Mohan Vs.
Smt. Anandi & Ors [1996] INSC 372 (12 March 1996)
Venkataswami
K. (J) Venkataswami K. (J) Singh N.P. (J) K.Venkataswami J.
CITATION:
JT 1996 (3) 244 1996 SCALE (2)762
ACT:
HEAD NOTE:
The
only question that was argued in this Appeal by learned Senior Counsel for the
appellants Shri V.A. Bobde was whether the present suit out of which this Civil
Appeal arises was hit by the principles of Res Judicata. We may it once point
out that on this issue, the trial court, the first appellate court and the High
Court have concurrently found that the suit was not hit by the principles of Res
judicata. Nonetheless, learned Senior Counsel strenuously argued the matter to
persuade us to hold that the present suit was barred by the principle of Res Judicata.
Before
he go into the details of the matter, we would like to point out that this case
on an earlier round of litigation came up before this Court in Civil Appeal No.
473 of 1966 when this Court by judgment dated 3.3.1971 remanded the case to the
trial court to consider the decide the issue relating to Res Judicata. The
trial court considered and decided the issue after remand in the negative. The
first appellate court and the High Court concurred with the view taken by the
trial court. Aggrieved thereby, the appellant has preferred this Appeal to the
Supreme Court.
The
issue of Res Judicata relates to the legality, validity and binding nature of a
gift deed dated 2.5.1951 executed by one Bhiwa (father of the respondents) in favour
of the respondents herein.
The relevant
and brief circumstances under which the present Appeal came to be filed may now
be noted:
Bhiwa
was the original owner of the suit property. He was the father of the
respondents herein. As a result of compromise between the said Bhiwa and his
wife Mendri in Civil Appeal No. 21A/1942, the latter got 1/4th share of the
suit property. Under two gift deeds, she had given away that property in favour
of her two daughters, viz., respondents 1 and 2. The said Bhiwa by a gift deed
dated 2.5.51 registered on 23.8.51 gave the balance of the suit property to the
respondents herein. The said Bhiwa had also sold the suit property to the
appellant herein by way of sale deed dated 13.5.51. As the appellant claimed
title to the suit property on the basis of the said sale deed 13.5.51, the
respondents were obliged to file the present suit (No 46A/1951) for declaration
of their title to the entire suit property and recovery of possession. The
trial court by its first judgment held that the gift deed executed by Bhiwa was
fraudulent and consequently not binding on the appellant herein. However, the
trial court granted decree in favour of the respondents so far as 1/4th share
given to respondents 1 and 2 by their mother was concerned. The respondents
filled appeal against the judgment of the trial court in not granting full
relief and the appellant filed cross- objections of the respondents. In the
result, the suit filed by the respondents in its entirety stood dismissed by
the appellate court. The appellate court while dismissing the suit found that
the gift deed dated 2.5.51 and fraudulent and ante-dated. It further held that
the suit itself was barred by the principle of Res Judicata. Aggrieved by the
judgment and decree of the lower appellate court, the respondents preferred
second appeal to the High Court of Bombay (Nagpur Bench). The learned Single
Judge of the High Court set aside the judgment and decree passed by the
appellate court dismissing the suit filed by the respondents and remitted the
matter to the trial court for fresh disposal in the light of the observations
made by him. The learned Judge in the course of the judgment found that the
courts below went wrong in entertaining the plea regarding fraudulent nature of
the gift deed dated 25.5.51 as well as the ante-dating of the same.
Consequently findings on those aspects were set aside. However, as the plea of Res
Judicature was taken for the first time in the first appellate court. The High
Court remitted the matter to the trial court to go into the question of Res Judicate
after allowing the parties to amend the pleadings. The High Court made it clear
that the parties will not be permitted to amend the pleadings regarding fraud,
collusion and ante- dating in respect of the gift deed dated 2.5.51. Aggrieved
by the judgment of the High court, the appellant preferred civil appeal to this
court being C.A. NO. 473/66. That Civil Appeal was disposed of by judgment
dated 3.7.71.This Court confirmed the findings and conclusions of the High
Court and consequently dismissed the appeal. This is how the matter went to the
trial court once over for adjudication on the issue relating to Res Judicature.
As noticed earlier after remand all the three courts have concurrently held
that the plea of Res Judicature is not available to the appellant herein. Let
us now give the facts in brief relevant for considering the issue of Res
Judicature.
The
appellant along with three others (co- plaintiffs)filed Civil suit No. 47B of
1951 against Bhiwa for recovery of a sum of Rs. 506/- on 23.8.1951.
Simultaneously,
an application for attachment before judgment under order 38 rule 5 was also
made in that suit.
The
trial court initially allowed the application for attachment before judgment of
the property dealt with in the gift deed mentioned above. Aggrieved by that,
the respondents herein preferred an application under Order 21 Rule 58 to raise
the attachment before judgment and the trial court after hearing the parties
raised the attachment by an order dated 28.9.1951. While the matter stood at
that stage and the suit was pending, the appellant along with three others
filed an independent civil suit No. 42A of 1952 under Order 21 Rule 63 C.P.C.
(before the C.P.C. was amended by 1976 Act challenging the order of Civil court
dated 28.9.1951 raising the attachment at the instance of the respondents
herein in Civil suit No. 47-B of 1951. That suit viz.. 47-B of 1951 was decreed
on 30th September, 1952 against Bhiwa. The said Bhiwa
preferred an appeal against the appellant Mohan alone though there were three
other co- plaintiffs. That Appeal was numbered as C.A. No. 64-B of 1952. The
learned Additional District Judge. Bhandara while allowing the appeal by order
dated 27.2.1953 found that the document on the basis of which the appellant and
the three other co-plaintiffs filed civil suit No. 47-B/1951 was obtained by
fraud. The appellant who was respondent in the said Appeal did not challenge
that appellate order and thus allowed that to become final. It must be noted
that in the light of the above said appellate order whatever rights or title
the appellant had to attach the property in execution of the decree passed in
Civil Suit No. 47-B of 1951 stood completely extinguished. In other words, the
appellant on his own had no right to continue the proceedings in Civil Suit No.
42-A of 1952 which was filed under Order 21 Rule 63 and was dismissed by the
trial court.In order to get over that difficulty it appears the appellant
purchased the decree which stood in tact in favour of his three co- plaintiffs
and got himself substituted in their place in the decree passed in Civil Suit
No.47-B of 1951 and on that basis he continued the proceedings in Civil Suit
No. 42-A of 1952 by preferring an appeal against that decree in Civil Appeal
No. 4-A OF 1956. It must be noted that his continuance to file and proceed in
Civil Appeal No. 4-A of 1956 was not in his own right but as an assignee or
transferee of the rights of his co-plaintiffs as noted above. In this appeal,
namely 4-A of 1956, a finding was given to the effect that the appellant was
entitled to attach 4.83 acres of land in Khasra Nos. 472/54 and 485/29
(properties dealt with in gift deed referred to above).
It is
the contention of the learned counsel of the appellant that the judgment
rendered in Civil Appeal No. 4-A of 1956 operates as Res Judicature in the
present suit.
The
High Court after thoroughly examining the pleadings observed as follows:
"I
have gone through the copy of the plaint in Civil Suit No. 42-A of 1952. In my
view the real issue in this suit was as to whether the land admeasuring 4.83
acres within Khasra Nos. 472/54 and 485/29 could be attached or not? In my
view, the validity of the Gift Deed dated 2.5..51 (Exb.P-3) was not directly
and substantially in issue (emphasis - supplied). The emphasis of Mohan in his
application for attachment before judgment as well as in the plaint in Civil
Suit No.42-A of 1952 was on the ground that it was Bhiwa who was throughout in
possession of Khasra Nos. 472/54 and 485/29. Mohan has also referred to the
dispute between Bhiwa and Mendri and asserted that Mendri never got possession
of the land in dispute and it was only Bhiwa who was throughout in possession
of the same. He also referred to the proceedings under Section 245 of the Code
of Criminal Procedure between Bhiwa and Mendri which ended in favour of Bhiwa
on 3.2.1948. In my view, all these narrations are only to emphasize that Bhiwa
was in Possession of the suit Property throughout. The question of possession
and the question of title are two different things (emphasis supplied). Man may
be in possession of a property and yet he may not have any title to that. The
sum and substance of the case of Mohan was that since Bhiwa was throughout in
possession of the suit land, the same was liable for attachment in execution of
the decree against Bhiwa. This will also be clear from para 8 of the plaint in
Civil Suit No. 42-A of 1952 which reads thus :
"The
suit to cancel the order dated 78.9. 1951 which is filed herewith. the
Plaintiff will file other documents on the first date." We entirely agree
with the above well-reasoned conclusion of the High Court.
Moreover,
the learned counsel for the appellant placed heavy reliance on an observation
in the appellate judgment in Civil Appeal No. 4-A of 1956 which reads as follows:
The
only point to be decided is whether 4.83 acres belong to Bhiwa and not to the
defendant.
None
of the defendants claim title on the basis of the gift deed dated 2.5.1951.
These facts clearly show that the gift deed is fictitious.
It
must have been executed for defrauding the plaintiffs' claim." If we read
the last sentence in the above extract in isolation that might support the
contention of the learned counsel for the appellant. However, the conclusion of
the Appellate Judge in paragraph 14 which is the relevant part in the judgment
cannot be ignored. That part reads as follows :
"14.
The plaintiffs are not entitled to the declaration claimed by them in the last para
of the plaint as their suit is under Order 21 Rule 63. I, however, think that in
the ends of justice, it should be declared that the above land is liable to
attachment and sale in execution of the decree in Civil Suit No. 47-b of 1951
(Emphasis supplied) If this part of the judgment is read along with para 7
extracted above, we cannot find fault with the conclusion reached by the High
Court namely, that in the present suit the decision in Civil Appeal No. 4-A of
1956 will not operate as Res Judicata.
In
view of the above discussion and in the light of the narration of facts, we
conclude that no interference is called for in this Appeal However, we feel
from the conduct of the parties that there may not be an end to the litigation
which started in the year 1951 and came to this court on an earlier occasion. In
the best interest of both parties and to do complete justice and in order to
put an end to this litigation between the parties. While dismissing the Appeal
we make the following order :
"The
appellant shall hand over vacant possession of the suit lands to the
respondents herein within three months from this date and if the appellant
hands over peacefully vacant possession to the respondent Within the above
stipulated period of three months, he will not be liable for meane profits. If
he fails to do so, the respondents will be entitled to execute the decree
including for the meane profits. There shall be no order as to costs.
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