Decided on February 14,2022

Sudhir Ch. Das Respondents

Referred Judgements :-



T. Amarnath Goud, J. - (1.)This is a revision petition under Article 227 of the Constitution of India against the order dtd. 9/12/2021 passed by Civil Judge, (Sr. Division), Court No.1, West Tripura, Agartala in Case No. T.S. 21 of 2019. The petitioner has also made this petition for revision of Order dtd. 9/12/2021 in Case No. TS 21 of 2019 as per true interpretation of Explanation IV- VI of Sec. 11 of CPC, 1908.
[2] In a nutshell, the case of the petitioner is that one Kshireswar Das got allotment of land measuring 1.41 acres of land under Mouja-Pandavpur, Tehsil -Nehalchandrangar, Revenue Circle -Bishalgarh under Sadar Sub-Division. At Khatian No. 1401 of Mouja -Pandavpur was also created in his favour during his lifetime. He was in absolute physical possession over the entire gamut of land. During 1970, due to massive infiltration of Bangladeshi people during Indo-Pak war, a portion of land measuring 36 satak, i.e. 18 ganda was forcibly dispossessed by one Suresh Chandra Das, the father of Pro-Respondents Nos. 3 to 6. The original allottee as named above on humanitarian ground allowed them to occupy, truly not as a permissive possessor. On the strength of a purported registered Sale Deed No. 1-2279 dtd. 8/7/1996, one, Mr. Sudhir Chandra Das claiming the ownership of land measuring 36 satak against C.S Plot No 8531/9541(p). Subsequently a khatian of said land was also managed and procured. Thereafter, said Respondent No1 has sold the land on the strength of a Registered Sale Deed No. 1-1628 dtd. 21/5/2007 in favour of the Respondent No.2 the series of transfer as averred took place so far beyond the knowledge of original allottee/heirs. As it is stated that Pro-Respondent No.2 had instituted a Title Suit No.20 of 2008 before the Court of Civil Judge, Jr. Division, Bishalgarh for declaration of title and recovery of possession impleading Pro-Respondent No.3 as Defendant. Throughout the original allottee/heirs were not impleaded as necessary party. Said case No. TS 20 of 2008 was decreed and properly executed. After completion of the execution, the Pro-Respondent have intimated the incident in favour of the heirs of original allotee. Original allottee has enquired the matter and came to learn that a great deal of fraud has exercised against them. As a matter of protection of equitable, right, they have preferred the original Title Suit No. 21 of 2019 for declaration of title and recovery of possession. During pendency on the plea of res-judicata of Respondent No.2, Presiding Officer has arrived into an erroneous finding as the suit is not maintainable on the ground of res-judicata and accordingly the plaint was rejected under Rule 11 of Order VII of CPC with wrong application or provision of Order VII Rule 11 of CPC. The finding arrived into by the Presiding Officer is otherwise full of misconception and not tenable in the eye of law. Impugned order dtd. 9/12/2021 is under challenge in this Revision Petition. Aggrieved by the above narration, the instant revision petition is filed by the petitioner.

[3] For ready reference, this court feels it apposite to refer to the impugned order dtd. 9/12/2021 and the relevant portion is reproduced hereunder:

"The circumstance which is prevailing, in short is that after receiving summons defendant No.2 on 19/3/2021 submitted an application U/S 11 of CPC challenging the maintainability of the suit on the plea that it is barred by the principle res-judicata.

On 15/9/2021 the plaintiff submitted W/O against the said petition.

In her petition defendant No.2 Jharna Acharjee stated that she herself in the year 2008 instituted one Title Suit regarding the same suit property before the court of Ld. Civil Judge Jr. Div, Bishalgarh.

She instituted this suit against one Phani bhushan Das who has been arrayed as pro-defendant No. 4 in the present suit.

The said suit got registered as T.S 20 of 2008 which resulted in disposal passing decree in favour of the plaintiff.

Ld. Counsel for defenant No. 2 forwarded that already, Ld. Civil Judge Jr. Div, Bishalgarh has passed one decree in favour of the present defendant declaring her right, title and interest along with recovery of possession over the suit premise which is also the suit premise of this present suit.

Ld. Counsel concluded that as per the order of one Competent Court of Law, the present defendant No. 2 is possessing, the suit premise but against such possession the present plaintiff filed this suit seeking an order of declaration along with recovery of possession.

Ld. Counsel for the plaintiff in their short W/O agitated that this application of defendant No. 2 is not maintainable and simply denied the averments made by defendant No.2.

For fair adjudication of the matter, record bearing No. T.S 20 of 2008 has been called for from the Court of Ld. Civil Judge (Jr.Div) Bishalgarh.

The said record is placed before this court today.

Before entering into the facts of the present suit and the previous suit let us have a glance at the relevant provision of res-judicata which is incorporated U/S 11 of CPC.

Sec. 11 of CPC speaks that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in former suit between the same parties.

The requirement which makes a suit hit by the provision of Sec. 11 of CPC are:-

I. The suit or issue must relate to a matter directly and substantially in issue in a former suit;

II. The former suit must be in between the same parties or between parties under whom they claim;

III. The former suit must be before a court of competent jurisdiction and such former suit must have been heard and finally decided by such court.

In AIR 2013 SC 3099, the Hon'ble Supreme Court of India opined that in order to operate as resjudicata the finding must be such, that it disposes a matter directly and substantially in issue in the former suit and such issue must have been heard and finally decided.

The Hon'ble Supreme Court in the above cited decision in between Ramji Gupta v. Gopi Krishan Agarwal further opined that a matter collaterally or incidentally in issue can not be made a basis for a plea of res-judicata.

Under the light of above discussion I have perused the schedule of suit property as given in the plaint registered as T.S 20.2008 (Disposed by Ld. Civil Judge (Jr.Div) Bishalgarh) and the present suit.

The Khatian number, plot number, boundary etc are found to be totally similary to each and other.

Both the suit premise pertains to Khatian No. 1811 of Mouja Pandabpur and also measures 36 shataks. Hence, it is found that the suit premise is one and the same.

Now, it is already stated above that the present defendant No. 2 was the plaintiff in the former suit of T.S 20.2008 which she shall filed against the pro-defendant No. 4 herein.

Now, having a look at the issues framed in the former suit and also the pleading, it is found that the plaintiff sought for a decree of declaration of title along with possession and perpetual injunction.

In the present suit also the plaintiffs sought for a decree of declaration and recovery of possession.

The plaintiff stated that T.S 20 of 2008 was within their knowledge and during execution of the same possession was handed over to the present defendant No. 2.

The plaintiffs challenged the sale –deed upon which Ld. Civil Judge (Jr.Div) Bishalgarh is stated to have declaration title in favour of defendant No. 2 (para Nos. 7 and of the plaint).

The discussion made above makes it very much clear and apparent that the title over the suit premise was the matter directly and substantially in issue in the former suit, repeating that the suit premise is one and identical.

The plaintiff is challenging one sale-deed stating that upon such sale -deed the title of defendant No. 2 was declared by the previous competent court.

Such matter within the provision of law, cannot be raised before this court as this court is not the Appellate Authority and over over it is to be kept in mind that presently separate suit is filed which relates to the same matter, same suit property and also in between the same parties.

Accordingly, this court finds that the present suit of the plaintiff is hit by the principle of res-judicata.

In other words the application of defendant No.2 challenging the maintainable of the suit to be barred by res-judicata is found to be sustainable.

Accordingly interms of order VII Rule 11 the plaint is hereby rejected.

The suit is thus, disposed of on merit."

[4] The present CRP is filed by the petitioner aggrieved by the order dtd. 9/12/2021 passed by Civil Judge, (Sr. Division), Court No.1, West Tripura, Agartala in Case No. T.S. 21 of 2019. It is a case of the petitioner that he preferred a suit before the court below seeking the following reliefs:

(i) Pass necessary decree declaring the right title and interest in favour of the plaintiffs.

(ii) Pass decree for recovery of the possession of the suit land as described in the separate schedule in the plaint.

(iii) Pass a decree declaring the cancellation of Sale Deed NO. 1-2279 darted 8/7/1996 relied on by the Defendant No.1.

(iv) Pass decree by cancelling the register Sale Deed No. 1-1628 dtd. 21/5/2007 relief on by the Defendant No.2.

(v) Pass decree of cancellation of Khatian No. 1811 of Mouja-Pandavpur

[5] The respondents preferred an application under Order VII Rule 11 seeking for rejection of the plaint. The court having heard both sides by appreciating the legal position, the court gave a finding earlier for the same cause of action between the parties, a suit has been instituted vide TS No. 20 of 2008. Accordingly it attracts the doctrine of res-judicata and on the said ground the plaint has been rejected by allowing the application. Aggrieved thereby the present CR is filed. During the course argument, this court has directed the petitioner to place the copy of the plaint and order if any therein TS 20 of 2008 on record. The counsel appearing for the petitioner was reluctant to place the same on record and insisted that he should be heard and proceeded with the argument. Accordingly, the petitioner counsel has made his submission on facts and further relied judgments of apex court as follows:

(i) Saroha v. Chinnusamy (Dead) by L.Rs..00and Anr. reported in 2007 AIR (SC) 3067 where the apex court has held as under:

"10. Now let us deal with Condition No. (v) which says, "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 true that the appellant was not a party to the suit filed by respondent No. 3 and others against Kuppusamy from whom the appellant had purchased the property by a registered deed of sale. In the present case, the appellant was litigating on the basis of the title acquired by her from Kuppusamy against whom the ex parte decree was passed in the former suit. Therefore, it would not be difficult for us to hold that the appellant, who although was not a party to the former suit, claimed through Kuppusamy in the suit subsequently filed by her. In the case of Ishwardas v. The State of Madhya Pradesh and Ors. [AIR 1979 SC 551], this Court held that in order to sustain the plea of res judicata, 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". (Emphasis supplied). Therefore, Condition (v) is also satisfied."

(ii) Aanaimuthu Thevar (Dead) By Lrs. v. Alagammal reported in 2005 AIR (SC) 4004 where the apex court has held as under:

"24. On the other side, learned counsel appearing for the wife Alagammal and her children supported the judgment on doctrine of res judicata as applied by the High Court to the subsequent suits. He contends that in the issues framed in the former suits, the question of title and ownership of the suit house were substantially involved. In any case, the doctrine of constructive res judicata applies under explanation IV to sec. 11 of the Code of Civil Procedure to the present case.

25. Sec. 11 of the Code which contains the doctrine of res judicata states :-

"11. Res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating 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." [Emphasis added]

[6] This court has no hesitation to say that unless and until the petitioner gets over the point of res-judicata wherein the trial court has held against the petitioner by way of an impugned order while referring to institution of TS 20 of 2008. This court without having the benefit of going through cause title and content and the status of TS 20 of 2008 this court is not in a position to come to an conclusion that the present suit TS 21 of 2019 which is the subject matter of this CRP and the earlier suit TS 20 of 2008 are altogether same or different. Prima-facie, it is the responsibility of the petitioner to place on record the plaint and the order, if any, of TS 20 of 2008 to rebut the findings of the court below on the principle of res-judiata. In the present circumstances, referring to the facts of the case and also the judgment of the apex court on the point of res-judicata and on the point of applicability of order VII Rule 7 of CPC in the absence of TS 20 of 2008 is not possible.

[7] Since, the petitioner failed to do so, this court has no hesitation to say that the petitioner has not approached this court with clean hands and his bona-fide are doubted and it amounts to suppression of facts.

Left with no option, this court has no hesitation to dismiss the present CRP on the observations made above.

Accordingly, the CRP is dismissed.


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