Bombay High Court
Basantilal Chunilal Jasabhati vs Shantilal Chunilal Jasabhati And ... on 1 October, 2021
Bench: V. V. Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.425 OF 2019
WITH
CIVIL APPLICATION NO.3879 OF 2012
BASANTILAL CHUNILAL JASABHATI
VERSUS
SHANTILAL CHUNILAL JASABHATI AND OTHERS
...
Mr. N.C. Garud, Advocate for the appellant
Mr. V.S. Badakh, Advocate for respondent Nos.1, 2A to 2C
Mr. S.S. Bora, Advocate for the respondent No.9
...
CORAM : SMT. VIBHA KANKANWADI, J.
RESERVED ON : 27th JULY, 2021
PRONOUNCED ON : 01st OCTOBER, 2021
ORDER :
1 Present appeal has been filed by the original plaintiff challenging
the concurrent Judgment and Decree passed by both the Courts below.
Present appellant-original plaintiff had filed Regular Civil Suit No.18/1998
before Civil Judge Junior Division, Jamkhed, Dist. Ahmednagar for partition,
separate possession along with other ancillary reliefs. The said suit came to
be dismissed on 07.03.2005. Original plaintiff then challenged the said
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decree by filing Regular Civil Appeal No.164/2005 before learned Principal
District Judge, Ahmednagar. The said appeal came to be dismissed on
30.11.2011. Hence, this Second Appeal.
2 Heard learned Advocate Mr. N.C. Garud for the appellant,
learned Advocate Mr. V.S. Badakh for respondent Nos.1, 2A to 2C and learned
Advocate Mr. S.C. Bora for the respondent No.9.
3 It has been vehemently submitted on behalf of the appellant-
original plaintiff that both the Courts below have not considered the evidence
- oral as well as documentary, and the law points involved in the case
properly. A perverse finding has been arrived at. The First Appellate Court
has not adhered to the provisions of Order XLI Rule 31 of the Code of Civil
Procedure, 1908 while dealing with the First Appeal. Both the Courts below
have wrongly held that the suit properties except properties described in para
No.1A are not the Joint Hindu Family properties. In other words, it has been
wrongly held by both the Courts below that properties described in para
Nos.1B to 1E are the self acquired properties of the defendants. Further, as
regards the property described in para No.1A of the plaint, it has been held
that the suit is barred by principles of res judicata. Admittedly, present
original defendant Nos.1 and 2 had filed Regular Civil Suit No.18/1998 for
partition. Present plaintiff was defendant No.1 in that suit. It was only in
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respect of one property. The said suit was decreed and, therefore, present
plaintiff had preferred Regular Civil Appeal No.293/1997. In fact, a pursis
was filed on 08.01.2002, while pending the said appeal saying that since he
has already filed Regular Civil Suit No.18/1998 for partition and separate
possession and the copy of the Exh.1 of the suit was attached to the pursis, it
was said that, he does not want to proceed with the appeal and, therefore,
prayed for the disposal of the appeal. Accordingly, order was passed on
08.01.2002 by the learned District Judge, Ahmednagar - "The appellant does
not want to prosecute the appeal vide Exh.31. Hence, the appeal is dismissed
for want of prosecution with no order as to costs." The purpose behind
giving that pursis was that other properties were not included and, therefore,
for a concise adjudication of the dispute that was withdrawn and, therefore,
there could not have been bar under Section 11 of the Code of Civil
Procedure. Both the Courts below have wrongly held that the present suit
was barred by principles of res judicata.
3.1 Reliance has been placed on the decision in V. Rajeshwari vs. T.C.
Saravanabava, 2004 (2) Mh.L.J., 865, wherein it has been held that - " When
the earlier suit was confined to a small portion of the entire property, then
the decision as to specified part of property would not constitute res judicata
for the entire property which was the subject matter of the subsequent
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litigation."
3.2 Further reliance has been placed on the decision in City
Municipal Council, Bhalki, by its Chief Officer vs. Gurappa (dead) by L.Rs.
and another, 2016(5) Mh.L.J., 1, wherein it has been held that -
"The principle of res judicata is a need of any judicial system, that is,
to give finality to the judicial decisions of the disputes between
parties. It also aims to prevent multiplicity of proceedings between
the same parties of the same subject-matter of the lis. An issue which
was directly and substantially involved in a former suit between the
same parties, and has been decided and has attained finality cannot
be reagitated before the Courts again by instituting suit or proceeding
by same parties on the same subject-matter of earlier lis. For the bar
of res judicata to operate in the subsequent original suit proceedings,
the litigating parties must be the same, and the subject-matter of the
suit must also be identical. Further, in the subsequent original suit
proceedings, the decision in the former suit must have been decided
on merits on the same substantial questions both on facts and in law
that would arise in the subsequent original suit. Since neither the
reliefs claimed in the two suits were identical, nor the parties are the
same and nor could the decision in the first suit said to have been on
merits, it cannot be held in the singular facts and circumstances that
the suit was barred by res judicata."
3.3 Further reliance has been placed on Rustomjee Kerawalla
Foundation vs. Avisha Gopalkrishnan Kulkarni, 2013 (1) Mh.L.J., 119,
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wherein it has been observed that - "In order to attract the principles of res
judicata, the earlier determination is one which must be rendered on the
merits of the dispute."
3.4 Further reliance has been placed on Dayanand Vishwanathrao
Kadam vs. Pratibha w/o Dayanand Kadam, 2007 (3) Mah L R 539, wherein it
has been held that when the petitioner-wife had applied for permission to
withdraw earlier petition with liberty to file fresh on the same cause of
action, and the learned Judge had simply ordered "allowed to withdraw".
This is the only application, which cannot be granted partly. It is either to be
granted as a whole or rejected as a whole. There cannot be order of
permission to withdraw, but denial of liberty to file fresh suit on the same
subject-matter, in other words on the same cause of action. It has been
further observed that withdrawal without seeking permission to file fresh suit
does not operate as constructive res judicata. Similar ratio has been laid
down in Mario Shaw vs. Martin Fernandez and another, 1996(1) Mh.L.J.,
564.
4 It has been further submitted on behalf of the appellant that both
the Courts below failed to consider that there was a joint family of appellant
and respondents, as their father Chunilal was doing the business of hotel and
it was being run by the entire family. There was no separate earning for
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respondent No.9, who had then transferred some property in favour of
respondent No.10 without any legal necessity. The oral evidence led by the
plaintiff has not been properly considered, which could have led to the
evidence that all the suit properties are the Joint Hindu Family properties.
Under such circumstance, substantial questions of law, as contemplated
under Section 100 of the Code of Civil Procedure, are arising in this case.
5 Per contra, the learned Advocate Mr. V.S. Badakh for respondent
Nos.1, 2A to 2C and learned Advocate Mr. S.S. Bora supported the reasons
given by both the Courts below and submitted that the present suit for
partition and separate possession of properties described in para No.1A was
also barred by res judicata and as regards other properties described in para
Nos.1B to 1E they have consistently held that the plaintiff has failed to prove
that they have joint family properties.
6 At the outset, it can be seen that the fact which is not in dispute
is that the original defendant Nos.1 and 2 had filed Regular Civil Suit
No.130/1987 for partition and separate possession. It can be seen from the
documents, which have been produced on record that the said suit was only
with a prayer for partition of the house property situated at Jamkhed bearing
Grampanchayat No.355, which is now described in para No.1A of the present
suit i.e. Regular Civil Suit No.18/1998. Further, it is to be noted that the
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earlier suit i.e. Regular Civil Suit No.130/1987 appears to have been filed
immediately after Chunilal had expired on 21.03.1986. It will have to be
presumed then that defendant No.1 in that suit i.e. present plaintiff had the
knowledge as to which are the properties, which have been purchased from
the joint family income. When present defendant Nos.1 and 2 had restricted
the said suit i.e. Regular Civil Suit No.130/1987, to the extent of one
property only, and the present plaintiff was defendant No.1, who was
contending that all the joint family properties were not brought into the
hotch pot and the suit was hit by partial partition, he could have definitely
made a counter claim and prayed for partition of those properties also.
Section 11 and Explanation IV to the same of the Code of Civil Procedure
runs thus -
11. Res judicata. - No Court shall try any suit or issue in which the
matter directly and substantially in issue has been directly and
substantially in issue in a former suit between the same parties, or
between parties under whom they or any of them claim, litigating
under the same title, in a Court competent to try such subsequent suit
or the suit in which such issue has been subsequently raised, and has
been heard and finally decided by such Court.
Explanation I ....................
Explanation II ....................
Explanation III ....................
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Explanation IV - Any matter which might and ought to have been
made ground of defence or attack in such former suit shall be deemed
to have been a matter directly and substantially in issue in such suit.
Explanation V ....................
Explanation VI ....................
Therefore, the other properties could have been made ground of
defence (accordingly so made also in the written statement in that suit) or
attack (by way of counter claim) in such former suit shall be deemed to have
been a matter directly or substantially in issue in such suit. Another fact
further to be noted from the Judgment in Regular Civil Suit No.130/1987
dated 25.06.1997 that issues No.3 and 4 are framed thus -
3 Does the defendant No.1 prove that the suit is hit by
partial partition ?
4 Does the defendant No.1 prove that premises out of
Sy.No.963/1 bearing No.2627, 1953 out of land Gat No.88/1, 20
Gunthas and plot No.359 out of Sy.No.6/3 are the joint family
property ?
These issues were framed on the basis of written statement filed
by the present appellant. The findings, those were given to those issues No.3
and 4, are in the negative. He challenged the said Judgment and Decree by
filing Regular Civil Appeal No.293/1997. It appears that on 08.01.2002 he
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then filed pursis stating that since now he has filed separate suit for partition
including all the properties, there is no necessity to go ahead with the appeal.
It was then stated that all the rights would be decided in that suit and,
therefore, the appeal should be disposed of. Based on this pursis, the order
as referred in para No.3 above was passed. Here, it is to be noted that the
appeal was "dismissed for want of prosecution" and it was not withdrawn for
presentation of any other litigation. Therefore, provisions of Order XXIII of
the Code of Civil Procedure are not applicable at all and, therefore, the
decisions relied by the learned Advocate for the appellant are not applicable
here. The decision in V. Rajeshwari (supra) also will not be applicable, as in
this case when the appeal was already pending, the subsequent suit was
instituted and without seeking any liberty that has been allowed to be
dismissed for want of prosecution. Both the Courts below have correctly
interpreted that the present appellant-original plaintiff by his own conduct
has given finality to the decision in Regular Civil suit No.130/1987, he had
raised contention about non inclusion of the rest of the properties and the
findings was given in the negative. Therefore, in this case, there is no
question of smaller portion or entire property is involved. The principles of
res judicata laid down in City Municipal Council, Bhalki (supra) are rather
fulfilled in this case and, therefore, the present suit was barred by the
principles of res judicata.
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7 As regards the other properties are concerned, both the Courts
below, even after taking into consideration the evidence that is led, have
come to the conclusion that the plaintiff has failed to prove that those
properties are Joint Hindu Family properties. The Judgment of the First
Appellate Court in fact, adheres to all the requirements of Order XLI Rule 31
of the Code of Civil Procedure. The points for determination have been
properly framed and the oral evidence has been considered. Recently in
Singaram vs. Ramanathan (Civil Appeal No.4939 of 2021) decided on
24.08.2021 Hon'ble Supreme Court has observed that -
"11 The scheme of the Code of Civil Procedure accords finality to
the findings of fact rendered by the First Appellate Court.
12 This is undoubtedly subject to various well known exceptions
which, however, cannot permit the Second Appellate Court to
interfere with the findings of fact as a matter of course. Such
restrictions are placed on the High Court in order that there is finality
to litigation at a particular level in the hierarchy of Courts. The
limitation on the exercise of power by the High Court in the Second
Appeal interfering with the judgment of the First Appellate Court is
premised on high public policy. This limitation is ought to be secured
by insisting upon the requirement that a Second Appeal is considered
only when there is a substantial question of law. Therefore, the
existence of substantial question of law and the judgment which
revolves around answering the substantial questions of law are not
mere formalities. They are meant to be adhered to."
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8 Therefore, in view of the discussion above made, no substantial
questions of law, as contemplated under Section 100 of the Code of Civil
Procedure, are arising in this case. The appeal deserves to be dismissed on
the threshold. Accordingly, it is dismissed. Pending Civil Application
No.3879 of 2012 stands disposed of
( Smt. Vibha Kankanwadi, J. )
agd
Later on :
1 Learned Advocate appearing for the appellant submits after the
pronouncement of the order that the disputed property is in possession of the
plaintiff and his client intend to approach the Hon'ble Apex Court and,
therefore, interim protection be granted. It is to be noted that all the three
Courts, that is including this Court, have taken a consistent view and,
therefore, no case is made out to grant any protection. Oral request is
rejected.
( Smt. Vibha Kankanwadi, J. )
agd
