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Sm. Kshiroda and anr. Vs. Debendra Nath Kar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 453 of 1949
Judge
Reported inAIR1957Cal200
ActsCode of Civil Procedure (CPC) , 1908 - Section 11
AppellantSm. Kshiroda and anr.
RespondentDebendra Nath Kar
Appellant AdvocateSarat Chandra Janah and ;Arun Kumar Janah, Advs.
Respondent AdvocateSaroj Kumar Maiti and ;Basanta Kumar Panda, Advs.
DispositionAppeal dismissed
Cases Referred(L) and Krishna Chandra Gajapati v. Challa Ramanna
Excerpt:
- .....a true and correct copy, and also upon a previous appellate decision (ex. 1 (b)) in a former suit (rent suit no. 1247 of 1937) which was held to be inter partes and res judicata on the point. the lower appellate court has upheld the decree only on the ground of res judicata while differing from the trial court on the question of construction of the nirdeshnama and also its authenticity, rejecting the copy (ex. 7) as inadmissible in evidence.3. on the materials before me, the latter part of the decision of the learned subordinate judge, namely, on ex. 7, seems to be quite correct both as to construction and admissibility, and the other question also, namely, res judicata, appears to have been rightly decided by him. on ex. 7, i have little to add to the judgment of the learned subordinate.....
Judgment:

1. On 18th April, 1946, the respondent plaintiff instituted the present suit for a declaration inter alia, that he was the sole shebait of the deity Sri Sri Iswar Dadhi Paban alias Dadhi Baman Jiu Thakur and for confirmation of his possession in that capacity, or, in the alternative, for recovery of possession upon a further declaration that the Criminal Court's order under Section 145 of the Code of Criminal Procedure in the defendant No. 1 appellant's favour in respect of the said land was illegal and not binding upon him (the plaintiff). In the plaintiff's suit, there were other consequential prayers in the shape of injunction and recovery of mesne profits. The suit was decreed by the trial Court and, on appeal, that decision has been affirmed by the learned Subordinate Judge. The contesting defendants Nos. 1 and 2 have now come up in second appeal.

2. There is no dispute that the suit property belongs to the deity Sri Iswar Dadhi Baman Jiu Thakur. The contest really centres round the question as to whether the respondent-plaintiff is the sole shebait of the said deity or whether the defendant No. 1 appellant is also a co-shebait. The plaintiff's exclusive title to the disputed shebaitship was found by the learned Munsif upon consideration of the alleged Nirdeshnama, said to have been left by common ancestor Gopi Charan alias Gopi Mohan, of which Ex. 7 was put forward by the plaintiff as a true and correct copy, and also upon a previous appellate decision (Ex. 1 (b)) in a former suit (Rent Suit No. 1247 of 1937) which was held to be inter partes and res judicata on the point. The lower appellate Court has upheld the decree only on the ground of res judicata while differing from the trial Court on the question of construction of the Nirdeshnama and also its authenticity, rejecting the copy (Ex. 7) as inadmissible in evidence.

3. On the materials before me, the latter part of the decision of the learned Subordinate Judge, namely, on Ex. 7, seems to be quite correct both as to construction and admissibility, and the other question also, namely, res judicata, appears to have been rightly decided by him. On Ex. 7, I have little to add to the judgment of the learned Subordinate Judge but the question of res judicata presents some apparent difficulty and requires a little discussion and elucidation.

4. The previous suit (Rent Suit No. 1247 of 1937) was for rent in respect of some land of the deity Sri Sri Iswar Dadhi Baman Jiu Thakur. The suit was brought by the present plaintiff Debendra's father Haradhan as sole shebait of the deity against the tenant as principal defendant and the present defendant No. 1 Kshiroda as a pro forma defendantupon tee express allegation that she (Kshiroda) was claiming to be a co-snebait and upon a specific denial of her said claim. In the plaint of the said suit Haradhan claimed to be the sole shebait, denied the present defendant No. 1 Kshiroda's claim for she baitship or co-shebaitship or her right to represent the deity at all with an alternative statement that, it Kshiroda was held to be a co-shebait with him she might be joined as a co-plaintiff to represent the deity. The tenant's defence inter alia was that the suit was not maintainable as Kshiroda was a co-shebait with Haradhan and she ought to have joined to represent the deity as plaintiff and there was also no statement in the plaint as to her unwillingness, to do so. The pro forma defendant Kshiroda appeared in the suit to contest Haradhan's exclusive claim to the shebaitship of the deity Sri Sri Iswar Dadhi Baman Jiu Thakur and she set up and asserted her claim to be a co-shebait. The trial Court, upheld Kshiroda's contention and directed her to be made a co-plaintiff to represent the deity and passed a rent decree in favour of the deity Sri Sri Iswar Dadhi Baman Jiu Thakur represented by shebaits Haradhan and Kshiroda. The tenant (principal defendant) appealed for getting rid of the decree and Haradhan also, claiming to be the sole shebait, filed a cross-objection, challenging Kshiroda's right to the shebaitship (co-shebaitship) and her right to represent the deity along with Haradhan. The tenant's appeal was dismissed but Haradhans' cross-objection was allowed by the lower Appellate Court and the learned Judge overruled the arguments of Kshiroda's lawyer in support of the trial Court's, decision, holding her to be a co-shebait. Against this decision, Kshiroda took a second appeal (S. A. No. 676 of 1938) to this Court which failed at the preliminary stage of hearing under Order 41, Rule 11 of the Code of Civil Procedure (Vide Ex. 1 (c)).

5. I ought to mention here some express findings in the lower appellate Court's above judgment (Ex. 1 (b)). I have already said that one of the question in the above rent suit (Rent suit No. 1247 of 1937) was whether the suit was maintainable and, in that connection, the lower appellate Court held in its said judgment (Ex. 1 (b)) that, for the purpose of deciding whether the suit (Rent Suit No. 1247 of 1937) was maintainable or not, it was necessary to see whether the plaintiff was the 16 annas shebait or whether the pro forma defendant Kshiroda was also a shebait jointly with him. This question was eventually answered by the learned Judge in the plaintiff Haradhan's favour and he found that the plaintiff was the sole shebait and was entitled 'to succeed in the suit and to maintain the suit'. He also recorded a clear and unambiguous finding that pro forma defendant Kshiroda was not a shebait to the extent of 8 annas share or any share whatsoever and that she should be removed from the plaint as co-plaintiff, to which category she had been transferred under the trial Court's order. The plaintiff Haradhan's cross-objection was thus allowed in full.

6. I have set out above the appellate decision (Ext. 1(b)) in some detail just to show that it contains all the necessary elements to constitute it res judicata on the question of title to the relevant shebaitship as between the parties to the present suit, namely, Debendra and Kshiroda. Admittedly, Debendra inherited Haradhan's interest in the shebaitship of the deity Sri Iswar Dadhi Baman Jiu Thakur. In relation to that shebaitship, therefore, Debendra is Haradhan's successor or representative. The primary contest in the present suit relates to the claim to the said shebaitship, plaintiff Debendra claiming exclusive title to the said shebaitship and defendant Kshiroda claiming to be a co-shebait withhim. That was also one of the outstanding issues or matters in controversy in the former or previous Suit (Rent Suit No. 1247 of 1937) which the appellate Court on that occasion considered and found it necessary to decide and actually decided in favour of Debendra's predecessor Haradhan. In the present suit, Debendra, claiming to be the sole shebait of the deity, is the plaintiff and Kshiroda, alleged to be claiming and actually claiming to be a co-shebait, is the main defendant. In the previous suit, namely, Rent Suit No. 1247 of 1937, Debendra's predecessor Haradhan, similarly claiming to be the sole shebaitof the deity Sri Sri Iswar Dadhi Baman Jiu Thakur was the plaintiff and Kshiroda also, alleged to beclaiming and actually claiming to be a co-shebait, was a defendant and although she was described in the said suit (Rent Suit No. 1247 of 1937) as a pro forma defendant, she was undoubtedly a primary party interested in the shebaitship and, indeed, the real contestant on this point, who eventually failed before the Appellate Court. It is thus clear that the requisite identity of parties, namely, of parties or their representatives litigating under the same title and the requisite identity of the issue, namely, the dispute or the rival claims as to the shebaitship, are well established and as that issue was held necessary and heard and finally decided by the Appellate Court in favour of the present plaintiff Debendra's predecessor Haradhan in the previous suit (Rent Suit No. 1247 of 1937), it operates as res judicata on the said question in the present suit in plaintiff Debendra's favour and against the defendant Kshiroda. In the context, set out above, the fact that Kshiroda was described as a pro forma defendant in the earlier suit or that the said earlier suit was a rent suit is utterly immaterial on the question of res judicata (Vide Deokee Nundun Roy v. Kalee Pershad, 8 Suth WR 366 (A); Maung Sein Done v. Ma Pan Nyun and Monjur Mondal v. Ahammad Mondal, 56 Cal WN 506: : AIR1953Cal155 , since affirmed in L. P. A. No. 10 of 1952 (Cal) (D) and Gobind Chunder v. Taruck Chunder, ILR 3 Cal 145 (FB) (E); Toponidhee Dhirj v. Sreeputty Sahanee, ILR 5 Cal 832(F); Panchu Mandal v. Chandra Kant Saha, 14 Cal LJ 220 (G); Midanapur Zemindari Co. Ltd. v. Jogendra Kumar, 33 Cal LJ 186: (AIR 1921 Cal 750) (H) and Harekrishna Datta v. Gourhari : AIR1932Cal894 ; See also Radha Madhub Holder v. Monohur Mukerji, 15 Ind App 97 (PC) (J). The view I have taken above is directly supported by the observations of Sen, J, in Jitendra Nath v. Biswanath Bagchi, : AIR1952Cal201 at p. 203, where the learned Judge statedthe relevant proposition through the medium of an apt illustration and affirmed it in unequivocal terms. I respectfully agree with the said observations and if I may point out with respect the two early decisions of this Court, relied on by Sen J. and alsocited above by me, namely, ILR 5 Cal 832 (F) and ILR 3 Cal 145 (FB) (E), appear to be direct sup-porting authorities on this point, I have, further, no doubt in my mind as to the soundness of the proposition, enunciated and affirmed by Sen, J., and I respectfully adopt the same. To some extent also the other two decisions, reported in Midnapore Zemindary Co. Ltd. v. Kumar Nares Narain Roy, 33 Cal LJ 317: (AIR 1921 Cal 368) (L) and Krishna Chandra Gajapati v. Challa Ramanna , are relevant- and they support the conclusion which I have reached in the circumstances of the present case.

7. In the above view, I affirm the decision of the learned Subordinate Judge, applying the rule of res judicata against the appellant's contention on the question of title to the shebaitship of the deity Sri Sri Iswar Dadhi Baman Jui Thakur. That is sufficient to sustain the decree, passed by the two Courts below in the plaintiff's favour.

8. This appeal, accordingly, fails and it is dismissed, but, in the circumstances, there will be no order for costs either in this Court or in any of the two Courts below.

Leave to appeal under Clause 15 of the LettersPatent is granted.


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