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Gunga Bishen Bhugut and ors. Vs. Raghoonath Ojha - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal381
AppellantGunga Bishen Bhugut and ors.
RespondentRaghoonath Ojha
Excerpt:
suit for possession - res judicata--finality of decision--civil procedure code (act x of 1877), section 13. - .....that section says, that no court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally decided by a court of competent jurisdiction in a former suit. in this case, supposing that there was a decision by the courts below in the previous suit on the question of title, it was not a final decision, as it was brought up in appeal before the high court, and that court, in dismissing the plaintiff's suit, decided that it was not necessary to go into the question of title, and based its decision entirely on the ground that the plaintiff had failed to prove his possession. that being so, we think that the question of title is still open between the parties. the decisions of the lower courts are, therefore, erroneous and must be.....
Judgment:

Mitter, J.

1. This is a suit to recover possession of five bighas of land under the following circurstances. The plaintiff alleges that it was the property of one Phagoo Dobey, and that, in execution of a decree against him, it was sold and purchased by him on the 4th of June 1874, and possession was delivered by the execution Court on the 27th of June following; but the defendants having resisted the plaintif' in taking possession, he is obliged to bring this suit. It is also stated in he plaint that the defendants had brought a suit against the plaintiff for converation of their possession over, and declaration of their title in respect of, the land in suit, and that that suit was dismissed from the first to the final Court of appeal. The plaintiff, therefore, contends that the question of title has been decided conclusintely in a previous suitagainst the defendants and in his favour. The defendants deny that the question of title was finally decided in the previous suit. Then upon the merits they say, that the land in suit belonged to one Bishen Doyal, and that, in execution of a mortgage-decree, it was sold and purchased by them in 1867; that, subsequently in 1873, when the plaintiff attempted to sell it in execution of his decree against Phagoo Dobey, they intervened, and their intervention was allowed; but in the next year--i.e., in 1874--the plaintiff managed to have the property sold again without their knowledge. The two Courts below have awarded a decree in favour of the plaintiff without deciding the question of conflicting titles to the land in suit arising between the contending parties. They are of opinion that the effect of the previous suit was to declare the plaintiff's title, and negative that of the defendants. It is contended before > us in this appeal that the lower Courts are wrong in the view which they have taken of the effect of the previous litigation. We are of opinion that this contention is well founded. It appears that the former case was decided in favour of the plaintiff in the two Courts below. The decision was confirmed in special appeal to this Court. There was a further appeal to this Court under s. la of the Letters Patent, and thefinal judgment was expressly based upon the ground that the plaintiff had failed to prove his possession. The learned Judges who decided the appeal say, we consider, therefore, that this suit should be dismissed upon this ground only, that the plaintiff has not established that he is in possession of the land in question of which he seeks to be confirmed in possession.' Therefore, the effect of that litigation was, that the final Court declared that the plaintiff's suit should be dismissed upon this ground only, viz., that he failed to prove his possession although he sought for confirmation of possession; and therefore in the view of the final Court of appeal, the decision? upon the question of title between the parties was wholly unnecessary. That being so, it cannot be said that this case comes within the provisions of Section 13 of the Code of Civil Procedure. That section says, that no Court shall try any suit or issue in which the matter directly and substantially in issue has been heard and finally decided by a Court of competent jurisdiction in a former suit. In this case, supposing that there was a decision by the Courts below in the previous suit on the question of title, it was not a final decision, as it was brought up in appeal before the High Court, and that Court, in dismissing the plaintiff's suit, decided that it was not necessary to go into the question of title, and based its decision entirely on the ground that the plaintiff had failed to prove his possession. That being so, we think that the question of title is still open between the parties. The decisions of the lower Courts are, therefore, erroneous and must be set aside. The case will go back to the Court of first instance for the determination of the question of title ; that question being whether the lands in suit belonged to Phagoo Dobey as alleged by the plaintiff, or to Bishen Doyal Dobey as alleged by the defendants. Costs to abide the result.


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