Research › Search › Judgment

Calcutta High Court · body

2023 DIGILAW 198 (CAL)

Sudip Singha Roy v. Chhayarani Singha Roy

2023-02-08

BISWAJIT BASU

body2023
JUDGMENT 1. The instant second miscellaneous appeal is directed against the judgment and decree dated May 26, 2011 passed by the Additional District Judge (Special Court), District-Hooghly in Title Appeal No. 146 of 2008 thereby affirming the order no. 104 dated September 22, 2008 passed by the Additional Court of learned Civil Judge (Junior Division) Chandernagore, District-Hooghly in Miscellaneous Case No. 05 of 2007 arising out of Title Execution Case No. 26 of 1998. 2. The respondent no. 1 filed a suit in the Additional Court of learned Civil Judge (Junior Division), Chandernagore, District-Hooghly being Title Suit No. 170 of 1997 for eviction of the respondent no.2 from the suit property alleging that her husband Rabindra Nath Singha Roy was the owner of the suit property and he bequeathed it to her by a registered deed of gift, the respondent no. 2 was a licensee under her husband without license fees and after his death she permitted the respondent no. 2 to stay in the suit property on the same terms and conditions but on April 15, 1995 such license was revoked and the respondent no. 2 was asked to quit and vacate the suit property which she refused, hence the suit. The respondent no. 2 contested the said suit. She claimed that she is the legally married wife of the said Rabindra Nath Singha Roy and in their wedlock the appellant was born. She challenged the validity and legality of the said deed of gift on the grounds that it was obtained by practising fraud, misrepresentation, coercion and it was never executed by the said Rabindra Nath Singha Roy. 3. The said suit was decreed on July 30, 1998 with the findings that the respondent no. 1 has failed to prove her marriage with the said Rabindra Nath Singha Roy and also the birth of the appellant in the said wedlock. One specific issue being issue no. 5 whether the plaintiff has any right, title and interest in respect of the suit property was framed in the said suit. The said issue was answered in favour of the respondent no. 1 holding that execution of said deed of gift was duly proved and the same was acted upon as the respondent no. 1 on the basis of said deed of gift, has recorded her name in the record of rights of the suit property. 4. The respondent no. The said issue was answered in favour of the respondent no. 1 holding that execution of said deed of gift was duly proved and the same was acted upon as the respondent no. 1 on the basis of said deed of gift, has recorded her name in the record of rights of the suit property. 4. The respondent no. 2 aggrieved by the aforementioned judgment and decree preferred an appeal being Title Appeal No. 17 of 1999, the learned Additional District Judge, Fast Track Court-I at Chandernagore, by the judgment and decree dated November 30, 2004 dismissed the said appeal, thereby affirmed the findings of the first court against the said issue no. 5. The said appeal Court though did not approve the finding of the first court that the appellant is not the son of said Rabindra Nath Singha Roy but affirmed the finding of the learned Trial Judge that the respondent no. 2 has failed to prove her marriage with said Rabindra Nath Singha Roy. 5. The said decree was put into execution giving rise to Title Execution case No 26 of 1998. The appellant in the said execution case filed an application under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure. The said application was registered as Misc. Case No.05 of 2007. The appellant initially sought to resist the execution of the said decree on the ground that he cannot be evicted from the suit property on execution of the said decree as he has right to stay there as the son of the said Rabindra Nath Singha Roy. The appellant subsequently amended the said application to incorporate a further prayer that the decree under execution is not binding upon him as the deed of gift through which the respondent no. 1 is tracing her title over the suit property, was obtained by practising fraud upon his father. 6. The appellant subsequently amended the said application to incorporate a further prayer that the decree under execution is not binding upon him as the deed of gift through which the respondent no. 1 is tracing her title over the suit property, was obtained by practising fraud upon his father. 6. The executing Court by the judgment and order dated September 22, 2008 dismissed the said miscellaneous case holding that to resist the claim of the decree holder, the petitioner is required to establish his title over the suit property; since the decree holder in the suit has established her such title the petitioner cannot avoid the decree under execution, whether the petitioner is the son of said Rabindra Nath Singha Roy and whether the mother of the petitioner is the legally married wife of said Rabindra Nath Singha Roy are irrelevant considerations to decide the title of the petitioner over the suit property. 7. The appeal assailing the aforesaid judgment and decree was dismissed. The instant appeal is directed against the said appellate judgment and decree. The appeal was admitted under Order XLI Rule 11 of the Code without framing any substantial question of law. This court, after going through the materials on record felt necessary to formulate the following substantial question of law:– “Whether both the courts below have committed substantial error of law in holding that the challenge of the appellant to the validity and legality of the deed of gift executed by one Rabindranath Singha Roy, the donor of the deed of gift in favour of the decree holder/respondent is barred by the principles of Res Judicata? 8. Mr. Tanmoy Mukherjee, learned advocate for the appellant submits that doctrine of Res Judicata has no manner of application in the present case for the simple reason that neither the appellant was a party to the suit nor he is claiming right over the suit property through his mother, rather he is claiming an independent right over it being the son of the admitted owner therefore neither the judgment of the suit nor any finding therein is binding upon him but both the courts below have failed to appreciate these aspects of the matter, consequently have committed substantial error of law in holding that the said Misc. case is barred by the said doctrine. case is barred by the said doctrine. Mr Mukherjee then contends that the mother of the appellant was not the executant of the said deed of gift as such in terms of Section 31(1) of the Specific Relief Act, 1963, the judgment passed in the earlier suit overruling her challenge to the validity of the said deed of gift not being a ‘judgment in rem’ cannot be a bar to the challenge of the appellant regarding the validity of the said deed of gift. Mr. Mukherjee, to buttress his said argument places reliance on the decision of the Hon’ble Supreme Court in the case of DECCAN PAPER MILLS COMPANY LIMITED vs. REGENCY MAHAVIR PROPERTIES AND OTHERS reported in (2021) 4 SCC 786 . 9. Mr. Probal Kumar Mukherjee, learned senior counsel for the respondent no. 1 on the other hand submits that the principle of Res Judicata is based on need of giving finality to judicial decisions and the said principle has been applied by the Courts for the purpose of achieving finality in litigation. He further submits that in the present case the appellant is challenging the validity of the deed of gift on the grounds which his mother availed in the suit and in the appeal to dislodge the said deed of gift, therefore, the demand in the earlier proceeding being of the same quality, the bar of the principle of Res Judicata in terms of Section 11 of the Code squarely applies in the present case. To get support of his such submission, he refers to the decision of the Hon’ble Division Bench in the case of ABDUL GANI vs. NABENDRA KISHORE reported in Volume 38 CWN 876 and the decision of the Hon’ble Supreme Court in the case of SUNDERABAI vs. DEVAJI reported in AIR 1954 SC 82 . On the scope of the provision of Section 11 of the code, Mr Mukherjee refers to the decision of the Hon’ble Supreme Court in the case of RAJENDRA KUMAR vs. KALYAN(DEAD) BY LRS reported in (2000)8 SCC 99 and SAROJA VS. CHINNUSAMY(DEAD) BY LRS. AND ANOTHER reported in (2007)8 Supreme Court cases 329. 10. On the scope of the provision of Section 11 of the code, Mr Mukherjee refers to the decision of the Hon’ble Supreme Court in the case of RAJENDRA KUMAR vs. KALYAN(DEAD) BY LRS reported in (2000)8 SCC 99 and SAROJA VS. CHINNUSAMY(DEAD) BY LRS. AND ANOTHER reported in (2007)8 Supreme Court cases 329. 10. Having heard the learned advocate for the parties and on perusal of the records, it appears that the grounds of challenge to the validity and legality of the said deed of gift are same in the suit and in the Misc case but such challenge was thrown in the suit by the mother and in the Misc case by the son, this is the only difference. The question therefore falls for consideration in the present appeal is whether, for such difference the executing court is obliged to re-adjudicate an issue which has already been decided in the suit. 11. The principle of Res Judicata is a fundamental doctrine of law that there must be an end to litigation. The doctrine has received statutory sanction in the Code as a matter of prudence and to give the weightage to a finding or a decision as has been held by the Hon’ble Supreme Court in the case reported in (2000) 8 SCC 99 (supra). The Hon’ble Supreme Court in the case reported in (2007)8 SCC 329 (supra) has laid down the conditions necessary to attract the doctrine of Res Judicata in terms of section 11 of the Code. 12. It is well settled that Section 11 of the Code is not exhaustive of the general doctrine of Res Judicata. The following passage from the decision of the Privy Council in the case of KALIPADA DE AND OTHERS vs. DWIJAPADA DAS AND OTHERS reported in AIR 1930 (P.C.) 22 , being relevant is quoted below:- “The question as to what is to be considered to be Res Judicata is dealt with by S.11, Civil P.C., of 1908. In that section are given many examples of circumstances in which the rule concerning Res Judicata applies; but it has often been explained by this Board that the terms of S. 11are not to be regarded as exhaustive. In that section are given many examples of circumstances in which the rule concerning Res Judicata applies; but it has often been explained by this Board that the terms of S. 11are not to be regarded as exhaustive. In the case of Ram Kripal Shukul v. Rup Kuari (2), this is made clear, especially in these words of Sir Barnes Peacock (at p. 41 of 11 I.A.): “The binding force of such a judgment in such a case as the present depends not upon S. 13 of Act 10 of 1877” (now replaced by S. 11, Civil P.C., 1908): “but upon general principles of law. If it were not binding there would be no end of litigation.” This decision, and the authority of the very words used by Sir Barnes Peacock, are confirmed and enhanced by the language of Lord Buckmaster in announcing the conclusion of this Board in Hook v. Administrator- General of Bengal (3) at p. 194 9of 48 I.A.); and further at p. 138 (of 49 I.A.) in the case of Ramchandra Rao v. Ramachandra Rao (4). ” 13. Similar view was expressed by the Hon’ble Supreme Court in the case of GULAM ABBAS AND OTHERS vs. STATE OF UTTAR PRADESH AND OTHERS reported in (1982)1 SCC 71 . An excerpt from paragraph 14 of the said decision is quoted below for ready reference:- “...it is well settled that Section 11 of the CPC is not exhaustive of the general doctrine of Res Judicata as enacted in Section 11 has some technical aspects, the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation...” 14. To appreciate the true scope of the said doctrine, it is profitable to quote the following passage from the judgment of the Privy Council authored by Sir Lawrence Jenkins in the case of DIWAKAR RAO vs. CHANDAN LAL RAO AND OTHERS reported in AIR 1916 (P.C.) 78 :- “Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who escribes the plea thus: “If a person though defeated at law sue again he should be answered, ‘You were defeated formerly. This is called the plea of former judgment.” [See “The Mitakshara(Vyavahara)” Bk. II, ch.i, edited by J. R. Gharpure, p. 14, and “The Mayuka,” Ch. I, sec. 1, p. 11 of Mandlik’s edition] And so the application of the rule by the Courts in India should be influenced no technical considerations of form, but by matter of substance within the limits allowed by law.” 15. By the judgment and decree of the suit, the title over the suit property was passed in favour of the respondent no. 1, she cannot be vexed to meet the similar challenge to her such title in a subsequent proceeding, even by a third party to the suit. Besides, the Hon’ble Division Bench of this Court in the case reported in Volume 38 CWN 876 (supra) has interpreted the words "litigating under the same title" appearing in the body of Section 11 of the Code as under:- “The words ‘litigating under the same title’ mean that the demand should have been of the same quality in the second suit as in the first one.” In the instant case the demand of the mother and the son being of the same quality, the maintainability of the Misc case is hit by the doctrine of Res Judicata, also in terms of Section 11 of the Code. However, the decision of the Hon’ble Supreme Court reported in AIR 1954 SC 82 (supra) cited on behalf of the respondent no. 1 is not applicable in the facts and circumstances of the present case. 16. Section 31(1) of the Specific Relief Act, 1963 has no manner of application in the present case, as such the decision of the Hon’ble Supreme Court reported in (2021) 4 SCC 786 (supra) cited on behalf of the appellant is misplaced. For the reasons discussed above, the substantial question of law framed in this appeal is answered in negative, in consequence S.M.A 134 of 2012 is dismissed. There shall, however, be however no order as to costs. For the reasons discussed above, the substantial question of law framed in this appeal is answered in negative, in consequence S.M.A 134 of 2012 is dismissed. There shall, however, be however no order as to costs. The connected application being IA No. CAN 02 of 2017(Old CAN 10272 of 2017) is not in file, in view of the dismissal of appeal, the said application is also disposed of accordingly without any order as to costs. Let the connected Lower Court records be sent down to the learned Courts below by special messenger at the costs of the respondent no. 1, such costs be put in within a week from date. The executing Court is requested to dispose of the Title Execution Case no. 26 of 1998 as expeditiously as possible, in accordance with law. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.