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Karunakar Panda Vs. Durgabati Bewa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 200 of 1977
Judge
Reported inAIR1981Ori23; 50(1980)CLT507
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11; Hindu Law
AppellantKarunakar Panda
RespondentDurgabati Bewa and ors.
Appellant AdvocateS.C. Mohapatra, Adv.
Respondent AdvocateR.K. Mohapatra and ;A.N. Misra, Advs.
DispositionAppeal dismissed
Cases ReferredGanga Bai v. Vijay Kumar
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........final. their lordships held that the issues decided therein could not be reopened in the second appeal filed against the decree passed in an appeal arising out of another suit.15. in air 1977 sc 1268, narayana prabhu venkateswara prabhu v. nara-yana prabhu krishna prabhu, the supreme court held that one of the tests in deciding whether the doctrine 'f res judicata applied to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied,16. it is clear from the decisions of of the supreme court referred toabove that the bar of res judicata is not created by a decree but by a decision or judgment. where the suits or appeals raise only common issues for decision and there has been one trial, one finding and one decision, an appeal.....
Judgment:

P.K. Mohanti, J.

1. The Second Appeal is by the plaintiff against a decree of affirmance.

2. The plaintiff claimed to be a re-versioner along with defendants 7, 8 and 9 to the estate of one Khetrabasi Panda, who died in 1918. He brought the suit for setting aside a sale deed executed by Udia Dibya, the widow of late Khetrabasi Panda in favour of the ancestors of defendants 1 to 6 in respect of the suit lands. He also prayed for recovery of possession of the same and for mesne profits.

3. The plaintiffs case was that Laxman, Gadadhar and Chakradhar, the three sons of Kanhei Panda separated in mess and estate and accordingly the the family properties were separately recorded in their names in the settlement record of rights published in the year 1915. Out of 3.01 acres of land each of the three sons of Kanhei got 1/3 share. Khetrabasi was in possession of 1.01 acre of land which had fallen to the share of his grandfather Laxman. He died issueless in the year 1918 leaving behind him his widow Udia Dibya. She was all along in possession of the properties left by her deceased husband and in the year 1951 she transferred 84f decimals of land to Hari Sahu, the husband of defendant No. l and father of defendants 2 to 4and Pahali Sahau, the father of defendants 5 and 6 and since then the transferees remained in possession of the lands. The plaintiff's contention was that the transferees fraudulently obtained the sale deed from Udia Dibya without payment of consideration and that there was no legal necessity for the sale. Upon these allegations, the plaintiff filed the suit on 13-2-1967 for the aforesaid reliefs.

4. The stand taken by defendants 1 to 6 was that the sale deed executed by Udia Dibya in favour of Hari and Pahali was genuine and for consideration and it was supported by legal necessity. It was alleged that Krushna Panda, the third son of Chakradar had filed T. S. No. 4/51 against Udia Dibya to oust her from the family properties and in order to meet the litigation expenses and for her maintenance she sold the suit lands in favour of Hari and Pahali on receipt of full consideration for the same. It was also alleged that the plaintiff had filed T. S. No. 98 of 1958 challenging the sale deed executed by Udia Dibya and the suit was dismissed on the finding that the same was genuine and for consideration. The plaintiff also filed T. S. No. 47 of 1967 claiming partition of his share in the family properties including the suit properties and that suit was decided on the finding that the sale by Udia D'bya was supported by legal necessity. Accordingly, it was alleged that the suit was barred by res judicata.

5. The learned Munsif who originally decided the suit on 31st July, 1973 came to the findings that the sale deed executed by Udia Dibya was genuine and for consideration, but it was pot supported by legal necessity. He discarded the plea of res judicata and estimated the mesne profits at the rate of Rs. 60/- per year. But he dismissed the suit on the ground that sufficient particulars had not been given for identification of the suit lands and hence the suit was bad for vagueness and indefiniteness.

6. Aggrieved by this decision the plaintiff filed Title Appeal No. 9/73 in the Court of the Subordinate Judge, Keonjhar against the decree of dismissal of the suit. Defendants 1 to 6 also preferred Title Appeal No. 12 of 1973 challenging the finding about want of legal necessity for the sale. After hearing both the appeals analogously,the learned Subordinate Judge remanded the suit and called for a specific finding regarding the identity of the suit lands. Thereafter the plaintiff applied for amendment of the plaint by adding some new properties and specifying the area of disputed properties as 1.01 acres. The Trial Court by its order dated 3-4-1975 allowed the amendment. Defendants 1 to 6 preferred Civil Revision No. 143 of 1975 challenging the order of amendment. This Court allowed the Civil Revision on 13-7-1976 and directed that the amendment should be confined to 0.34 2/3 acre only. Thereafter the trial Court by its judgment dated 14-2-1977 returned a finding that the description of the suit lands was vague and the suit was bad for indefiniteness. Apparently, it had overlooked the amendment of the plaint. Then both the Title Appeals were transferred to the Court of the Subordinate Judge, Anandapur. The Title Appeal No. 9/73 filed by the plaintiff was numbered as Title Appeal No. 1/76 and Title Appeal No. 12 of 1973 filed by the defendants 1 to 6 was numbered as Title Appeal No. 10/76. Both the appeals were heard together and were disposed of on 26-3-1977 by a common judgment. Title Appeal No. 1/76 filed by the plaintiff was dismissed and Title Appeal No. 10/76 filed by defendants 1 to 6 was allowed on the following findings:

(a) The sale deed executed by Udia Dibya was genuine and for consideration and it was also supported by legal necessity.

(b) The identity of the suit lands was not very material for deciding the controversy between the parties.

(c) Udia Dibya got the properties by inheritance as the sole heir of her deceased husband and possessed the same as of right and not as a limited owner.

(d) The transferees had acquired pre-scriptive title over the suit lands by the date of institution of the suit.

Two separate decrees were drawn up in Title Appeal No. 1/76 and Title Appeal No. 10/76. Aggrieved by the decision, 1 he plaintiff filed the present appeal against the decree of dismissal passed in Title Appeal No. 1/76. He also filed Second Appeal No. 31/78 against the decree passed in favour of defendants 1 to 6 in Title Appeal No. 10/76Second Appeal No. 31/78 was dismissed by this Court on 26-6-1978 on the ground of limitation,

7. At the hearing of this Second Appeal, a preliminary objection was raised on behalf of the respondents that since Second Appeal No. 31 of 1978 has been dismissed, the finding recorded by the lower appellate Court in Title Appeal No. 10/76 would operate as res judicata and that cannot be challenged in this Second Appeal. The learned counsel for the appellant on the other hand contended that since the entire suit had been dismissed by the Trial Court, defendants 1 to 6 had no right of appeal and Title Appeal No. 10/76 filed by them was not maintainable and hence the dismissal of the Second Appeal No. 31/78 preferred against a finding in Title Appeal No. 10/76 cannot operate as res judicata. In support of his contention he relied on a decision of the Supreme Court reported in AIR 1953 SC 419 (Narahari v. Shanker).

8. In AIR 1953 SC 419 (Narahari v. Shankar) the plaintiffs claimed the suit land as belonging to them exclusively according to a family custom as members of the senior line as against the defendants who were of junior line. There were two sets of defendants. Each set of the defendants claimed that they were in possession of l/3rd of the land and maintained that they were entitled to it as their share of the family property. The plaintiff's suit was decreed. The two sets of defendants filed two separate, appeals each claiming l/3rd portion of the land and each filed court-fee to the extent of their share. The first appellate court allowed both the appeals and dismissed the plaintiffs' suit by one judgment. A copy of the judgment was placed on the file of the other connected appeal. On the basis of the judgment two decrees were prepared by the first appellate court. The plaintiffs filed two separate appeals. One of the appeals was time-barred. This appeal was filed on a rupee one stamp paper and a note was appended that full court-fee had been pad in the other appeal. The High Court held that one of the appeals being time-barred, the other appeal would fail by application of the principles on res judicata. Accordingly the High Court dismissed both the appeals. Against that judgment two appealswere preferred to the Judicial Committee of the State of Hyderabad which came before the Supreme Court under Article 374 (4) of the Constitution of India. The Supreme Court while dealing with the plea of res judicata held as follows :

'......It is now well settled thatwhere there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up. As has been observed by Tek Chand, J. in his learned judgment in AIR 1927 Lah 289 (FB), mentioned above, the determining factor is not the decree but the matter in controversy. As he puts it later in his judgment, the estoppel is not created by the decree but it can only be created by the judgment. The question of res judicata arises only when there are two suits. Even when there are two suits, it has been held that a decision given simul-tanously 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 the 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. The same judgment cannot remain effective just because it was appealed against with a different number or a copy of it was attached to a different appeal. The two decrees in substance are one...,......'

9. In AIR 1956 Orissa 68, Sumi Debi v. Prana Krushna Panda a Division Bench of this Court held that Narahari's case was not binding as being not of the Supreme Court of India. Their Lordships observed:

'Had this been a decision of the Supreme Court of India, the matter would have been taken as finally settled. But as is seen from the report, it is not a decision of the Supreme Court of India, but a decision of the Supreme Court of Hyderabad, which in consequence of the merger of Hyderabad and for the necessity for disposal of the appeals pending in the Supreme Court of Hyderabad, is a Court constituted for the disposal of those appeals consisting of two Judges of the Hyderabad Supreme Court and one Judge of the Supreme Court of India, Mahajan, J., (as he then was).In my opinion, therefore, this decision cannot be taken as a decision of the Supreme Court of India binding on us.'

In a subsequent decision of this Court reported in ILR (1960) Cut 295 : (AIR 1960 Orissa 172), Bishnu Dayal Jhunjhunwalla v. Atal Behari Acharya a Division Bench of this Court differed from the above observation and held that the judgment in Narahari's case was delivered by the Supreme Court in exercise of its special powers under Article 374 (4) of the Constitution. It was further held that once it is a judgment of the Supreme Court, it is binding on all the Courts in the land irrespective of the special procedure adopted for constituting the Bench for hearing certain classes of appeals.

Their Lordships of the Supreme Court in Badrinarayana's case: AIR 1962 SC 338 have clearly mentioned while taking notice of AIR 1953 SC 419 that it was the judgment of the Supreme Court. In a recent decision of this Court reported in (1976) 18 OJD 501, (Sripati Charan Rai v. Madna Das) this Court has also taken Narahari's case to be a decision of the Supreme Court and accepted the law 1 aid down in that case.

10. The learned counsel appearing for the respondents urged that though the decision in Narahari's case (AIR 1953 SC 419), has never been overruled by the Supreme Gourt yet the principles enunciated therein have been whittled down in subsequent decisions. I am, however, unable to accede to this contention. No doubt. Narahari's case has been distinguished on facts in the subsequent decisions of the Supreme Court, but nothing said in those decisions can be construed as laying down that the principles of res judicata will be attracted even when there are no two suits, but only one suit.

11. In AIR 1962 SC 338 (Badri Narayan v. Kamdeo Prasad), there were two separate election appeals, both of which were dismissed by the High Court. Separate decrees were prepared The subject-matter of each appeal was different. An appeal was preferred to the Supreme Court against only one of the decrees. The decision in the Supreme Court Appeal depended on a matter which had been decided by the High Court in the other election appeal which was not beforethe Supreme Court. In these circumstances, their Lordships held that the decision of the High Court in the appeal which had not been brought before the Supreme Court operated as res judicata because although both the appeals before the High Court arose out of one proceeding before the Election Tribunal, the subject-matter of each appeal was different. Their Lordships observed:

'......The subject-matter of appealNo, 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal. It had nothing to do with the question of right of respondent No. 1 to be declared as duly elected candidate. The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed. If appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The subject-matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant. The decision of the High Court in the two appeals though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals......'

The earlier case of Narahari v. Shan-ker (AIR 1953 SC 419), was distinguished on facts. Referring to the relevant observations in the earlier case which are as follows:

'It is now well-settled that where there has been one trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up.'

Their Lordships observed:--

'This does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in any of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different points for determination. The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals and consequently of one decision on those common points in all the appeals.'

12. Narahari's case was referred to in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332 and was distinguished on the ground that that case related to a case where there was only one suit followed by two appeals. A careful perusal of the decision in Sheodan's case would show that the plea of res judicata was sustained by their Lord-ships because of the decision of the High Court in two appeals arising out of two suits and it was in this view of the matter that it was observed that the decision in the two appeals was a decision in the former appeals so as to give rise to res judicata in the subsequent appeals. Further it will be seen that their Lordships did not specifically overrule the ratio of the decision in Lachhmi's case: AIR 1927 Lah 280 (FB) as' well as in Narahari's case in AIR 1953 SC 419 about the proposition that the bar of res judicata is created by a judgment and not by adecree.

13. In the case of Ramagya Prasad Gupta v. Murli Prasad: AIR 1974 SC 1320, their Lordships again distinguished Narahari's case on facts. In that case, two suits between the same parties were consolidated and tried together. The subject-matter of the earlier suit and that of the subsequent suit were entirly different. Their Lordships held that dismissal of the appeals arising out of the earlier suit did not operate as res judicata in the appeals arising out of the subsequent suit.

14. In the case of Lonankutty v.Thomman, AIR 1976 SC 1-645, Narahari's case (AIR 1953 SC 419) was also distinguished on facts. In that case, there were two suits, and the appellate decree in one of the suits had become final. Their Lordships held that the issues decided therein could not be reopened in the second appeal filed against the decree passed in an appeal arising out of another suit.

15. In AIR 1977 SC 1268, Narayana Prabhu Venkateswara Prabhu v. Nara-yana Prabhu Krishna Prabhu, the Supreme Court held that one of the tests in deciding whether the doctrine 'f res judicata applied to a particular case or not is to determine whether two inconsistent decrees will come into existence if it is not applied,

16. It is clear from the decisions of of the Supreme Court referred toabove that the bar of res judicata is not created by a decree but by a decision or judgment. Where the suits or appeals raise only common issues for decision and there has been one trial, one finding and one decision, an appeal against the decree in one suit or the appeal will not be barred by res judicata by not filing an appeal against the decree in the other suit or appeal. But where the subject-matter of each of the two suits or appeals is different and the decision in the two proceedings, though stated in one judgment, really amounts to two decisions and not one decision common to both the proceedings, an appeal filed against the decision in one proceeding will be barred by the rule of res judicata if no appeal is filed against the decision in the other proceeding.

17. If we examine the facts of the present case in the light of the principles laid down in the aforesaid decisions, it will be clear that though two appeals arose out of one suit the subject-matter of dispute was one and there was one decision common to both the appeals. Preparation of two decrees was merely for the sake of complying with the formalities of law. The result of consolidating the two appeals was to combine the controversies in the two appeals into a single controversy and to make the proceedings of both the appeals a single proceeding. The controversy in that proceeding was concluded by a single judgment and inasmuch as that judgment has been put in jeopardy, it cannot operate as res judicata. The entire matter in controversy between the parties in the suit is before this Court in the present appeal. In the present appeal, the plaintiff has attacked the entire basis of the judgment of the Court below. He has left nothing unchallenged in the judgment of the Court below which would stand in his way in getting the reliefs claimed in the suit. In Title Appeal No. 10/76 giving rise to Second Appeal No. 31/78 the Court below passed a decree in favour of the transferees on the finding that there was no legal necessity for the sate. That finding is specifically challenged in the instant appeal. Thus, both the decrees passed by the Court below are being assailed in this appeal and as such if the decision of the Court below is set aside in this appeal both the decrees would be re-versed and there will be no scope for any inconsistency. All the defendants have been impleaded as respondents in the present appeal and the appellant has paid full court-fees on the value of the suit lands after deducting the value of the lands which have vested in the State Government under the Orissa Estates Abolition Act. In paragraphs 18 and 19 of the memorandum of appeal the appellant has clearly stated that 0.41 2/3 acre out of the suit lands has vested in the State Government and therefore the Civil Court is not competent to exercise jurisdiction over the same. Accordingly, he has restricted the appeal for relief only in respect of the land measuring 0.43 acre out of the suit lands appertaining to Khata No. 203/2 and it was valued according to the proportion of the relief claimed. It will thus be seen that the present appeal is really a consolidated appeal against both the decrees passed by the Court below in the two appeals; The object of the instant appeal is to get rid of the very adjudication which is put forward as constituting res judicata. A matter which is still res subjudice cannot operate as res judicata. In these circumstances, there can be no question of the application of the doctrine of res judicata. Even though Second Appeal No. 31 of 1978 was dismissed, the present appeal cannot be said to be barred by res judicata. Both the appeals arose out of a single judgment and hence even though one of the appeals was dismissed as time barred, that will not deprive the plaintiff who has preferred the present appeal combining the controversy in the two appeals into a single controversy, from continuing to prosecute the same. Section ll, Civil P. C. or the principle of res judicata is not attracted to such a case. In my opinion, the present case falls within the ambit of Narahari v. Shankar, AIR 195.3 SC 419.

18. There is yet another reason for not invoking the principle of res judicata in the present case. It is well settled that a party who is adversely affected by the decree can alone appeal against it. A party not aggrieved by a decree is not competent to appeal against the decree on 1 he ground that an issue was found against him. This point is covered by high authorities. In the case of Ganga Bai v. Vijay Kumar, AIR 1974 SC 1126 their Lordships after construing the provisions of Sections 96, 100, 104, 105 and Order 43, Rule 1, Civil P. C. held:

'These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decision or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. ......'

In the present case, the position appears to be that in spite of the finding of the Trial Court that the sale by the widow was not supported by legal necessity, a decree was passed in favour of the defendants, resulting in the dismissal of the suit. As the whole suit was dismissed, the defendants had no right of appeal against an adverse finding. When the appeal of the defendants was not maintainable, there was no scope for a decree to be appealed against. It must, therefore, follow that Title Appeal No. 10/76 filed by defendants 1 to 6 before the Court below was not maintainable as it was preferred against a mere finding recorded by the Trial Court. Hence, the Second Appeal No. 31 of 1978 was also not maintainable and dismissal of the same would not operate as res judicata in the present appeal.

19. Now coming to the merits, the findings of the lower appellate court that Udia Bewa possessed the properties as of right and not as a limited owner and that the transferees acquired a prescriptive title to the same appear to be basically wrong. Udia Dibya having inherited the properties as a widow prior to the coming into force of the Hindu Succession Act possessed the same as a limited owner. In 1951 she sold the lands as a limited owner and the transferees purchased only the limited interest. On the coming into force of the Hindu Succession Act, 1956, the limited interest did not ripen into absolute interest as Section 14 has no application in view of the fact that the widow had divested herself of her limited interest by alienating the same and could not be regarded as being possessed of the property on the date of coming into force of the Act. There is no question of any adverse possession by the transferees if they had purchased only the limited inter-est. On the death of the widow succession would open in favour of the heirs of her deceased husband, unless it is shown that she had transferred the corpus of the property for justifying legal necessity.

20. Legal necessity to support a sale must be established by the transferees. The onus of proving legal necessity may be discharged by the transferees by proving actual necessity or by proving that they made proper and bona fide enquiries about the existence of necessity and that they did all that was reasonable to satisfy themselves as to the existence of necessity. In the present case, the transferees have not produced the sale deeds executed in their favour by the widow. No doubt, recitals in a sale deed of legal necessity do not per se prove legal necessity, but the recitals may be used to corroborate the other evidence of the existence of legal necessity.

21. In the written statement the defendants pleaded that Krushna Panda, the third son of Chakradhar had filed T. S. No. 4/51 against Udia Dibya and for meeting the litigation expenses of that suit and other necessary expenses she had transferred the property and the transferees were satisfied after bona fide enquiry about the existence of necessity.

During the trial, the defendants examined four witnesses out of whom P. Ws. 1, 2 and 4 deposed about the existence of legal necessity, for the sale. D. W. 1 Ananta Charan Panda is defendant No. 7 who, according to the plaintiff, is entitled to inherit the lands along with him as a reversioner. He stated that Udia Dibya sold the lands to Hari and Pahali for Rs. 500/-for meeting her maintenance and litigation expenses. He also stated that Udia was managing her affairs with difficulty and that Krushna Panda had filed a suit against her and she was fighting the litigation from 1951 to 1957. His evidence has not been materially shaken. There is no apparent reason why he would support the case of the transferees against his own interest.

D. W. 2 Diraju Sahu gave evidence that Udia had incurred a loan of Rs. 300/- from him under a handnote for meeting her maintenance and litigation expenses and she repaid the same byselling her lands to Hari and Pahali for Rs. 500/-. According to him consideration of Rs. 500/- was paid to Udia in his presence and out of that amount he was paid Rs. 400/-. There is no reason to disbelieve his evidence.

D. W. 4 Krushna Chandra Sahu is the son of Pahali one of the transferees of Udia Dibya and he is defendant No. 2 in the suit. He also gave evidence that Udia sold the lands to meet her maintenance and litigation expenses. He stated that in his presence his father made enquiries about the existence of necessity of Udia Dibya from her brother and some others and learnt that she was in urgent need of money. His evidence clearly establishes the existence of the legal necessity for the sale. The lower appellate court, on a consideration of the evidence, came to hold that the sale by Udia Dibya was for legal necessity. I see no cogent ground to differ from its finding.

22. The result, therefore, is that there is no merit in this appeal and it is accordingly dismissed. In the circumstances of the case, I direct the parties to bear their own costs throughout.


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