Chandradeo Singh v. Ram Ratan Singh

------Defendants- Respondents. =========================================================== Appearance : For the Appellant/s : Mr. UMESH LAL VERMA Mr. U.P.Chainpuri Mr. Amarnath Gupta Mr. Mahendra Pd.Singh 1 Mr. A.N.Gupta For the Respondent/s : Mr Bhupendra Narayan Sinha, Adv. Mr. MADAN NOHAN PD.SINGH Mr. Satyendra Prasad Singh Mr. Binod Kumar Singh Mr. Anil Kumar Singh Mr. Tej Narayan Singh Mr. Bijay Kumar Pandey Mr. Nand Bansh Narayan Singh =========================================================== CORAM: HONOURABLE MR. JUSTICE V. NATH ORAL JUDGMENT Date: 16-12-2013 V.Nath, J This appeal has been filed by the plaintiff of T.S.No. Patna High Court FA No.413 of 1989 dt.16-12-2013 2 135/77 against its dismissal by the judgment and decree dated

28.03.1989 by Additional Sub Judge II, Munger.

2. At the outset, Mr Bhupendra Narayan Sinha, the learned counsel appearing for the contesting respondents, has raised a preliminary objection to the maintainability of this appeal and, has submitted that the issues arising in this appeal are now barred by the res judicata. The learned counsel for the appellants and the contesting respondents therefore, have been heard on this issue of bar of res judicata in detail. The learned counsel for respondent no.8 has also been heard.

3. In order to appreciate the rival contentions, it would be necessary to take into notice the relevant genealogy of the family of Dariyao Singh. It is not in dispute that Dariyao Singh had married twice and from his first wife he had got three sons namely Kashi Singh, Laxman Singh and Manjho Singh and from his second wife he had got three sons namely Natho Singh, Hargovind Singh and Ayodhya Singh. Kashi Singh has a daughter Banarsi Devi and Laxman Singh had two Sons Kameshwar Yadav and Yadu Yadav . Kameshwar Yadav had a son Ramchandra Singh whose son Surya Prasad is defendant nos. 5 and his wife Sita Devi is defendant no.6 in the suit. Manjho Singh has a son Shivnandan Prasad Singh. Natho Singh who is the son of Dariyao Singh from his second wife has a Patna High Court FA No.413 of 1989 dt.16-12-2013 3 daughter Malti Devi whose son Chandradeo Singh is plaintiff no.1 in the suit. Ram Krishan Singh, the father of Chandradeo Singh, is plaintiff no.2 in the suit. The another son Ayodhya Singh has two wives Sharda Devi and Prakalo Devi. The branch of Hargovind Singh and Yadu Yadav had become extinct.

4. The T.S.No. 07/75 was filed by Shivnandan Singh, Son of Manjho Singh for partition of the properties mentioned in the schedule of the plaint. In that suit Chandradeo Singh, Son of Malti Devi, who was the only daughter of Natho Singh, was impleaded as defendant no.7. The descendants of the branch of Laxman Singh were impleaded as defendant nos. 1 to 3 and the descendants of Ayodhya Singh were impleaded as defendant nos. 5 and 6 in that suit.

5. Subsequently, another suit i.e. T.S.No. 135/77 was filed by Chandradeo Singh wherein also he prayed for the relief for partition and has further prayed for declaration that the three gift deeds executed by Natho Singh in favour of Ramchandra Singh and his wife Sita Devi were forged, void ab initio document and not binding on the plaintiff. In this suit also, the other descendants of Dariyao Singh were impleaded as defendants including Shivnandan Singh, the plaintiff of T.S.No.07/75 who was impleaded as defendant no.2.

6. Both the suits i.e. T.S.No.07/75 and 135/77 were Patna High Court FA No.413 of 1989 dt.16-12-2013 4 heard analogously in view of the common questions of law and facts arising between the same parties. One of the material issues on which the parties to both the suits went to trial was with regard to unity of title and jointness of possession of the plaintiffs and the defendants over the suit properties.

7. The court below after scanning the evidence of the parties in view of their respective pleadings has returned the finding that there was no unity of title and jointness of possession between the parties over the suit properties. The court below has also decided the issue of validity of three gift deeds against the plaintiff of T.S.No.135/77. The present appeal has been filed by the plaintiff of T.S.No.135/77 and from the aggrieved portion of the memo of appeal also it transpires that the present appeal is confined to the decree passed in T.S.No.135/77(Chandradeo Singh Vs Kameshwar Singh & Ors). From the records, it transpires that another F.A.No. 411/89 was filed before this court by the plaintiffs of T.S.No. 07/75 wherein the present appellants were also parties and the learned counsel for both the parties have accepted that the said F.A.No.411/89 stood dismissed for default.

8. In backdrop of this fact situation, Mr Sinha, the learned counsel for the contesting respondents has submitted that as the appeal against the decree passed in T.S.No. 07/75 stood dismissed, the Patna High Court FA No.413 of 1989 dt.16-12-2013 5 issues decided in that suit between the same parties would now operate as res judicata, as proceeding further with this appeal may result in two inconsistent decrees on the same issue between the same parties with regard to the same property. Mr Sinha has placed reliance directly on the decision by the apex court in the case of Narayan Prabhu Venkateswara Prabhu Vs Narayan Prabhu Krishna Prabhu, 1977 BBCJ Page 56 SC and has also further relied on the Apex Court judgments in the case of Sheodan Singh Vs Daryao Kunwar, AIR 1966 SC 1332 and in the case of Afsar Shaikh Vs Soleman Bibi, AIR 1976 SC 163. The learned counsel for the appellant, in reply, has not denied the facts which are the basis for submission by the respondents in support of the plea of bar of res judicata but it has been urged that as common judgment has been passed, therefore, this appeal should be deemed to have been filed against the decree passed in both the suits and therefore the bar of res judicata would not be attracted.

9. After considering the submissions on behalf of both the parties, the singular point which arises for determination in this appeal is as follows;- (I) Whether the decree passed in T.S.No. 07/75, which has admittedly attained finality, would operate as res judicata in this appeal against the decree passed in T.S.No.135/77? Patna High Court FA No.413 of 1989 dt.16-12-2013 6

10. The facts are not in dispute that T.S.No. 07/75 was filed by Shivnandan Singh for partition of the suit properties and T.S.No.135/77 was filed by Chandradeo Singh for partition of the suit properties after the relief of declaration that the three gift deeds executed by Natho Singh in favour of Ramchandra Singh and Sita Devi who are son and daughter-in-law of Kameshwar Singh are illegal, null and void. The two suits were heard and decided analogously by a common judgment dismissing both the suits. The present appeal has been preferred by Chandradeo Singh who was plaintiff in T.S.No.135/77. It is not in dispute that Chandradeo Singh has not challenged the findings recorded in T.S.No. 07/75 by filing appeal or a cross objection in F.A.No. 411/89 which was filed by Shivnandan Singh who was the plaintiff in T.S.No. 07/75 but subsequently stood dismissed for default.

11. It is not denied that Chandradeo Singh the plaintiff of T.S.No. 135/77 was defendant no.7 in T.S.No.07/75 and he supported the claim for partition of the plaintiff of that suit. Once after a finding has been recorded regarding the absence of unity of title and possession between the parties, the said finding will operate as res judicata against Chandradeo Singh also as he could have assailed the said finding by filing independent appeal or a cross objection in the other appeal. This position in law is now well settled in the Full Patna High Court FA No.413 of 1989 dt.16-12-2013 7 Bench decision of this Court reported in the case of Arjun Singh Vs Tara Das Ghosh, AIR 1974 Patna Page 1. It would not be out of place to mention here that while assailing the validity of the three gift deeds, it was the definite case of the plaintiff Chandradeo Singh that properties subject matter of the three gift deeds were joint family properties and could not have been thus alienated by gift.

12. Once after the finding with regard to the absence of unity of title and jointness of possession between the parties as recorded in T.S.No. 07/75 has attained finality, there is no scope for proceeding further with this appeal as that finding would definitely operate as res judicata between the parties to this appeal. The principle laid down by their lordships in the case of Narayan Prabhu Venkateswara Prabhu Vs Narayan Prabhu Krishna Prabhu, AIR1977 BBCJ 56 (SC) is squarely applicable to the facts of this case.

13. In the result the preliminary objection with regard to the maintainability of this appeal as raised on behalf of the contesting respondents is upheld.

14. This appeal is, accordingly, dismissed as barred by res judicata. Nitesh/- (V. Nath, J)