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2008 0 Supreme(Bom) 131

2008 2 AllMR 640 ; 2008 3 MhLJ 366

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR
B. P. Dharmadhikari, J.
Shivaji s/o Banaji Bhagat since deceased, through LR.s Smt. Yamunabai Wd/o Shivaji
Bhagat and others - Appellant
vs.
Maroti s/o Dewaji Pawar since deceased, through L.Rs. Smt. Indirabai wd/o Maroti
Pawar and others – Respondents.
SECOND APPEAL NO. 382 OF 1991
Decided on: 30TH JANUARY, 2008.

The main legal point established in the judgment is the

application of res judicata and the effect of the previous suit on
the subsequent suit, concluding that the subsequent suit for
recovery of possession was not barred by res judicata or Order-
II rule 2 of the Civil Procedure Code.

Subject: Civil Law - Res Judicata

Act Referred :CIVIL PROCEDURE CODE : S.11, O.2 R.2

res judicata - Civil Procedure - Bombay Tenancy Agricultural land (Vidarbha

Region) Act, 1958 - Section 11, Order-II rule 2 - The court discussed the
application of res judicata and the effect of the suit filed in 1985, and
concluded that the subsequent suit filed in 1986 for recovery of
possession was not barred by res judicata or Order-II rule 2 of the Civil
Procedure Code.

Fact of the Case:

The appellant challenged a judgment and decree asking him to deliver

vacant possession of a suit field. The court considered the previous suits
filed by the respondent and the appellant's argument that the subsequent
suit was barred by res judicata.

Finding of the Court:

The court found that the previous suits did not operate as res judicata for
the subsequent suit filed in 1986 for recovery of possession.

Issues: The issues involved the application of res judicata and the effect of
the suit filed in 1985 on the subsequent suit filed in 1986.

Ratio Decidendi: The court held that the subsequent suit for recovery of
possession was not barred by res judicata or Order-II rule 2 of the Civil
Procedure Code.

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Final Decision: The second appeal was dismissed, and there was no order
as to costs.

Advocates appeared:
Mr. L. K. Khamborkar , Advocate for the appellants.
Mr. S. R. Deshpande , Advocate for the respondents.

ORAL JUDGMENT

1. The original defendant has by this second appeal challenged the judgment and
decree dated 03/12/1990 delivered by Joint Civil Judge, Junior Division, Akola asking
him to deliver vacant possession of suit field on or before commencement of
agricultural year i.e. 1st March, 1991. This judgment and decree in regular civil suit
No. 69 of 1986 was then challenged by him by filing regular civil appeal No. 2 of
1991 and Additional District Judge, Washim dismissed this appeal on 10/6/1991. This
Court has on 25/7/1991 admitted the second appeal by formulating the following
question:

Whether the finding as recorded in a suit filed in 1985 for declaration and
permanent injunction would operate as res judicata?.

2. In this background I have heard Advocate Shri Khamborkar for the appellant-
defendant and Advocate Shri Deshpande for the respondent-plaintiff.

3. Advocate Khamborkar points out that first suit in the chain of suits was filed by
respondent vide regular civil suit No. 81 of 1983 for declaration and injunction. In
that suit respondent also moved application under Order 39 Rule 1 and 2 of the
Code of Civil Procedure for protecting his alleged possession and that temporary
injunction was rejected. He thereafter filed miscellaneous civil appeal before the
District Court but then he withdrew it. After withdrawal, he filed regular civil suit No.
150 of 1985 with a case that on 15/3/1982 he had obtained physical possession of
suit field from defendant and in June, 1984 he was forcibly dispossessed by him.
Again the suit was for declaration and permanent injunction. The trial Court
dismissed the suit and restrained respondentplaintiff from interfering with physical
possession of the present appellant over suit field. Advocate Khamborkar points out
that Joint Civil Judge, Jr. Dn. who dismissed said suit on 24/3/1986 also held that
after 'Kaul-patta' between the parties was over, possession of present appellant was
as a tenant by sufferance, and therefore, he could not and cannot be removed
without following due procedure of law. Said Court observed that plaintiff can take
proper steps before appropriate authorities for getting suit land from defendant.
Thereafter, the respondent-plaintiff has filed instant suit vide regular civil suit No. 69
of 1986 for possession. In that suit again very same events were pointed out and it
was stated in paragraph 4 that plaintiff had secured possession on 15/3/1983 but
thereafter defendant (present appellant) forcibly dispossessed him. The prayer was,
therefore, to restore possession. The present appellant filed his written statement
and opposed the suit but it came to be decreed and the appeal against it also came
to be dismissed. Advocate Khamborkar, therefore, states that same cause of action
on the basis of which regular civil suit No. 150 of 1985 was filed, was again used by
the present respondent to file his latter suit i.e. regular civil suit No. 69 of 1986. He
further states that in regular civil suit No. 150 of 1985 on 24/3/1986 the Court of
Joint Civil Judge Jr. Dn. gave finding that after 'Kaul-patta' was over, possession of
present appellant was as a tenant by sufferance. Advocate Khamborkar, therefore,
points out that because of this, said Court expressed that plaintiff has to approach

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proper authority for recovery of possession in accordance with law and he contends
that these observations are necessarily in the light of the provisions of Bombay
Tenancy Agricultural land (Vidarbha Region) Act, 1958 and plaintiff, therefore, ought
to have approached Tenancy Tahsildar for recovery of possession. He states that
regular civil suit No. 69 of 1986 filed by him was therefore, not maintainable and it
was barred by provisions of res judicata. He points out that accordingly the question
has been framed or formulated by this Court.

4. He also invites in addition to it another angle of the appellate Court and states
that once proceedings in regular civil suit No. 69 of 1986 are held to be barred in
view of provisions of Section 11 of the Code of Civil Procedure, the subsequent
development in that suit namely; rejection of application of appellant under Section
125 of the Bombay Tenancy Act to make reference to Civil Court or rejection of his
civil revision challenging the adverse order of Civil Court on that application are of
no consequence. He points out that bar under Section 11 will operate at threshold
and when earlier judgment dated 24/3/1986 delivered by competent Court was not
challenged and was holding field, inception of regular civil suit No. 69 of 1986 is
itself bad and the appellate Court ignored this aspect.

5. He further states that when first civil suit i.e. suit No. 81 of 1983 was withdrawn,
the fact that present appellant is in possession was very much on record. The fact
again came on record when a finding of such possession was delivered on
24/3/1986 in regular civil suit No. 150 of 1985. He states that in thatsuit, though
present appellant was defendant, the trial Court protected his peaceful possession
and advised respondent-plaintiff to file proper proceedings for its recovery. Thus, in
view of these two adjudications holding that appellant-defendant is in possession,
while filing regular civil suit No. 150 of 1985, prayer for recovery of possession was
not made and said suit ought to have been for recovery of possession. He contends
that when the facts though found subsequently after recording of evidence
established that on the date on which regular civil suit No. 150 of 1985 was filed,
respondent-plaintiff ought to have filed suit for recovery of possession and not a suit
for injunction, the subsequent suit i.e. regular civil suit No. 69 of 1986 filed by him is
also barred on account of provisions of constructive res judicata. He relies upon
judgment of the Apex Court reported at AIR 1977 SC 1680 (State of Uttar Pradesh
Vs. Nawab Hussain) to state that only a relief which was available to respondent-
plaintiff on the date of institution of regular civil suit No. 150 of 1985 was to seek
possession and said relief was not asked for, and therefore, was given up and hence
the same could not have been claimed again in regular civil suit No. 69 of 1986. He
states that though a question on these lines has not been expressly framed by this
Court as substantial question of law, the aspect of constructive res judicata and the
effect of suit filed in 1985 is required to be construed because of question of law as
formulated and his arguments are only incidental to the question framed. He,
therefore, states that no separate question of law in this respect is required to be
framed.

6. Advocate Deshpande for respondent-plaintiff states that first suit i.e. regular civil
suit No. 81 of 1983 is of no consequence because it was withdrawn and there was
no adjudication on merit. He states that there was no finding recorded in it and
hence it cannot be a subject matter for considering application under Section 11 of
the Code of Civil Procedure. He further states that in regular civil suit No. 150 of
1985 respondent-plaintiff pointed out that he was placed in possession on
15/3/1983 and was attempted to be dispossessed in June, 1984, and therefore, the

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suit as filed was for injunction only. He contends that when suit filed was for
injunction, prayer for recovery of possession could not have been made in it and
was accordingly not made. He contends that maintainability of regular civil suit No.
150 of 1985 cannot be the issue for consideration at this stage because vide
judgment dated 24/3/1986 the Joint Civil Judge, Junior Division, Washim has given
liberty to present respondent to file appropriate proceedings for obtaining
possession of suit land. He states that in view of said liberty, regular civilsuit No. 68
of 1986 has been filed. He further states that finding of Joint Civil Judge, Jr. Dn. in
judgment dated 24/3/1986 that present appellant is a tenant by sufferance is
without jurisdiction as the civil Court cannot record any such finding and under
Section 100(2) of the Bombay tenancy (V.R.) Act, 1958, the jurisdiction is exclusively
with Tahsildar. He points out that because of this position only in regular civil suit
No. 69 of 1986 appellant-defendant moved application under Section 125 of the
Bombay Tenancy Act for framing issue about the tenancy in an effort to obtain
adjudication of his status as tenant. That application was rejected and when
appellant came before this Court, this Court also dismissed his civil revision on
26/9/1989. He contends that in view of these findings, the earlier alleged finding
dated 24/3/1986 declaring the appellant to be tenant by sufferance is rendered
insignificant and in any case it is without jurisdiction. He contends that, therefore,
Section 11 of the C.P.C. has no application.

7. By placing reliance upon judgment of Hon'ble the Apex Court reported at AIR
2002 SC 3369 (Sampath Kumar Vs. Ayyakannu), Advocate Shri Deshpande states
that when in such circumstance, the plaintiff is not found to be in possession, he can
amend a suit and claim relief of restoration of possession or he can file fresh suit. He
argues that in view of liberty granted by judgment dated 24/3/1986, fresh suit has
been filed. According to him as relief of possession could not have been asked in
1985 because of facts pleaded by plaintiff therein, provisions of Order-II rule 2 or
then the provisions of constructive res judicata flowing from Section 11 of the C.P.C.
are not at all relevant. He states that no substantial question of law arises and the
appeal needs to be dismissed.

8. Advocate Khamborkar, in reply, points out that when possession is lost during
pendency of the suit, the law permits plaintiff to amend his suit from a suit for
injunction to a suit for recovery of possession. He emphasizes that here while civil
suit No. 81 of 1983 was withdrawn, plaintiff was aware that he wasnot in
possession, there is finding in civil suit No. 150 of 1985 that the appellant-defendant
was throughout in possession and hence, civil suit No. 150 of 1985 ought to have
been for possession only. When relief for possession was available in that suit and
was not asked for, he contends that the suit filed later on i.e. present civil suit No. 69
of 1986 is barred because of principle of constructive res judicata and as per Order-
II rule 2 of the Code of Civil Procedure only liberty given was to move tenancy
authorities after holding that the appellant-defendant is a tenant by sufferance. He
further urges that if these findings delivered by Joint Civil Judge on 24/3/1986 is
without jurisdiction, then the finding recorded by the Civil Court in latter suit while
rejecting application for reference or order recorded by this Court in revision is also
without jurisdiction. He, therefore, states that the question as formulated squarely
arises and needs to be answered in favour of the present appellant.

9. After hearing respective Counsel and after considering the facts which have come
on record, it is apparent that civil suit No. 81 of 1983 was withdrawn and therefore,
no finding recorded in it. As such, there is no question of said suit operating as res

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judicata for the purpose of present controversy.

10. Insofar as regular civil suit No. 150 of 1985 is concerned, the plaintiff
approached with a case that he was placed in possession on 15/3/1983 and was
obstructed in June, 1984. With this story, however, he filed a suit for declaration and
permanent injunction. Perusal of paragraph 4 of certified copy of the judgment
delivered in regular civil suit No. 150 of 1985 reveals that the plaintiff there stated
that in June, 1984 he had sown Boru in suit field and thereafter he had grown Kardi
crop in September, 1984. Defendant (present appellant) tried to interfere with his
possession by filing false report against him and he further stated that in 1985 he
had sown crop of Udid and Mung. On 15/6/1985 defendant entered the suit land and
obstructed sowing operation. He took possession of his Tiphan and burnt it down. In
view of these events, he filed the suit for declaration and permanent injunction.
Perusal of judgment dated 24/3/1986 delivered in this suit reveals that though the
trial Court found that plaintiff proved his exclusive title to the suit land, he could not
prove his possession from 15/3/1983 onwards and it further found that defendant
before it i.e. present appellant proved his possession from 1970 onwards. In view of
this finding, the trial Court dismissed the suit. However, it recorded that; .........The
possession of the defendant is in the beginning legal. After 'Kaul patta' was over, his
possession is as a tenant by sufferance. Therefore, he cannot be removed without
following the due procedure of law. Therefore, I feel that plaintiff can take proper
steps before proper authorities to obtain possession of the suit land from the
defendant.... It is this finding on which the appellant is trying to contend that civil
suit No. 69 of 1986 was bad on its inception. It is to be noted that the civil Court in
that suit (R.C.S. No. 150/1985) did not frame any issue about the status or position
of the present appellant.

11. The provisions of Section 100(2) of the Bombay Tenancy Act are very clear and
the question whether appellant is tenant or not is to be decided only by the
authorities under that Act. The Civil Court has no jurisdiction to look into that aspect.
Because of this position, only when civil suit No. 69 of 86 was filed for possession by
the present respondent, the appellant-defendant moved application for framing
issue for seeking reference to revenue authorities as per Section 125 of the Bombay
Tenancy Act. It is the matter on record that said application was rejected by the Civil
Court and that rejection was being challenged by the present appellant by filing civil
revision application No. 473 of 1986 before this Court. This Court on 26/6/1989
dismissed that revision and maintained order dated 12/01/1988 passed by the trial
Court refusing to frame issue. Thus, order passed by this Court, upholding the order
of trial Court refusing to frame issue, has attained finality.

12. It is to be noted that the law on the point is well settled and referencecannot be
made by framing issue merely because it is asked for. There has to be prima facie
case made out for making such reference and if it is satisfied that there are no such
pleadings to constitute any tenancy available on record, Court can refuse to frame
issue or to make reference. It is, therefore, apparent that in order dated 26/6/1989
of this Court governs relationship between the parties and the contention of
Advocate Khamborkar that said order or the order of trial Court dated 12/01/1988 is
without jurisdiction does not hold any water. In any case, order dated 12/01/1988
has been passed by the trial Court on application at Exh. 28 whereby the reference
to tenancy authorities was sought by the present appellant only. It is, therefore, also
clear that the appellant was also aware that findings or observations in judgment
dated 24/3/1986 by trial Court were not conclusive. In view of law on the point, it is

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apparent that on 24/3/1986 the trial Court has made observations extracted above
only to hold that possession of the defendant (present appellant) before it was not
prima facie illegal and it need to be protected till he was legally dispossessed. In
view of that position only the trial Court observed that plaintiff can take proper steps
before proper authorities to obtain possession. I, therefore, find that in civil suit No.
150 of 1985 there is no such finding which would operate as res judicata and bar
institution of regular civil suit No. 69 of 1986.

13. The contention of learned Counsel for the appellant upon provisions of Section
11 and Order-II rule 2 C.P.C., in the present facts, appears to be again misconceived.
In judgment of Hon'ble the Apex Court in State of U.P. vs. Nawab Hussain (supra),
the facts demonstrate that an employee was dismissed after holding departmental
enquiry and the petition came to be filed alleging breach of principles of natural
justice and denial of reasonable opportunity as also alleging mala fides. Said writ
petition was dismissed. After dismissal of said writ petition, the employee filed civil
suit and one of the grounds raised was that he was appointed by the Inspector
General of Police but order of dismissal was passed by authority lower in rank i.e.
Deputy Inspector General of Police and as such dismissal was violative of Article 311
(1) of the Constitution of India. The suit was held to be barred by principles of
constructive res judicata. The facts of case before Hon'ble the Apex Court clearly
reveal that, therefore, in petition as filed, the ground of violation of Article 311 (1)
would have been raised by employee but was not raised and hence it was not
allowed to be raised in independent suit. This is not the position in the present
matter. The suit filed vide regular civil suit No. 150 of 1985 was only for declaration
and injunction and plaintiff stated therein that he was in possession and appellant-
defendant was trying to disturb his possession. Looking to the frame of the said suit,
it is apparent that relief for recovery of possession could not have been asked for in
that suit. Thus, a relief, which was not legally available, and therefore, could not
have been claimed in that suit, can be claimed in the subsequent suit and when it is
s o claimed in the subsequent suit, the alleged failure to ask for it inearlier suit,
cannot be held to constitute constructive res judicata because, in fact, there is no
such failure. It is apparent that such relief for possession itself was not available in
law when 1985 suit was filed because of cause of action pleaded therein. The
contention that evidence on record and facts as settled later on conclusively
established that suit as filed in 1985 could not have been a suit for declaration and
injunction and it ought to have been a suit for recovery of possession again does not
invite application of Section 11 of the Code of Civil Procedure or principles of
constructive res judicata. The said section or principles will apply only if it is shown
that grant or relief with roots in cause of action canvassed was not claimed or was
given up. As I have already held the relief for possession was alien and could not
have been claimed in the framework of regular civil suit No. 150 of 1985 as filed.

14. The contention by placing reliance on the provisions of Order-II rule 2 C.P.C. is
again liable to be rejected in view of same analogy. The relief for possession or
claim for possession could not have been included in regular civil suit No. 150 of
1985. It is, therefore, clear that it cannot be said that suit as filed was not including
whole claim in respect of cause of action as mentioned therein or respondent-
plaintiff then omitted to sue in respect of any portion of his claim. The fact that later
on form of suit or facts stated therein were found to be incorrect cannot be relevant
to hold that provisions of Order-II rule 2 C.P.C. would, therefore, apply.
Dispossession or then title to property to recover possession was never the reason
for this suit. Fact that in 1985, suit for possession on the on the facts of title should
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have been filed instead of suit for injunction cannot attract provisions of Order-II rule
2 and it is law of limitation only which could have barred filing of regular civil suit
No. 69 of 1986.

15. Regular civil suit No. 69 of 1986 has been filed on the basis of title for recovery
of possession and as there was no such suit filed earlier, I find that neither principles
of constructive res judicata nor provisions of Order-II rule 2 of Civil Procedure Code
bar the said suit. I, therefore, find that question as framed needs to be answered in
negative, i.e. against the present appellant. In the circumstance, there is no merit in
this second appeal, the same is accordingly dismissed. However, in the
circumstances of the case, there shall be no order as to costs.

16. Rule discharged.

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