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2012 Supreme(Cal) 219
HIGH COURT OF CALCUTTA
ASHIM KUMAR BANERJEE AND MRINAL KANTI SINHA, JJ.
Premlata Biswas - Appellants
Vs
Sri Debdas Biswas - Respondents
F.A. No. 347 of 2007
Decided on: May 17, 2012
Tapabrata Chakraborty, Kumaresh Dalal, Abhijit Basu, S.S. Mukherjee, Siddheswar Chandra
A subsequent suit filed after 25 years on the same cause of action and between the same parties as an earlier suit which was dismissed for non-joinder of parties is barred by res judicata.
Headnote:
RES JUDICATA - SUIT FOR DECLARATION OF TITLE - ACT SECTION LIST - C.P.C. ORDER II RULE 2 - A subsequent suit filed after 25 years on the same cause of action and between the same parties as an earlier suit which was dismissed for non-joinder of parties is barred by res judicata.
Fact of the Case:
The plaintiffs filed a suit for declaration of title to a property, claiming that they were the owners of the entire property. The defendants claimed ownership of a share in the property. The plaintiffs had earlier filed a suit in 1971 for recovery of possession of the same property, which was dismissed for non-joinder of parties. The plaintiffs did not appeal the dismissal of the earlier suit. In 2004, the plaintiffs filed the present suit for declaration of title.
Finding of the Court:
The court held that the subsequent suit was barred by res judicata. The court reasoned that the earlier suit was dismissed for non-joinder of parties, which was an incidental issue to the substantial issue of ownership of the property. Therefore, the decision in the earlier suit operated as res judicata in the subsequent suit.
Issues: Whether the subsequent suit was barred by res judicata.
Ratio Decidendi: The court held that the subsequent suit was barred by res judicata because it was filed on the same cause of action and between the same parties as the earlier suit, which was dismissed for non-joinder of parties.
Final Decision: The court dismissed the appeal.
ASHIM KUMAR BANERJEE, J.
1. Debdas Biswas and Bipradas Biswas filed a suit in 2004 against Smt. Premlata Biswas, Adhir Ranjan Haldar and Namita Haldar, inter alia, claiming for a declaration that the suit property comprised of 2.92 acres as fully described in the schedule should be declared as belonged to the plaintiffs with a corresponding prayer for demarcation of the land in question through a joint survey with the defendants. The defendants filed Written Statement denying the ownership as claimed by the plaintiffs over the land in question that became the subject matter of dispute.
2. If we look back, we would find that Bilat Mondal, Rajab Ali Mondal, Kachhim Mondal, Ichhab Mondal, Taleb Mondal, Chiyam Mondal, Ahad Mondal, Majid Mondal and Phani Bibi were the owners of the land in question as per C.S. record. Majid, Phani, Chhiyam, Ichhab and Kachhim transferred their shares through oral sale in favour of Bilat Ali, Rajab Ali, Rakhal Mondal and Taleb Mondal. Accordingly, the transferees were duly recorded in R.S. records. The plaintiffs purchased the property from Taleb Ali, Sarbat Ali Biswas, Ilias Ali and Idris Ali Mondal. They purchased the share of Phani Bibi. Plaintiffs also purchased the share of Chhapinnechha Bibi and Rokina Khatun. The plaintiffs, thus, claimed ownership of the
3. Subject land derived from Bilat Ali group and their successor in interest.
4. On the other hand, the share of Fakir Chand Mondal was purchased by Kanai Lal Mallik and Balaram Mallik. They sold their shares to one Sailen Biswas and Fatik Biswas. Sailen Biswas and Fatik Biswas transferred their share subsequently in favour of Adhir Ranjan Haldar and Namita Haldar.
5. Premlata however, claimed ownership of the share belonged to Kashem as Premlata purchased the property from the heirs of Majid and widow of Kashem. The plaintiffs, however, contended that the day Premlata acquired the share the heirs of Majid or Kashem did not have any interest in the property at all that could be transferred in favour of Premlata. Thus, she was not entitled to any share. As and by way of an alternative submission, Premlata could, at best, get title to the extent of 7-18th share.
6. The plaintiffs Debdas and Bipradas filed a suit in 1971 being Title Suit no.201 of 1971 that was re-numbered as Title Suit no.11 of 1973. In the said suit Debdas group, the plaintiffs claimed that they were owners of the property in question and prayed for recovery of possession of the entire property to the exclusion of Abani Kumar Biswas.
7. The learned Judge dismissed the suit vide judgment and order dated November 30, 1973. The learned Judge observed Majid died before the death of Padma Bibi and consequently her share was inherited by Jahabux Mallil, Maharani Mallik, Jaharali Mallik and Abul Mallik and the defendant no.2 purchased the same from them. Plaintiffs did not have any title in the suit property in respect of the shares of Majid and Kashem.
8. A Title Appeal was preferred. The appellate Court set aside the judgment and decree of the Trial Court on the ground that the suit was bad for non-joinder of heirs of Balaram. The learned Judge observed that Balaram was a co-owner. Balarams heirs were not on record. Hence, the suit should be remanded back to be heard afresh in presence of heirs of Balaram as well.
9. Pursuant to the order of remand, the learned Judge again heard the matter. The learned Judge considered the Additional Written Statement filed by Abani and Premlata to the extent that one Sailen Biswas and Fatik Biswas constructed their house in the suit property. Hence, they were necessary parties. The plaintiffs did not deny such statement. PW-6 in his evidence corroborated such fact. The learned Judge dismissed the suit again for non-joinder of parties.
10. The learned Judge however, granted liberty to file a fresh suit in proper form. The said judgment was delivered on August 31, 1979. Parties accepted the said decision and did not prefer any appeal. The mat
