The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK RSA No. 198 of 2011 An appeal under Section 100 Code of Civil Procedure. --------------- Goutam Majhi and Others ...… Appellants -Versus- Mandhar Bhoi and Others ..… Respondents Advocate(s) appeared in this case:- _______________________________________________________ For Appellants : M/s. P.K. Satapathy, A.K. Rout, & S. Pattnaik For Respondents : M/s. A.K. Nanda, A. Saranadi, Advocates H.S. Choudhury, Advocates (For Respondent Nos. -2) M/s. A.P. Bose, P.S. Nayak, R.K. Mohanty, N. Hota, M. Padhy, S.S. Routray, Advocates (For Respondent Nos.4 &5) _______________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 13th September, 2024 SASHIKANTA MISHRA, J. This is an appeal by some of the defendants against the confirming judgment passed by learned Ad-hoc Page 1 of 16 Additional District Judge, Sundargarh on 04.03.2011 followed by decree in RFA No.43/34 of 2005-07 whereby the judgment dated 23.04.2005 followed by decree passed by learned Civil Judge (Senior Division), Sundargarh in
Legal Reasoning
C.S. No. 80 of 2002 was confirmed. 2. For convenience, the parties have been referred to as per their respective status before the trial Court. 3. Facts of the case, briefly stated, are that the present respondents/plaintiffs filed the aforementioned suit for declaration that the sale deeds and Will executed by one Chandrabati Majhi in favour of defendants Nos.2, 3, 4, 5 and 1 in respect of the properties described in Schedule ‘B’, ‘C’, ‘D’, ‘E’, & ‘F’ respectively are void and for recovery of possession. The suit was decreed in part by declaring the sale deeds in respect of Schedule ‘B’, ‘D’, and ‘F’ properties as well as the Will executed by Chandrabati as void. The suit was dismissed in respect of the other properties. 4. Being aggrieved, defendant Nos.1 (a), 1(c) and 4 preferred RFA Nos.43/34 of 2005-07. Be it noted that the plaintiffs also preferred an appeal against the same Page 2 of 16 judgment and decree being RFA No.42/78 of 2005. Said appeal was dismissed by the 1st Appellate Court by judgment passed on 28.11.2005 by confirming the judgment and decree of the trial Court. In so far as the appeal preferred by the defendant Nos.1(a), 1(c) and 4 being RFA Nos.43/34 of 2005-07 is concerned, the 1st Appellate Court observed that the other appeal being RFA No.42/78 of 2005 had arisen out of the self-same judgment and decree of the trial Court and decided on contest vide judgement dated 28.11.2005. As such, the matter in controversy between the parties has already reached its finality by said judgment of the Appellate Court and therefore, re-agitation of the self-same matter will encourage multiplicity of proceeding, which is prohibited in law. Referring to some decisions rendered on the issue of res-judicata, the 1st Appellate Court dismissed the appeal by the impugned judgment. 5. Being thus aggrieved, the aforementioned defendants have preferred the instant second appeal, which has been admitted on the following substantial questions of law:- Page 3 of 16 “i. Whether the learned appellate court has committed an error in holding that the appeal preferred by the defendant No. 3, i.e., RFA No. 43/34 of 2005-07 was hit by the principles of res judicata since another appeal filed against the same judgment of the learned trial court by the plaintiff, being, RFA No. 42/78 of 2005-07 was already decided confirming the judgment and decree of the learned trial court? ii. Whether the learned lower appellate court by holding as above, h as misdirected itself in not considering that the suit of the plaintiff was decreed in respect of three of the schedule properties and not wholly and the plaintiff filed RFA No. 42/78 of 2005-07 claiming for a full decree of the suit, but the legal heirs of defendant No.3 as appellants in RFA No. 43/34 of 2005-07 challenged the finding of the learned trial court with regard to the finding the Will executed in favour of the father of the original defendant No.2 was invalid?” 6.
Legal Reasoning
Heard Mr. P.K. Satapathy, learned counsel for the defendant-appellants, Mr. A.N. Nanda, learned counsel for the plaintiff-respondent Nos.1 and 2 and Mr. A.P. Bose learned counsel appearing for the other defendants. 7. Mr. Satapathy assails the impugned judgment passed by the 1st Appellate Court by submitting that the subject matter of challenge in the other appeal, i.e., RFA No.42/78 of 2005 was that part of the decree of the trial Court whereby, the declaration sought for to the effect Page 4 of 16 that the sale deeds in respect of Schedule ‘C’ and ‘E’ properties are invalid, was refused. On the other hand, the subject matter of the appeal preferred by the defendant-appellants in RFA No.43/34 of 2005-07 is with regard to the declaration made by the trial Court regarding validity of the Will under Exhibit-A and alienation in respect of Schedule ‘B’ and ‘D’ properties as invalid. Further, the finding with regard to the status of Bhuja, son of Bimbadhar was challenged. In the former appeal, defendant Nos.3 and 5 were affected whereas in the subsequent appeal, the plaintiffs were affected. In the judgment passed in the former appeal there was no adjudication on the question of validity of the Will (Ext-A) or in respect of transfer of Schedule ‘B’ and ‘D’ property as also the status and relationship of Bhuja with Marha and Jatia. On such basis Mr. Satapathy would argue that the matter substantially in issue and in controversy was not adjudicated at all. Further, as a matter of procedure when multiple appeals are preferred against the same judgment, it is incumbent upon the Court to hear all such appeals together in order to prevent conflicting orders from being Page 5 of 16 passed. Since such procedure was not followed by the Court, the affected parties cannot be made to suffer. Therefore, the judgment passed in the former appeal cannot act as res judicata in 1st Appellate Court. 8. Mr. Nanda would argue that the present second appellants were duly noticed before hearing of the former appeal, i. e., in RFA No.42/78 of 2005-07 and they have also participated in the hearing. They could have filed a cross appeal in such appeal or made a prayer before the Court to tag their appeal for analogous hearing. Not having done so they cannot challenge the impugned judgment at this stage. 9. Mr. A.P. Bose also makes similar arguments as Mr. Nanda and adds that if the appeal preferred by the defendants is heard on merits, it will re-open the entire issues in controversy and thereby result in conflicting orders being passed. According to Mr. Bose, the decree passed by the trial Court cannot be severed so as to permit two different appeals being preferred against the findings. Page 6 of 16 10. It is not in dispute that the suit in question was filed by the plaintiffs seeking the following relief:- A) To declare the Sale Deed executed by Chandrabati Majhi to Defendants No.2,3,4 and 5 as void and not binding on the plaintiff to cancel the same. B) To declare the registered WILL executed by Chandrabati Majhi in favour of Parameswar Majhi (Defendant No.l) as illegal, void and not binding the plaintiffs. D) To recover possession of suit land from the Defendants and the same may be given by delivery ofpossession to the plaintiffs through Court 11. The schedule to the plaint is as follows:- “Schedule -A Village - Dharuadihi, P.S. Bhasma, Hal Khata No. 64 consisting Area-Ac.18.55 Dec. total 15 plots recorded in the name of Parameswar Majhi Schedule - B Khata No. 122/19, Plot No. 1215, Area – Ac. 0.60 dec. Schedule-C Khata No. 116/66, Plot No. 1283, Area- Ac.0.17 dec. Schedule-D Khata No. 116/26, Plot No. 1210, Area - Ac.0.80 dec. Schedule - E Khata No. 116/3, Plot No. 1291, Area – Ac. 0.20 dec. Schedule -F Khata No. 64 , 13 plots, total Area - Ac 14.92 dec. out of Ac l8.55 dec.” Page 7 of 16 The trial Court decreed the suit in part by passing the following order:- “i. The right, title, interest of the plaintiffs over the suit land in B, D, and F was declared. ii. The Sale Deed executed by Chandrabati Majhi in favour of Defendants No.2 and 4 of Schedule- B, D property is void and not binding on the plaintiff and the same are hereby cancelled. iii. The registered WILL vide Exhibit-A executed by Chandrabati Majhi in favour of deceased Defendant No.l was declared illegal, void and not binding on the plaintiffs. iv. Direction was issued to Defendant No.2,4, 1(b), 1(c) to give vacant possession ofthe suit to the plaintiffs within two months failing which the plaintiffs are liberty to recover the same through process of Court.” 12. It is evident that the prayer of the plaintiffs for cancellation of the sale deed executed in respect of Schedule ‘C’ and ‘E’ land was refused. In so far as the claim with regard to Schedule ‘B’, ‘D’ and ‘F’ is concerned, the same was decided in favour of the plaintiffs. As such, the plaintiffs filed Appeal being RFA No.42/78 of 2005-07 challenging the decree of the trial Court in so far as the same related to refusal of the grant of relief claimed in respect of the sale deeds executed in respect of Schedule ‘C’ and ‘E’ lands. In so far as defendant Nos.1(a), 1(c) and Page 8 of 16 4 are concerned, they were aggrieved by the order passed in respect of the Will vide Ext-A as the same was declared illegal and void as also the direction to give vacant possession of the suit land to the plaintiffs. They, therefore preferred appeal being RFA No.43/34 of 2005-07 challenging that part of the decree. It is common ground that RFA No.42/78 of 2005-07 was dismissed by the 1st Appellate Court on merits whereby the decree of the trial court was confirmed. No further appeal has been preferred against such judgment. Now, the question that falls for consideration is, whether the judgment passed in the former appeal would stand in the way of adjudicating the subsequent appeal preferred by some of the defendants. The principle of res-judicata as per Section 11 of the CPC has been invoked by the 1st Appellate Court, which reads as follows:- “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. Page 9 of 16 Explanation I.- The expression former suit shall denote a suit which has been decided prior to a suit in question whether or not it was instituted prior thereto. Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III.--The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purposes of this section, be deemed to have been refused. Explanation VI.- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating . 1[Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII.- An issue heard and finally decided by a Court of jurisdiction, competent to decide such issue, shall operate suit, as res a limited notwithstanding subsequent that such Court of judicata in limited Page 10 of 16 jurisdiction was not competent try such subsequent suit or the suit in which such issue has been subsequently raised.” to 13. The defendants in question were not prejudicially affected by the judgment of the trial Court, in so far as the same related to the Schedule ‘B’, ‘D’ and ‘F’ properties. Obviously, there was no occasion for them to prefer appeal against that part of the decree. They were however, adversely affected by the finding with regard to the registered Will marked Ext-A and the direction to render vacant possession. Naturally, they preferred appeal. In all fairness, both the appeals being registered one after the other, as evident from their respective registration number, ought to have been heard analogously and decided by a common judgment, which is the usual procedure followed by the Appellate Courts. Surprisingly however, the 1st Appellate Court, for whatever reason, heard only one appeal and rendered a judgment while the other appeal was pending. This can be treated as an error of procedure committed by the 1st Appellate Court. The question is, can a party suffer for such incorrect procedure adopted by the Court. The answer, according to Page 11 of 16 the considered view of this Court, can only be in the negative. 14. It is well-settled hat no party can suffer because of mistake committed by the Court. Reference can be had to the judgment of the Supreme Court in the case of Karnail Kaur & Others v. State of Punjab and Others1. 15. That apart, from a comparative analysis of the subject matters of both the appeals as made hereinbefore, this Court is not inclined to hold that the judgment in the former appeal would act as res judicata for the subsequent Appeal. This is being said keeping in view the requirement of Section 11 that the matter directly and substantially in issue in the former appeal ought to have been ‘directly and substantially in issue’ also in the subsequent appeal. However, the subject matter of the appeal preferred by the plaintiffs was not in issue at all in the subsequent appeal preferred by the defendants. A similar question was considered by a Full Bench of Allahabad High Court more than a century before, i.e., on 1 AIR 2015 SC 2041 Page 12 of 16 04.04.1923 in the case of Ghansham Singh v. Bhola Singh2. On the facts before their Lordships, it was held as follows:- “In the present case the only question which was decided in the appeal preferred to the Court below by the plaintiff viz. Appeal No. 460 was the question of costs and that was decided in the plaintiff’s favour. He had therefore no occasion to appeal against the decision in that case and his omission to appeal from that decision does not bar his present appeal. No issue was decided in Appeal No. 460 which was adverse to him and no issue which arose and was decided in that appeal arises in the appeal now before us. There is, therefore, no bar to the hearing of this appeal. The difficulty which arises in this case is due to the fact that one decree only was prepared in both the appeals and a copy of that decree was filed in each case. This however did not entitle the plaintiff to appeal from the decision in the appeal in which he was the successful party As the suit was a mortgage suit and only one decree could be passed in it the decree drawn up by the Court below was the decree which was the result of the decision in the two appeals before it We must look to the substance and not to mere form. Any ruling which militates against the view enunciated in this case cannot be followed. I would overrule the objection taken on behalf of the respondent.” 16. In the case of Narayana Prabhu Venkateswara vs. Narayan Prabhu Krishna Prabhu and Others3, it was held that “one of the tests in deciding whether the 2 1923 0 AIR (All) 490 3 1977 2 SCC 181 Page 13 of 16 doctrine of res judicata applies to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied”. Applying the above tests, this Court finds that the judgment that could be passed on merits of the appeal preferred by the defendants-appellants would not create any conflict with the judgment passed in the appeal preferred by the plaintiffs as the matter of controversy in both is entirely different. 17. That apart, it has been held that the question of res judicata arises only there are two suits and when there is only one suit it does not arise at all. There may be two separate appeals against the judgment passed in one suit but the same by itself would not create the bar of res judicata. It has also been held that the determining factor is not the decree but the matter in controversy. As held by the Supreme Court in the case of Narhari and Others vs. Shankar and Others4, the estoppel is not created by the decree but it cannot only be created by the judgment. The question of res judicata arises when there are two suits. 4 AIR 1953 SC 419 Page 14 of 16 Even when there are two suits, it has been held that a decision given simultaneously cannot be a decision in the former suit. When there is only one suit, the question of res judicata does not arise at all and in the present case both the decrees are in the same case and based on same judgment, and the matter decided concerns the entire suit. As such, there is no question of the application of the principle of res judicata. 18. Thus, from a conspectus of the facts and law and the analysis made, this Court is of the considered view that not deciding both the appeals arising out the same decree together by the 1st appellate Court has caused serious prejudice to the appellants of the subsequent appeal as their valuable right of appeal under Section 96 of CPC was, for no fault of their own, entirely disregarded on the technical ground of res judicata. Further, the ground of res judicata is otherwise found to be not valid in view of what has been discussed before. The impugned judgment is, therefore held to be unsustainable in the eye of law. Page 15 of 16 19. In the result, the appeal succeeds and is, therefore
Decision
allowed. The impugned judgment is hereby set aside. The matter is remitted to the 1st Appellate Court to hear the appeal (RFA No. 43/34 of 2005-07) afresh on merits and to dispose of the same within four months from today in accordance with law. ……..………………….. Sashikanta Mishra, Judge B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 17-Sep-2024 10:06:30 Page 16 of 16