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Danesh Molla, and on His Death His Heirs and Legal Representatives Abdul Audood and ors. Vs. Dhananjoy Biswas and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in40Ind.Cas.408
AppellantDanesh Molla, and on His Death His Heirs and Legal Representatives Abdul Audood and ors.
RespondentDhananjoy Biswas and ors.
Cases ReferredGopal Chandra Banerjee v. Purna Chandra Banerjee
Excerpt:
civil procedure code (act v of 1908), section 11, order xxiii, rule 1 - res judicata--relinquishment of portion of claim without leave, consequence of. - .....trial they relinquished their claim in respect of one of these parcels, with the result that the suit was dismissed with regard to that pardel. in such circumstances, we cannot appreciate how the plaintiffs can possibly escape from the bar provided by the second paragraph of section 373. reliance, however, has been placed upon the decision of this court in the case of kamini kant roy v. ram nath chuckerbutty 21 c. 265 : 10 ind. dec. (n.s.) 809. that case is clearly distinguishable. there a instituted a suit to establish his right to sell a certain property in satisfaction of a decree against b. he withdrew the suit without leave obtained to bring a fresh suit. a subsequently instituted another suit to establish his right to sell the same property in execution of another decree against.....
Judgment:

1. This is an appeal under Clause 15 of the Letters Patent from a judgment of Mr. Justice D. Chatterjee in a suit for recovery of possession of land. The Court of First Instance dismissed the suit. Upon appeal the Subordinate Judge reversed that decision and on appeal to this Court the decree of the Subordinate Judge has been confirmed. The defendants contend that the suit should have been treated as barred under Section 11 and Order XXIII, Rule 1 of the Code of Civil Procedure, 1908. To determine the validity of this objection, we must bear in mind the facts of a previous litigation between the parlies.

2. On the 3rd January 1902, the present plaintiffs instituted a suit against the defendants for recovery of possession of what we may briefly describe as two parcels of land A and B. The plaintiffs then alleged that they had been dispossessed by the defendants on the 1st January 1900. A Commissioner was appointed to survey the disputed lands. The plaintiffs confined their claim to plot A alone before the Commissioner and from the report of the Commissioner it appears that whereas the plaintiffs pointed out parcel A as the disputed land, the defendants pointed out parcels A and B as the disputed lands. The Commissioner further found that the defendants were at the, time in possession of both parcels of land In the judgment of the Trial Court in that suit we find a statement to the effect that at the time of the local investigation by the Civil Court Commissioner, the plaintiffs disclaimed their right to 'a portion of the land on the bank of the Madhumati, which is covered by the boundaries given in the plaint,' that is, what we have called B. The Court came to the conclusion that the suit should be decreed in part, that is, with regard to plot A alone, and then proceeded to state explicitly that the claim so far as it relates to the remaining portion of the land included in the boundaries, of the plaint, that is, what we have called B, be dismissed. The defendants appealed and in the judgment of the Subordinate Judge we find the statement repeated that at the time of the local enquiry by the Commissioner the plaintiffs gave up their claim in respect of what we have called plot B and confined their claim to the portion colored yellow in the map, that is, what we have called A. The Subordinate Judge, reversed the decree of the Court of First Instance and dismissed, the suit in its entirety. The plaintiffs preferred a second appeal to this Court, and the result was that the decision of the Subordinate Judge was reversed and that of the Court of First Instance restored on the 5th June 1906. On the 30th March 1911, the plaintiffs commenced the present litigation in respect of plot B. Objection was forthwith taken that there was a two-fold bar to the suit, namely, bar of res judicata and bar from withdrawal or abandonment of claim without leave of the Court. In our opinion, there is no answer to the objection.

3. Section 373 of the Code of 1882, which was in force when the previous suit was decided and has since been reproduced as Order XXIII, Rule 1 of the Code of 1908, provides as follows: 'If the plaintiff withdraws from the suit or abandons part of his claim without such permission, he shall be liable for such costs as the Court may award and shall be precluded from, bringing a fresh suit for the same matter or in respect of the same part' Here the plaintiff undoubtedly abandoned a part of his claim. We are not concerned with the reasons which induced him to adopt this course, nor does a statement of such reasons appear in the proceedings of that suit. But we do know this that although the parcels A and B were included within the boundaries described in the plaint and although the claim for ejectment was put forward in respect of both the plots on the allegation that the defendants had dispossessed the plaintiffs therefrom, before the Commissioner and at the trial they relinquished their claim in respect of one of these parcels, with the result that the suit was dismissed with Regard to that pardel. In such circumstances, we cannot appreciate how the plaintiffs can possibly escape from the bar provided by the second paragraph of Section 373. Reliance, however, has been placed upon the decision of this Court in the case of Kamini Kant Roy v. Ram Nath Chuckerbutty 21 C. 265 : 10 Ind. Dec. (N.S.) 809. That case is clearly distinguishable. There A instituted a suit to establish his right to sell a certain property in satisfaction of a decree against B. He withdrew the suit without leave obtained to bring a fresh suit. A subsequently instituted another suit to establish his right to Sell the same property in execution of another decree against B. The Court held that the second suit was not barred by the provisions of Section 373, as it could, not be deemed a fresh suit in respect of the matter covered by the previous suit. Here, however, the position is entirely different. We observe that a comprehensive view has been taken of the, scope of Section 373 by the Madras High Court in the cases of Achuta Menon v. Achutan Nayar 21 M. 35 : 7 Ind. Dec. (N.S.) 381; Machana Ujhala v. Gorugantulu 8 Ind. Cas. 1086 : (1910) M.W.N. 782 : 9 M.L.T. 468 and Sennava Reddiar v. Venkatachala Reddigr 28 Ind. Cas. 91 : 2 L.W. 177 wherein the determination of the question whether the matters in controversy in two suits were or were not identical, reference was made not merely to the right claimed by the plaintiff but also to the right set up by the defendant. These cases, however, must be deemed materially qualified, if not actually overruled, by the Full Bench decision in Pandillapalli Singa Reddi v. Yeddula Subba Reddi 35 Ind. Cas. 185 : 31 M.L.J. 48 : 20 M.L.T. 62 : (1916) 2 M.W.N. 1 : 4 L.W. 1 : 39 M. 987 which accords with the decision in Gopal Chandra Banerjee v. Purna Chandra Banerjee 4 C.W.N. 110 and it is not necessary for our present purpose to attribute to Section 373 such a ,wid6 scope, for, even upon a more limited view, the suit is barred by section We must also hold that the suit is barred under the provisions of Section 11 of the Code of 1908. The plaintiffs put forward a claim to the land now in dispute in the earlier litigation that claim was dismissed. It is obviously impossible for them to maintain another suit to enforce the identical claim: the dispossession, which is the cause of action in this suit, is in reality the dispossession urged in the previous litigation, although the plaintiffs in view of the possibility of objections under Section 11 and Order XXIII, Rule l, falsely alleged in the plaint dispossession at a later date.

4. The result is that this appeal is allowed, the decrees of this Court as also of the Court of Appeal below set aside and that of the Court of First Instance restored. The suit will stand dismissed with costs in all the Courts.


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