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2010 Supreme(Bom) 440
2010(4) ALL MR 772
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
N. A. BRITTO, J.
Shri. Satchitanand Damodhar Naik & Ors. – Appellants
Vs.
Shri. Laxman A. Bordckar & Ors. – Respondents
Second Appeal No. 100 of 2009
Decided on : 22nd March, 20W.
Mr. S. G. DESSAI. Sr. Adv. with Mr. SHIVAN DESSAI. Advocate for the Appellants.
Headnote:Civil Procedure Code, 1908 - Section 11 - Principle of res judicata -First suit was decided prior to the extension of CPC in the State - Issue whether the second one on the same cause of action would be hit by the principles of res judicata - Held -In the first suit the plaintiff’s through their predecessors had failed to obtain an eviction order against the defendant or that their sale-deed was null and void -Second suit was clearly hit by the principle of res judicata.
Civil Procedure Code, 1908 - Sections 11 and 100 - Second appeal - Appellants filed suit for eviction of defendants - Dismissed by trial Court holding plaintiffs failed to prove, they are owners of house in dispute - On appeal, First Appellate Court confirmed findings of trial Court - Held - Suit dismissed by trial Court after extention of CPC to Goa State on 15.6.1966 - Trial Court held documents relied by plaintiffs in this suit and those relied on in earlier suit, same hence principle of constructive res judicata attracted - Same confirmed by First Appellate Court - In first suit plaintiffs through their predecessors failed to obtain eviction order - Second suit clearly hit by principle of res judicata - Second appeal not maintainable - Dismissed in limine. - The Senior Counsel appearing on behalf of the plaintiffs has made twofold submissions. Learned Senior Counsel contends that the Court of Civil Judge, Senior Division, Bicholim, which decided summary civil suit No. 315/62, having decided the suit prior to coming into force of CPC, the principle of res judicata would not apply. Next, Senior Counsel contends that the judgment in the first suit was rendered by the Court without jurisdiction. Both the submissions made by the Senior Counsel are wholly misplaced and cannot be accepted.
Senior Counsel may not be right in contending that the first suit was decided prior to the extension of CPC to this State. The first suit was decided after CPC was extended to this State. That apart, all that Section 11 requires is that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly or 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. In the first suit the plaintiffs through their predecessors had failed to obtain an eviction order against the defendants or that their sale deed was null and void. The second suit was clearly hit by the principle of res judicata.
Both the Courts below have given concurrent findings that the suit house and the suit property belonged to the defendants, conversely that it did not belong to the plaintiffs. These are concurrent findings of fact. In Court’s view, this second appeal is not at all maintainable and, accordingly, the same is hereby dismissed in limine.
This is plaintiffs' Second Appeal arising from Regular Civil Suit No.66/ 2004.
2. Heard Shri. S. G. Dessai, the learned Senior Counsel on behalf of the appellants - plaintiffs. The dispute between the plaintiffs and the defendants is regarding a house having house no.63 (old) situated in Survey No.3/13 of Bordem Village.
3. There is no dispute that the plaintiffs are the owners of property surveyed under Nos.3/12 and 3/14. Claiming that the said house was an outhouse of the plaintiffs in which Malinibai Bordekar was temporarily permitted to reside, she being the maid servant of the plaintiffs' parents and the plaintiffs and was residing with her brother Laximan Bordekar (Defendant no.1 ?) and the suit property under Survey No.3/l3 was part of the plaintiffs' property purchased by the father of the plaintiff no. 1 in an auction held on 23/02/1942 and later having been allotted to the father of the plaintiffs by a deed of division dated 3/12/l 951 , the plaintiffs filed the suit for the eviction of the defendants from the suit hous.: bearing nos.63(Old) and 2/370 (new) of village Bordem and the suit property surveyed under no.3/13.
4. The defendants resisted the suit contending that the suit property surveyed under no.3/13 was purchased by Smt. Audu Bavina, dcceased mother of defendant no. I from one late Hory Pundolica Pol in terms of the sale deed dated 12/09/1933 with the said house existing therein and the said property is a part of the entire property known as "Gorbatulem" commonly known as "Kharat Bharad" having Land Registration No.873 of book B-22 (new). The defendants also pleaded that the deceased parents of plaintiff no.1, namely, Damodar Naik and his wife Jaivanti D. Naik had filed a civil summary suit bearing no.315/62 in the Court of the Civil Judge Senior Division, Bicholim against Smt. Malinibai Bordekar, the deceased sister of defendant no. 1 , and defendants no. 1 & 2 for their eviction from the said house, on the ground that the house belonged to them, but the Hon 'ble Civil Judge Senior Division was pleased to dismiss the suit with costs, on merits.
5. The learned trial Court by judgment/decree dated 21/01/2009, after assessing the evidence produced on behalf of the parties, came to the conclusion that the same did not support the case of the plaintiffs to the suit house. The learned trial Court took note of the admission of the plaintiffs that the defendants were in possession of the suit house at least from the year 1960, which destroyed the case of the plaintiffs that the suit house was an outhouse of the plaintiffs and that Malinibai Bordekar was allowed to occupy it temporarily and that the documentary evidence led by the plaintiffs showed the existence of the house in the property prior to its auction. The learned trial Court also noted that the names of Malinibai Bordekar and Laximan Bordekar were recorded as co-occupants of Survey No.3/13 and after considering the other evidence led by both the parties came to the conclusion that the plaintiffs failed to prove that they are the owners in possession of the suit property under Survey No.3/13 through their ancestors. The learned trial Court also concluded that the evidence produced by the plaintiffs did not support the case of the plaintiffs to the suit house. On the contrary, the learned trial Court came to the conclusion that the defendants had established that the suit property was a distinct property and it was purchased by the deceased mother of defendant no. 1 from Hory Pundolica Pol along with the existing house therein in the year 1933. The learned trial Court held that the testimony of defendant no. 1 was not shaken.
6. The learned first appellate Court also concluded that the plaintiffs had failed to make out a case for eviction of the defendants from the suit property and the suit house, and concurred with the findings given by the learned Civil Judge Senior Division. In other words, both the Courts below have given a clear finding that
