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Dinkar Raoji Sinkar Vs. Anant Ganesh Sagwekar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 401 of 1926
Judge
Reported inAIR1928Bom349; (1928)30BOMLR902; 113Ind.Cas.155
AppellantDinkar Raoji Sinkar
RespondentAnant Ganesh Sagwekar
DispositionAppeal dismissed
Excerpt:
.....were found correct, the plaintiffs were held entitled to no relief as on the other issues the plaintiffs' suit failed. 900 it was held that inasmuch as the matter directly and substantially in issue in the subsequent suit was directly and substantially in issue in the previous suit, and as it was finally hoard and decided between the same parties, notwithstanding the fact that the previous suit failed by reason of the decision of the court upon some other matter as well, the subsequent suit was barred as res judicata......of the plaintiffs, but the decree was set aside on appeal, and after remand he raised additional issues. issue no. 1 was whether the plaintiffs' sale-deed was hollow or fraudulent, and the issues framed after remand related to the contract for the sale of the equity of redemption by the plaintiffs' vendor's father in favour of the mortgagee in 1890, and to the question whether the plaintiff's had notice of the contract. the learned subordinate judge discussed the whole evidence and found on issue no. 1 that the plaintiffs' sale-deed was hollow and fraudulent, and also determined the issues after remand, and recorded a finding in favour of the defendants, and held that the issues framed after the remand must be answered in favour of the defendants and the suit must, therefore, be.....
Judgment:

Patkar, J.

1. This is a second appeal arising out of a suit brought by the present plaintiffs for redemption of the property in suit, defendants Nos. 1 to 7 being the heirs of the mortgagee, defendant No. 8 being a sub-mortgagee, and defendant No. 9 being the original mortgagor who sold the equity of redemption to the plaintiffs. Both the lower Courts have dismissed the suit as barred by res judicata by reason of the decision in suit No. 241 of 1913 brought by the present plaintiffs against the mortgagees, On June 6, 1896, the original mortgagor, defendant No. 9, passed an agreement of sale of the property to the mortgagee, defendant No. 1's father. On February 5, 1913, another agreement of sale was passed by defendant No. 9 in favour of defendant No. 1. The plaintiffs purchased the property from the mortgagor on May 3, 1913, and sued for redemption in the previous suit No. 241 of 1913. It was urged on behalf of the defendants-mortgagees in that suit that the plaintiff No. 1 was a clerk of the defendants and wrote the agreement of 1895 passed by the mortgagor in favour of the mortgagee, and that the sale-deed of May 1918 in favour of the plaintiffs was bogus and hollow, and that they had notice of the agreement of June 6, 1896, in favour of the mortgagee. The Subordinate Judge decided in favour of the plaintiffs, but the decree was set aside on appeal, and after remand he raised additional issues. Issue No. 1 was whether the plaintiffs' sale-deed was hollow or fraudulent, and the issues framed after remand related to the contract for the sale of the equity of redemption by the plaintiffs' vendor's father in favour of the mortgagee in 1890, and to the question whether the plaintiff's had notice of the contract. The learned Subordinate Judge discussed the whole evidence and found on issue No. 1 that the plaintiffs' sale-deed was hollow and fraudulent, and also determined the issues after remand, and recorded a finding in favour of the defendants, and held that the issues framed after the remand must be answered in favour of the defendants and the suit must, therefore, be dismissed, and proceeded to decide the other issues on the ground that it was better to dispose of the other issues by way of caution probably to avoid a remand.

2. The disposal of the suit, therefore, by the Subordinate Judge was principally on the ground that the plaintiffs' sale-deed was a hollow transaction. The learned Subordinate Judge proceeded to dispose of the other issues in the case, and held that the plaintiffs were not agriculturists and therefore the suit was premature as having been brought before the expiry of the period of redemption. But the decision on this issue and the other issues in the case was, in the opinion of the Subordinate Judge, not necessary as the suit failed on the ground that the plaintiffs' sale-deed was hollow and fraudulent, When the case went in appeal, the appellate Court also recorded the findings in the same order, and although the lower Court's findings on issues relating to accounts were found correct, the plaintiffs were held entitled to no relief as on the other issues the plaintiffs' suit failed. The appeal was, therefore, dismissed. The second appeal, No. 838 of 1919, was summarily dismissed.

3. It is urged on behalf of the appellants that the decision on the point whether the plaintiffs wore agriculturists was sufficient to dispose of the suit and the suit being premature, the other questions were not heard and finally decided, and reliance was placed on the rulings in the case of Midnapur Zamindari Co. v. Naresh Narayan Roy (1920) L.R. 48 IndAp 49: 26 Bom. L.R. 651; Rango v. Mudiyeppa I.L.R.(1898) Bom. 296; Abdullakhan v. Khanmia I.L.R (1908) Bom. L.R. 380; Irawa, kom Laxmana Mugali v. Satyappa bin Shidappa Mugali I.L.R (1910) Bom. 38: 12 Bom. L.R. 766; Daudbhai Allibhai v. Daya Rama I.L.R (1918) Bom. 568: 21 Bom. L.R. 363 and Bai Nathi v. Narsi Dullabh I.L.R (1919) Bom. 321: 22 Bom. L.R. 64.

4. If the previous suit had been dismissed principally on the ground that it was premature, it could have been said that the decision on the other points including the point as to whether the plaintiffs' sale-deed was hollow or fraudulent was not necessary in the previous suit and the finding on that point would not operate as res judicata. Several cases were cited in argument and they might be grouped in different classes. The first class of cases would relate to cases in which the finding on the issue was against the defendant who succeeded in the previous suit on another point. The finding against the defendant who eventually succeeded in the previous suit would not operate as res judicata in the subsequent suit on the ground that he could not have appealed against the finding on the issue in the previous suit as the decree was in his favour, and the adverse finding on the issue would not operate as res judicata in the subsequent suit on the ground that the issue had not been finally decided in the previous suit, and that the decree in the previous suit was in his favour in spite of the finding on that particular issue against him. The cases of Midnapur Zamindari Co. v. Naresh Narayan Roy (1920) L.R. 48 IndAp 49: 26 Bom. L.R. 651. Ghela Ichharam v. Sankalchand Jetha I.L.R (1893) Bom. 567 and Bai Nathi v. Narsi Dullabh I.L.R (1919) Bom. 321: 22 Bom. L.R. 64 can be grouped in this class. The second category of cases would be where the plaintiff succeeds on one issue and fails on the other, and as the plaintiff eventually succeeds on the finding on one issue, it would not be necessary for him to appeal against the adverse finding on another issue, and, therefore, the issue so adversely decided cannot be said to have been finally decided against him. The case of Rango v. Mudiyeppa I.L.R (1898) Bom. 296 would fall in this category. The third class of cases would be where the Court dismissed the suit on a preliminary point, e, g., for want of payment of Court-fees or for want of jurisdiction. The case of Irawa kom Laxmana Mugali v. Satyappa bin Shidappa Mugali I.L.R (1901) Bom. 38:12 Bom. L.R. 766 can be assigned to this category of cases. The suit having been disposed of on a preliminary point the decision on the other points would be unnecessary and would not operate as res judicata. But, where there are several issues which are found against the plaintiff' and he has a right of appeal, and has, in fact, appealed against all the issues, and there have been adverse findings against him, the question would be whether the decision on all the issues would be res judicata or not. The cases of Peary Mohun Mukerjee v. Ambica Churn Bandopadhya I.L.R (1897) Cal. 900 and Vencataraju v. Ramanamma I.L.R (1913) Mad. 158 are directly against the appellants' contention.

5. In Peary Mohun Mukerjee v. Ambica Churn Bandopadhya I.L.R (1897) Cal. 900 it was held that inasmuch as the matter directly and substantially in issue in the subsequent suit was directly and substantially in issue in the previous suit, and as it was finally hoard and decided between the same parties, notwithstanding the fact that the previous suit failed by reason of the decision of the Court upon some other matter as well, the subsequent suit was barred as res judicata. To the same effect is the decision in Vencataraju v. Ramanamma I.L.R (1913) Mad. 158. In Peary Mohun Mukerjee v. Ambica Churn Bandopadhya, the previous suit was dismissed on two grounds of want of notice and non-liability of the defendant, and the subsequent suit was filed after notice and the question of liability was held to be res judicata against the plaintiff on the ground that though after the decision of the first issue, the second issue was not necessary, yet as both the issues had been heard and determined against the plaintiff, they operated as rea judicata.

6. But in Shib Charan Lal v. Raghu Nath I.L.R (1895) All. 174 it was held that where there have been two findings of fact, either of which would justify in law the making of the decree which was made, that one of such two findings of fact which should in the logical sequence of necessary issues have been first found, and the finding of which would have rendered the other of such two findings unnecessary for the making of the decree which was made, is the finding which can operate as res judicata. It is very difficult to decide in any given case as to which of the two findings of fact should be given priority in point of logical sequence of necessary issues. In the present case in one sense the question whether plaintiffs were agriculturists would be the prior issue for if the plaintiffs were not held to be agriculturists the suit would be premature as having been brought before the fixed period of redemption. On the other hand the question whether the plaintiffs' sale-deed was hollow or fraudulent went to the root of the case and the adverse finding on the issue would put an end to the plaintiffs' case even if the plaintiffs were agriculturists and the suit was not premature, In the present case, however, the Subordinate Judge and the appellate Court in the previous case expressly stated in their judgments that the finding on the question whether the plaintiffs' sale-deed was a hollow or fraudulent one was the principal issue on which their decision was founded, and it was held by the Subordinate Judge that the decision on that issue was sufficient for the disposal of the suit, and the other issues with regard to the status of the plaintiffs as agriculturists was gone into by way of caution probably in order to avoid a remand by the appellate Court. If the suit had been held to be premature, the plaint would have been rejected under Order VII, Rule 11, of the Civil Procedure Code, and the suit would not have been dismissed nor would it have been necessary to go into the other issues. The question which was directly and substantially in issue in the previous suit was the question with regard to the nature of the plaintiffs' sale-deed and it was held that it was hollow and fraudulent, and the decision on that point alone was considered to be sufficient by the Subordinate Judge for disposal of the previous suit. Reference may be made in this connection to the case of Krishna Behari Roy v. Brojeswari Chowdranee (1875) L.R. 2 I.A.

7. I think, therefore, that it cannot be said that the finding on that issue was a finding on an unnecessary issue. In fact, the plaintiffs invited the two Courts to give a decision on that issue, and as has been held in Midnapur Zamwndari Co. v. Naresh Narayan Roy : (1924)26BOMLR651 a decision invited on an unnecessary issue might operate as res judicata. In the present case, I think that the principal and important issue which was decided in the previous suit was the issue with regard to the hollow and fraudulent nature of the plaintiffs' sale-deed, and I think that the finding arrived at in the previous suit operates as res judicata.

8. I would, therefore, dismiss the appeal with costs.


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