Ganesh Patra and ors. Vs. Banabihari Patra (Dead) and After Him His L.Rs. Puni Bewa and ors. - Court Judgment

A.K. Patnaik, J.

1. This is a second appeal, under Section 100 of the Code of Civil Procedure, 1908 (CPC).

2. The relevant facts briefly are that the appellants filed Original Suit No. 26 of 1980 (1) in the Court of the learned Munsif, Puri for declaration of right, title and interest in the suit land measuring Ac. 0.08 decimals out of Ac. 0.024 decimals in Plot No. 2131/ 6789 under Khata No. 386 in village Pattapur in Puri district and for permanent injunction restraining the defendant from interfering with their possession over the suit land. The case of the appellants as plaintiffs in the said suit was that the suit land originally was part of the joint family properties of the plaintiffs and the defendant. The defendant brought a suit O.S. No. 81 of 1951-1 for partition of the joint family properties in the Court of the learned Subordinate Judge, Puri. The said suit was decreed preliminarily on 26.9.1951 on compromise and in the said preliminary decree, the shares of the parties were defined. On the basis of the shares so defined, the joint family properties were divided by metes and bounds amicably in an unregistered deed of family settlement executed on 7.1.1974. As per the said deed of family settlement, the suit land fell to the share of the defendant and the defendant remained in exclusive possession of the same. Thereafter, the defendant sold the suit land by a registered sale deed executed on 27.3.1954 for a consideration of Rs. 100/- and delivered physical possession of the same to the father of the plaintiffs. On 18.1.1967, the defendant filed an application for passing a final decree in the Court of the learned Subordinate Judge, Puri. In the final decree proceedings, the defendant filed a petition for appointing a Commissioner for partition of their joint family properties including the suit land. The learned Subordinate Judge appointed a Commissioner and the Commissioner allotted the suit land to the share of the defendant ignoring the registrered sale deed dated 27.3.1954 by which the suit land had been sold by the defendant to the father of the plaintiffs. The final decree was passed in accordance with the allotments by the Commissioner and by the said final decree, the suit land was allotted in favour of the defendant. Taking advantage of the allotment of the suit land in his favour, the defendant started creating disturbance and tried to dispossess the plaintiff from the suit land.

3. The defendant contested the said suit O.S. No. 26 of 1980-1 and in the written-statement took a plea, inter alia, that the suit was barred by res judicata inasmuch as the case of the plaintiffs that the suit land should have been allotted to the plaintiffs on the basis of the registered sale deed executed on 27.3.1954 had been rejected by the Court in the final decree proceedings in the earlier suit O.S. No. 81 of 1951. The defendant also pleaded in the written-statement that the said registered sale deed executed on 27.3.1954 was obtained by the father, of the plaintiffs from the defendant by fraud and was not valid. On the basis of the said pleadings, the learned Munsif framed issues and evidence was led by both the parties.

4. By judgment and decree dated 29.7.1981 the learned Munsif, Puri held, inter alia, that in the final decree proceedings a Commissioner was sent for allotment of shares and on the basis of the report of the Commissioner, the decree was made final and the properties were partitioned by metes and bounds and suit property fell to the share of the defendant. The learned Munsif further held that after the suit property was allotted to the defendant by the Commissioner in the final decree proceedings, such allotment enures to the benefit of Vendees on the basis of the principles of equity in Section 43 of the Transfer of Property Act. The learned Munsif also held that the registered sale deed (Ext. 3) executed by the defendant in favour of the father of the plaintiffs on 27.3.1954 was valid and has been acted upon and the plaintiffs have right, title and interest over the suit land and that there is no evidence that the suit was barred by res judicata. The learned Munsif, however, found that at the time of institution of the suit the defendant was in possession of the suit property and held that the plaintiffs are entitled to recover possession of the suit property but are not entitles to the relief of permanent injunction against the defendant. The learned Munsif accordingly decreed the suit in part against the defendant declaring the right, title and interest of the plaintiffs in the suit property and directing the defendant to deliver the suit property to the plaintiffs.

5. Aggrieved by the said judgment and decree dated 29.7.1981 of the learned Munsif in O.S. No. 26 of 1980-1, the defendant filed Title Appeal No. 22/104 of 1983/81 in the Court of the learned District Judge, Puri. The learned Second Additional District Judge heard the said Title Appeal and having found that the elements of fraud had not been pleaded specifically in the written-statement and had not been proved by convincing evidence, held that the finding of the learned Munsif that the sale deed was a genuine one was unassailable. The learned Second Additional District Judge also concurred with the findings of the learned Munsif that under Ext. 3 the father of the plaintiffs has acquired the interest of thedefendant in the suit property. The learned Second Additional DistrictJudge, Puri, however, found that P.W. 2 who was plaintiff No. 1 inhis evidence had admitted that the Court-peon and the Commissionerin the earlier suit O.S. No. 81 of 1951 had delivered possessionof the lands on 1.4.1979 according to the final decree allotmentand no objection was filed by the father of the plaintiffs againstthe report of the Commissioner. The learned Second AdditionalDistrict Judge also found that the unregistered deed of family settlementdated 7.1.1954 (Ext. 2) and the registered sale deed dated 27.3.1954(Ext. 3) were also placed before the learned Subordinate Judgein O.S. No. 81 of 1951-1, but the learned Subordinate Judge didnot accept the same. The learned Second Additional District Judgeheld that as allotment of the suit land in favour of the father of theplaintiffs is deemed to have been refused by the learned SubordinateJudge in the final decree proceedings in O.S. No. 81 of 1951-1and as O.S. No. 81 of 1951-1 and O.S. No. 26 of 1980-1 werebetween the same parties, O.S. No. 26 of 1980-1 was hit by theprinciples of res judicata as provided in Section 11 of the C.P.C.The learned Second Additional District Judge further held that hedid not agree with the findings of the learned Munsif that the equityin Section 43 of the Transfer of Property Act is available to theplaintiffs as the requirements of Section 43 of the said Act were not fulfilled in the present case. On the basis of the aforesaid findings, the learned Second Additional District Judge allowed theappeal and set aside the judgment and decree dated 4.5.1980 ofthe learned Munsif.

6. Aggrieved by the said judgment and decree in Title Appeal No. 22-104 of 1983-81 of the learned Second Additional District Judge, Puri, the plaintiffs-appellants have filed this second appeal. During the pendency of the appeal the sole respondent died and his eight L.Rs. have been substituted as respondents. On 25.7.1989 this Court, while admitting the appeal, had formulated three substantial questions of law, but on 27.3.2003 after hearing the learned counsel for the appellants, the Court felt that one of the substantial questions of law did not arise for decision in the appeal and re-formulated the two remaining substantial questions of law as follows :

'(a) Whether the finding of first appellate Court that the subsequent Title Suit in O.S. No. 26/80 in hit by the principles of res judicata as provided under Section 11 of the C. P. C. in view of the final decree in the earlier suit in O.S. No. 81/51 in correct in law ?

b) Whether the finding of the first appellate Court that the plaintiff was not entitled to relief under Section 43 of the Transfer of Property Act is correct in law ?'

On 27.3.2003 the hearing of the appeal was adjourned to give an opportunity to the respondents or their counsel to make their submission on the next date. Thereafter the counsel for the respondents were heard on 24.4.2003.

7. At the hearing Mr. Sahu, learned counsel for the appellants, submitted that O.S. No. 81 of 1951-1 was a suit for partition of joint family properties whereas O.S. No. 26 of 1980-1 was a suit for declaration of right, title and interest of the plaintiffs and for permanent injunction against the defendant and, therefore, the issues in the two suits were entirely different. He further submitted that in O.S. No. 28 of 1980-1 only the certified copies of the preliminary decree and the final decree in O.S. No. 81 of 1951-1 had been exhibited as Exts. A and B, but the pleadings of the parties in the said O.S. No. 81 of 1951-1 had not been exhibited to show that the issues in O.S. No. 81 of 1951-1 and O.S. No. 26 of 1980-1 were the same. According to Mr. Sahu unless it is proved by the defendant in the subsequent suit O.S. No. 26 of 1980-1 that the issues in the two suits are substantially the same and the Court decided the issues in O.S. No. 81 of 1951-1, the Court cannot hold that O.S. No. 26 of 1980-1 is barred by res judicata. In support of this submission, Mr. Sahu relied on the decision of the Supreme Court in Madhvi Amma Bhawani Amma and Ors. v. Kunjikutty Pillai Meenakshi Pillai and Ors., AIR 2000 SC 2301, and a decision of a Division Bench of this Court in Laxmi Gouda and Ors. v. Dandasi Goura (deceased by L.R.) and Ors., AIR 1992 Orissa 5. Mr. Sahu next submitted that the findings of the first appellate Court that the equity in Section 43 of the Transfer of Property Act will not be available to the appellants in this case in not correct as all ingredients of Section 43 of the said Act were available in the present case and Section 43 of the said Act was clearly attracted.

8. Mr. Jena, learned counsel for the respondent, submitted that Explanation-IV under Section 11 of the C.P.C. provides that any matter which might and ought to have been made a ground of defence or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Hence, the father of the plaintiffs-appellants could have taken a stand in the earlier suit O.S. No. 81 of 1951-1 after the preliminary decree was passed that he had purchased the suit land after the preliminary decree by the registered sale deed in Ext. 3 and the final decree could have been passed accordingly. According to Mr. Jena, even if the right, title and interest in the suit land by virtue of the transfer of the suit land by the defendant by the sale deed in Ext. 3 was not in issue, it is deemed to have been a matter directly and substantially in issue in O.S. No. 81 of 1951-1 and the subsequent suit O.S. No. 26 of 1980-1 was barred by res judicata. Mr. Jena next submitted that the very language of Section 43 of the Transfer of Property Act makes it clear that the Section will apply where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, but in this case the plaintiffs-appellants have not pleaded that the defendant had fraudulently or erroneously represented that he was authorised to transfer the suit property. According to Mr. Jena, in the absence of any such pleading, the provisions of Section 43 of the Transfer of Property Act are not attracted. In support of this submission, Mr. Jena cited a decision of a Full Bench of the Kerala High Court in the case or Gomathy Ammal v. Rukmini Amma Padmavathi Amma and Ors., AIR 1967 Kerala 58, and decisions of a learned Single Judge of this Court in Raghunath Das v. Banamali Jena, 1974 (1) CWR 35, and Smt. Sukuri Dei and Anr., v. Makara Sahu, 1994 (1) OLR 532.

9. The first substantial question of law which arises for decision in this appeal is whether the finding of the first appellate Court that the subsequent Title Suit O.S. No. 26 of 1980 is hit by the principles of res judicata as provided under Section 11 of the CPC in view of the final decree in the earlier suit O.S. No. 81 of 1951 is correct in law. The very language of Section 11 of the CPC makes it clear that the principles of res judicata will be attracted only if the issue in the subsequent suit has been directly and substantially in issue in the former suit between the same parties and has been heard and finally decided in the former suit by the Court. Thus, findings of the Court in the former suit on matters which are not in issue in the former suit will not operate as res judicata in the subsequent suit. This position of law was explained by the Supreme Court in Pawan Kumar Gupta v. Rochiram Nagdeo, AIR 1999 SC 1823, thus :

'16. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibits the Court from trying an issue which 'has been directly and substantially in issue in a former suit between the same parties,' and has been heard and finally decided by that Court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata....'

The aforesaid decision of the Supreme Court in Pawan Kumar Gupta v. Rochiram Naqdeo was followed by the Supreme Court in Madhvi Amma Bhawani Amma and Ors., v. Kunjikutty Pillai Meenakshi Pillai and Ors. (supra) cited by Mr. Sahu. In paragraph 7 of the said judgment, as reported in the AIR, the Supreme Court has held :

'...In order to apply the general principle of res judicata Court must first find, whether an issue in a subsequent suit, was directly and substantially in issue in the earlier suit or proceeding, was it between the same parties, and was it decided by such Court. Thus there should be an issue raised and decided, not merely any finding on any incidental question for reaching such a decision. So if no such issue is raised and if on any other issue, if incidentally any finding is recorded it would not come within the periphery of the principle of res judicata.'

10. Thus the principle of res judicata will apply only when an issue in a subsequent suit was directly and substantially in issue in me earlier suit between the same parties and was decided in the earlier suit by the Court and a finding in the earlier suit by the Court on an incidental question and on a question which was not in issue between the parties in the earlier suit will not operate as res judicata in the subsequent suit. Law is also well settled that it is for the party who pleads res judicata to show that the question was directly and substantially in issue in the earlier suit or proceeding between the same parties and was decided by the Court in the earlier suit and this onus can be discharged by such party by proving the pleadings of the parties in the former suit, the issues that were raised on the basis of such pleadings and the order that was passed by the Court in the former suit on such issues. In Laxmi Gouda and Ors. v. Dandasi Goura (deceased by L.R.) and Ors. (supra), a Division Bench of this Court held that it is well settled in law that the onus of proof lies on the party relying on the theory of res judicata and it must be shown by such party that the former litigation was between the same parties or between the parties under whom they or any of them claim litigating under the same title and the issues arising for decision in the subsequent litigation were directly or substantially in issue in the former one. The Division Bench further held in the said case that the necessary documents such as the application of the earlier litigation and objection, if any, filed thereto and the order passed by the Court indicating the decision on the question which arose for consideration are necessary for determining as to whether the principle of res judicata would apply in the subsequent proceeding and in the absence of such materials on record, the Court cannot reach the conclusion that the subsequent suit is barred by res judicata in view of the findings of the Court in the earlier suit.

11. Applying the aforesaid principles to the present case, the earlier suit O.S. No. 81 of 1951-1 was admittedly a partition suit and the issues therein relate to the shares of the parties in the joint family properties and allotment of the shares in such joint family properties to the respective parties. In such a partition suit, the validity of transfer by a party of a property which has fallen to his share to another party might not or ought not to be raised by any party and thus are not deemed to be matters in issues under Explanation IV to Section 11 of the C. P. C. In the said former suit O.S. No. 51 of 1981-1 the land which is the subject-matter of the subsequent suit O.S. No. 26 of 1980-1 fell to the share of the defendant in O.S. No. 26 of 1980-1. The case of the plaintiffs-appellants is that the defendant had transferred the said land by the sale deed Ext. 3 to the father of the plaintiffs-appellants and after his death the plaintiffs-appellants had acquired right, title and interest in the said land. If the case of the defendant in O.S. No. 26 of 1980-1 was that the validity of the said sale deed (Ext. 3) and transfer thereunder was also in issue in O.S. No. 81 of 1951-1 and was decided by the Court in the said O.S. No. 81 of 1951-1, the defendant should have discharged his onus by proving the pleadings of the parties in the earlier suit O.S. No. 81 of 1951-1 and the orders passed by the Court in the said earlier suit on the issue that the transfer under the sale deed in Ext. 3 was not valid in law and the transfer did not confer any right, title and interest in favour of the plaintiffs-appellants. But the only materials proved by the defendant in O.S. No. 26 of 1980-1 are certified copy of the preliminary decree and certified copy of the final decree in O.S. No. 81 of 1951 (Ext. A and B) and from the said certified copies in Exts. A and B, the Court cannot come to a definite finding that the validity of the transfer of the suit land under Ext. 3 by the defendant to the father of the plaintiffs-appellants was in issue and had been decided by the Court in the earlier suit O.S. No. 81 of 1951-1. In the absence of such materials, the finding of the first appellate Court that the subsequent Title Suit O.S. No. 26 of 1980-1 is hit by the principle of res judicata in view of the final decree in O.S. No. 81 of 1951 is not correct in law and the finding of the trial Court that there is no evidence that O.S No. 26 of 1980-1 is barred by res judicata is correct in law.

12. The second substantial question of law which arises for decision in this second appeal is whether the finding of the first appellate Court that the plaintiff was not entitled to relief under Section 43 of the Transfer of Property Act is correct in law. Section 43 of the Transfer of Property Act, 1882 is quoted herein below :

'43. Transfer by unauthorized person who subsequently acquires interest in property transferred : Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this Section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.'

It will be clear from a bare perusal of the aforesaid Section 43 that the provision applies only where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration. In the plaint in O.S. No. 26 of 1980-1, the plaintiffs have not alleged that the defendant fraudulently or erroneously represented that he was authorised to transfer the suit land. All that is stated in paragraphs 4 and 5 the plaint in O.S. No. 26 of 1980-1 is that the suit land as per the mutual partition had fallen to the share of the defendant exclusively who as the rightful owner in physical possession was enjoying the usufructs thereof exclusively and subsequently the defendant who was in need of money for the joint family needs transferred the suit land in favour of the father of the plaintiffs by registered deed No. 1572 dated 27.3.1954 for a consideration of Rs. 100/-. Thus the plaintiffs' own case in the suit is that the defendant was the exclusive and the rightful owner of the suit land and had the right to transfer the suit land in favour of the father of the plaintiffs. The plaintiffs' case is not that even though the defendant was not authorised to transfer the suit land, he fraudulently or erroneously represented that he was authorised to do so and sought to transfer the suit land in favour of the father of the plaintiffs by the registered sale deed dated 27.3.1954 (Ext. 3). In the case of Raghunath Das v. Banamali Jena (supra), this Court held that for Section 43 of the Transfer of Property Act to apply it must be proved inter alia that there was a fraudulent or an erroneous representation by the transferor to the transferee. In Smt. Sukuri Dei and Anr. v. Makara Sahu (supra), this Court held that when the plaintiff in the suit had not alleged that the defendant had fraudulently or erroneously represented that he was authorised to transfer the immoveable property, Section 43 of the Transfer of Property Act had no application and the plaintiff could not claim benefit under the same. As indicated above, there is no pleading whatsoever in the present case that there was any fraudulent or erroneous representation by the transferor to the transferee that the transferor was authorised to transfer the suit land. In the absence of any such pleading, there was no issue framed by the trial Court as to whether there was any fraudulent or erroneous representation to the father of the plaintiffs-appellants that the defendant was authorised to transfer the suit land in favour of the plaintiffs-appellants by the registered sale deed in Ext. 3, and in absence of such issue, the trial Court should not have recorded a finding that the Vendees were entitled to relief under Section 43 of the Transfer of Property Act. The finding of the first appellate Court that the plaintiffs were not entitled to relief under Section 43 of the Transfer of Property Act was therefore correct in law and the second substantial question of law is answered accordingly.

13. In view of the findings of both the trial Court and the first appellate Court that the plaintiffs-appellants have right, title and interest in the suit land and in view of the findings in this judgment that O.S. No. 26 of 1980-1 out of which this second appeal arises was not barred by the principles of res judicata, the judgment and decree of the learned Second Additional District Judge, Puri allowing Title Appeal No. 22/104 of 1983/81 are set aside and the judgment and decree dated 29.7.1981 of the learned Munsif, Puri in O.S. No. 26 of 1980-1 declaring the right, title and interest of the plaintiffs-appellants in the suit land and directing the defendant to deliver the suit property to the plaintiffs are affirmed. The Second Appeal is allowed. Considering however the peculiar facts and circumstances of the case, the parties shall bear their own costs.