Mr. Sudip Singha Roy vs Smt. Chhayarani Singha Roy And Anr
2023 Latest Caselaw 1023 Cal

Form No. J (1)

            IN THE HIGH COURT AT CALCUTTA
                     (CIVIL APPELLATE JURISDICTION)


Present:

The Hon'ble Justice Biswajit Basu.
                            S.M.A. No. 134 of 2012
                 IA No. CAN 02 of 2017(Old CAN 10272 of 2017)
                                  (NOT IN FILE)
                           MR. SUDIP SINGHA ROY
                                    VS.
                   SMT. CHHAYARANI SINGHA ROY AND ANR.


For the appellant:                           Mr. Tanmoy Mukherjee,
                                             Mr. Kajal Ray.

For the respondent no. 1:                    Mr. Probal Kumar Mukherjee,
                                             Mr. Surendra Kumar Sharma.


Heard on             : 02.09.2022, 10.11.2022, 17.11.2022 and 24.11.2022

Judgment on          : 08.02.2023

Biswajit Basu, J.

1. The instant second miscellaneous appeal is directed against the

judgment and decree dated May 26, 2011 passed by the Additional District

Judge (Special Court), District-Hooghly in Title Appeal No. 146 of 2008 thereby

affirming the order no. 104 dated September 22, 2008 passed by the Additional

Court of learned Civil Judge (Junior Division) Chandernagore, District-Hooghly

in Miscellaneous Case No. 05 of 2007 arising out of Title Execution Case No. 26

of 1998.

2. The respondent no. 1 filed a suit in the Additional Court of learned Civil

Judge (Junior Division), Chandernagore, District-Hooghly being Title Suit No.

170 of 1997 for eviction of the respondent no.2 from the suit property alleging

that her husband Rabindra Nath Singha Roy was the owner of the suit

property and he bequeathed it to her by a registered deed of gift, the

respondent no. 2 was a licensee under her husband without license fees and

after his death she permitted the respondent no. 2 to stay in the suit property

on the same terms and conditions but on April 15, 1995 such license was

revoked and the respondent no. 2 was asked to quit and vacate the suit

property which she refused, hence the suit. The respondent no. 2 contested

the said suit. She claimed that she is the legally married wife of the said

Rabindra Nath Singha Roy and in their wedlock the appellant was born. She

challenged the validity and legality of the said deed of gift on the grounds that

it was obtained by practising fraud, misrepresentation, coercion and it was

never executed by the said Rabindra Nath Singha Roy.

3. The said suit was decreed on July 30, 1998 with the findings that the

respondent no. 1 has failed to prove her marriage with the said Rabindra Nath

Singha Roy and also the birth of the appellant in the said wedlock. One specific

issue being issue no. 5 whether the plaintiff has any right, title and interest in

respect of the suit property was framed in the said suit. The said issue was

answered in favour of the respondent no. 1 holding that execution of said deed

of gift was duly proved and the same was acted upon as the respondent no. 1

on the basis of said deed of gift, has recorded her name in the record of rights

of the suit property.

4. The respondent no. 2 aggrieved by the aforementioned judgment and

decree preferred an appeal being Title Appeal No. 17 of 1999, the learned

Additional District Judge, Fast Track Court-I at Chandernagore, by the

judgment and decree dated November 30, 2004 dismissed the said appeal,

thereby affirmed the findings of the first court against the said issue no. 5. The

said appeal Court though did not approve the finding of the first court that the

appellant is not the son of said Rabindra Nath Singha Roy but affirmed the

finding of the learned Trial Judge that the respondent no. 2 has failed to prove

her marriage with said Rabindra Nath Singha Roy.

5. The said decree was put into execution giving rise to Title Execution case

No 26 of 1998. The appellant in the said execution case filed an application

under Order XXI Rule 97 read with Section 151 of the Code of Civil Procedure.

The said application was registered as Misc. Case No.05 of 2007. The appellant

initially sought to resist the execution of the said decree on the ground that he

cannot be evicted from the suit property on execution of the said decree as he

has right to stay there as the son of the said Rabindra Nath Singha Roy. The

appellant subsequently amended the said application to incorporate a further

prayer that the decree under execution is not binding upon him as the deed of

gift through which the respondent no. 1 is tracing her title over the suit

property, was obtained by practising fraud upon his father.

6. The executing Court by the judgment and order dated September 22,

2008 dismissed the said miscellaneous case holding that to resist the claim of

the decree holder, the petitioner is required to establish his title over the suit

property; since the decree holder in the suit has established her such title the

petitioner cannot avoid the decree under execution, whether the petitioner is

the son of said Rabindra Nath Singha Roy and whether the mother of the

petitioner is the legally married wife of said Rabindra Nath Singha Roy are

irrelevant considerations to decide the title of the petitioner over the suit

property.

7. The appeal assailing the aforesaid judgement and decree was dismissed.

The instant appeal is directed against the said appellate judgement and decree.

The appeal was admitted under Order XLI Rule 11 of the Code without framing

any substantial question of law. This court, after going through the materials

on record felt necessary to formulate the following substantial question of law:-

"Whether both the courts below have committed substantial error of law in holding that the challenge of the appellant to the validity and legality of the deed of gift executed by one Rabindranath Singha Roy, the donor of the deed of gift in favour of the decree holder/respondent is barred by the principles of Res Judicata?

8. Mr. Tanmoy Mukherjee, learned advocate for the appellant submits that

doctrine of Res Judicata has no manner of application in the present case for

the simple reason that neither the appellant was a party to the suit nor he is

claiming right over the suit property through his mother, rather he is claiming

an independent right over it being the son of the admitted owner therefore

neither the judgement of the suit nor any finding therein is binding upon him

but both the courts below have failed to appreciate these aspects of the matter,

consequently have committed substantial error of law in holding that the said

Misc. case is barred by the said doctrine. Mr Mukherjee then contends that the

mother of the appellant was not the executant of the said deed of gift as such

in terms of Section 31(1) of the Specific Relief Act, 1963, the judgment passed

in the earlier suit overruling her challenge to the validity of the said deed of gift

not being a 'judgment in rem' cannot be a bar to the challenge of the appellant

regarding the validity of the said deed of gift. Mr. Mukherjee, to buttress his

said argument places reliance on the decision of the Hon'ble Supreme Court in

the case of DECCAN PAPER MILLS COMPANY LIMITED vs. REGENCY

MAHAVIR PROPERTIES AND OTHERS reported in (2021) 4 SCC 786.

9. Mr. Probal Kumar Mukherjee, learned senior counsel for the respondent

no. 1 on the other hand submits that the principle of Res Judicata is based on

need of giving finality to judicial decisions and the said principle has been

applied by the Courts for the purpose of achieving finality in litigation. He

further submits that in the present case the appellant is challenging the

validity of the deed of gift on the grounds which his mother availed in the suit

and in the appeal to dislodge the said deed of gift, therefore, the demand in the

earlier proceeding being of the same quality, the bar of the principle of Res

Judicata in terms of Section 11 of the Code squarely applies in the present

case. To get support of his such submission, he refers to the decision of the

Hon'ble Division Bench in the case of ABDUL GANI vs. NABENDRA KISHORE

reported in Volume 38 CWN 876 and the decision of the Hon'ble Supreme

Court in the case of SUNDERABAI vs. DEVAJI reported in AIR 1954 SC 82.

On the scope of the provision of Section 11 of the code, Mr Mukherjee refers to

the decision of the Hon'ble Supreme Court in the case of RAJENDRA KUMAR

vs. KALYAN(DEAD) BY LRS reported in (2000)8 SCC 99 and SAROJA VS.

CHINNUSAMY(DEAD) BY LRS. AND ANOTHER reported in (2007)8 Supreme

Court cases 329.

10. Having heard the learned advocate for the parties and on perusal of the

records, it appears that the grounds of challenge to the validity and legality of

the said deed of gift are same in the suit and in the Misc case but such

challenge was thrown in the suit by the mother and in the Misc case by the

son, this is the only difference. The question therefore falls for consideration in

the present appeal is whether, for such difference the executing court is obliged

to re-adjudicate an issue which has already been decided in the suit.

11. The principle of Res Judicata is a fundamental doctrine of law that there

must be an end to litigation. The doctrine has received statutory sanction in

the Code as a matter of prudence and to give the weightage to a finding or a

decision as has been held by the Hon'ble Supreme Court in the case reported

in (2000) 8 SCC 99(supra). The Hon'ble Supreme Court in the case reported in

(2007)8 SCC 329(supra) has laid down the conditions necessary to attract the

doctrine of Res Judicata in terms of section 11 of the Code.

12. It is well settled that Section 11 of the Code is not exhaustive of the

general doctrine of Res Judicata. The following passage from the decision of the

Privy Council in the case of KALIPADA DE AND OTHERS vs. DWIJAPADA

DAS AND OTHERS reported in AIR 1930 (P.C.) 22, being relevant is quoted

below:-

"The question as to what is to be considered to be Res Judicata is dealt with by S.11, Civil P.C., of 1908. In that section are given many examples of circumstances in which the rule concerning Res Judicata applies; but it has often been explained by this Board that the terms of S. 11are not to be regarded as exhaustive. In the case of Ram Kripal Shukul v. Rup Kuari (2), this is made clear, especially in these words of Sir Barnes Peacock (at p. 41 of 11 I.A.):

"The binding force of such a judgment in such a case as the present depends not upon S. 13 of Act 10 of 1877"

(now replaced by S. 11, Civil P.C., 1908): "but upon general principles of law. If it were not binding there would be no end of litigation."

This decision, and the authority of the very words used by Sir Barnes Peacock, are confirmed and enhanced by the language of Lord Buckmaster in announcing the conclusion of this Board in Hook v. Administrator- General of Bengal (3) at p. 194 9of 48 I.A.); and further at p. 138 (of 49 I.A.) in the case of Ramchandra Rao v. Ramachandra Rao (4). "

13. Similar view was expressed by the Hon'ble Supreme Court in the case of

GULAM ABBAS AND OTHERS vs. STATE OF UTTAR PRADESH AND

OTHERS reported in (1982)1 SCC 71. An excerpt from paragraph 14 of the

said decision is quoted below for ready reference:-

"...it is well settled that Section 11 of the CPC is not exhaustive of the general doctrine of Res Judicata as

enacted in Section 11 has some technical aspects, the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation..."

14. To appreciate the true scope of the said doctrine, it is profitable to quote

the following passage from the judgment of the Privy Council authored by Sir

Lawrence Jenkins in the case of DIWAKAR RAO vs. CHANDAN LAL RAO AND

OTHERS reported in AIR 1916 (P.C.) 78:-

"Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilakantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who escribes the plea thus: "If a person though defeated at law sue again he should be answered, 'You were defeated formerly. This is called the plea of former judgment." [See "The Mitakshara(Vyavahara)" Bk. II, ch.i, edited by J. R. Gharpure, p. 14, and "The Mayuka," Ch. I, sec. 1, p. 11 of Mandlik's edition]

And so the application of the rule by the Courts in India should be influenced no technical considerations of form, but by matter of substance within the limits allowed by law."

15. By the judgment and decree of the suit, the title over the suit property

was passed in favour of the respondent no. 1, she cannot be vexed to meet the

similar challenge to her such title in a subsequent proceeding, even by a third

party to the suit. Besides, the Hon'ble Division Bench of this Court in the case

reported in Volume 38 CWN 876 (supra) has interpreted the words "litigating

under the same title" appearing in the body of Section 11 of the Code as

under:-

"The words 'litigating under the same title' mean that the demand should have been of the same quality in the second suit as in the first one."

In the instant case the demand of the mother and the son being of the

same quality, the maintainability of the Misc case is hit by the doctrine of Res

Judicata, also in terms of Section 11 of the Code. However, the decision of the

Hon'ble Supreme Court reported in AIR 1954 SC 82(supra) cited on behalf of

the respondent no. 1 is not applicable in the facts and circumstances of the

present case.

16. Section 31(1) of the Specific Relief Act, 1963 has no manner of

application in the present case, as such the decision of the Hon'ble Supreme

Court reported in (2021) 4 SCC 786(supra) cited on behalf of the appellant is

misplaced.

For the reasons discussed above, the substantial question of law framed

in this appeal is answered in negative, in consequence S.M.A 134 of 2012 is

dismissed. There shall, however, be however no order as to costs.

The connected application being IA No. CAN 02 of 2017(Old CAN 10272

of 2017) is not in file, in view of the dismissal of appeal, the said application is

also disposed of accordingly without any order as to costs.

Let the connected Lower Court records be sent down to the learned

Courts below by special messenger at the costs of the respondent no. 1, such

costs be put in within a week from date.

The executing Court is requested to dispose of the Title Execution Case

no. 26 of 1998 as expeditiously as possible, in accordance with law.

Urgent photostat certified copy of this judgment, if applied for, be

supplied to the parties upon compliance with all requisite formalities.

(BISWAJIT BASU, J.)