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A. Mahalakshmi and ors. Vs. Pammi Garama - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Rev. No. 214 of 1957
Judge
Reported inAIR1958Ori139
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11
AppellantA. Mahalakshmi and ors.
RespondentPammi Garama
Appellant AdvocateH. Sen, Adv.
Respondent AdvocateN.V. Ramdas, Adv.
DispositionRevision dismissed
Cases ReferredGopal Jew Thakur v. Radha Binode Mondai
Excerpt:
.....1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - lastly 1 would say that the plaintiff has failed to prove not only her title to the suit lands but also her exclusive possession thereof for which she is not entitled to the relief prayed for in the suits. but considering the judgment as a whole in the context of the learned additional munsif's judgment which was appealed from, i have no doubt that the question of title was not decided by the learned additional munsif and i am also satisfied that the subordinate judge in appeal had no occasion to, and in fact, did not, go into the question of title. 11. having regard to the facts as stated above, i am satisfied that the judgment of the subordinate in the 1st instituted suit cannot.....orders. barman, j. 1. this revision is directed against an order of the munsif, berhampur, in title suit no. 224 of 1954 holding that the plaintiff is not precluded from raising the question of title in this suit and the suit is not barred by res judicata.2. the matter arose in this way: in 1949 the plaintiff, opposite party in the present revision petition, filed a suit being t.s. no. 151/49 (60/50 b.d.m.o.) hereinafter referred to as the first instituted suit, in the court of the munsif, berhampur, for among other reliefs, permanent injunction, restraining the defendants from doing certain acts as stated in the plaint of that suit.3. the following issues, amongst others, were raised in the said first instituted suit:'1. whether the plaintiff succeeded to the suit schedule properties as.....
Judgment:
ORDER

S. Barman, J.

1. This revision is directed against an order of the Munsif, Berhampur, in Title Suit No. 224 of 1954 holding that the plaintiff is not precluded from raising the question of title in this suit and the suit is not barred by res judicata.

2. The matter arose in this way: In 1949 the plaintiff, opposite party in the present revision petition, filed a suit being T.S. No. 151/49 (60/50 B.D.M.O.) hereinafter referred to as the first instituted suit, in the Court of the Munsif, Berhampur, for among other reliefs, permanent injunction, restraining the defendants from doing certain acts as stated in the plaint of that suit.

3. The following issues, amongst others, were raised in the said first instituted suit:

'1. Whether the plaintiff succeeded to the suit schedule properties as the sole owner and has been in enjoyment and possession of the same;

2. Whether the suit properties are the Stridhan properties of late Akkamma and devolved upon the defendants and whether the defendants are in possession and enjoyment of the same.' On 18-2-1951 the said suit was dismissed by the Additional Munsif, Berhampur. The learned Additional Munsif in his judgment gave his findings on different issues including the issues which I have quoted above. An appeal was filed against the said judgment being T. A. No. 7/53 before the Subordinate Judge, Berhampur, who dismissed the appeal upholding the decision of the learned Additional Munsif.

4. Thereafter, in November 1954 the plaintiff again instituted a suit against the defendants for declaration of her title over the suit properties and for delivery of possession to her. The said suit was filed in the Court of the Munsif Berhampur, as T. S. No. 224 of 1954 (hereinafter referred to as the second instituted suit). In due course, issues were raised and it appears from records that issue No. 6 was taken up first for determination, the issue being as follows:

'Whether the suit is barred by reason of the judgment in T.S. No. 60/50 A. B. D. M. C. and T.A. No. 7/1953'.

5. As I have already said above this T.S. No. 60/50 A.B.D.M.O, was the first instituted suit hereinbefore mentioned which was instituted in the Court of the Munsif, Berhampur, and ultimately decided on appeal, in T. A. No. 7/1953 as hereinbefore stated.

6. In determining the said issue the learned Munsif decided in favour of the plaintiff holding that he is not precluded from raising the question of title in this suit and the suit is not barred by res judicata. The present revision is directed against this last order of the learned Munsif.

7. The main question in this revision petition is whether the judgments of the Additional Munsif and the Subordinate Judge, on appeal, in the first instituted suit decided the question of title or not. I have carefully considered both the judgments in this connection which were placed and read before me in extenso. The learned Additional Munsif in the first instituted suit while giving his decision on different issues, expressed the view that he did not deem it necessary to discuss the question of title in view of the facts stated in his judgment. Rightly or wrong-ly, the learned Additional Munsif, taking thatview, did not decide the question of title. The said decision was, however, taken up in appeal before the Subordinate Judge where he, in course of his judgment observed as follows:

'The question of title to these properties has not been gone into by the learned Court below on the assumption perhaps that this question did not materially affect the claim for a permanent injunction which was to be decreed or refused on a finding as to whether the plaintiff was in possession of the suit lands or the defendants were in possession of them as the Shridhan heirs of P. Akkamma.'

Then again, there is another passage in paragraph 6 of his judgment where the learned Subordinate Judge in arriving at his conclusion observed as follows:

'Lastly 1 would say that the plaintiff has failed to prove not only her title to the suit lands but also her exclusive possession thereof for which she is not entitled to the relief prayed for in the suits.'

The learned Counsel on behalf of the petitioners mainly relied on this paragraph, among other passages, in the judgment. It is true that this passage has not been happily worded and admits of the construction that the learned Counsel sought to give it before me. But considering the judgment as a whole in the context of the learned Additional Munsif's judgment which was appealed from, I have no doubt that the question of title was not decided by the learned Additional Munsif and I am also satisfied that the Subordinate Judge in appeal had no occasion to, and in fact, did not, go into the question of title.

8. The learned Counsel appearing for the petitioners relied on certain decisions of the Calcutta High Court in support of his contention. In Taritbarani v. Basumati Devi, AIR 1925 Cal 985 (A) Mukherji J. held that:

'In order that a decision in a previous suit on an issue should operate as res judicata it is not necessary that the decision of the issue should have been the basis of the decree.'

The facts of that case, as I have considered, are different from those of the present case. It is not in any event an authority for the proposition that if there are more than one issue raised in a suit and the finding is on any particular issue and not on other issues, then such decision would be res judicata in the subsequently instituted suit.

9. In Hafia Mohammad v. Swarup Chand AIR 1942 Cal 1 at p. 2 (B) it was held that:

'Where several issues have been framed, the decision 011 each issue which supports the ultimate decision in the case must be regarded as res judicata between the parties to the suit.'

At p. 14 of the judgment in the last mentioned case, the Court referred to an earlier Calcutta decision in Gopal Jew Thakur v. Radha Binode Mondai 41 Cal LJ 396: (AIR 1925 Cal 996) (C) where a matter was only 'incidentally' decided in a suit; such decision was held not to operate as res judicata, It appears to me that this case does not help the petitioners because it would appear that on principle this case rather supports the opposite party's case than the petitioners' case in the present application.

10. In course of the hearing of the revision petition, I asked for the pleadings in both the suits. But unfortunately the plaint in the first instituted suit could not be made available to me by either side. But from the judgment and alsoother relevant documents on, the records before me I could ascertain the scope and nature of the first instituted suit, at least so far as it was necessary for me in the present application. The pleadings in the second suit, however, were made available to me.

11. Having regard to the facts as stated above, I am satisfied that the judgment of the Subordinate in the 1st instituted suit cannot operate as res judicata.

12. In this view of the matter I uphold thedecision of the learned Munsif and dismiss therevision petition but without costs.


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