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IN THE HIGH COURT OF GAUHATI
N. Chaudhury, J.
Smti. Sabitri Roy – Appellant
Versus
Sri Anil Mandal & Others – Respondents
RSA No. 194 of 2006
Decided On : 28-07-2016
Civil Procedure Code,1908 - Section 11 - Transfer of Property Act - Sections 111, 106 and 111(h) - Suit land - Decree for recovery of khas possession - Appeal is directed against concurrent findings of two Courts below - Courts dismissed suit of plaintiff on point of res judicata understand substantial question of law framed above it is necessary to have a look at basic minimum facts involved in present suit - Present appellant as plaintiff instituted Title Suit No. in Court of learned Munsiff No. 3, stating that suit land measuring pertaining to. Patta No. - It is further averred that defendant No. 1 being brother of plaintiffs husband and as he did not have any place to live in, plaintiffs husband permitted him to construct a house suit land and allowed defendant No. 1 to stay there - But of late the defendant No. 1 started creating rumour that he is owner of land and also assaulted plaintiff - Under such circumstances suit was instituted for declaration of right, title and interest and recovery of khas possession by evicting defendant No. 1 - Defendant contested suit by filing written statement and after conclusion of trial learned trial Court was of opinion that plaintiff acquired valid right, title and interest with respect to suit land on basis of purchase from original landlord - Suit land was never under possession of plaintiff but it was under possession of defendant No. 1 he being another son of original lessee - Plaintiffs husband and defendant No. 1 are sons - Continued to remain as lessee with respect to suit land - Lease was in force and same not having been determined, plaintiff was not entitled to a decree for recovery of khas possession - suit was partly decreed - Judgment and decree attained finality as neither plaintiff nor defendant No. 1 preferred any appeal before appellate Court – Held, It is established law under Explanation IV to Section 11 of CPC that if a point of defence or attack in former suit could have been made in that event although same was not made shall be deemed to have been a matter directly and substantially in issue in such suit - Matter had been directly and substantially in issue in previous suit - Learned trial Court had not committed any error in holding Notice has been issued by determining the lease - Section 111 of Transfer of Property Act empowers plaintiff to determine a lease by giving notice or by asking him to quit - What should be content of notice and what should be procedure followed have been laid down under Section 106 of Transfer of Property Act - Although a notice was given by plaintiff to defendant No. 1, yet, that was not for determination of lease and even suit has not been instituted on that ground - Suit has been instituted for declaration that lease in favour of Mandal stood determined - Plea could have been taken earlier and was not taken and therefore for aforesaid reasons it cannot be said that plaintiff issued a fresh notice determining lease with defendant No. 1 - Without issuing a fresh notice as contemplated under Section 106 of Transfer of Property Act - Cause of action cannot be said to have arisen as in view of judgment passed by learned Court vide Ext-2 - There is a continuing lease between plaintiff and defendant No. 1 - Unless and until this lease is determined by any of provisions of Section 111 of Transfer of Property Act same continues to remain in force in view of the Ext-2 judgment and so findings of learned Courts below in regard to principle of res judicata cannot be said to be perverse or erroneous - Sole substantial question of law stand decided in negative and against appellant - Appeal stands dismissed
N. Chaudhury, J.
1. This Second Appeal is directed against the concurrent findings of the two Courts below. Both the Courts dismissed the suit of the plaintiff on the point of res judicata.
2. This Court while admitting the Second Appeal framed the following substantial question of law:-
"Whether the learned Courts below erred in law in holding the suit to be barred under the principle of res judicata deciding the issue no. 3 against the appellant?"
3. To understand the substantial question of law framed above it is necessary to have a look at the basic minimum facts involved in the present suit. Present appellant as plaintiff instituted Title Suit No. 20/1993 in the Court of learned Munsiff No. 3, Cachar at Silchar stating that the suit land measuring 3K 10 Ch pertaining to 2nd R.S. Patta No. 56 and Dag No. 206 originally belonged to one Gopal Chandra Deb and plaintiff was a lessee under him. Subsequently, on 12.07.1991 the plaintiff purchased the ownership right of the land from the original owner Gopal Chandra Deb. It is further averred that defendant No. 1 being brother of the plaintiff's husband and as he did not have any place to live in, the plaintiff's husband permitted him to construct a house upon the suit land and allowed defendant No. 1 to stay there. But of late the defendant No. 1 started creating the rumour that he is the owner of the land and also assaulted the plaintiff. Under such circumstances the suit was instituted for declaration of right, title and interest and recovery of khas possession by evicting the defendant No. 1.
4. The defendant contested the suit by filing written statement and after conclusion of the trial the learned trial Court was of the opinion that plaintiff acquired valid right, title and interest with respect to the suit land on the basis of purchase from the original landlord. The suit land was never under possession of the plaintiff but it was under possession of the defendant No. 1 he being another son of the original lessee, namely, Sachindra Manal. Plaintiff's husband and the defendant No. 1 are sons of Sachindra Mandal. The learned trial Court accordingly decreed the suit by judgment and decree dated 08.09.1995 holding that plaintiff being owner of the suit land stepped into shoes of landlord and defendant No. 1 Anil Mandal continued to remain as lessee with respect to the suit land. The lease was in force and the same not having been determined, plaintiff was not entitled to a decree for recovery of khas possession. Accordingly, the suit was partly decreed. The aforesaid judgment and decree dated 08.09.1995 attained finality as neither plaintiff nor the defendant No. 1 preferred any appeal before the appellate Court.
5. The plaintiff thereafter instituted a second suit being Title Suit No. 39/1996 in the Court of learned Civil Judge (Junior Division) No. 1, Cachar at Silchar narrating the whole story about institution of the earlier suit and then claiming in paragraph 5 that there was no lessor-lessee relationship between the plaintiff and the defendant No. 1 as there was no fresh agreement after the demised land was purchased by the plaintiff. Be that as it may, in paragraph 7 of the plaint the plaintiff stated that she served a notice through her lawyer on 20.12.1995 on the defendant No. 1 asking him to leave and vacate the suit land. The defendant gave a reply thereto on 07.02.1996 and did not vacate the premises. It is under such circumstances plaintiff made a prayer for declaration that lease of late Sachindra Mandal had already been determined and for recovery of khas possession by evicting the defendants. Paragraphs 5, 7 and 11 of the plaint are quoted below for ready reference:-
"5. That since the day of judgment passed by the learned court on 8-9-95 in T.S. 20/1993, the plaintiff has become absolute owner as well as landlord of entire land mentioned in the schedule-1 below along with the land mentioned in schedule-2. The alleged right of lease, if any, of la
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