High Court

Legal Reasoning

HON’BLE MR. JUSTICE C.R. SARMA 1. ppears for the respondents. Heard Mr. S. Shyam, learned counsel appearing for the appellant. None a This appeal is directed against the judgment and order, dated 2.4.2007 2. passed by the learned Addl. District Judge, Cachar, Silchar in Title Appeal No. 5/2005, whereby and where under the learned Trial Court set aside the judgment and decree dated 2.6.04 passed by the learned Civil Judge (Sr. Divn.) No.1, Cach ar, in T.S. No. 11/2004 and remanded the matter for fresh trial. 3. Aggrieved by the said order of remand the plaintiffs as appellants has c ome up with this second appeal. As pleaded by the plaintiffs their predecessors- in-interest, namely, Ramesh Chandra Roy was the sole pattadar and owner of the s uit land situated in Mouza Silchar Town, Pargona- Barakpar. On the death of Sri Ramesh Chandra Roy his two sons , namely, plaintiff No. 1 Sri Asit Baran Roy and his brother Sri Pijush Kanti Roy i.e. the predecessors of the plaintiff Nos. 2 to 6 inherited the entire property covered by R.S. Patta No. 238 and thus they c ontinued to possess the same. 4. The plaintiffs developed the said land by engaging a promoter, but the d efendants No. 1 and 2 threatened the promoter of the plaintiff and caused obstru ction in the construction work done in the suit land, claiming the suit land to be purchased by them. Subsequently the plaintiff came to know that one Suniti B ala Roy wife of late Krishna Kishore Roy, without having any right, title, inter est and possession over the suit land, had fraudulently and in collusion of th e predecessor-in-interest of the defendants executed a lease deed in favour of Sri Sudhindralal Dutta Roy i.e. the predecessor-in-interest of the defendants, b ut failed to deliver the possession thereof. The predecessor-in-interest of the defendants, namely, Sri Sudhindralal Dutta Roy aforesaid failing to get possessi on of the suit land in collusion with one Sri Jogesh Chandra Home Choudhury exec uted a lease right sale document on 18.06.48 in favour of Sri Jogesh Chandra Hom e Choudhury. Sri Jogesh Chandra Home Choudhury also failing to obtain the posses sion of the suit land, on 18.6.48, executed a sale deed, transferring the suit l and in favour of the predecessor-in-interest of the defendants, namely, Sri Sudh indralal Dutta Roy in view of the above transfers, the plaintiffs’ title over th e suit land being clouded, the plaintiffs instituted Title Suit No. 11/2004 agai nst the sons and daughters of late Sudhindra Lal Dutta Roy seeking a decree for declaration of right, title, interest in their favour in respect of the suit lan d and also for a declaration that Smti Suniti Bala Roy had no right, title, int erest and possession over the suit land for executing lease deed as indicated ab ove. The plaintiff also prayed for cancellation of the said lease deed as well a s sale deed and a permanent injunction restraining the defendants and other pers ons from disturbing the uninterrupted possession of the suit land by the plainti ffs. The sons and daughters of Sudhindra Lal Dutta Roy appeared in the misc. cas e i.e. the application filed by the plaintiff seeking injunction and contested t he prayer for injunction. However, the Court, after hearing both the parties, gr anted the injunction. The defendants failed to contest the plaintiffs’ claim eit her by appearance or by filing written statement. Accordingly the suit proceeded ex-parte and the learned Civil Judge (Sr. Divn.), by his judgment and order, da ted 2.6.04, decreed the suit ex-parte granting reliefs claimed by the plaintiffs . The defendants, by filing an application under order 9 rule 13 C.P.C., prayed for vacating the ex-parte decree and the learned Civil Judge (Sr. Divn.) by orde r, dated 14.11.2005, passed in M.C. No. 13/05 rejected the prayer for vacating t he ex-parte order. They failed to prefer any appeal before the appropriate forum and thus, the said judgment and decree, passed against the defendants, attained its finality. As the widow of Sudhindra Lal Dutta Roy i.e. the mother of the de fendants was not made a party in the said title suit she preferred an appeal cha llenging the judgment and decree aforesaid before the learned District Judge, Ca char, Silchar. The appeal was registered as Title appeal No. 5/2005. The learned Addl. District and Sessions Judge, by the impugned judgment and order, dated 2. 4.2007, observed that the appellant i.e. the widow of the Sudhindra Lal Dutta Ro y was entitled to a share in respect of the property claimed by the defendants i.e. the suit land and as such she was the necessary party to the suit. The lear ned Addl. District and Sessions Judge, Cachar, Silchar set aside the judgment an d decree dated 2.6.2004 aforesaid and remanded the suit for fresh disposal wit h the direction to implead the appellant as defendant along with other defendan ts. Aggrieved by the said judgment and order, dated 2.4.07, the plaintiffs, 5. who were the respondents in the said appeal, have come up with this second appea l on the ground, amongst others, that the learned Addl. District Judge committed error and illegality by setting aside the impugned judgment and decree only on the ground that the mother of the defendants was a necessary party to the suit i nasmuch as her interest was promoted by the contesting defendants i.e. her sons, who failed to prefer any appeal against the judgment and decree dated 2.6.04. 6. w :- The appeal has been admitted on the following substantial question of la (cid:28)Whether the learned Court below erred in misconstruing the purport of Order 1 R ule 9 CPC in passing the impugned judgment and order by overlooking the fact tha t the contesting defendants in the suit sufficiently represented the interest of the appellants ? (cid:29) 7. During the pendency of the appeal the appellant died leaving her sons an d daughters as her legal heirs, who were the defendants in the title suit. Accor dingly, vide order, dated 19.11.07, passed in M.C. No. 4327/07 the said defendan ts were impleaded as legal heirs of the appellants. Though notices were issued t he substituted respondents failed to contest the appeal. 8. Mr. S. Shyam, learned counsel, appearing for the appellants has submitte d that as the interest of the original appellant in the First appeal i.e. the mo ther of the defendants was adequately represented by her said sons and daughter s in the suit there was no necessity to set aside the judgment and decree dated 2.6.04, which attained finality. It is also submitted, by the learned counsel ap pearing for the appellants, that the surviving legal heirs of the said deceased appellant being parties in the original suit i.e. Title Suit No. 11/04, and the impugned judgment and decree, passed against them, having attained finality ther e can be no reason to reopen the same. Therefore, it is submitted that the impug ned judgment and order, dated 2.4.07, passed by the learned Addl. District Judge cannot stand in the eye of law. In support of his contention the learned counse l appearing for the appellants has relied on the decision held in the case of Mo hd. Hussain (dead) by LRs and others Vs. Gopibai and others reported in (2008) 3 SCC 233. In the above referred case, the Supreme Court observed that where by the person al law governing the absent heir, the heir impleaded represents his interest in the estate of the deceased, the decree would be binding on all the persons inte rested in the estate. 9. In the present case, as pleaded by the plaintiff, the defendants claimed the disputed land on the basis of the sale deed made in favour of the predecess or-in-interest of the defendants i.e. the father of the contesting defendants i. e. the husband of the deceased appellant. After receipt of notice and despite c ontesting the misc. case, the defendants i.e. the sons and daughters of the defe ndants did not contest the suit by filing written statement. Therefore, it is fo und that the interest of the deceased appellant i.e. the mother of defendants wa s sufficiently represented by the said defendants. In view of principle laid dow n in the above referred case, I find sufficient force in the contention of the learned counsel appearing for the appellant. As the said defendants, who are the respondents in this appeal, failed t 10. o challenge the judgment and decree, dated 2.6.2004, which attained its finality , they, now, in their capacity as the legal heirs of the deceased appellant cann ot challenge the correctness of the judgment and decree dated 2.6.04, which gave rise to Title Appeal No. 5/05 aforesaid. Therefore, it is found that the matter relating to the same subject matter, between the same parties, was earlier deci ded by a court of competent jurisdiction. In view of above, the principle of res -judicata will apply in this case. Therefore, the matter can’t be adjudicated up on again and the judgment and decree passed in T.S. No. 11 of 2004 will be bindi ng on the respondents. 11. In view of above, considering entire aspect of the matter I find no suff icient reason for maintaining the impugned order dated 2.4.2007, by which the le arned Addl. District judge remanded the matter i.e. the title suit for fresh di sposal, after impleading the legal heirs of the deceased appellant, who were alr eady there in the suit as defendants. I find sufficient merit in this appeal. He nce, the appeal is allowed and the impugned judgment and order, dated 2.4.07, passed in Title appeal No. 5/05 is set aside. Consequently, the judgment and d ecree dated 2.6.04 passed in T.S. No. 11/04 is upheld. No costs. Return the LCR.