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Sasi Bhusan Mallick and ors. Vs. Sadananda Mallick and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal991,92Ind.Cas.845
AppellantSasi Bhusan Mallick and ors.
RespondentSadananda Mallick and anr.
Excerpt:
res judicata - ex parte order without jurisdiction. - .....to mati lal and secondly that muchiram was not the nearest reversionary heir of matilal, because jadab charan, the ancestor of muchiram, having been adopted by one baisnab charan, the plaintiffs' father muchiram was not the nearest reversioner but the defendants' father was.3. the suit was tried in both the courts on the issue whether jadab charan was or was not adopted by baisnab charan, apparently both the parties agreeing that if jadab charan had been adopted by baisnab. charan then the plaintiffs' father was not the nearest reversioner.4. the first court decreed the plaintiffs' suit with costs. on appeal the learned subordinate judge held that jadab had been adopted by baisnab charan and for that reason muchiram was not the nearest reversioner.5. the plaintiffs had contended that.....
Judgment:

Cuming, J.

1. In the suit out of which this appeal has arisen the plaintiffs sued for recovery of possession of on declaration of their title to certain bastu land. Their allegation was that the disputed homestead belonged to one Mati Lal Mallick who died some years ago leaving Monmohini as his widow and heir. Monmohini died in 1912, and then, according to the plaintiffs, the plaintiffs' father Muchiram who was the nearest reversionary heir of Motilal succeeded to the property in suit. The defendants, however, kept the plaintiffs out of possession and hence the suit.

2. The defence was that the disputed homestead did not belong to Mati Lal and secondly that Muchiram was not the nearest reversionary heir of Matilal, because Jadab Charan, the ancestor of Muchiram, having been adopted by one Baisnab Charan, the plaintiffs' father Muchiram was not the nearest reversioner but the defendants' father was.

3. The suit was tried in both the Courts on the issue whether Jadab Charan was or was not adopted by Baisnab Charan, apparently both the parties agreeing that if Jadab Charan had been adopted by Baisnab. Charan then the plaintiffs' father was not the nearest reversioner.

4. The first Court decreed the plaintiffs' suit with costs. On appeal the learned Subordinate Judge held that Jadab had been adopted by Baisnab Charan and for that reason Muchiram was not the nearest reversioner.

5. The plaintiffs had contended that the question as to whether Baisnab Charan had or had not adopted Jadab Charan was barred by the principle or res judicata.

6. This point the learned Subordinate Judge held against the plaintiffs. He found that Baisnab Charan had adopted Jadab and he dismissed the plaintiffs' suit.

7. The plaintiffs have appealed to this Court and they contend that the question whether Jadab was or was not adopted by Baisnab Charan is barred by the principle of res judicata. To establish their case of res judicata they rely on the following facts: Monmohini brought a suit on a mortgage and obtained a decree and in execution of this mortgage decree she purchased some of the lands covered by the rriortgage and applied for possession. Pending the delivery of possession she died and the present plaintiffs then applied to the Court of the Munsif for possession on the ground that they were the nearest reversioners. Against this application the present defendants, Promatha Nath Mullick, Sadananda Mullick and Mahananda Mullick preferred objection on the ground that they were the nearest reversioners as Jadab had been adopted by Baisnab. Pending the hearing of this objection the Court apparently put the plaintiffs in possession. The Court then proceeded to hear the objection and. after hearing the evidence allowed the objection' and set aside the order giving possession to the plaintiffs and directed the objectors to be put in possession, under what provisions of the Code the learned Munsif proceeded it is perhaps difficult to see. He was certainly not proceeding under the provisions of Section 47, C.P.C., because this was not a matter relating to the execution, discharge or satisfaction of the decree and the learned Advocate has not been able to point out to us any other section of the Code under which the learned Munsif was acting. On the face of it the learned Munsif's proceeding would seem to be entirely without jurisdiction. Be that as it may the Munsif after hearing the parties revised his own order and determined that the objectors had the better title and ordered them to be put in possession. Against this order the plaintiffs preferred an appeal to the District Judge who held, that the Munsif was wrong in his order as he had no power to revise his own order in the circumstances and then holding on the facts that the plaintiffs had better title he set aside the order of the Munsif revising his own order. The learned District Judge's order was affirmed on appeal by this High Court. Now it is quite clear that this order of the Munsif cannot operate as res judicata. In the first place the learned Munsif had no jurisdiction whatever to pass any order in the matter at all. It was not a matter coming under Section 47 as I have pointed out. Neither did it come under any other section of the Code. Secondly the learned District Judge held that the learned Munsif had no power to revise his own order and, therefore, the order that he passed revising his own order in which he dealt with the title of the two parties was ultra vires. What, therefore was restored was the original order of th4 Munsif putting the plaintiffs into possession. But this order was apparently passed ex parte without hearing the opposite party. It cannot, therefore, be said that the question as to whether Jadab was 6r was not adopted by Baisnab Charan was decided in the proceedings of the Munsif putting the plaintiffs into possession. The learned Judge, therefore, is quite right in holding that this order of the Munsif did not operate as res judicata between the parties with respect to the question whether Jadab Charan had or had not been adopted by Baisnab Charan.

8. The result is that the appeal fails and is dismissed with costs.

Chakravarti, J.

9. I agree. I with only to add that the finding now relied upon by Sir Pravas Chandra Mitter as res judicata between the parties was made by the District Judge in a proceeding which he himself held to be without jurisdiction. If that is so any order in a proceeding which was without jurisdiction would be of no effect.


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