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Hari Singh Vs. Smt. Sringar Kanwar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil First Appeal No. 141 of 1969
Judge
Reported in1981WLN65
AppellantHari Singh
RespondentSmt. Sringar Kanwar and ors.
Cases ReferredHiralal Ratanlal v. S.T.C.
Excerpt:
.....and it will not be right to interpret the said expression as connoting only as courts other than civil courts.;in our considered opinion the explanation viii added to section 11 of the civil procedure code can in no way be said to be inconsistent with the main section. the result which flows from the above discussion is that a decision on an issue heard and finally decided by a court of limited jurisdiction (which expression will include a court of limited pecuniary jurisdiction) will operate as res judicata in subsequent suit notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit.;case remanded - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section..........than suits and the courts of limited jurisdiction mentioned in explanation viii does not mean civil courts of limited pecuniary jurisdiction. the words 'limited jurisdiction', appearing in the explanation, learned counsel urged, applies to proceedings in revenue courts, land acquisition courts, administrative courts, insolvency courts, guardian and wards courts, probate courts etc. in support of the above contention, he has placed reliance on a division bench decision of the calcutta high court, reported in nabim majhi v tela majhi and anr. air 1978 calcutta 440.11. mr. dutt, learned counsel for the respondent no. 1, with equal vehemence urged that the decision given by their lordships of the privy council in rajah ram bahadoor singh v. mussumut lachoo koer (supra) could not be held.....
Judgment:

M.L. Shrimal J.

1. This first appeal, at the instance of Hari Singh son of Shri Berisal Singh (adopted son), is directed against the judgment and decree, dated March 2, 1966, passed by learned Senior Civil Judge No. 2, Jaipur City, in Civil Original suit No. 48 of 1959/44 of 1960, whereby the learned Judge, after deciding issue No. 8 in favour of the defendants, dismissed the suit.

2. The facts giving rise to this appeal are that Hari Singh, son of Shri Amar Singh, was taken in adoption by Shri Berisal Singh and his wife Smt. Sringar Kan-war defendant No. 1 on December 24, 1943 and a deed reciting the ceremonies and the terms of adoption were also reduced into writing on the same date. On May 14, 1947, Berisal Singh, by a will registered on May 15, 1947, transferred some properties to defendant No. 2 Chander Singh, defendant No. 3 Bhanwar Bai and defendant No. 4 Gopi Singh and rest of the properties to defendant No. 1 Smt. Sringar Kanwar. On January 3, 1944, a gift deed was executed by Berisal Singh in favour of Chander Singh defendant No. 2. On October 10, 1947, Berisal Singh (adoptive father of Hari Singh appellant) expired. On January 16, 1949, defendant No. 1 Smt. Sringar Kanwar mortgaged some of the properties to defendent No. 6 Bhanwari Lal, defendant No. 7 Radha Gopal and defendant No. 8 Radha Govind, who brought a suit for sale of the mortgaged property, which was decreed and in execution of that decree the mortgaged property was purchased by mortgagees on March 18, 1955. On June 29, 1954, Smt. Srinagar Kanwar executed usufractory mortgage-deed in favour of defendant No. 9 relating to other property.

3. On March 3, 1949, defendant No. 1 Smt. Sringar Kanwar filed a suit for arrears of rent and possession of some property against Hari Narain defendant No. 52. The tenant denied the title of Smt. Sringar Kanwar and pleaded that he was the tenant of Hari Singh and as such the suit was not maintainable. On May 27, 1954, Hari Sigh was added as one of the parties to the suit. The suit was ultimately decreed by the trial Court on August 20, 1957.

4. Not being satisfied with the decree of the trial Court both the parties went up in appeals, which were dismissed by learned Senior Civil Judge, on October 19, 1959.

5. Being aggrieved with the appellate Court's decree, the appellant as well as tenant Hari Narain came up in second appeal before this Court, which was registered as S. B. Civil Second Appeal No. 741 of 1959. The learned Single Judge with the consent of the parties framed the following two additional issues:

12. Whether Amar Singh, the natural father of defendant Hari Singh, consented to the curtailment of the rights of Hari Singh as mentioned in portion A to B of adoption-deed Ex. p. 17.

13. If so, whether such a consent was given by Amar Singh before or at the time of the adoption, or thereafter?

The learned Single Judge remitted the issue to the appellate Court for recording evidence and submitting its findings on the said issues. After the receipt of the findings, the Single Bench of this Court, after hearing the parties, by its judgment and decree dated August 5, 1965, interpreted the document dated December 24, 1943 and held as under:

It would thus appear that Hari Singh's natural father Amar Singh had agreed that Berisal Singh and his wife Smt. Sringar Bai would retain full control over the whole of Barisal Singh's property, that Hari Singh would have no right to squander away that property and that he would become its full owner on Berisal Singh's death and the death of his wife in the same way as Berisal Singh was its owner in his life time. This agreement having been made at the time of the adoption, it regulated the rights of the adopted son by reserving, inter-alia, a life interest in the whole property in favour of Smt. Sringar Bai. As this clause cannot be said to be incompatible with Hari Singh's position as an adopted son, it is quite valid and the only proper view to take is that the intention of the parties was to postpone Hari Singh's interest in the property until after Smt. Sringar Bai's death.

It was further observed that in view of the above noted finding, it was futile for the defendants to contend that Smt. Sringar Kanwar was not the owner of the suit shop and could not bring the suit against defendant Hari Narain for his eviction. She is the landlord within the meaning of Section 3 (iii) of the Rajasthan Premises (Control of Rent and Eviction) Act 1950 and is entitled to evict defendant Hari Narain and recover arrears of rent from him.

6. Meanwhile on October 12, 1959, the plaintiff-appellant filed the suit giving rise to the present appeal in the Court of Senior Civil Judge No. 2, Jaipur City, for declaration that he is the validly adopted son of Berisal Singh and that the alienations made by Berisal Singh and his wife were null and void Besides, he also claimed relief of injunction and possession of the properties, mentioned in Schedule-K, Khe, Ga, Gha, N, Chha and J, annexed with the plaint. The defendant controverted the averments made in the plaint.

7. On the pleadings of the parties the trial Court framed only seven issues on March 3, 1962 and directed the plaintiff to produce evidence regarding those issues. It was also mentioned therein that other issues would be framed later on, if necessary. On an application, filed by the learned Counsel for the plaintiff, after hearing the arguments, an additional issue No. 8 was framed on April 14, 1962. The additional issue reads as under:

8. Whether the subject-matter of issue No. 1 was directly and substantially in issue and tried and decided in the former suit between the plaintiff and defendant No. 1 and 52 and so it is res judicata and cannot be retried in this suit?

On the above noted issues the parties were put to proof. While the evidence was being recorded on behalf of the plaintiff, the defendant submitted a copy of the judgment and decree, dated August 5, 1965, passed by this Court in S. B. Civil Second Appeal No. 741 of 1959. Learned Senior Civil Judge, after hearing the parties, held that the entire controversy between the parties was set at rest by the judgment of the High Court. The learned Judge further held that Hari Singh was recognised as adopted son of Berisal Singh, but his right to the properties of Berisal Singh stood postponed till death of Smt. Sringar Kanwar. It would thus be clear that as long as Smt. Sringar Kanwar defendant No. 1 was alive, plaintiff Hari Singh has no locus standi to bring any suit with regard to the properties of Berisal Singh of which Smt. Sringar Kanwar was the owner. With these observations he decided issue No. 8 in favour of the defendants and dismissed the suit. Hence this first appeal.

8. Learned Counsel for the appellant, Mr. R.K. Rastogi, has vehemently urged that the trial Court had had no sufficient material before it to decide the issue of res judicata. He also contended that the decision of issue No. 8 could operate as res judicata regarding issue No. 1 and as such the suit ought not to have been dismissed.

9. Mr. P. N. Dutt appearing on behalf of respondent No. 1 has supported the judgment of the trial Court on a number of grounds and has also urged that the suit is barred by limitation and the judgment and decree of the trial Court could be maintained on the ground that the respondent No. 1 became full owner under Section 14(1) of the Hindu Succession Act, 1956.

10. Learned Counsel for the appellant, Mr. Rastogi urged that the suit, out of which S. B. Civil Second Appeal No. 741 of 1959 arose, was tried and decided by learned Munsif, Jaipur City (East). The valuation of that suit did not exceed Rs. 2,000/-, whereas the valuation of the suit out of which the present appeal arises is Rs 1,37,782/-. By no stretch of imagination it could be said that this suit or issues arising in this suit could have been tried and decided by learned Munsiff and as that Court did not have the pecuniary jurisdiction to try the present case, the decision given in that case could not operate as res judicata under Section 11 C.P.C. In support of his contention learned Counsel has placed reliance on Rajah Ram Bahadoor Singh v. Mussumut Lachoo Koer, 12 Indian Appeals 23. Learned Counsel also urged that the addition of Explanation No. VIII in Section 11, Civil Procedure Code, 1908, by Amendment Act No. 104 of 1976, does not alter the position and the said amendment should apply to the decisions given in proceedings other than suits and the courts of limited jurisdiction mentioned in Explanation VIII does not mean civil courts of limited pecuniary jurisdiction. The words 'limited jurisdiction', appearing in the Explanation, learned Counsel urged, applies to proceedings in Revenue Courts, Land Acquisition Courts, Administrative Courts, Insolvency Courts, Guardian and Wards Courts, Probate Courts etc. In support of the above contention, he has placed reliance on a Division Bench decision of the Calcutta High Court, reported in Nabim Majhi v Tela Majhi and Anr. AIR 1978 Calcutta 440.

11. Mr. Dutt, learned Counsel for the respondent No. 1, with equal vehemence urged that the decision given by their Lordships of the Privy Council in Rajah Ram Bahadoor Singh v. Mussumut Lachoo Koer (supra) could not be held to be good law in the light of the amendment introduced in Section 11 C.P.C. He further urged that the Parliament's object in introducing Explanation VIII to Section 11 C.P.C. could not be ignored. The expression 'a court of limited jurisdiction' The expression 'a court of limited jurisdiction' is wide enough to include the Court whose jurisdiction is subject to a pecuniary limitation and it would not be right to interpret the said expression as connecting only courts other than ordinary civil courts. Such a narrow and restricted interpretation had never been envisaged by the Parliament. The object and purpose of introduction this Explanation was to render the principles of res judicata fully effective so that issues heard and finally decided between the parties to an action by any Court competent to decide such issues should not be allowed to be reagitated by the parties and the litigation may come to an end. In support of the above contention he has placed reliance on Puthan Veettil Nolliyoden Devoki and Ors. v. Putten Veattil Nolliyodan Kunhi Raman Nair and Ors. AIR 1980 Kerala 230.

12. We have given careful thought to the respective arguments advanced by the learned Counsel, appearing on behalf of the parties. Before dealing with the question in issue it will be profitable to reproduce Section 11 and Explanation VIII of the Civil Procedure Code, which reads as under:

11. Res judicata--No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanations I to VII.....

Explanation VIII.-- An issue and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

13. Prior to the addition of Explanation VIII it was the settled position of law that general principles of res judicata were made applicable to writ proceedings: vide N.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors. : [1961]1SCR96 , Raja Jagannath Baksh Singh v. State of Uttar Pradesh and Anr. : [1962]46ITR169(SC) and Sobhag Singh and Ors. v. Jai Singh and Ors. and to execution proceedings: vide Prem Lata Agarwal v. Lakshman Prasad Gupta and Ors. : [1971]1SCR364 as well as other civil misc. proceedings. The legislation in its anxiety to shorten the litigation has added Explanations VII and VIII to Section 11 C.P.C. By addition of Explanation VII to Section 11 C.P.C. the provisions of this Section have been made applicable to the proceedings for execution of decrees and proceedings arising thereunder.

14. We find it difficult to agree with the contention of the learned Counsel for the appellant that general principles of the judicata would apply where the former proceeding is not a suit. We are also unable to agree with the contention that by enacting Explanation VIII the intention of the Parliament was only to bring the decisions of Courts other than ordinary civil courts such as Revenue Courts, Land Acquisition Courts, Insolvency Courts etc. within the purview of Section 11 C.P.C. In our opinion, the object and the purpose of introducing Explanation VIII to Section 11 C.P.C. was much wider to render the principles of res judicata fully effective so that issues heard and finally decided between the parties to an action by any Court competent to decide such an issue should not be allowed to be re-agitated by such parties or persons claiming through them in a subsequent litigation. In our opinion, the expression 'a court of limited jurisdiction' is wide enough to include a Court whose jurisdiction is subject to a limited pecuniary jurisdiction and it will not be right to interpret the said expression as connecting only as Courts other than Civil Courts.

15. The learned Counsel for the appellant has streneously urged that in the main body of the Section the words 'in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised' have been retained and as such the Explanation VIII added to Section 11 C.P.C. should be given a restricted interpretation. Placing reliance on Bihta Co-operative Development and Cane Marketing Union Ltd. and Anr. : [1967]1SCR848 the learned Counsel urged that the Explanation must be read so as to harmonise with and clear up the ambiguity in the main Section. It should not be so construed as to widen the scope of the main Section. It is true that the retention of the words 'in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised' in the main body of the Section does provide room for the argument advanced before us. We are, however, of the opinon that the correct mode of interpretation is to read the Section in combination and harmony with the Explanation. On the basis of the language of the Section including Explanations VII ad VIII it can be held that if on a true reading of an Explanation it appears that it had widened the scope of the main Section, effect must be given to the legislative intent notwithstanding the fact that the legislature named that provision as an explanation. In support of the above proposition reliance may be placed on Hiralal Ratanlal v. S.T.C. : [1973]2SCR502 (1040). In our considered opinion the Explanation VIII added to Section 11 of the Civil Procedure Code can in no way be said to be inconsistent with the main Section. The result which flows from the above discussion is that a decision on an issue heard and finally decided by a Court of limited jurisdiction (which expression will include a Court of limited pecuniary jurisdiction) will operate as res judicata in subsequent suit notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit.

16. The net result of the above discussion is that the findings recorded by this Court in S.B. Civil Second Appeal No. 741 of 1959, including the determination of issues Nos. 12 and 13, mentioned at page 177 of the paper-book, would operate as res judicata in these proceedings i.e., respondent No. 1 has life interest in the whole property and that the interest of the appellant in the said property has been postponed until after the death of respondent No. 1.

17. In view of the above findings, Mr. Rastogi, learned Counsel for the appellant, agrees that the relief regarding possession relating to the property described in Schedule 'Ka', annexed with the plaint, is not maintainable during the life time of the defendant No. 1 in this suit as it stands today.

18. Learned Counsel for the parties agree that some of the issues arising out of the pleadings of the parties were not framed and they will have to be framed afresh. As regards the contention raised by the learned Counsel for the respondent regarding the suit being barred by limitation or on account of the operation of Section 14(1) of the Hindu Succession Act, 1956, it would suffice to say that this question can be better determined by the trial Court. We, therefore, hold that the dismissal of the entire suit on the basis of the decision given in S.B. Civil Second Appeal No. 741 of 1959 cannot be upheld. It will be open to the parties to agitate before the trial Court regarding the effect of the findings arrived at by this Court in S.B. Civil Second Appeal No. 741 of 1959 and the right of Berisal Singh and respondent No. 1 to alienate the property as well as the question pertaining to limitation and the effect of Section 14(1) of the Hindu Succession Act.

19. An the suit has been disposed of on a preliminary point and the decree has been reversed by this Court, we remand the case and direct the trial Court to frame additional issues and try the case afresh and give decision according to law, subject to the observations made above. In the facts and circumstances of the case, the parties are ordered to bear their own costs in this case.


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