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Hara NaraIn Bera Vs. Sridhar Pande and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal974,47Ind.Cas.2
AppellantHara NaraIn Bera
RespondentSridhar Pande and ors.
Excerpt:
res judicata - matter not decided by court--suit for declaration of title by survivorship, dismissal of - subsequent suit for declaration that certain alienations shall not bind reversion, maintainability of--causes of action--limitation act (ix of 1908), schedule i, articles 93, 95, (sic)--suit for declaration that document shall not bind reversion--limitation. - .....by a hindu reversioner for a declaration that a kot kobala said to have been executed by one khetra mohan pande in the year 1302 and the solenama decree which was entered into in the suit to enforce the kot kobala were not binding on the reversioner the facts found are all clearly in favour of the plaintiff. what has been urged in this appeal and which was urged also in the courts below is this. the present plaintiff brought a former suit against the widow of, khetra mohan. in that suit, he alleged that the property now sued for was part of the joint family property and that the family being governed by the mitakshara school of hindu law on the death of khetra mohan he took the property by survivorship. that suit failed, and the first argument that has been raised in this appeal is.....
Judgment:

Fletcher, J.

1. This is an appeal by the defendant No. 1 against the decision of the learned District Judge of Midnapore, dated the 4th September 1916, affirming the decision of the Subordinate Judge of the same place. The suit was brought by a Hindu reversioner for a declaration that a kot kobala said to have been executed by one Khetra Mohan Pande in the year 1302 and the solenama decree which was entered into in the suit to enforce the kot kobala were not binding on the reversioner The facts found are all clearly in favour of the plaintiff. What has been urged in this appeal and which was urged also in the Courts below is this. The present plaintiff brought a former suit against the widow of, Khetra Mohan. In that suit, he alleged that the property now sued for was part of the joint family property and that the family being governed by the Mitakshara school of Hindu Law on the death of Khetra Mohan he took the property by survivorship. That suit failed, and the first argument that has been raised in this appeal is that the present suit is barred by the doctrine of res judicata, on the ground that the plaintiff could have included the present cause of action in the former suit which he brought. It is quite clear that a person having two separate and independent causes of action is not bound to include them both in the same suit. He may bring a suit for each separate and independent cause of action. It is quite clear that a suit based on the allegation that the plaintiff took the property by survivorship on the death of Khetra Mohan is essentially different from a suit for a declaration that a certain alienation made and the compromise decree entered into by the widow are not biuding on the inheritance when it comes to the hands of the reversioner.

2. The next point urged in the appeal was that the question whether the kot kobala was a genuine document or not was not capable of being agitated in the present suit as that matter had been determined in the former suit brought by the plaintiff. The judgment of the Appellate Court in the former suit stated expressly that the Judge did not decide the question as to whether or not the lot kobala was genuine. The Court having deliberately abstained from diciding the question, it is difficult to see how that matter is res judicata.

3. The next point urged was that the suit was barred by limitation. It is said that Articles 93 and 95 of the First Schedule to the Indian Limitation Act apply to a suit of this nature. Articles 93 and 95 have nothing to do with a suit of this nature. The Article that applies is Article 120. In any case, it is obvious that the present appellant entered into possession of the property within six years prior to the institution of the suit. In that view, it is quite clear that the plaintiff was not bound to bring his suit until some act was done on the document which it was sought to declare not binding on the inheritance. The learned Judge was, therefore, quite right in holding that the suit was not barred by limitation.

4. The last point was that the declaration made by the learned Judge was wrong. The declaration, so far as regards the plaintiff, is obviously tight, the declaration being that the plaintiff when he succeeds to the property will not be bound by this transaction. The only matter that may be urged against the form of the decree passed by the learned Judge is that it ought to have been drawn in more wide terms so as to include not only the plaintiff but also any other reversioner who may succeed to the property on the death of Khetra Mohan's widow. The appellant before us has clearly no ground to complain in regard to the form in which the learned Judge has drawn up the decree. There is nothing in this point.

5. The present appeal, therefore, fails and must be dismissed with costs.

Syed Shamul Huda, J.

6. I agree.


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