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2010 Supreme(Cal) 162
High Court of Calcutta
Tapan Kumar Dutt, J.
Sk. Manzoor – Appellant
Versus
Abdus Salam – Respondent
Civil Appellate Jurisdiction F.M.A. 907 of 2006
Decided On: Feb 18, 2010
Advocate Appeared:
Siva Prasad Ghosh, Swapan Chakraborty, Biswajit Sarkar, Swapan Debneath, Sushanta Pal, Janardan Modal.
A subsequent suit is barred by the principles of res judicata if the same issue has been decided in an earlier suit between the same parties or their privies.
Headnote:
RES JUDICATA - SUBSEQUENT SUIT BARRED - EARLIER SUIT DECIDED ISSUE OF TITLE - SUBSEQUENT SUIT FOR DECLARATION OF TITLE AND RECOVERY OF POSSESSION - NOT MAINTAINABLE - ORDER 2 RULE 2 CPC - NOT APPLICABLE - LEAVE TO FILE FRESH SUIT - NOT GRANTED IN EARLIER APPEAL - REMAND OF SUIT BY LOWER APPELLATE COURT - NOT PROPER - APPEAL ALLOWED.
Fact of the Case:
A subsequent suit for declaration of title and recovery of possession of the same property was filed after an earlier suit for recovery of possession by eviction of licensee was dismissed by the trial court and affirmed by the lower appellate court. The defendants in the subsequent suit contended that the suit was barred by the principles of res judicata as the question of title had been decided in the earlier suit.
Finding of the Court:
The court held that the subsequent suit was barred by the principles of res judicata as the question of title had been decided in the earlier suit, even though the decision on the issue of title was incidental. The court also held that the subsequent suit was not maintainable under Order 2 Rule 2 CPC as there was no complete identity of cause of action in both the suits. The court further held that the lower appellate court erred in remanding the suit back to the trial court as the subsequent suit was barred by res judicata.
Issues: Whether the subsequent suit was barred by the principles of res judicata?
Ratio Decidendi: The court held that the subsequent suit was barred by the principles of res judicata as the question of title had been decided in the earlier suit, even though the decision on the issue of title was incidental. The court also held that the subsequent suit was not maintainable under Order 2 Rule 2 CPC as there was no complete identity of cause of action in both the suits. The court further held that the lower appellate court erred in remanding the suit back to the trial court as the subsequent suit was barred by res judicata.
Final Decision: The appeal was allowed, the impugned judgment and decree passed by the lower appellate court was set aside, and the judgment and decree passed by the trial court was restored.
1. THIS Court has heard the learned advocates for the respective parties. One Md. Sakil filed Tile Suit No. 146 of 1980 against Musst. Rausan Begum and Abdus Salam for recovery of khas possession in respect of the suit property involved in the said suit. The case of the plaintiff in the said suit was that the defendant occupied the suit property as a licensee but after the licence was revoked, the defendent did not vacate the suit property and hence such suit was filed. The said Musst. Rausan Begum contested the said suit by filing written statement denying the material allegations made in the plaint in the said suit. The said Musst. Rausan Begum claimed that she along with her sons and daughters became the co-sharers in respect of the said property and the said Musst. Rausan Begum had the full right, title and interest in the suit property and as such she could not be dispossessed from the suit properly by the plaintiff in the said suit. The said suit came up for hearing and the learned trial Court by its judgment and decree dated 30th May, 1983 dismissed the said suit upon finding that the sons and daughters of the said defendant No. 1 along with the said defendant No. 1 have right, title and share in the suit property and that the said defendant No. 1 has been in possession of the suit property for last 35 years. The learned trial Court disbelieved the case of licence sought to be made out by the plaintiff in the said suit. The plaintiff in the said suit filed Title Appeal No. 582 of 1983 challenging the aforesaid judgment and decree of the learned trial Court. The learned Addl. District Judge, 4th Court, Alipore (24 Parganas) by his judgment and decree dated August 14, 1984 dismissed the said appeal by observing that he did not find any infirmity in the judgment of the learned trial Court.
2. SUBSEQUENTLY, the plaintiff in the said T.S. No. 146 of 1980 along with the proforma defendant in the said T.S. No. 146 of 1980 filed a subsequent, suit being T.S. No. 505 of 1984 praying for a declaration of title and also recovery of possession in respect of the said property that was involved in the earlier suit. The subsequent suit being T.S. No. 505 of 1984 was also filed against the said "Musst. Rausan Begum and others. The plaintiffs have alleged in the subsequent suit that the defendants in the subsequent suit are trespassers and the plaintiffs are the owners of the suit property. The defendants contested the said suit by filing written statement denying the material allegations made in the plaint and took the stand that the subsequent Title Suit No. 505 of 1984 is not maintainable as it is barred under section 11 of the Code of Civil Procedure. According to the defendants the question which has been raised in the present suit i.e. T.S No. 505 of 1984 has already been decided in the earlier suit and was affirmed by the learned lower appellate Court, as aforesaid, and the findings of the said learned Courts still stand.
It appears that the plaintiffs and the proforma defendant in the earlier suit are the plaintiffs in the subsequent suit and the defendant No. 1 in the earlier suit is also a party-defendant in the subsequent suit. The suit property remains to be the same. However, the said T.S. No. 505 of 1984 came up for hearing and the learned trial Court by its judgment and decree dated 29.11.2000 dismissed the said suit. The learned trial Court found that the judgment and decree passed in T.S No. 146 of 1980 is binding upon the plaintiffs in the subsequent suit and the question of title with regard to the said property has already been decided in the earlier "suit. The learned trial Court found that there is no scope to reopen the matter any further and the subsequent suit is hit by the principles of res judicata. The learned trial Court accordingly, dismissed the suit. An appeal was preferred by the plaintiffs being Title Appeal No. 14 of 2001 and the learned lower appellate Court by the impugned judgment and decre
