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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE
MONJUR MONDAL - Appellant
Versus
AHAMMAD MONDAL - Respondent
A. F. A. D. 2059 Of 1947
Decided On : JANUARY 25, 1952
RES JUDICATA - PRO FORMA DEFENDANT - TITLE SUIT - ADVERSE POSSESSION - SECTION 66, CIVIL PROCEDURE CODE - BENAMI TRANSACTION - RENT SALE - LIMITATION.
Fact of the Case:
Plaintiff brought a suit for declaration of title and recovery of possession of suit lands. Defendant 1 claimed title through a purchase from a previous stranger auction purchaser Nur Mahammad. Plaintiff claimed partition amongst heirs of Ketabdi after his death, exchange of suit lands with Mokbul, and purchase of disputed holding by heirs of Ketabdi in benami of Nur Mahammad. Defendant 1 contended that Nur Mahammad purchased the disputed property on his own behalf, that the suit was barred by res judicata and limitation under Section 66, Civil Procedure Code.
Finding of the Court:
The trial court dismissed the suit holding it was barred by res judicata and Section 66, Civil Procedure Code. The lower appellate court reversed the decision, holding that the suit was not barred by res judicata and Section 66 was not a bar as plaintiff had acquired title by adverse possession. Defendant 1 appealed.
Issues: 1. Whether the suit was barred by res judicata? 2. Whether the suit was barred by limitation under Section 66, Civil Procedure Code? 3. Whether the plaintiff had acquired title by adverse possession?
Ratio Decidendi: 1. Res Judicata: - The court held that the suit was barred by res judicata. The plaintiff was a party to the previous title suit (T. S. No. 116 of 1939) though in the category of a 'pro forma' defendant. The issue of title was expressly decided in favor of Nur Mahammad, the predecessor of the present appellant. The decree in that suit could not have been passed unless it was found that Nur Mahammad was not a benamdar but a real purchaser at the rent sale. The present plaintiff had the right to be heard in the previous suit if he so desired. The decree was based on a finding plainly destructive of the plaintiff's present claim. - The court relied on the Privy Council decisions in Munni Bibi v. Triloki Nath, Maung Sein Done v. Ma Pan Nyun, and Kedar Nath Goenka v. Ram Narain Lal, and the decision of this Court in Hafiz Mohammad v. Swarup Chand Hukum Chand, Firm, to hold that the mere fact that the party sought to be bound by the doctrine of 'res judicata' was a 'pro forma' defendant in the earlier suit or that no relief had been claimed against him therein would not be sufficient to exclude the application of that doctrine. 2. Limitation under Section 66, Civil Procedure Code: - The court held that it was not necessary to decide the issue of adverse possession and the bar under Section 66, Civil Procedure Code, in view of the finding that the suit was barred by res judicata.
Final Decision: The appeal was allowed. The judgment and decree of the court of appeal below were set aside and the decree of dismissal passed by the trial Court was restored.
( 1 ) THIS appeal is by defendant 1 and it arises out of a suit brought by the plaintiff respondent for declaration of his title to the lands in suit described in schedules 'kha' and 'ga' of the plaint, and for recovery of possession of the 'kha' schedule lands, and for confirmation of possession in the 'ga' Schedule lands. The material facts lie within a short compass and they are given below.
( 2 ) ADMITTEDLY, the suit lands originally belonged to one Ketabdi. In the year 1916 Ketabdi died leaving him surviving as his heirs three sons Ahammad, Abdul and Makbul and three daughters. Ahammad is the plaintiff in the present suit, wherein Abdul is defendant 2 and Mokbul is 'pro forma' defendant 4, and their three sisters are 'pro forma' defendants 5 to 7. Defendant 1 is Abdul's son, but he claims title to the suit lands not as a member of Ketabdi's family but on the basis of a purchase from a previous stranger auction purchaser Nur Mahammad, 'pro forma' defendant 3 in the present suit.
( 3 ) ACCORDING to the plaintiff, there was a partition amongst the abovenanied heirs of Ketabdi after the latter's death, and, as a re-suit thereof, the plaintiff got the 'kha' schedule lands and Mokbul the 'ga' schedule lands of the present plaint. It is the plaintiff's case that after the above partition the plaintiff got also the 'ga' schedule lands from the said Mokbul by exchange with other lands and that, when, Subsequently, in the year 1925, the holding comprising 'inter alia' the suit lands was sold at a rent sale the same was purchased by the heirs of Ketabdi in the 'benami' of Nur Mahammad who is 'pro forma' defendant 3 in the present suit, and the said heirs continued to be in possession as before. The plaintiff complains that, in or about March 1943, defendant 2 Abdul got a collusive 'kabala' from Nur Mahammad in the name of his son Monjur who is defendant 1 in this suit, and, on the strength of that 'kabala', dispossessed the plaintiff from the 'kha' schedule lands during the latter part of Talgoon 1349 B. S. and threatened to dispossess him from the 'ga' Schedule lands also. In the above circumstances the plaintiff brought the present suit on 6-6-1944 for declaration of his title to the suit lands and for recovery of possession of the 'kha' Schedule lands and for confirmation of his possession in the 'ga' schedule lands of the present plaint.
( 4 ) THE suit was contested by defendants 1 and 2; and their defence 'inter alia' was that the disputed holding which was recorded in the landlord's 'sherista' in the name of Mokbul alone was purchased at the rent sale by Nur Mahammad on his own behalf and not as 'benamdar' of anybody and that Nur Mahammad took delivery of possession through Court and the plaintiff's suit was barred by limitation. It is further the defence case that when Ketabdi's mortgagee Taradas Das after getting a mortgage decree in his mortgage suit against Ketabdi's heirs, that is, against the present plaintiff and his brothers and sisters, was seeking to execute it against 'inter alia' the disputed property, Nur Mahammad, the auction purchaser at the rent sale, brought a title suit (viz. , Title Suit No. 116 of 1939 of the Court of the Munsif at Rampurhat) for declaration of his own title to the said property and for a permanent injunction, restraining the mortgagee Taradas Das from executing his decree against the said property. In that suit the plaintiff and his brothers and sisters were 'pro forma' defendants and the suit was dismissed by the trial Court but was finally decreed on appeal (Title Appeal No. 21 of 1946) by the learned Subordinate Judge, Birbhum, after overruling the plea raised by Taradas that Nur Mahammad was benamdar of his (Taradas') judgment-debtors, i. e. , benamdar of the present plaintiff and his brothers and sisters. The defence, accordingly contended 'inter alia' that the plaintiff's present suit was barred by 'res judicata'; the other material defence that was pleaded in
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