 1948-49. Thereafter the learned executing court dismissed the execution case holding, inter alia, that the decree was executed. There is no perversity or illegality in the same. In view of the earlier decree passed in the suit referred to above, the present suit is not maintainable. The suit is clearly barred on the principle of res-judicate. The substantial questions of law are answered accordingly. 10. In Mahaboob Sahab (supra), a question arose with regard to the application of the principles of res-judicata between the co-defendants. But the same is not the case here. The case is distinguishable on facts. 11. In the wake of the aforesaid the appeal, sans merit and deserves dismissal. The same is dismissed.