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Jasraj Multan Chand and anr. Vs. KamruddIn and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 3 of 1967
Judge
Reported inAIR1971MP184
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 47 - Order 2, Rule 2
AppellantJasraj Multan Chand and anr.
RespondentKamruddIn and ors.
Appellant AdvocateP.P. Padhye, Adv.
Respondent AdvocateJ.P. Sanghi and ;N.S. Kale, Advs.
DispositionAppeal allowed
Cases ReferredCourt. In Suwabai v. Krishna
Excerpt:
- - that suit was dismissed on 19-7-1944 and the appeal filed against that decree also failed. but all those attempts failed. against that decree of the high court the matter was taken up to the supreme court, but without any success. sakinabi and nasiruddin failed and even the appeals were decided against them. that civil suit would clearly be tenable because the respondents would not be representatives of the judgment-debtors, badruddin and jewara and because they had throughout claimed the property in assertion of their own right and title and not as representatives of badruddin and jewara. the learned judge of the trial court failed in taking this aspect into consideration and in holding that for one purpose, the respondents may be considered to be representatives of the.....tare, j.1. this is an appeal by the defendants nos. 1 and 2 against the decree dated 22-11-1966, passed by the additional district judge, rajnandgaon in civil suit no. 2-a of 1961 decreeing the first respondent's claim for declara-tion that the decree, obtained by defendants 1 and 2 (present appellants) in civil suit no. 2-a of 1948, was obtained by practising fraud on the court and also that it was passed by the court without jurisdiction and is, therefore, null and void. the present appellants (defendants 1 and 2) were permanently restrained from executing the said decree.2. this case has become complicated on account of the several litigations started by both the parties. the disputed property namely the house, originally belonged to one gayaprasad. in execution of a decree against.....
Judgment:

Tare, J.

1. This is an appeal by the defendants Nos. 1 and 2 against the decree dated 22-11-1966, passed by the Additional District Judge, Rajnandgaon in Civil Suit No. 2-A of 1961 decreeing the first respondent's claim for declara-tion that the decree, obtained by defendants 1 and 2 (present appellants) in Civil Suit No. 2-A of 1948, was obtained by practising fraud on the Court and also that it was passed by the Court without jurisdiction and is, therefore, null and void. The present appellants (defendants 1 and 2) were permanently restrained from executing the said decree.

2. This case has become complicated on account of the several litigations started by both the parties. The disputed property namely the house, originally belonged to one Gayaprasad. In execution of a decree against him, Badruddin (predecessor of the present respondents) on behalf of himself and his minor son, Nasruddin purchased the said house in a Court auction on 21-4-1925. Badruddin purporting to act on his own behalf and on behalf of the minor son Nasruddin executed a sale deed dated 15-11-1930 in favour of Multanchand who was the father of the appellants. The house was let out by Multanchand to Badruddin and his father, Jewara who were said to have executed a rent note in favour of Multanchand. Thus Badruddin and his father, Jewara became tenants of Multanchand.

3. Multanchand filed Civil Suit No. 152 of 1935 in the Court of Subordinate Judge, Rajnandgapn against Jewara and Badruddin for ejectment alleging that the tenancy had been terminated and that there were arrears of rent-The plaint of that suit is on record as Ex. P-1. As per the judgment dated 15-6-1937 (Ex. P. 2) the Subordinate Judge, First Class, Rajnandgaon decreed the claim of Multanchand for ejectment and for arrears of rent amounting to Rs. 470/-.

4. In the meantime Mst. Sakina Bi widow of Badruddin purporting to act on behalf of minor Nasruddin filed Civil Suit No. 175 of 1935 alleging that Nasruddin was not the son of Badruddin but of Badruddin's brother Alladin. Further it was alleged that the house belonged to Nasruddin and Badruddin's name had been nominally entered in the sale deed. As such according to the allegation made in that plaint Nasruddin was the exclusive owner of the suit house. That suit was dismissed and an appeal against that decree was also dismissed. In that litigation Badruddin was held to be the exclusive owner. The parties had agreed that if in Civil Suit No. 175 of 1935 Nasruddin's title was negatived and Badruddin's title was upheld, a decree for ejectment in favour of Multanchand in Civil Suit No. 152 of 1935 be passed. Accordingly the decree for ejectment was passed. That decreewas put in execution and was resisted on different grounds. We shall have occasion to deal with this aspect later.

It is the contention of the respondents that only remedy of the present appellant was to execute the decree in Civil Suit No. 152 of 1935 and a fresh suit for possession namely Civil Suit 2-A of 1948 was not tenable by virtue of Section 47, Civil P. C. Therefore, the decree passed in Civil Suit No. 2-A of 1948 is contended to be without jurisdiction and also it is alleged that the said decree had been obtained by practising fraud on the Court by suppressing the fact that the execution in the ejectment decree has been dismissed as infructuous and that warrant of arrest had been issued against the judgment-debtor and the obstructors who were resisting the delivery of possession.

5. Thereafter Mst. Sakina Bi filed Civil Suit No. 18 of 1943 in the Court of Subordinate Judge, Rajnandgaon claiming title to the suit house on the ground that the house had been gifted to her in satisfaction of dower debt. That suit was dismissed on 19-7-1944 and the appeal filed against that decree also failed.

6. Thereafter a third attempt was made by Mst. Sakina Bi by filing Civil Suit No. 86 of 1945 which was renumbered as Civil Suit No. 82 of 1948. In that suit Sakina Bi contended that she had l/8th share in the house and to that extent the decree for ejectment passed against Badruddin and Jewara was not binding on her. That suit was dismissed on 31-7-1948. Thus after the decree in the ejectment suit was passed against Badruddin and Jewara, Mst. Sakina Bi made three attempts to set that decree at naught by filing one suit on behalf of the minor Nasruddin and by filing 2 suits on her own behalf. But all those attempts failed.

7. The appellants on their part had filed Civil Suit No. 3 of 1944 against Badruddin for damages for use and occupation. That claim of theirs was decreed on 11-9-1944. This was the second suit filed by the appellants, the first one i. e. for ejectment having been filed by their father Multanchand.

8. Thereafter the appellants filed Civil Suit for possession on 8-4-1946-That was registered as Civil Suit No. 2-A of 1948. The plaint of that suit is on record as Exhibit P. 4, while the written statements are on record as Exhibits P. 5 and P. 6. That suit was decreed by the Court of Additional District Judge, Rajnandgaon on 20-4-1948 to the extent of 8 annas share in the house. In respect of the rest, the suit was dismissed. Against that decree the present appellants had filed Civil Appeal No. 34 of1948 in the High Court of Judicature at Nagpur. A Division Bench of the High Court allowed the appeal holding that the appellants were entitled to file a suit for possession. Against that decree of the High Court the matter was taken up to the Supreme Court, but without any success. That decree was put in execution and it was resisted on the ground that the suit was not tenable and that the Court had no jurisdiction and that Section 47 of the Code of Civil Procedure was a bar to the tenability of that suit Those very pleas which are now sought to be raised on behalf of the first respondent (Plaintiff) and other respondents who are defendants and whose interest is common with that of the plaintiff in the present litigation had been decided in the objection raised in the execution case. Those pleas had been raised by the judgment-debtor Badrud-din under Section 47 of the Code of Civil Procedure. By an order, dated 9-8-1962 (Exhibit D. 1), the executing Court recorded the following findings:

'Issues

Findingsl(a) Whether Civil Suit No. 2- A of 1948 was competent in view of the decree in Civil Suit No. 152 of 1935between the plaintiff and the defendantNo. 1 and his father? ..............

Yes; competent 1(b) Is the decree, therefore, void or inoperative? ............

No.2 (a) Whether the objector should have raised the objection in Civil Suit No. 2-A of 1948?

Yes.2(b) If so, whether the present objectionis barred on principles of resjudicata?..... ..........Yes

It is to be noted that 11 of the present respondents were parties to Civil Suit No. 2-A of 1948.

9. It is necessary to take note of the allegations made in the present suit, namely Civil Suit No. 2-A of 1961 which has been filed by Badruddin against the present appellants and other defendants whose interest is common with that of the plaintiff. The main contention of the plaintiff is that the decree obtained by the present appellants in Civil Suit No. 2-A of 1948 is a nullity as it had been passed by a Court without jurisdiction and moreover the decree had been obtained by fraud practised on the Court by suppressing the fact that war-rant of arrest had been issued in execution of the ejectment decree passedin Civil Suit No. 152 of 1935. Therefore, according to the plaintiff, Civil Suit No. 2-A of 1948 was not at all tenable and Section 47 of the Code of Civil Procedure was a bar against its tenability. Therefore, the first respondent in his plaint prayed that the decree in Civil Suit No. 2-A of 1948 be declared to be null and void and defendants 1 and 2 (present appellants) be restrained from executing that decree against the plaintiff and other defendants.

10. The present appellants In their defence contended that Civil Suit No. 2-A of 1948 was tenable and that the decree passed against the defendants would be binding on the present respondents. The very questions had been raised in execution of the said decree and the execution was resisted on the very grounds on which the present suit has been filed. Therefore, the appellants invoked the aid of res judicata contending that these pleas are not available to the present respondents.

11. The learned Judge of the trial Court recorded the following findings. It is necessary to note the findings in details. As the appellants' main reliance is that these very questions had been decided earlier in Civil Suit No. 2-A of 1948, therefore the judgment and the order passed in that case will operate as res judicata. On the other hand, the first respondent tried to strike at the very root of decree passed in Civil Suit 2-A of 1948 alleging that the decree was a nullity and without jurisdiction and that it was obtained by practising fraud on the Court, The findings are as under:--

'Issues

Findings

1. Having obtained a decree forpossession of the suit house in Civil Suit No. 152 of 1935 was the secondsuit. Civil Suit No. 2-A of 1948 for the same relief barred by provision of Sec.47, Civil P. C.?

Yes.

2. Did defendant Nos. 1 and 2obtain decree in Civil Suit No. 2-A of 1948 by practising fraud on the Court?.............

Yes.

3. Was the said decree passed withoutjurisdiction? ............

Yes.

4. (a) Is defendant No. 12 a legalrepresentative of the late Jewara?

Yes.

(b) If so, what is its effect onthe present Suit? ............

Nil.

5.(a) Has plaintiff perfectedhis title to the suit house by adverse possession for 12 years? .............

No.

(b) Is this plea available tothe plaintiffs? ..........

Yes.

6. Relief and costs?Suitdecreed.'

The adverse finding regarding non perfection of title by adverse possession has been challenged by the first respondent by a separate objection filed under Order 41, Rule 22 of the Code of Civil Procedure. Therefore, in the present appeal we are mainly concerned with the following four questions raised by the appellants or the first respondent,

(1) Whether appellants obtained decree in Civil Suit No. 2-A of 1948 by practising fraud on the Court.

(2) Whether the Civil Suit No. 2-A of 1948 was not tenable by virtue of the bar provided fay Section 47, Civil Procedure Code because of the decree for ejectment obtained by the appellants' predecessor Multanchand in Civil Suit No; 152 of 1935.

(3) Whether the decree in Civil Suit No. 2-A of 1948 is a nullity it having been passed without jurisdiction.

(4) Whether the present suit is not tenable on account of the operation of the rule of res judicata inasmuch as these very questions had been decided in the judgment or the execution order in Civil Suit No. 2-A of 1948.

In addition we shall have to consider the 5th question raised on behalf of the first respondent regarding acquisition of title by adverse possession.

12. We propose to consider the above questions in a serial order: The first question is whether the appellants obtained the decree in Civil Suit No. 2-A of 1948, by practising fraud on the Court. This question is inextricably connected with the second question whether Civil Suit No. 2-A of 1948 was not tenable by virtue of the bar provided by Section 47, Civil P. C. because of the decree for ejectment obtained by the appellants' predecessor Multanchand in Civil Suit No. 152 of 1935, as also the third question whether the decree in Civil Suit No. 2-A of 1948 was a nullity, it having been passed without jurisdiction. Therefore, we propose to consider these three questions, i.e. questions 1, 2 and 3 together.

13. Section 47, Civil P. C. is as follows:--

'Section 47(1) 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.

(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court-fees.

(3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section be determined by the Court.'

14. Therefore, the first thing to be noted is that questions arising between the parties to the suit or their representatives, relating to execution, discharge or satisfaction of the decree, must be determined by the Executing Court and not by a separate suit. The Court has also been given the power to treat an application as a suit or a suit as an objection application under Section 47, Civil P. C. and the Court is also bound to decide the question whether the objector is representative of a party or not. These ingredients have to be borne in mind while deciding the three questions mentioned by us.

15. The decree for ejectment obtained by Multanchand (appellants' father) in Civil Suit No, 152 of 1935, was sought to be set at naught by Mst. Sakinabi by filing a suit on behalf of the minor Nasiruddin and another on her own behalf. But in those three cases Mst. Sakinabi and Nasiruddin failed and even the appeals were decided against them. Thereafter the present appellants proceeded with the execution of the ejectment decree. The orders passed in the execution case have not been filed, but the first respondent filed a certified copy of the Civil Suit Register showing the various executions and ultimately, the execution was dismissed as wholly infructuous on 14-2-1948. It appears that the Court in that execution had directed warrants of arrest to be issued, but they were probably not executed.

However, as the necessary orders are not on record, we are unable to say anything more except the fact that the appellants or their father could not succeed in obtaining possession of the house in execution of the decree for ejectment filed by the appellants' father, Multanchand against the respondents' predecessor, Badruddin and Badruddin's father, Jewara. The scope of that suit was necessarily one for ejectment of the tenants sought by the landlord. It is in this background that we have to judge the question of tenability of Civil Suit No. 2-A of 1948.

16. In this connection the question to be considered is whether the other objectors namely, the present respondents were representatives of the judgment-debtors Badruddin and Jewara. If they be considered to be their representatives; in that event, the remedy of the appellants would be to seek their relief by executing that decree alone; and a separate suit for possession, namely, Civil Suit No. 2-A of 1948, will not be tenable. If the respondents be not considered to be representatives, then it cannot be doubted, nor was it urged on behalf of the respondents during arguments that a title suit filed by the appellants, namely, Civil Suit No. 2-A of 1948, against the respondents would be tenable. We may observe that the respondents have been indulging in all sorts of fallacy, which would also recoil on them. It can be urged on behalf of the appellants and against the respondents that if the respondents be considered to be representatives of the judgment-debtors, Badruddin and his father Jewara, the respondents would be bound by the orders passed in execution of the decree in Civil Suit No. 152 of 1935.

In that suit it had been dearly held that the minor Nasiruddin had no title and it was the appellants' predecessor. Multanchand who was owner of the suit house by virtue of a sale effected by Badruddin on his own behalf and on behalf of bis minor son, Nasiruddin. But the respondents by resorting to one device or another never accepted the fact that they were representatives of their judgment-debtors, Badruddin and his father Jewara. On the other hand, Mst. Sakinabi claimed title for herself and in one of the cases she claimed exclusive title on behalf of the minor, Nasiruddin. In Civil Suit No. 2-A of 1948, as per the written-statements, Ex. P/5 and Ex. P/6, the respondents never claimed to be the representatives of the judgment-debtors, Badruddin and his father Jewara. On the other hand, they claimed title in themselves. Thus throughout, the respondents never purported to act as representatives of the judgment-debtors. Badruddin and Jewara. But they claimed to have acted in exercise of their own right based on their title. In this view of the matter, there can be no doubt that Civil Suit No. 2-A of 1948 for declaration of the appellants' title and for possession was tenable against the respondents, who never claimed or who never purported to act as representatives of the judgment-debtors, Badruddin and Jewara.

17. The learned counsel for the respondents invited attention to the plaint, Ex. P/4, filed in Civil Suit No. 2-A of 1948, and urged that this was asuit for possession on the allegation that the cause of action arose in favour of the appellants on the next day when the decree in Civil Suit No. 152 of 1935 was passed. That decree was passed on 15-6-1937, while the cause of action was said to have arisen on 16-6-1937. We may observe that this may be a misapprehension on the part of the appellants as to the cause of action stated in that plaint. But if the respondents were not representatives of the judgment-debtors, Badruddin and Jewara, the suit, namely, Civil Suit No. 2-A of 1948 for establishing the appellants' title against the respondents would be tenable. Moreover, it was for the respondents to have raised the question of jurisdiction as also the tenability of that suit in Civil Suit No. 2-A of 1948. But they did nothing of the kind and on the other hand, they lost that litigation, which was fought up to the Supreme Court. Thus, they being parties to that suit, the said judgment will operate as res judicata. The trial Judge refused to consider that question.

18. In execution of that decree, Badruddin alone purported to file an objection under Section 47, Civil P. C. In that objection he had raised the very questions which have now been raised by the first respondent in the present suit. Those questions were decided against Badruddin. Even if the other respondents may not have been parties to that objection petition, they were parties to the suit and the decree. It was open to them to have taken up those objections. But they slept over their rights, if any. They allowed the objections to be decided between the present appellants and Badruddin. Therefore, if the respondents be representatives of Badruddin, they will be bound by the execution order, Ex. D/1, passed in execution of the decree in Civil Suit No. 2-A of 1948. If they be not considered to be representatives of Badruddin; in that case, it may be open to them to urge those objections in the present suit. But then it will not be open to them to contend that the decree passed in Civil Suit No. 2-A of 1948 was a nullity, as it had been passed by a Court without jurisdiction. That Civil Suit would clearly be tenable because the respondents would not be representatives of the judgment-debtors, Badruddin and Jewara and because they had throughout claimed the property in assertion of their own right and title and not as representatives of Badruddin and Jewara.

The learned Judge of the trial Court failed in taking this aspect into consideration and in holding that for one purpose, the respondents may be considered to be representatives of the judgment-debtors, Badruddin and Jewara; while for the other purpose, they would not be considered to be representatives. We are inclined to the view that the respondents were not at all representatives of the judgment-debtors, Badruddin and Jewara, and, therefore, it was not necessary for the appellants to have sought relief by execution of the decree passed in Civil Suit No. 152 of 1935 only. That was essentially a suit between the landlord and tenant, wherein the question of title was wholly immaterial and the same could not be decided. The respondents have always been raising the question of their own title and they have never purported to act as representatives of the judgment-debtors, Badruddin and Jewara. In this view of the matter, we feel that Section 47, Civil P. C. would not bar the filing of Civil Suit No. 2-A of 1948 for two reasons. One would be that the respondents were never representatives of the judgment-debtors. Badruddin and Jewara and secondly, the question of title could not be gone into in a suit between the landlord and tenants. Therefore, Civil Suit No. 2-A of 1948 for establishing the appellants' title as against the respondents was tenable despite the fact that the decree in the ejectment suit obtained by the appellants' predecessor in his capacity as landlord may have been rendered in-fructuous. For this reason we would answer all the three questions in favour of the appellants and against the respondents.

19. Further we may observe that lot of cases were cited at the Bar during arguments. We propose to discuss only such of them as, in our opinion, will be relevant for the purposes of the present appeal.

20. Attention was invited to the observations of a Full Bench of the Allahabad High Court in Mahabir Singh v. Narain Tewari, AIR 1931 All 490 wherein it was held that Section 47, Civil P. C. will be attracted if a person be a party to the suit or representative of that party. The Full Bench also laid down that the question whether a decree was a nullity as being passed against a dead person would not relate to execution of the decree and as such, Section 47, Civil P. C. would not bar a separate suit for that relief. Therefore, the relevant question in such cases is to ascertain whether a particular person is a party to the suit or a representative of that party. In that event only the remedy of the party concerned is to seek relief in execution proceedings and separate suit for such relief would be barred. There can be no doubt about that proposition.

21. We may further refer to the pronouncement of their Lordships of the Supreme Court in Kiran Singh v. Cha-man Paswan, AIR 1954 SC 340, wherein their Lordships laid down that a decree passed without jurisdiction would be a nullity, which can be challenged not only at the stage of execution, but also in collateral proceedings. There can be no doubt about that proposition.

22. In Hiralal Patni v. Kali Nath, AIR 1962 SC 199 their Lordships had to consider the situation whether a decree passed by a Court not having territorial jurisdiction would be a nullity. Their Lordships laid down that by virtue of Section 21, Civil P. C., the decree would not be a nullity and it would be for the defendant to take objection about the jurisdiction at the appropriate stage. There being no inherent lack of jurisdiction, such a decree could not be challenged in execution proceedings. Their Lordships laid down that where a Court lacks inherent jurisdiction, the decree will be a nullity, but such questions do not go to the root of the matter and as such the question of territorial jurisdiction would not render it a nullity.

23. In Isher Singh v. Sarwan Singh, AIR 1965 SC 948, their Lordships laid down that the appellate Court would have jurisdiction to construe the terms of Section 96, C. P. C. and even if the construction placed by the said Court be erroneous, the appellate judgment would not be a nullity and cannot be disregarded or attacked collaterally as passed by a Court not competent to entertain the appeal. Thus, a distinction has to be drawn. Their Lordships further laid down that even though the decision of the appellate Court be wrong on that aspect yet the appellate judgment being binding on the parties, will operate as res judicata. We shall have occasion to deal with this aspect of res judicata later on. But the real distinction is whether the Court had jurisdiction to entertain a case. If it has jurisdiction, then its decree cannot be said to be a nullity, nor can it be challenged either in execution or in collateral proceedings. It can only be so challenged if the decree be passed without jurisdiction or on account of some other factor which might render it a nullity, such as the decree passed against a dead person or where a decree be passed against a minor without impleading his guardian-ad-litem. But in other types of cases the decree can never be considered to be a nullity.

24. Judged in this light, it was up to the respondents to have raised these questions about the tenability of Civil Suit No. 2-A of 1948 in that very suit If they failed to raise those questions, they cannot be permitted to resort toa separate suit on the assertion that the decree passed in that suit is a nullity. They did not even raise these objections in the execution proceedings, although they were parlies to the suit and they left it to Badruddin alone to file these objections on which the present suit is based. Those objections were decided against Badruddin as per Ex. D/1. Consequently, we are of the view that the present suit filed by the first respondent was barred on account of the applicability of the principle of res judicata not only on account of Order 2, Rule 2, Civil P. C., but also on account of the operation of Explanation 4 to Section 11, Civil P. C. For this proposition we would rely on the very pronouncement of their Lordships of the Supreme Court in AIR 1965 SC 948 (supra).

25. In this connection we might refer to some decided cases wherein this question in its different aspects was considered by this Court. In Suwabai v. Krishna, ILR (1947) Nag 668 - (AIR 1948 Nag 256) a prior mortgagee was impleaded in a suit filed by a subsequent mortgagee. He did not assert his right to property by subrogation. Subsequently he brought a suit for redemption. The learned Judge held that such a subsequent suit would be barred by the rule of res judicata by virtue of Explanation 4 to Section 11, Civil P. C.

26. In Rajah Chattar Singh v, Diwan Roshansingh, 1946 Nag LJ 690 --(AIR 1946 Nag 277) a Division Bench of this Court held that a previous decision on a question of law, but not on a mixed question of law and fact, will operate as res judicata. What would be conclusive between the parties would be the decision of the Court and not the reasoning on which it is based. The Division Bench laid down that even if a point be decided by necessary implication in a previous suit, it will operate as res judicata in subsequent proceedings. For the applicability of Explanation 4 to Section 11, Civil P. C., the Division Bench laid down that in order to attract the provision it is necessary to show not only that the party could have raised defence in the former suit, but it must also be shown that it was bound to raise the defence in the earlier litigation. In that event Explanation 4 to Section 11, Civil P. C. will be attracted.

27. Judged in this light, there can be no doubt that the respondents were parties to Civil Suit No. 2-A of 1948. They were bound to raise the question about, the tenability of the suit in that suit itself. They could have even raised the question in execution proceedings. But they did nothing of the kind. Instead, the first respondent came forward and continued the trend of unending litiga-tion further by filing the present suit claiming a declaration that Civil Suit No. 2-A of 1948 was a nullity, it having been passed without jurisdiction and the decree having been obtained by practising fraud on the Court. In our opinion, the said suit was perfectly tenable, as indicated by us earlier.

28. As regards the said decree having been obtained by fraud, the first respondent's allegation was that the appellants did not disclose in Civil Suit No. 2-A of 1948 that their predecessor, Multanchand had obtained an ejectment decree against Badruddin and Jewara in Civil Suit No. 152 of 1935, and the fact that warrants of arrest had been issued was suppressed. We may observe that the said allegation is wholly baseless. In the plaint, Ex. P/4, reference was clearly made to the decree in Civil Suit No. 152 of 1935 as also to other suits. It was for the defendants of that suit, namely, the present respondents to have raised the relevant questions. But they did not raise them and now they purport to raise those very questions in a collateral proceedings, namely, the separate suit filed by the first respondent. In this view of the matter, we are definitely of the opinion that there was no fraud practised by the appellants by filing Civil Suit No. 2-A of 1948.

The finding of fraud recorded by the learned trial Judge is without any basis and without any material and is not based on any evidence whatsoever, Therefore, with due respect to the learned trial Judge, we conclude that the appellants had not obtained the decree in Civil Suit No. 2-A of 1948 by practising any fraud on the Court. In fact the suit was fought up to the Supreme Court and everywhere the respondents had lost. This discussion would dispose of questions 1, 2 and 3 mentioned above.

29. Coming to the fourth question whether the present suit would not be tenable on account of the operation of the rule of res judicata, we may observe that these questions were open to the first respondent or the other respondents, who were parties to Civil Suit No. 2-A of 1948. They could have raised those questions and they not having raised them in that suit, the present suit would not be tenable by virtue of Order 2. Rule 2, Civil P. C. as also Explanation 4 to Section 11, Civil P. C. On the other hand the findings recorded in that suit will be binding on the respondents. The question whether the appellants were entitled to claim the relief of possession by filing Civil Suit No. 2-A of 1948, was specifically decided by the High Court in First Appeal No. 54 of 1948 (Ex. P/7), Similarly, the question of res judicata also has been decided bythat judgment. This decision will operate as res judicata and the suit filed by the first respondent for his own benefit and for the benefit of the other respondents, would thus be clearly barred by virtue of operation of the rule of res judicata.

We have already referred to the case law on this point earlier. Therefore, we answer the fourth question by holding that the present suit itself was not tenable on account of the operation of the rule of res judicata.

30. This brings us to the last question raised on behalf of the first respondent to the effect that the trial Judge was in error in holding that the first respondent or the other respondents had not acquired title by adverse possession. In this behalf it is pertinent to note the finding recorded by the trial Judge as also the reasons for coming to that conclusion. The learned trial Judge held that after the appellants' father, Multanchand obtained the decree in Civil Suit No. 152 of 1935, Mst. Sakinabi on her own behalf and on behalf of the minor Nasiruddin had filed suits. In those suits the execution of the said decree was stayed. Till the appellants filed Civil Suit No. 2-A of 1948, the respondents had not perfected their title by adverse possession for more than 12 years. After the said suit was filed there would be no question of adverse possession. The judgment of the High Court in First Appeal No. 54 of 1948 was delivered on 5-8-1955 and the appellants had put that decree in execution, which was resisted on the objections raised by Badruddin. Therefore, the said period also cannot amount to any adverse possession.

The present suit was filed by the first respondent on 30-6-1961. As such, the respondents cannot be said to have acquired any prescriptive title by adverse possession for more than the statutory period of twelve years. The trial Judge, in our opinion, was right in holding that the case of adverse possession was not made out by the first respondent. Under these circumstances we affirm the conclusion of the trial Judge in this behalf.

31. As a result of the discussion aforesaid, it is clear that the decree passed by the trial Judge cannot be sustained in law, as it was based on an erroneous view of the applicability of Section 47, Civil P. C. and the applicability of the rule of res judicata. In fact both these provisions should have been applied against the respondents and not against the appellants. Consequently, the decree passed by the trial Judge is set aside and this appeal is allowed.The suit filed by the first respondent is dismissed with costs throughout as against the first respondent. Counsel's fee in this Court according to the schedule or certificate, whichever be less. There shall be no order as to costs vis-a-vis the appellants and the other respondents.


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