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Anant Subrao Nadgir Vs. Mahableshwarbhat Gukunathbhat Shindgi - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 248 of 1928
Judge
Reported in(1930)32BOMLR1473; 129Ind.Cas.737
AppellantAnant Subrao Nadgir
RespondentMahableshwarbhat Gukunathbhat Shindgi
DispositionAppeal dismissed
Excerpt:
.....of action, the plaintiff ought to have made it a ground of attack in the first suit: ;gudaappa v. tirkappa (1900) i.l.r. 25 bom. 189 : s.c. 2 bom. l.r. 872 ; mnhammad rowther v. abdul rervther rowther (1922) i.l.r. 46 mad. 135; and kamenwar perhad v. rajkumari rullan kuer (1882) i.l.r. 20 cal. 79 p.c., followed ; ;(4) that the suit was further barred under section 47 of the civil procedure code, inasmuch as both plaintiff and defendant no. 2 were parties to the first suit, and the property in dispute in the second suit was one of the properties in dispute in the first suit although defendant no. 2 was not sued in respect of that property : ;chiunlal v. kashibhai (1923) 25 bom. l.r. 440, referred to. - - 377 of 1919 and as both sharadabai as well as the present defendant were parti s..........in number. in that property were included section no. 51, pot no. 2, which is the subject of the present suit, and section no. 88 and 89, all of which were in the possession of the present defendant. so far as regards section no. 88 and 89 the plaintiff's case was that they had been improperly alienated by sharadabai to the defendant. as regards the present section no. 51, pot no. 2, possession was not claimed from the defendant, but from sharadabai, but as a matter of fact this particular property had been alienated by the plaintiff' and sharadabai by a deed of gift in favour of the defendant. that deed of gift, which was not attested, is void in law. the suit between the plaintiff' and sharadabai was compromised, and there was a decree in terms of the compromise between the plaintiff.....
Judgment:

Baker, J.

1. The plaintiff, who was the adopted son of one Sharadabai, brought suit No. 337 of 1919 against Sharadabai for possession of the property of his adoptive father, and for setting aside alienations made by Sharadabai to various defendants, twenty three in number. In that property were included Section No. 51, pot No. 2, which is the subject of the present suit, and Section No. 88 and 89, all of which were in the possession of the present defendant. So far as regards Section No. 88 and 89 the plaintiff's case was that they had been improperly alienated by Sharadabai to the defendant. As regards the present Section No. 51, pot No. 2, possession was not claimed from the defendant, but from Sharadabai, but as a matter of fact this particular property had been alienated by the plaintiff' and Sharadabai by a deed of gift in favour of the defendant. That deed of gift, which was not attested, is void in law. The suit between the plaintiff' and Sharadabai was compromised, and there was a decree in terms of the compromise between the plaintiff and defendants Nos. 1 and 24, viz., Sharadabai and some other person who is not a party to this suit, and m accordance with this decree the plaintiff was to recover possession of the property in this suit and also other property from defendant No. 1, There was a separate decree against the other defendants for other property. In execution of the decree against Sharadabai the plaintiff endeavoured to take possession of S. No 51, pot No. 2, but was obstructed by the present defendant. The plaintiff made an application to the Court under Order XXI, Rule 97, which was dismissed under Order XXI, Rule 99, and the plaintiff then brought the present suit under Order XXI, Rule 103, , for possession of the survey number against the present defendant. It was contended at the trial that the suit was barred under Order II, Rule 2, of the Civil Procedure Code, read with Section 11, expln. iv, and also under Section 47 of the Civil Procedure Code, inasmuch as the plaintiff had omitted to include the whole of his claim against the defendant in the previous suit and as the defendant was a judgment-debtor in the previous suit, any question between him and the plaintiff should be disposed of under Section 47 of the Civil Procedure Code and not by a separate suit, Those objections were overruled by the Judge of the first Court, and the plaintiff's claim was decreed, but on appeal the decree was reversed by the Assistant Judge of Dharwar who held that the suit was barred by the provisions of Order II, Rule 1, of the Civil Procedure Code, explanation iv to Section 11 of the same Code, and Section 47 of the Code of Civil Procedure. The plaintiff makes the present appeal.

3. The position has been set out at p. 2 of the judgment of the lower appellate Court in these words :-

The position now stands thus. The plaintiff when he instituted Suit No. 377 of 1919 in the Court of the First Glass Subordinate Judge, Dharwar, as against his adoptive mother Sharadabai as regards the whole of the family property including Survey No. 51(2) now in dispute, was fully conscious that it was in the possession of the present defendant. He, however, ignored the deed of gift of 1918, because it was legally inoperative for want of attestation and behind defendant No. 2's back entered into a compromise with Sharadabai for numerous lands including the suit survey number. Order II, Rule 1, enjoins that ' Every suit shall, as far as practicable, be framed BO as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.' Survey No. 51(2) was one of the lands in dispute in the previous litigations and if the plaintiff had so framed his suit as to pray for relief anent the said land as against the present defendant, the present suit would have been redundant.

He, therefore, holds that the present suit is barred by the provisions of Order II, Rule 1. It is further barred by explanation iv to Section 11, because ' 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.' As Survey No. 51(2) was one of the lands in dispute in Suit No. 377 of 1919 and as both Sharadabai as well as the present defendant were parti s to that suit, the plaintiff, in the Judge's opinion, ought to have alleged the invalidity of the deed of gift, Exhibit 18, and sought to have recovered possession of the said land, and the Judge, relying on Guddappa v. Tirkappa (1900) I.L.R. 25 Bom. 189 : 2 Bom. L.R. 872, held that the suit was barred on the principle of res judicata. Further, he held that as the plaintiff had got a decree against Sharadabai regarding this land in the former suit and the present defendant was a defendant in the former suit, the case was covered by Section 47 of the Civil Procedure Code, and he relies on the case of Chunilal v. Kashibhai : AIR1923Bom381 . It has been argued by the learned advocate for the appellant that Order II, Rule 1, has no application. In the former litigation Section No. 51(2) was not in dispute so far as the respondent is concerned. He claimed Section No. 88 and 89 under an alienation from Sharadabai. The plaintiff claimed Survey No. 51(2) from Sharadabai. The cause of action as against the respondent was adverse possession. In the present case the cause of action is obstruction by respondent in the execution of the plaintiff's decree against Sharadabai or rather the order of the Court refusing the plaintiff's application to set this obstruction aside. And he refers to Narsagounda v. Chawagounda ILR (1918) 42 Bom. 638 : 90 Bom. L.R. 302. That case lays down that Article 91 of the Indian Limitation Act does not apply to a suit for possession where the plaintiff alleges and proves that a sale-deed is void because it was executed by him whilst a minor, but does not claim expressly to have it cancelled or set aside. Then as regards Section 11, expln. iv, it is argued that the plaintiff had no cause of action against the respondent in 1919 except adverse possession. In order that a suit should be barred by Section 11, the parties in the former suit must be the same, and the subject-matter the same, and he urges that the case in Guddappa v. Tirlcappa was on different facts. The former suit was only to have the alienations made by Snaradabai, that is, of Section No. 88 and 89 set aside and not the one made by himself of Section No. 51(2), and that under the ruling in Narsagounda v. Chawagounda, referred to above, he was entitled to ignore the deed of gift.

4. Now, so far as concerns the application of Order II, Rule 2, and Order II, Rule 1, which must be read together, and Section 11, expln. iv, of the Civil Procedure Code, it is necessary to have a clear statement of the facts before applying the law. As found by the lower appellate Court the facts are that on the date of his adoption by Sharadabai the plaintiff and Sharadabai passed a deed of gift in favour of the defendant with regard to the survey number now in suit, viz., Section No. 51, pot No. 2, It has been found by the lower appellate Court that that deed of gift was not attested, that the plaintiff deliberately refrained from having it attested in order that it might be void, and it is conceded on both sides that the deed of gift is void. Now when plaintiff sued to recover possession of all the property of his adoptive father including all the property which had been alienated by Sharadabai, the cause of action was his adoption by Sharadabai, and as adopted son he was entitled to set aside all alienations made by the adoptive mother. The plaintiff, as the lower appellate Court has found, was fully aware of the fact that the possession of Section No. 51(2) was not with Sharadabai, but with the defendant. That survey number was one of the survey numbers of which the plaintiff claimed possession, and the present defendant was a defendant in that suit, and he was one of the persons from whom the plaintiff sought to recover possession of his adoptive father's property, such property as the defendant was in possession of, on the ground that the alienations to him were void. Now it appears that for reasons best known to himself the plaintiff concealed the fact that Section No. 51(2) was in the possession of the present defendant, and sought possession of it from Sharadabai although Sharadabai was not in possession. The subject in dispute, therefore, between the plaintiff and the defendants who were twenty-four in number in that case, was the property of his adoptive father, and I do not see how it could be contended that where an essential fact was suppressed, i.e., that Section No. 51(2) was in the possession of the present defendant, who was defendant No. 2 in that suit, on a title which was not put forward in that suit, it could possibly be held that that suit was framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them, because it is obvious that in order to recover possession of this survey number from the present defendant a further suit was necessary, and this is the suit which has, as a matter of fact, been brought. There can, therefore, I think, be no reasonable doubt that this present suit is repugnant to the provisions of Order II, Rule 1. Secondly, Order II, Rule 2, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. The cause of action in that suit, as has already been pointed out, was his adoption by Sharadabai which entitled him to set aside any alienation and to recover the whole of the property belonging to his adoptive father. The defendant was actually a party to that suit, and in respect of the cause of action, viz., the adoption, the present plaintiff' was entitled to make a claim against him for restoration of Section No. 51(2) on the ground that the deed of gift was void in view of the fact that to the plaintiff's knowledge the deed of gift which was passed to him by Sharadabai in respect of that property was void and inoperative in law, and therefore there was no necessity to set it aside. Section 11, explanation IV says :

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.

The possession by the present defendant of Section No. 51 (2) might and ought to have been made a ground of attack in the former suit, and must be therefore regarded as being a matter directly and substantially in issue in that suit. It has been held in Masilamania Pillai v. Thiruvengadam Pillai ILR (1908) Mad 385 that the question of what ought to be made ground of attack under Section 13, explanation II, must be determined by the provisions of Section 42 of the Civil Procedure Code. That is now Order II, Rule 1. As pointed out in that ease, there is no hardship or inconvenience in requiring a plaintiff suing as heir to state all the facts on which he bases his heirship, even though it may result in the presentation of. an alternative case, while great inconvenience and hardship may be caused to the defendant by allowing the plaintiff to keep a ground in reserve. It is also held that it will not be practicable to join in one suit the different grounds only when the evidence in support of one ground will be destructive of the other. Now to have alleged in the former suit that defendant No. 2 in that suit, viz., the present defendant, was in possession of Section No. 5.1(2) under a void deed of gift was not in any sense destructive of the plaintiff's claim to recover the ether lauds from other defendants and Section Nos. 88 and 89 from the present defendant on the ground that the alienations made to them by Sharadabai were void. In Tarachand v. Bai Hansli (1804) 6 Bom. L.R. 594 it was held that there is nothing in Section 13 or its Explanation II of the Civil Procedure Code to show that 'any matter' means 'matter arising out of the same cause of action'. In Guddappa v. Tirkappa ILR (1900) 25 Bom. 189 : 2 Bom. L.R. 872, the plaintiffs sued to recover certain land, alleging that on the death of the widow of the former owner they became entitled as reversioners. They had previously sued for the same land claiming as the surviving members of the joint family to which the former owner belonged. That suit had been dismissed. It was held that the present suit was barred by the provisions of Section 13 of the Civil Procedure Code, 1882, the same as Section 11 of the present Code. It was held by Sir Lawrence Jenkins C. J. at p. 193 that the test to be applied as to whether a matter might or ought to have been made a matter to attack is this. Are the matters so dissimilar that their union might lead to confusion and it was held that no confusion would have arisen had the plaintiff in the former suit pleaded in the alternative the title he now sets up. I have already pointed out that there wan nothing to prevent the plaintiff' in the former suit from claiming possession of Section No. 51(2) from defendant No. 2 in that suit, who is the present defendant, on the ground that the deed of gift was invalid in law. It is clear, therefore, that he might have made that a ground of attack. Nor was the matter so dissimilar that any confusion would have been caused by making a case based on that cause of action. And therefore the matter not being dissimilar, on the authority of the case in Guddappa v. Tirkappa, it must be held that the plaintiff ought to have made it a ground of attack. In Muhammad Rowther v. Abdul Rahman Rowther ILR (1922) Mad. 135, where a person instituted a suit against a trespasser in possession for partition and recovery of his share in certain lands on the footing that he was a co-owner under a joint purchase made by himself and his two deceased brothers, but his claim was dismissed on the ground that the purchase was not a joint one but the sole purchase of one of the deceased brothers, and the former instituted a subsequent suit to recover his share as one of the heirs of the deceased purchaser, it was held that the suit was barred by the rule of res judicata, as the plaintiff ought to have joined his subsequent ground of title in the former suit under Section 11, explanation iv, of the Civil Procedure Code, and it is stated at p. 141, referring to the ruling of the Privy Council in Kameswar Pershad v. Rajkumari Ruttan Koer ILR (1802) Cal. 79., that if a person has two grounds on which he could base his claim or title to a thing, he must bring forward both in the first suit itself and he will be barred from bringing a second suit, unless indeed the union leads to confusion. I am of opinion that the rulings to which I have referred apply to the facts of the present case, and that the view of the lower Court that the suit is barred by Order II, Rule 1, (and also, in my opinion, by Order II, Rule 2), and by Section 11, explanation iv, of the Civil Procedure Code, is correct.

5. This is sufficient for the disposal of the appeal, but as a further point of law is involved, I shall proceed to deal with the contention that Section 47 of the Code of Civil Procedure does not apply to the present case. Section 47 of the Code of Civil Procedure states :-

All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

Now in the former case the defendant in the present suit was defendant No. 2. A compromise decree was passed in that suit as between the present plaintiff and Sharadabai for the restoration of possession by her of the family property, and decrees were passed against all the defendants including defendant No. 2, the present defendant, for restoration of the property in their possession. But when the plaintiff attempted to take possession of S No. 51(2), he was obstructed by the present defendant. Prima facie, therefore, it would appear the question of possession was one arising between the parties to the suit, and relating to the execution of the decree. It is, however, contended that the question of Section No. 51(2) had not arisen between the parties to the suit. As far as this survey number was concerned, the respondent was not a party to the suit. The contention would appear to be that he was only a party to the suit as regards Section Nos. 88 and 89 in regard to which there was an alienation in his favour by Sharadabai. In Chunilal v. Kashibhai : AIR1923Bom381 , the plaintiff sued the defendants, father and son. but obtained a decree against the son only. He applied to the Court to attach the property of the son. The father also made an application stating that his own property should not be attached in execution. The Court held that the father had proved his case for the purpose of the application, and directed the plaintiff' to file a regular suit for a declaration that the property was liable to be attached in execution of his decree. It was held on appeal that inasmuch as the father, although the suit had been dismissed against him, was still a party to the suit within the explanation to Section 47 of the Civil Procedure Code, any question arising between him and the plaintiff with regard to the execution of the decree would have to be determined by the Court executing the decree and not by a separate suit. That proceeds on the Explanation to Section 47, which says :

For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed, are parties to the suit.

Therefore, that does not strictly apply to the facts of the present case. In view of the fact, however, that the plaintiff was the plaintiff in the former suit, and the present defendant was the defendant No. 2 in that suit, and the property now in dispute was one of the properties in dispute in that suit, although defendant No. 2 was not sued by the present plaintiff in respect of that property, and in view of the wide terms of Section 47 of the Code of Civil Procedure, I am of opinion that the present suit was barred under that section. This, however, is a minor point in view of my finding as to the suit being barred by Order II, Rules 1 and 2 and Section 11, Explanation iv, of the Civil Procedure Code, a point as to which I do not think there can be any doubt.

6. The result is that the decree of the lower appellate Court is confirmed, and the appeal dismissed with costs.


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