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Bissorup Gossamy and ors. Vs. Gorachand Gossamy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal120
AppellantBissorup Gossamy and ors.
RespondentGorachand Gossamy and ors.
Cases ReferredGobind Chunder Koondoo v. Taruck Chunder Bose I.L.R.
Excerpt:
suit for possession - co-defendants--res judicata--civil procedure code (act x of 1877) section 13. - .....never did appertain to mauza gossamipur, and never belonged to the defendants. in that suit the present plaintiffs were joined as defendants.2. the defendants contend, and the courts below have held, that the suit is barred by section 13 of act x of 1877, inasmuch as the main issue in the case-viz., the question whether the disputed land appertains to mauza bonkata and belongs to the plaintiffs,-has already been raised and adjudicated in a suit to which the present plaintiffs and defendants were parties,-viz., the suit brought by monmohini, the 13th defendant in the present suit, against (i) the present defendants and (ii) the present plaintiffs.3. it appears that monmohini is the mother of the 5th plaintiff in the present suit and that, in the former suit, the present plaintiffs,.....
Judgment:

Cunningham, J.

1. In this case the plaintiffs sue for possession of certain land, described as Mauza Bonkata, on a declaration of their title thereto. They allege that their ancestors obtained the entire Mauza Gossamipur and two drones of land transferred from the jami of Jugurnathpore; that these two drones were reclaimed and called Mauza Bonkata, and were let on mokurari lease to the father of the defendant Dinobundhu; that, on Dinobundhu's failure to pay rent, the land was resumed and let on patni to the 13th defendant Monmohini; that Monmohini sued the principal defendants for possession, and obtained a decree in the original Court, which was reversed in appeal and special appeal, 28th March 1867; that Mauza Bonkata never did appertain to Mauza Gossamipur, and never belonged to the defendants. In that suit the present plaintiffs were joined as defendants.

2. The defendants contend, and the Courts below have held, that the suit is barred by Section 13 of Act X of 1877, inasmuch as the main issue in the case-viz., the question whether the disputed land appertains to Mauza Bonkata and belongs to the plaintiffs,-has already been raised and adjudicated in a suit to which the present plaintiffs and defendants were parties,-viz., the suit brought by Monmohini, the 13th defendant in the present suit, against (i) the present defendants and (ii) the present plaintiffs.

3. It appears that Monmohini is the mother of the 5th plaintiff in the present suit and that, in the former suit, the present plaintiffs, though formally joined as defendants, supported Monmohini's case and put in evidence in its support; and that, in appeal, Monmohini and the present plaintiffs were joined as respondents. In that appeal it was decided that the disputed land did not form, a separate mauza, as Bonkata Mauza, but pertained to Gossamipur; and that the present plaintiffs not having any rights in it could not settle it with Monmohini.

4. The same issue is raised in the present suit; but it is contended that Section 13 does not apply, the matter not having been 'in issue between the same parties,' inasmuch as the present plaintiff's were co-defendants in that suit with the present principal defendants, and Monmohini, the present 13th defendant, was plaintiff.

5. We concur with the Courts below in thinking this contention unsound. The material point for deciding whether a matter has become res judicata under Section 13 is, whether it was directly and substantially in issue between the same parties and was finally decided. If the issue is clearly raised between the several parties to the suit and adjudicated, it matters not that the parties were marshalled in the one case differently from the other Gobind Chunder Koondoo v. Taruck Chunder Bose I.L.R. 3 Cal. 146. Here there can be no doubt, that though the present plaintiff's were joined as defendants in the former suit, they were practically supporting the case of the plaintiff and had the fullest opportunity of contesting the point which that suit decided, a circumstance which is proved by their being joined as respondents in the appeal. In these circumstances, the plaintiff's are, in our opinion, debarred under Section 13 from now again contesting the same point with the parties to the former suit. The appeal is dismissed with costs.


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