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2021 DIGILAW 189 (TRI)

Kanan Bala Sarkar v. Smti Bholana Ray (Sarkar)

2021-10-05

S.TALAPATRA

body2021
JUDGMENT Heard Mr. B. Banerjee, learned counsel appearing for the appellant. Also heard Mr. S. M. Chakraborty, learned senior counsel assisted by Ms. P. Chakraborty, learned counsel appearing for the respondents. [2] By the order dated 23.07.2021, the following substantial question of law was framed: “Whether the finding of the courts below that the suit for partition is barred by res judicata is sustainable in the resume of facts and in terms of Section 11 of the CPC or the finding in that regard is perverse?” [3] Mr. Banerjee, learned counsel appearing for the appellant has taken this court to the fact relevant for appreciating the substantial question of law as aforenoted. The suit was filed by the appellant seeking partition of the land as described in the Schedules A and B of the plaint. According to the plaintiff, the suit land was originally belonged to one Lalit Mohan Sarkar, the husband of the plaintiff no.1 and father of the plaintiffs no.2 and 3 and father in law of the sole-defendant. [4] The plaintiff has also asserted that by a registered will dated 22.01.1986, the said original owner bequeathed the entire land measuring 1.07 acre as descried in Para 2 of the plaint. It has been also asserted that the land measuring 0.036 acre devolved to three sons on death of Lalit Mohan Sarkar, the original owner. In Para-3 of the plaint, the said land has been described. It has been admitted by the plaintiff, since the amicable partition could not be struck between the legal heirs of Lalit Mohan Sarkar, the suit seeking partition was instituted. The certified copy of the said will and one sale deed bearing No.1664 of 2013 have been filed in the suit. The sole defendant by filing the written statement has seriously contested the pleadings of the appellant (the plaintiff) by stating that in the year 2016, the plaintiff No.1 alone filed a partition suit against the defendant being TS(Partition) 01 of 2016. The said suit was dismissed on 27.06.2017 and no appeal was preferred by the plaintiff No.1 from the said decree of dismissal dated 27.06.2017. [5] According to the sole defendant, the suit, as freshly instituted by the plaintiff, is therefore barred by principle of res judicata. By way of suppression of the aspect, the instant suit has been instituted by the plaintiff No.1. [5] According to the sole defendant, the suit, as freshly instituted by the plaintiff, is therefore barred by principle of res judicata. By way of suppression of the aspect, the instant suit has been instituted by the plaintiff No.1. Hence the plaint be returned under Order VII, Rule 11 of the CPC. By the judgment dated 13.12.2019 [delivered in TS(Partition) 05 of 2018], the trial judge has observed that the suit is barred by the principles of res judicata. According to him, the plaintiff No.1 was having knowledge that the land measuring 0.07 acre was sold by Swapan Sarkar from the suit property to one Dilip Paul but that aspect has been suppressed by the plaintiff. Thus, the plaintiff cannot be permitted to institute a fresh suit in view of the provision of constructive res judicata as provided under Explanation- IV of Section 11 of the CPC. Explanation –IV of Section 11 of CPC provides that in order to stop multiple litigations on the same subject or to bring a new ground before the court, a person cannot be allowed to bring a fresh suit between the same parties, on the same issues or the ground which ought to have been taken but was not taken. According to the trial judge, in the earlier suit, the issue of partition has been substantively decided and hence, the subsequent suit being TS (Partition) 05 of 2018 is untenable and unsustainable. [6] Being aggrieved by the said decision, the present appellant filed an appeal under Section 96 of the CPC read with Order 41, Rule 1 of the CPC in the court of the District Judge, Gomati District, South Tripura. By the impugned judgment dated 16.04.2021 the said appeal was dismissed on affirming the finding of the trial judge as stated before. For purpose of reference the relevant finding of the first appellate court is reproduced hereunder: 12. The partition of the A schedule land was sought in T.S. (P) 01 of 2016 which was dismissed and decided against the plaintiff. In the present suit also the same A schedule land has been sought to be partitioned between the plaintiffs and the defendant. The Schedule “A” land as described in the present suit comprises two land under two different moujas, namely, Udaipur Town and Rajarbagh under two different Khatian numbers 3265 and 1053. In the present suit also the same A schedule land has been sought to be partitioned between the plaintiffs and the defendant. The Schedule “A” land as described in the present suit comprises two land under two different moujas, namely, Udaipur Town and Rajarbagh under two different Khatian numbers 3265 and 1053. Under Khatian No.3265 corresponding to RS Plot No.3393/8274 land classified as bastu/nal is 0.100 acre. On the other hand, under the same Khatian the land corresponding to RS Plot No.3466/8275 classified as dukan (nal) is 0.014 acre. Under Rajarbagh Mouja the land under computersied Khatian No.1053 corresponding to RS Plot Nos.2445 and 2446 measures 0.73 and 0.22 respectively. On the other hand, the suit land as described in the Judgment and Decree of Case No. T.S. (P) 01 of 2016 also comprises of two Moujas, namely, Udaipur Town and Rajarbagh. Under MoujaUdaipur Town of RS Khatian No.3265 corresponding to Hal Dag No.3393/8274, 3466/3467 the land measures the area 0.107 acres. On the other hand, in the same Mouja under same Khatian number corresponding to Hal Dag No.8275 land measures 0.014 acres. Under Rajarbagh Mouja corresponding to RS Khatian No.1053 of Hal Dag Nos.2445 and 2446 land measures 0.73 acres and 0.22 acres respectively. 13. It appears that the land under Khatian No.3265 of Mouja – Udaipur Town corresponding to Hal Dag No.3393/8274 and 3466/3467 measuring 0.107 acres of the former suit, now stands only 0.100 acre in the present suit under same Khatian number corresponding to RS Plot No.3393/8274. The quantum of land which was 0.007 acre excess in the previous suit under Khatian No.3265 has been explained by the plaintiffs to the effect that Swapan Sarkar (deceased) during his life time sold out the land measuring 0.007 acre under RS Plot No.3393/1079 under Khatian No.5508 of Mouja – Udaipur Town to one Dilip Paul vide Registered Deed No.1664 of 2013. This discrepancy in the quantum of land was also pointed out by the Trial Court in the former suit T.S. (P) 01 of 2016. In the said Judgment the Trial Court stated that as per the description of the suit land in the plaint, the suit land falls under Hal Plot No.3393/8274 measuring 0.107 acre. But as per the Khatian No.3265 the measurement of the said land is 0.100 acre. In the said Judgment the Trial Court stated that as per the description of the suit land in the plaint, the suit land falls under Hal Plot No.3393/8274 measuring 0.107 acre. But as per the Khatian No.3265 the measurement of the said land is 0.100 acre. The Trial Court finding the contradiction in the former suit between the entries of Khatian and the plaint schedule, dismissed the former suit. 14. The alleged sale transaction between deceased Swapan Sarkar and Dilip Paul took place in the year 2013 but the previous suit No. T.S. (P) 01 of 2016 was instituted on 20-02-2016 by the plaintiff against the present defendant. The plaintiff was having knowledge at that time that the land measuring 0.007 acre was sold by the deceased Swapan Sarkar from t e suit property to Dilip Paul, but the said matter which ought to have been taken by the plaintiff as a ground in the previous suit was not so taken by the plaintiff in spite of having knowledge of the same. Here the trial court has rightly stated that the said matter which the plaintiffs have taken ground in the present suit cannot be countenanced in view of the provision of constructive res judicata as provided in Explanation-IV of Section 11 of CPC. [Emphasis added] [7] Mr. Banerjee, learned counsel for the appellant at the outset of his submission has stated that on the surface of the finding, as noted above, it is apparent that how wrongly the principles of res judicata have been applied to the context of the suit. It has been observed by the first appellate court that in the suit for partition of the A Schedule land of the plaint between the plaintiff No.1 and the defendant has already been adjudicated in TS (P) 1 of 2016. In the plaint, by way of suppression and by impleading the plaintiffs No.2 and 3 and also by incorporating the cause relating to the Schedule B land of the plaint, the suit has been instituted afresh. But the suit is not sustainable in view of the Explanation IC, Section 11 of the CPC. [8] Mr. Banerjee, learned counsel has submitted that the finding even though concurrent in nature emanates from serious misreading of Section 11 Explanation –IV of the CPC. But the suit is not sustainable in view of the Explanation IC, Section 11 of the CPC. [8] Mr. Banerjee, learned counsel has submitted that the finding even though concurrent in nature emanates from serious misreading of Section 11 Explanation –IV of the CPC. Even principles of constructive res judicata cannot bind the parties who were not arraigned as the party in the former suit. Hence, the observation in this regard as made by the trial court and the first appellate court are perverse. Mr. Banerjee, learned counsel has further submitted that such decision is untenable. He has referred to a decision of the Madras High Court in K. Ramachandran v. K. Ganeshmoorthy and Another [the judgment dated 17.02.2011 delivered in Appeal Suit (First Appeal)No.1073 of 2007]. It has been enunciated in the said judgment that for a suit for partition, the cause of action is continuous one and even if no liberty was given, the first respondent/plaintiff is entitled to file a fresh suit for partition and it is neither barred under Section 11 of the CPC on the principles of resjudicata, even not hit by the constructive res judicata as laid by Order II Rule 2 of the CPC. Mr. Banerjee, learned counsel has therefore apprehended that if this court adopted the similar approach, it will cause miscarriage of justice. [9] In addition, Mr. Banerjee, learned counsel has placed his reliance on a decision of Assam High Court in Tara Kishore Das v. Beharu Barman and Others reported in AIR 1958 Assam 66. In the said decision, the Assam High Court was confronted with a question whether a fresh suit for partition is barred after dismissal of the former partition suit. The Assam High Court has observed inter alia that a right to obtain partition is a right inherent in the joint ownership of property. It is natural and legal incidence of ownership which could not be denied to a co-owner of the property so long as his right subsists. The mere fact that on an earlier occasion he could not obtain partition, is no ground for holding that the right of the coowner to seek partition is barred for ever. It is natural and legal incidence of ownership which could not be denied to a co-owner of the property so long as his right subsists. The mere fact that on an earlier occasion he could not obtain partition, is no ground for holding that the right of the coowner to seek partition is barred for ever. It is a continuing right which the co-owner inhered in respect of the unpartitioned land; and if on account of inconvenience or differences with the other coowners, it is not possible for him to continue in the joint ownership of the property, there is no reason why the right to seek partition should be denied to him. In other words, it is open to the co-owner to ask for separate enjoyment of his share of the property at any time. The right to partition of the joint property cannot be refused so long as his interest in the land is not extinguished. [10] Finally, this court had occasion to observe under different contexts as regards the object of Order II, Rule 2 of the CPC. Their object is not to compel the plaintiff to seek all reliefs in one and same suit. Thus, it is clear from those decisions that a claim for pendent lite mesne profits, for example, would not be hit by Order II, Rule 2 of the CPC as such right is continuous for the different periods of time. [11] Mr. Banerjee, learned counsel has submitted that the principle of res judicata is fundamentally a public policy which has taken a statutory character. Those are not blanket, but dependant on the contexts. It has to be applied judiciously, looking at the end that it serves the substantial cause of justice. [12] In the present context, according to Mr. Banerjee, learned counsel both the courts below have been driven by impatience. As the plaintiff No.1 had instituted the former suit, no fresh suit for partition is tenable at her instance. The former suit was admittedly imperfect for deficit in arraignment and description of the ownership of the joint property. Having reflected upon those aspects, the courts below dismissed the suit and the appeal by applying the doctrine of res judicata. [13] Mr. S. M. Chakraborty, learned senior counsel appearing for the respondent (the defendant in this suit) has contended that there is no error of law committed by the courts below. Having reflected upon those aspects, the courts below dismissed the suit and the appeal by applying the doctrine of res judicata. [13] Mr. S. M. Chakraborty, learned senior counsel appearing for the respondent (the defendant in this suit) has contended that there is no error of law committed by the courts below. Therefore, this court should not interfere with the finding, as regards res judicata. This court, while considering the substantial question of law, reappreciated the facts that have led to institution of the fresh suit. The bare facts that the plaintiff No.1 is not the only plaintiff whose interest is relevant in the partition, but there are other plaintiffs who have stakes and interest in the unpartitioned property which has been proposed to be partitioned by the process of the court. That apart, the question that has been raised by the defendant that even if they were not parties in the former suit, the suit is barred by Section 11, Explanation IV, CPC. Section 11 of the CPC quite displays its intention by providing that no Court shall try any suit or issue in which the matter directly and substantially in issue had been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claims or litigates under the same title, in 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 I denotes the minimum purpose of expression “former suit” whereas Explanation II is confined to the competence of a Court and Explanation III provides that if any particular fact has been denied by one or the other party or admitted, expressly or impliedly, those may also create res judicata if a decision has been taken solely on the basis of such denial or admission. But the defendant has pressed Explanation IV of Section 11 of the CPC which provides that 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. There cannot be any amount of doubt that the courts below have expanded the explanation beyond the borders. There cannot be any amount of doubt that the courts below have expanded the explanation beyond the borders. [14] Here is a case where a defective suit was filed by one of the plaintiffs and there had been no decision at all on the partition. Even the courts below have not dwelled upon what would happen to the continuing right of partition, inherent to the parties involved in the suit. Without appreciating that aspect of the matter, the impugned judgment has been delivered by the first appellate court. [15] In Ajay Arjun Singh v. Sharadendu Tiwari And Ors reported in (2016) 6 SCC 576 , the apex court has without any ambiguity expressed their opinion about the nature and scope of applying the principles of res judicata by observing that a vague, cryptic and casual order, in the former proceeding containing finding that was neither directly in issue nor properly examined cannot amount to res judicata. Any definition other than which has been laid will frustrate the very scheme of justice. As we have already indicated that the principles of res judicata can be applied even in different stages of the same proceeding and the method of applying res judicata is restrictive, not very expensive. The principle of res judicata applies even in between two stages of the same proceeding so that if an issue has been decided at an early stage against a party, that issue cannot be allowed to re-agitate at subsequent stage of the same proceeding. Here, what is sought to be re-agitated is that the finding deciding a germane issue will be final among the same parties. [16] So far the doctrine expressed under Order II, Rule 2 of the CPC is concerned had fallen for consideration of the apex court in Kunjan Nair Sivaraman Nair v. Narayan Nair and Others reported in (2004) 3 SCC 277 . The apex court has held that the principle underlying Order II Rule 2 is that in the former suit, the plaintiff is under obligation to exhaust all available grounds in support of his claim and the plaintiff has to claim all reliefs emanating from the same cause of action. The apex court has held that the principle underlying Order II Rule 2 is that in the former suit, the plaintiff is under obligation to exhaust all available grounds in support of his claim and the plaintiff has to claim all reliefs emanating from the same cause of action. The constructive res judicata deals with the grounds of attack and defence which ought to have been raised but not raised, but Order II Rule 2 of the CPC similarly relates to reliefs which ought to have been claimed under the same cause of action, but not claimed (see Alka Gupta v. Narender Kumar Gupta : (2010) 10 SCC 141 ). These were the provisions of the statute which were considered by the courts below. [17] This court having anxiously considered the records, is of the opinion that neither Section 11 with its Explanation IV of the CPC nor the constructive res judicata as structured by Order II Rule 2 of the CPC would apply in the present context, inasmuch as no issue was decided in the former suit. Thus, it cannot be held that the plaintiff No.1, is debarred from instituting a fresh suit. That apart, it is apparent on the face of record that the parties are not same. The parties who are litigating in the subsequent suit, are different. Their right to get their joint properties partitioned being the continuing right to the property cannot be denied by way of applying the principle of res judicata for any act of the plaintiff No.1. Therefore, both the courts below have committed serious error in law and hence, this court is persuaded to interfere with the judgment dated 16.04.2021 and the judgment dated 13.12.2019 respectively passed in Title Appeal No. 04 of 2020 and TS (Partition) 05 of 2018. But if we leave this matter at this stage without making any further observation that would definitely cause substantive injustice to the parties. Therefore, the suit is remanded for fresh adjudication from the stage of framing of issues. The court of the Civil Judge, Senior Division, Gomati District, Udaipur shall examine the pleadings of the parties for framing the appropriate issues save and except the issue of res judicata or constructive res judicata. Thereafter, it would proceed with the suit to its finality. In terms of the above, this appeal stands allowed. Decree be drawn accordingly. The court of the Civil Judge, Senior Division, Gomati District, Udaipur shall examine the pleadings of the parties for framing the appropriate issues save and except the issue of res judicata or constructive res judicata. Thereafter, it would proceed with the suit to its finality. In terms of the above, this appeal stands allowed. Decree be drawn accordingly. Thereafter, the LCRs be sent down. It is needless to say that the trial court shall appoint the date of appearance of the parties notifying the purpose of such appearance after the receipt of the records from this court.