1. This is an appeal by the plaintiff whose suit for recovery of possession of one acre of land out of 2 acres and 45 cents in Demarcation No. 612/1 in the village of Chandola was dismissed by the Courts below.
2. One Manthona Butchi Raju and others were co-owners of a plot of land of the extent of 8 acres comprised in Demarcation Nos. 604/2, 606/1 and 612/1. On the 18th of March, 1929, they agreed to sell the land for a sum of Rs. 3,700 to one P. Venkateswarlu. An advance of Rs. 450 was paid that day under a contract of sale, Ex. D-4. The third defendant in the present suit who claims rights under that contract from P. Venkateswarlu paid on 2nd July, 1929, a sum of Rs. 950 to two of the co-owners, and obtained a receipt, Ex. D-5. She was in possession of the land ever since through her lessees, defendants 1 and 2, in the present suit. Ex. D-6 series are leases in their favour and the third defendant was also paying taxes on the land as is evidenced by Ex. D-7 series. On the 2nd March, 1934, one of the co-sharers, Butchi Raju, sold under Ex. P-4 to the present plaintiff an extent of one acre of land out of 2 acres 45 cents comprised in Demarcation No. 612/1 which is the subject-matter of the present suit. The co-sharers instituted on 9th March, 1936, a suit in the District Munsiff's Court of Tenali for recovery of possession of the land which was the subject-matter of the contract of sale, Ex. D-4, from Venkateswarlu, who was impleaded as the third defendant in that suit and the present third defendant was impleaded as the sixth defendant. The lessees of the third defendant, the present defendants 1 and 2, were also impleaded as parties in that suit as defendants 4 and 5. The present plaintiff was the eighth defendant. That suit was based on the allegation that Venkateswarlu committed default and that the plaintiffs were entitled to recover possession of the property. Reference was made in that plaint which is marked as Ex. D-1 to the sale in favour of the present plaintiff of the one acre of land and it was prayed that as one of the plaintiffs, Butchi Raju, in pursuance of the covenant to deliver possession, was bound to secure possession and deliver the same to the eighth defendant in that suit, the present plaintiff, he should be put in possession of the said extent of one acre. That suit was contested by the present third defendant and the present plaintiff filed a written statement Ex. D-2. In that written statement he pleaded that he was entitled to possession of one acre of land sold to him under the sale deed of 1934 together with the profits in respect of that land. An issue was raised in that suit, issue No. 4, which runs as follows:
Whether the plaintiffs and defendants 1, 2 and 8 are entitled to recover possession of the suit properties
On the 20th September, 1937, the suit was dismissed by the learned District Munsiff as the plaintiffs did not appear and their vakils were absent. That order became final.
3. The present suit was instituted by the plaintiff on 15th March, 1941. He sued to recover possession on the strength of the sale deed in his favour executed by Butchi Raju in 1934. The main contesting defendant was the third defendant. She claimed to be entitled to continue in possession of the property in pursuance of the contract of sale in favour of Venkateswarlu; and further pleaded that the sale in favour of the plaintiff was of no legal effect as it was brought into existence fraudulently with a view to defeat her rights. A further plea that the present suit was also barred under Order 9, Rule 9 of the Civil Procedure Code was also raised.
4. The learned District Munsiff, who tried the suit in the first instance, by a judgment, dated 9th July, 1943, found that the plaintiff had no title as the sale in his favour was a fraudulent one and was not intended to be operative. He however did not record a finding on the objection of the third defendant based on Order 9, Rule 9 of the Code and as the contract of sale in favour of Venkateswarlu was prior to the amendment of the Transfer of Property Act in 1929, he also found that though the contract was true and valid and though the third defendant was in possession of the property continuously from 1929, she was not entitled to invoke the doctrine of part-performance. In the result the suit was dismissed. There was an appeal to the Sub-Court by the plaintiff and the learned Subordinate Judge by an order, dated 27th March, 1944, remanded the suit for fresh disposal on the ground that the District Munsiff did not dispose of the case from a proper perspective. After the remand the District Munsiff again found that the plaintiff acquired no title under the sale in his favour and that he also had notice of the prior contract of sale in favour of Venkateswarlu. Under issue 10 he found that there was no bar under Order 9, Rule 9 of the Code to the maintainability of the suit. In the result the suit was dismissed. There was again an appeal by the plaintiff to the Subordinate Judge. The Subordinate Judge dismissed the suit on the ground that the suit was barred under Order 9, Rule 9 of the Civil Procedure Code. Though he was inclined to agree with both the learned District Munsiff's that the sale in favour of the plaintiff was not supported by consideration and also not genuine, he did not consider that question and record a finding. According to the learned Judge the third defendant was not entitled to invoke the doctrine of part-performance as the contract was prior to the amendment of the Transfer of Property Act though he agreed with the finding of the learned District Munsiff that the third defendant was continuously in possession from 1929 of the entire land.
5. The plaintiff canvasses in this second appeal the correctness of the decision of the learned Subordinate Judge under Order 9, Rule 9 of the Code. The third defendant contended that the suit in any event could not be disposed of without a finding on the title of the plaintiff.
6. The question raised under Order 9, Rule 9 of the Code is not covered by any decision. The relevant portion of Order 9, Rule 9 of the Code is:
Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
7. In the prior suit the present plaintiff was a defendant. No doubt the plaintiffs in that action prayed that by virtue of the sale in favour of the present plaintiff who was the eighth defendant in that suit, the eighth defendant should be put in possession of one acre of land sold to him by Butchi Raju under Ex. P-4. The present plaintiff cannot be said to be a person deriving title through the plaintiffs in the earlier suit, O.S. No. 93 of 1936, as the sale in his favour was prior to the date of that suit. It has been decided by the Privy Council in Chand Kour v. Partab Singh that the dismissal of a suit under Section 102 of the old Code corresponding to Order 9, Rule 8, Civil Procedure Code of 1908, does not operate as res judicata. The rule only imposes a disability on the plaintiff whose suit has been dismissed. For the rule to operate as a bar two things are essential. One is that the plaintiff must be the same; and the second is that the cause of action must be identical. As regards this latter requisite there is no difficulty in the present case. On an examination of the allegations in the prior plaint and the present plaint, the learned Subordinate Judge arrived at the conclusion that the cause of action in both the suits was identical and I agree with this conclusion. The more difficult question is whether the fact that the plaintiffs in the prior suit claimed that the eighth defendant should be put in possession of the one acre of land sold to him, as they were under an obligation to carry out the covenant for possession, would make them representatives of the eighth defendant; and, the eighth defendant can hence be deemed to be a plaintiff in that suit. Whether the disability under Rule 9 applies to persons deriving title through the plaintiff either as assignees from him or as legal representatives is a more difficult question to answer and does not arise for consideration in the present case. Section 146, Civil Procedure Code, which was introduced for the first time in the Code of 1908 and was intended to resolve the conflict between the decisions of the various High Courts on the question whether a legal representative of a defendant could apply under Order 9, Rule 13 to set aside an ex parte decree no doubt enables an assignee or any other person deriving interest from the plaintiff to apply under Rule 9 to set aside an order under Rule 8 as it equally enables a representative of a defendant to set aside an ex parte decree. Under Order 9, Rule 13, it was decided that a person not brought on record as a party but was a representative of the defendant could apply to set aside an ex parte decree by virtue of Section 146, Civil Procedure Code (vide Venkatasubbier v. Krishnamurthi I.L.R. (1913) Mad. 442). The position, therefore, is that by virtue of Section 146, it is open to a person deriving title through the plaintiff to apply under Order 9, Rule 9 to set aside an order under Rule 8. Does it therefore imply that the word ' plaintiff' in Rule 9 should be construed as ' plaintiff and his representatives' and does the disability apply also to the representative. I do not see any reason why the disability should not extend to persons claiming through a plaintiff against whom an order under Rule 8 dismissing the suit was passed. If the disability does not extend to persons deriving title through the plaintiff it would enable the plaintiff to circumvent the provision of Rule 9 by making an assignment after an order dismissing his suit was passed under Rule 8. No doubt both Section 11 and Section 47 of the Code refer to not only parties but also representatives and the non-mention of representatives or persons deriving title through the plaintiff in Order 9, Rule 9, Civil Procedure Code, may suggest that the bar under Rule 9 does not extend to representatives. I do not see any reason for holding that the plaintiff in Rule 9 does not include his heirs and representatives in interest on the general principles of law that an order by or against a person binds not only him but also heirs and representatives. The heirs and representatives cannot be in a better position than the person through whom they derive title. However, it is unnecessary in this case to express any final opinion on the question.
8. In the present case, the present plaintiff was only a defendant in the earlier suit and therefore the disability under Rule 9 does not apply to him though the cause of action is identical. The only case which construed Order 9, Rule 9, Civil Procedure Code, is the decision of the Patna High Court in Gopiram Bhotica v. Thakur Jagarnath Singh I.L.R. (1929) Pat. 447. In that case, however the assignee of the plaintiff in the earlier suit intervened in the appeal against the order dismissing the suit for default as he took appropriate proceedings to entitle him to the rights and benefits, qua proceedings of the original plaintiff, and it was held that he should also be affected with the disability of the original plaintiff. That decision, therefore, is not of very much assistance in deciding the question before me and in my opinion, the learned Subordinate Judge was not right in relying on that decision in support of his conclusion. Decisions under Order 23, Rule 1 which imposes a bar against a second suit when the prior suit was withdrawn without obtaining permission to institute the suit have been cited. In Ramalinga Mudali v. Arumuga Mudali : AIR1918Mad495 , it was held that where a suit by one reversioner was dismissed for default or withdrawn without trial on the merits, a subsequent suit, by another reversioner challenging an improper alienation was not barred. This decision, however, does not throw much light on the application of Order 9, Rule 9, Civil Procedure Code, as one reversioner does not derive title through another.
9. I am therefore of opinion that the learned Subordinate Judge's conclusion that the present suit was barred under Order 9, Rule 9 is not correct.
10. This, however, does not dispose of this second appeal. As the learned Subordinate judge did not record a finding on issues 1 and 2, the second appeal cannot be disposed of without a finding on those issues. It is, therefore, necessary to call for a finding from the learned Subordinate Judge on those issues. The case will, therefore, go back to the learned Subordinate Judge for findings on issues 1 and 2, on the evidence already on record. Time for submission of the findings, one month, after the reopening of that Court after the summer recess. Seven days for objections.
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11. After the return of the finding the Court delivered the following
12. The learned Subordinate Judge has now submitted his findings on the two issues on which findings were called for by my order, dated 12th of April, 1948. On both the questions, he found in favour of the plaintiff. The defendants filed objections to the findings and contended that on the facts as found by the learned Subordinate Judge the only conclusion that is possible is that the sale deed in favour of the plaintiff was nominal and was not intended to be acted upon. I think this contention of the defendants is well founded. The learned Subordinate Judge has found that the only evidence as regards the payment of consideration for the sale is that the plaintiff examined as P.W. 2 and that as his evidence is interested it should not be accepted. The learned Judge, however, in his discussion in the course of the judgment seems to confuse the facts which are necessary to be established to support an inference that the document is nominal with the conclusion that a particular document is nominal. If the document is not supported by consideration it would be a point for consideration in coming to a conclusion whether the document was nominal or not. The learned Judge is also clearly of opinion that the plaintiff never obtained possession of the property though the sale deed was as early as 1934 and contained a false recital to the effect that possession was delivered then and there. This is the second circumstance which supports the conclusion that the document was nominal. Thirdly, there is the fact that even in the sale deed Butchi Raju, the vendor, did not give any boundaries for the area of one acre which he wanted to convey under this document to the plaintiff. It should be remembered that Butchi Raju was one of the co-sharers who owned 8 acres in which the suit 1 acre is included. There is a recital by Butchi Raju in the document that there was an earlier partition and that the property covered by the document was allotted to his share in that partition. This is quite inconsistent with the later conduct of Butchi Raju in the suit of 1936, in which the dispute proceeded on the footing that the property was undivided. This is the second false recital in the document and even if the plaintiff succeeds in establishing that the sale deed is a real transaction there is no possibility of granting a decree in his favour as his only right would be to sue for partition impleading all the other co-sharers as parties to the suit. This is not the relief which he asked for in the plaint and he framed his suit as if it were a suit in ejectment. On the strength of the sale deed he is not entitled to this relief. But this does not mean that I am holding that the document in favour of the plaintiff is a real transaction.
13. The next important circumstance found by the learned Subordinate Judge is the fact that the present suit for recovery of possession was filed when the period of twelve years was about to expire and the plaintiff has not attempted to give any explanation for the delay, at any rate, after 1937 when the earlier suit was disposed of. The learned Judge tries to find some explanation for which there is no basis and which is not the explanation offered by the plaintiff in the witness box. There is also the important circumstance that even in 1929 the third defendant was in possession of the property and the plaintiff says in the witness box that he made enquiries. If really he made enquiries he would have found that the possession was with the third defendant and if he had pursued his enquiries further he would have discovered that the third defendant was in possession of the property under a contract of sale for which she undoubtedly paid consideration.
14. It must therefore be taken to have been established that the document was not supported by consideration, that neither the plaintiff nor his vendor had possession on the date of the sale, that the document contains false recitals and the property is not specified by boundaries and the plaintiff did not take steps to enforce the rights, if any, under the document till about the expiry of the period of twelve years. From these circumstances the only inference that is possible and which the learned Subordinate Judge should have drawn is that the document is a nominal transaction not intended to clothe the plaintiff with any vesting of title in the suit property.
15. In the result, the plaintiff is not entitled to any relief in the suit and the dismissal of his suit by the Courts below is correct. The second appeal therefore fails and is dismissed with costs of the third defendant. No leave.