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PETITIONER: MOHAN

       Vs.

RESPONDENT: SMT. ANANDI & ORS

DATE OF JUDGMENT:       12/03/1996

BENCH: VENKATASWAMI K. (J) BENCH: VENKATASWAMI K. (J) SINGH N.P. (J)

CITATION:  JT 1996 (3)   244        1996 SCALE  (2)762

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T K.VENKATASWAMI J.      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

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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

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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

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    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

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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.