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GAUHATI HIGH COURT
S.K.Kar, J.
Harmuj Ali Pramanik -Appellant
Versus
Safiuddin Sarkar and Ors. -Resopndent
Civil Revn.No. 372 of 2002
Decided On : 26-03-2003
Res Judicata - Land Dispute - Goalpara Tenancy Act - Sec. 11 of CPC - Sec 11 of CPC - Explanation IV - Fraud in Decree - Abuse of Process of Court
Fact of the Case:
The case involved a dispute over land possession and ownership between the parties. The plaintiffs filed a suit for eviction of the defendant, which was decreed and confirmed by the High Court. The defendant subsequently filed a suit claiming tenancy rights and possession, alleging fraud and collusion in the previous decree.
Finding of the Court:
The court found that the defendant's subsequent suit was barred by the principle of res judicata as the matter in issue had already been decided in the former suit. The court also held that the petition presented under Order 21 Rule 20 of CPC was without any basis and an abuse of the process of the court.
Issues: The main issues were the application of res judicata, the validity of the decree, and the abuse of process of the court.
Ratio Decidendi: The court applied the principle of res judicata as per Sec. 11 of CPC and Explanation IV, emphasizing the need for finality in judicial proceedings. It also highlighted the requirement of actual positive fraud to assail a decree and the prohibition of raising matters that could have been raised in the former suit. Additionally, the court emphasized the duty of the civil court to decide the question of res judicata as a preliminary issue and to avoid frivolous litigations.
Final Decision: The court rejected the petition and upheld the validity of the decree, finding the subsequent suit barred by res judicata and the petition under Order 21 Rule 20 of CPC as an abuse of the process of the court.
Order dated 8.10.02 passed in T. Ex. 12 of 1999 (out of decree in TS 10/84) has been assailed by Md. Harmuj Ali Pramanik TS No. 10/84 was instituted by Md. Saifuddin Sarkar and another as plaintiffs against Md. Harmuj Ali Pramanik and TS No. 167/97 was filed by Md. Harmuj Ali Pramanik as plaintiff against Md. Saifuddin Sarkar and 4 others including State of Assam and Settlement office, Dhubri, as the proforma-defendants No. 4 and 5.
2. Before entering into the discussions about any illegality or errors in the impugned order, a brief narration of facts giving the back ground will be essential to understand the disputes and related matters in controversy clearly.
3. The petitioners Md. Saifuddin Sarkar and another as back as in the year 1980 instituted title suit No. T.S. 35/80 for eviction of Harmuj AH Pramanik from land, measuring 1 (one) bigha appearing to dag No. 13, Khatian No. 58 situated at village Manipur part-I under Bagribari Circle, District Goalpara and the houses standing thereupon, claiming ownership. The Suit (TS No. 35/80) was dismissed on technical ground of want of service of valid notice u/s. 106 of T.R Act. and hence they filed a second suit, registered as TS No. 10/84 for the same purpose pleading, inter alia, that he alongwith the plaintiff No. 2 were owners of aforesaid land and houses thereupon described in the schedule appended to the plaint and the houses thereupon were let out to the defendant Harmuj at monthly rent of Rs.50/-for a period of one year w.e.f 1/7/78 expiring by 30/06/1979. That defendant neither paid rents nor vacated the house inspite of notice terminating the tenancy and accordingly prayed for a decree of ejectment and recovery of khas possession, reserving their further rights to claim compensations for use and occupation and arrears of rents due etc.
4. The suit (TS No. 10/84) was contested by defendant Harmuj and it was decreed on 25.8.84. Such decree passed by trial court became final being confirmed by this High Court vide order dated 12.12.96 passed in Second Appeal, S.A. No. 159/88. Thereafter, title execution case No. T.Ex. 12/99 was filled by said Saifuddin and another which is still pending for disposal and the latest order passed therein was on 8.10.02
5. Defendant of said TS. No. 10/84 after loosing all throughout presented the subsequent Suit T.S. 167/97 claiming that land measuring 3K-11L was given to him by landlord Anil Kr. Saha by issuance of pattanamaon 19.02.76 B.S. (Corresponding to 1970 AD) and thereafter he was in possession for last 18 years by construction of houses upon such tenanted land, thereby acquiring tenancy rights and defendant No. 3 had no subsisting title or legal interest in that land save and expect the right for realisation of rents. (The descriptions and particulars of suit land in both suits are same). In his Suit, Harmuj Ali Pramanik averred further that the defendants Saifuddin and another instituted T.S. No. 35/80 claiming purchase of 1 bigha of land from defendant No. 3 Anil Kr. Saha on the strength of sale-deed No. 6771 of 1977, delivery of possession and construction of houses, 30 ft x 20 ft. in measurement on the western part of said land and induction of him from 1.7.78 for one year as a tenant. That title suit No. 35/80 being dismissed, title suit No. 10/84 was again instituted for the same purpose by Saifuddin and another with regard to the same land and obtained a fraudulent, collusive and concocted decree from court of Civil Judge (Jr. Div.) No. 1 Dhubri, on 25.8.84. That sale deed No. 6771/77 is false, fraudulent, collusive, concocted and manufactured one. That Saifuddin and others were not legally entitled to recover possession of the disputed land by evicting him (Harmuj Ali) on the strength of fraudulent decree/order dt. 25.8.84 passed in T.S. No. 10/84, etc. Accordingly he prayed for the declaration of his tenancy right and possession and for mutating his name in the revenue records expunging names of defendants name 1 a
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