Sankar Prasad Mitra, J.
1. This is a second appeal from the judgment of the Additional District Judge, 24 Pargannas dated the 3rd of March, 1962 dismissing an appeal from the judgment of the learned Subordinate Judge, 4th Court, Alipore, who had decreed the suit declaring the plaintiffs title to the disputed property and declaring further that a patta dated the 8th August, 1940 granting a mourasi mokarari right was void.
2. Before we come to the facts itwould be convenient to set out a genealogical table which is as follows:--
RADHA KRISHNA MAHATA
Narayan Lal Bulluk Lal
| | | |
Mohan Lal Madhab Gobinda Balaji
| (predeceased Matilal (predeceased
| Narayan) | Balaji)
Gopallal Ganja Mathain (widow of Matilal)
| | |
Ramji Lakshmanji Bharatji
(Parties governed by Mitakshara)
3. Briefly the facts are that the premises No. 17 Jad'u Bhattacharya Lane, in Calcutta, consists of about 5 cottahs of land. Out of these 5 cottahs, on the 8th April, 1936, Narayan Lal leased out about 1 cottah to one Ramlagan. And Ramlagan on the 23rd October, 1940, sold his lease-hold rights to the defendant Kaileswar Singh.
4. There is another lease of about 1 cottah of land which Balaji had granted to the defendant Kaileswar on the 8th August, 1940.
5. In this appeal, therefore, we are concerned with these two leases, namely, the lease of the 8th April, 1936, and the lease of the 8th August, 1940. There is no dispute that the plaintiff Upendra Nath Kayal is now the owner of the entire premises No. 17, Jadu Bhattacharya Lane, Calcutta.
6. In 1948, Upendra instituted in the Alipore Court Title Suit No. 34/48 against Kaileswar for recovery of possession of about 2 cottahs 9 chattaks and 24 sq. ft. of land being a part of the premises No. 17, Jadu Bhattacharya Lane, Calcutta.
In this suit, there is no dispute that, the land comprised in the lease granted by Narayan on the 8th April, 1936, the interests whereof were subsequently acquired by Kaileswar, was included. But the parcel of land which was settled by Balaji on the 8th August, 1940, was not included.
7. In 1949, Upendra instituted a partition suit in the Alipore Court. This suit was marked as Title Suit No. 209/49. It was a suit for partition of 4 cottahs 13 chattacks and 22 sq. ft. of premises No. 17, Jadu Bhattacharya Lane, Calcutta. Kaileswar was made a party to the suit as the defendant No. 1. Upendra in this suit asked for partition of the suit properties with Kaileswar provided that Kaileswar was found to have a title to any portion thereof.
8. On the 81st March, 1952, Title Suit No. 34/48 and Title Suit No. 209/49 were both disposed of by the same judgment of the Subordinate Judge, First Court, Alipore. It was ordered: 'that Title Suit No. 209 of 1949 be decreed on contest in a preliminary form against defendant No. 1 (Kaileswar Singh) and dismissed with costs against defendant No. 2, defendant No. 1's interest in the suit property as a tenant under the plaintiff is 1/3rd. If the parties fail to amicably partition the property within two months of this date a Commissioner will be appointed to effect partition by metes and bounds having regard to the possession of the parties. Parties will bear their own costs up to this stage.'
9. In 1952, Upendra preferred an appeal, being Title Appeal No. 474/52. It was an appeal against the dismissal of Title Suit No. 34/48 but he preferred no appeal at all against the decision in Title Suit No. 209/49. The appeal was allowed. It was held that the defendant Kaileswar did not acquire any interest under the settlement granted on the 8th April, 1936, by Narayan. The operative part of the appellate judgment of the Additional District Judge is as follows:--
'The decision of the trial Court in Suit No. S4 of 1948 is set aside. As the plaintiff has made tie issue cumbrous by bringing suit No. 209 during the pendency of this suit I award no cost to the plaintiff either in the trial Court or in the Appellate Court. Plaintiff's title in the suit land is declared and he shall get khas possession of the suit land by evicting the defendants. The plaintiff shall also get mesne profits from the defendant No. 1 (Kaileswar Singh) which shall be ascertained on plaintiffs application, and a final decree shall follow:'
10. The result of this appellate judgment, therefore, is that Kaileswar loses his right acquired under the settlement of Narayan in favour of Ramlagan on the 8th April, 1936. But the rights conferred on him under the partition suit being Suit No. 209/49 were not touched as there was no appeal against the preliminary partition decree.
11. In the next stage, we come to the suit which is the subject-matter of the second appeal before us. This is a suit by Upendra against Kaileswar for recovery of possession of 1 cottah of land which Kaileswar was holding under the lease granted to him by Balaji on the 8th August, 1940. The allegation is that Balaji's lease was void. The suit was marked as Title Suit No. 31/54 in the 4th Court of the Subordinate Judge at Alipore. The trial Court decreed the suit. Kaileswar preferred an appeal being Title Appeal No. 1169/58 which was dismissed. Thereafter, Kaileswar preferred this second appeal.
12. To complete the picture we may refer to certain additional evidence which we have allowed to be introduced at the hearing of this appeal. In 1961, Kaileswar filed a suit being Title Suit No. 312/61 in the 4th Court of the Munsif at Alipore, against Upendra for a declaration that the decree in Title Appeal No. 474/ 52 arising out of Title Suit No. 34/48 is null and void and for permanent injunction restraining Upendra from proceeding with Title Execution Case No. 31/58 which Upendra had instituted for executing the decree in Title Suit No. 34/48.
13. The trial Court dismissed the suit. The findings inter alia, were (a) there was no fraud on the part of Upendra as alleged, (b) the decree in Title Appeal No. 474/52 nullifies the decree in Title Suit No. 209/49 and (c) the suit was not maintainable because of the bar of Section 47 of the Code of Civil Procedure.
14. Against this judgment Kaileswar preferred an appeal being Title Appeal No. 643/68 to the 5th Court of the Subordinate Judge, Alipore. The appeal has been dismissed.
15. The question which arises for our decision centres round the fate of the lease of Balaji on the 8th August, 1940, on the facts stated above. The appellant's contention is that Balaji's lease still remains unaffected and Upendra cannot get possession of the parcel of the land comprised in that lease. The respondent's contention is that the Courts below have decided that, like Narayan's lease, Balaji's lease is also void.
16. Mr. Mukherjee learned Advocate for the respondent has advanced the following arguments:--
1. In Title Suit No. 34/48, the title of Kaileswar under both the leases, namely, the lease of Narayan and the lease of Balaji were in dispute, and their validity had to be decided before granting the decree for recovery of possession.
2. If two decrees are contradictory and inconsistent, the last decree would prevail and the sanctity of res judicata would attach to the last decree.
3. When two suits are disposed of by the same appeal and appeal is preferred against one of them, the bar of res judicata does not apply and
4. In the last title suit (Title Suit No 812/61) the propriety of both the leases was raised and Kaileswar had failed to establish that any of them was validly executed.
17. We are unable to accept the points which Mr. Mukherjee has raised. Firstly, in Title Suit No. 34/48 the validity of the second lease was disputed merely by inference. There were no pleadings and no issues specifically challenging the second lease at all. Naturally, the observations that were made by the Courts below regarding the second lease are not binding on Kaileswar.
18. Secondly, this is not a case where two contradictory or inconsistent decrees were passed; the decree in Title Suit No. 34/48 and the decree in Title Suit No. 209/49, so far as the second lease is concerned, are not inconsistent as there is no identity or community of cause of action or issues in the two suits.
19. Thirdly, the bar of res judicata may be inapplicable when two suits are disposed of by the same judgment, but appeal is preferred only against one when both the suits cover the same issues. But in our case, the second lease was the subject-matter of Title Suit No. 209/49 only. It was not the subject-matter of Title Suit No. 34/48.
20. Fourthly, the observations in Kaileswar's Title Suit No. 312/61 affecting the second lease which the respondent has introduced by way of additional evidence do not assist the respondent inasmuch as the second lease was not the subject-matter of that suit.
21. We now proceed to refer to the authorities on which counsel for the respondent has relied.
22. In Mariamnissa Bibee v. Joynab Bibee, (1906) ILR 33 Cal 1101 M. and J., two Mahomedan co-widows, brought two separate suits for recovery of their dowers from the estate of their deceased husband. A question was raised in these suits, whether two houses belonged to the estate of the husband. By consent of the parties the Subordinate Judge tried both the suits together and disposed them of in one judgment, it being found that the two houses belonged to M as her separate property. But two separate decrees were drawn up in accordance with that judgment.
23. J. preferred an appeal to the District Judge against the decree in her own suit mainly on the ground that the conclusion arrived at by the Subordinate Judge in the suit of M respecting the title of the two houses was erroneous; but no appeal was preferred in M's suit.
24. At the hearing of this appeal a question was raised on behalf of M. the respondent, that the judgment in M's suit not having been appealed against operated as res judicata. But it was held by this court that there was no bar of res judicata to the hearing of the appeal preferred by
25. Clearly, this is a case of common issues. Whether or not the two houses belonged to the estate of the deceased husband, was an issue in both the suits and an appeal against the decision in one of them was sufficient for the purpose of challenging the decision. In our case, the second lease was not in issue in both the suits.
26. The same conclusion was reached by a Full Bench of the Lahore High Court in the case of Mt. Lachhmi v. Mt. Bhulli, AIR 1927 Lah 289 (FB) where two widows A and B were jointly in possession of certain land. Each sued the other for declaration that she (plaintiff) was the exclusive owner of that land and that the other (defendant) had no right in it of any kind. Both suits were disposed of by a single judgment which decided that A was the owner, but that B was entitled to hold possession of half the land in lieu of maintenance. A separate decree was drawn up in, each suit declaring the rights of the plaintiff according to that decision. B appealed against one of these decrees only, namely, the decree given in the suit in which she was the plaintiff. The Full Bench held that the fact that no appeal had been preferred by B against the decree in the other suit of A could not prevent B's appeal from proceeding.
27. It appears that the Supreme Court has approved of this judgment of the Lahore High Court in Narhari v. Shankar, : 1SCR754 on similar facts.
28. The next decision which Mr. Mukherjee cited was the decision given in the case of Bahadur Singh Singhee v. Bani Jyotirupa Debi, (1936) 40 Cal WN 1176. Here, it has been held that when two suits involving common issues are tried together and are disposed of by one judgment and appeal is filed against the decree in one suit out no appeal is filed against the decree in the other, the matter decided in the latter suit does not become res judicata so as to bar its re-agitation in the appeal.
29. This case, therefore, reiterates the same principles which the judgments cited earlier had laid down. But the whole point is that both suits must have common issues. In our case there were no common issues.
30. The next case cited by learned counsel for the respondent is the case of Rajani Kumar Mitra v. Ajmaddin Bhuiya, AIR 1929 Cal 163 where a Division Bench of this Court has held that when there are two conflicting decrees, the last should prevail on the ground that in the eye of law it is binding between the parties and the previous decree should be taken as pleaded in the latter suit and not given effect to, or must henceforth be regarded as dead.
31. This judgment is of no help to us because in our case there are no conflicting decrees in respect of the second lease granted by Balaji.
32. Mr. Mukherjee then cited the case of Jagadish Chandra Roy Choudhury v. Kashba Ballygunje Co-op. Society Ltd., : AIR1954Cal443 . It is a decision of a Single Judge and the relevant portion is quoted below:
'After the dismissal of the second execution case on the ground of limitation the decree was allowed to be executed without objection by the judgment-debtor either on the ground of limitation or en the ground of its execution being barred by res judicata by reason of the aforesaid decision.'
33. It was held that the actual res judicata in the judgment-debtor's favour was thus superseded by a later res judicata, though constructive, in favour of the decree-holder. And the plea of res judicata on the basis of the said decision in the second execution case was no longer open.
34. Again this judgment is not relevant for our present purpose inasmuch as in our case there is no identity of subject-matters.
35. Reliance was then placed on behalf the respondent on the judgment of Andhra Pradesh High Court in the case of Kalisetti Subbarayudu v. Pagadala Bala-ramayya, : AIR1955AP194 . The Andhra Pradesh High Court observed as follows:
'In cases of judgments 'inter parted the later adjudication should be taken as superseding the earlier whether or not the earlier adjudication was pleaded as a bar to the trial of the suit in which the later adjudication was made.'
36. There can be no dispute as to the above-mentioned proposition so long as there is identity of title or subject-matter.
37. The last case to which reference was made on behalf of the respondent is the case of Smt. Rajlakshmi Dasi v. Banamali Sen, : 4SCR154 . This was a case of a former proceeding for compensation money in respect of some property which was the subject-matter of a subsequent suit, and the Supreme Court has observed that the first test of res judicata is the identity of title in the two litigations and not the actual property involved in the two cases. In our case, the second settlement dated 8-8-40 was not at all touched either by the pleading or by the issues in the first suit marked as Title Suit No. 34/48.
38. Finally, Mr. Mukherjee has contended that Kaileswar was given 1/3rd share in the preliminary partition decree on the basis of both the leases of Narayan and Balaji. Since Narayan's lease has been declared to be invalid, a final decree in the partition suit, so far as Kaileswar's share is concerned, would create difficulties unless we hold that Balaji's lease is also invalid.
39. It seems to us that this contention is of no substance. We may conveniently quote the observation of Mooker-jee, J. in the case of Nuri Mian v. Ambica Singh, ILR 44 Cal 47 = (AIR 1917 Cal 716). The observation which is at p. 55 is as follows :--
'Now, it may be conceded that ordinarily the decree in a suit should accord with the rights of the parties as they stand at the date of its institution. But this principle is not of universal application, and in a long series of decisions which will be found reviewed in the case of Rai Charan Mandal v. Biswanath Mandal, 20 Cal LJ 107 = (AIR 1915 Cal 103) the doctrine has been recognised that there are cases where it is incumbent upon a court of justice to take notice of events which have happened since the institution of the suit and to mould its decree according to the circumstances as they stand at the time the decree is made. This principle will be applied where it is shown, that the original relief claimed has, by reason of subsequent change of circumstances, become inappropriate, or that it is necessary to base the decision of the Court on the altered circumstances in order to shorten litigation or to do complete justice between the parties.'
40 The position, therefore is that in Title Suit No. 34/48 only one lease was challenged namely the lease of Narayan dated the 8th April, 1936. The lease of Balaji granted on the 8th August, 1940, was not included in that suit at all. Then in Title Suit No. 209/49 both the leases were involved and a share was given to Kaileswar in the suit property by the preliminary partition decree on the basis that both the leases were valid. By the same judgment Title Suit No. 34/48 was dismissed. Upendra was affected by the judgment delivered in both the suits. He preferred an appeal against the decision in Title Suit No. 34/48 but did not prefer any appeal against the preliminary partition decree in Title Suit No. 209/49. The result has been that by virtue of Upendra's success in respect of Title Suit No. 34/48, the lease of the 8th April, 1936, has been set aside and Kaileswar has lost his interest therein. But the lease of 8th August, 1940 remained unaffected and inferentially by reason of conclusions reached in relation to the earlier lease, the second lease cannot be held to be invalid.
41. In this connection reference may be made to the Privy Council's judgment in Raja Bommadevara Naganna Naidu v. Ravi Venkatapavya, 28 Cal WN 568 = (AIR 1923 PC 167). In this case in certain suits by the Zemindar against his raiyats to enforce the acceptance by them of pattas or lease of Faslis 1314 and 1315 which had been tendered to them, the latter pleaded that certain rates had been fixed in Fasli 1292 which alone were recoverable and not the asara or varam rates (produce sharing system) demanded by the Zemindar. The first two courts upheld the tenants' plea but on second appeal the High Court held that the pattas tendered were proper pattas and the tenants must accept them. The decrees of the High Court were reversed by the Privy Council, but during the pendency of the appeal to the Privy Council, the Zemindar instituted similar suits for arrears of rent in respect of 1316 Fasli to 1322 Fasli against the tenants and recovered decrees which he realised in execution. After the Privy Council's decision the tenants, who had made no application for stay of trial of the later suits pending the disposal of the appeal by the Privy Council, sued the Zemindar for refund of the amounts paid by them in excess of the rates determined in the previous suit in consequence of the Privy Council's decision.
42. The Judicial Committee has held that the decision in the later rent suits was not reversed or superseded by the decision of the Privy Council in the earlier suits and the suits for refund were not maintainable.
43. To our mind, a similar situation has arisen in the instant case. By reason of Upendra's failure to prefer an appeal against the preliminary partition decree in Title Suit No. 209/49, Kaileswar's interest created by the second lease of the 8th August, 1940, has remained intact. By making observations on the validity of the second lease in the other suit or in proceedings, the subject-matter whereof is the first lease only, Kaileswar's interest in the second lease cannot be put an end to.
44. At page 27 of the Paper Book we find that the Additional District Judge has made the following observations :--
'The learned Subordinate Judge heard both the suits together and decreed Partition Suit No. 209/49 in a preliminary form and it was declared that the defendant's tenancy right to the extent of one-third share was to be separated by partition by metes and bounds. The learned Subordinate Judge dismissed the Title Suit No. 34/48. Plaintiff Upendra Nath Kayal thereafter filed an appeal against tile judgment and decree passed in Title Suit No. 34 of 1948 and no appeal was preferred by anybody against the judgment and decree in Title Suit No. 209/1949. The appeal against the decree in Title Suit No. 34 of 1948 was allowed and plaintiff's title to the suit land was declared and he was given a decree for khas possession of the land after eviction of the defendants. It may be noted in this connection that the plaintiff did not include lease dated 8-8-40 which is the subject-matter of the present suit granted by Balaji to Kaileswar Singh in Title Suit No. 34 of 1948, though in Title Suit No. 209 of 1949 defendant's title as a co-sharer on the basis of both the leases, namely, the leases of Narayan and Balaji (8-4-36) and (8-8-40) was declared. The learned appellate Court allowed the appeal from the judgment and decree in Title Suit No. 34 of 1948. The learned appellate Court held that defendant No. 1 did not acquire any valid interest in the property by taking lease from Narayan and Balaji. The learned appellate court could not have granted a decree for khas possession to the plaintiff by eviction of the defendants unless the court held that the lease granted by Balaji to Kaileswar Singh was void.......... Hence it is evident that though the lease of Balaji in favour of defendant was not directly involved in Title Suit No. 34 of 1948, the decision of the appellate Court in Title Appeal No. 474 of 1952. ...... has finally decided the issue regard-fag the alleged tenancy right of defendant Kaileswar........'.
45. In our opinion, the conclusion of the learned Additional District Judge cannot be supported. The lease of 8th August, 1940, was not in issue in Title Suit No. 34 of 1948 or Title Appeal No. 474/52 and any observation made or decision given with regard to this lease of the 8th August, 1940, in Title Appeal No. 474/52 cannot be binding on Kaileswar Singh.
46. In this view of the matter, this appeal is allowed. The judgment and decree of the courts below are set aside and the plaintiff's suit is dismissed.
47. There will be no order for costs.
Salil Kumar Datta, J.
48. I agree.