Writ Petition No.7192 of 2002

18th February, 2003

Petitioner Counsel: Shri. V.A. GANGAL
Respondent Counsel: Shri. S.S. KULKARNI

Cases Cited:
Taloda Municipality Vs. Charity Commissioner, Bombay, AIR 1968 SC 418 [Para 6]
Official Assignee Vs. Madholal Sindhu, AIR (34) 1947 Bombay 217 [Para 7]
Kumar Pashupati Nath Malia Vs. Sri Sankari Prosad Singh Deo, AIR 1957 CALCUTTA 128 [Para 8]
Mangu Ramdas Vs. M. Venkataratnam, AIR 1973 Andhra Pradesh 256 [Para 9]

JUDGMENT

JUDGMENT:- Heard learned Advocate for the petitioners.

Rule. By consent, the rule is made returnable forthwith.

2. The petitioners challenge the order passed by the lower appellate court on 29.7.2002 in Misc. Civil Appeal No.15/2002 whereby the lower appellate court has dismissed the appeal while directing the court below to dispose of the main suit as early as possible. The said appeal was filed by the petitioners against the order of the trial court dated 11.3.2002 whereby the petitioners were restrained from transferring the suit land or any portion thereof to any third person or to create any third party right on the suit land till disposal of the suit.

3. Upon hearing the learned Advocates and on perusal of the record the only point which arises for consideration in the matter is whether during the pendency and disposal of the suit, the courts below could have restrained the petitioners from alienating the suit land in view of materials placed on record disclosing disposal of property to the extent of 1/3rd share by the father of the plaintiffs during his life time, while there being no dispute between the parties that the share of the father of the plaintiffs in the joint family property was to the extent of 1/3rd ?

4. Undisputed facts are that the plaintiffs are illigitimate sons of late Maruti through whom they claimed right to the joint family property. It is also undisputed fact that during the life time of Maruti, he had disposed of about 5 hectors of land out of the joint family property and total area of land of joint family property was about 15 hectors. It is the case of the petitioners that there was partition in the year 1964 which has been seriously disputed by the respondents/plaintiffs. However, the fact remains that out of the total area of the joint family property, Maruti was entitled only to the extent of 1/3rd share and during his life time had already disposed of an area of about 5 hectors of land out of the joint family property. In the background of these facts, it is the contention of the petitioners that even assuming but without admitting that there was no partition of the joint family property, Maruti having disposed of the area which could have been allotted to his share and the respondents/plaintiffs being illegitimate son could not have claimed any right or interest during the life time of Maruti and their interest having accrued in their favour subsequent to the death of Maruti and simultaneously the petitioners having acquired the property for lawful consideration there was no prima facie case made out to restrain the petitioners from alienating the suit property. It is not in dispute that the suit property which is acquired by the petitioners was, once upon a time, forming part of joint family property and late Maruti had 1/3rd share in the said joint family property and was purchased by the petitioners from Maruti. The argument on behalf of the petitioners is sought to be countered by the learned Advocate for the respondents by placing reliance upon the decision in the earlier suit between the parties viz. RCS No.174/90 and the Judgment of the appellate court therein in Civil Appeal No.77/93. It is the contention of the learned Advocate for the respondents that the said suit was filed for partition by the plaintiffs herein against the petitioners and their father who was alive at the relevant time. The suit however, was dismissed on the ground that the respondents/plaintiffs being illegitimate sons were not entitled to claim any right or interest in the coparcenery property during the life time of the father. In the appeal being Civil Appeal No.77/93 the said finding was confirmed. However, the appellate court has also held that there was no partition of the property as was sought to be claimed by the defendants in the said suit who are the petitioners herein.

5. There is no doubt that the Judgment in the said Appeal 77/93 was not subjected to Second Appeal before this court. However, it is also a matter of record that the decision in the said appeal was in favour of the respondents in the said appeal who are the petitioners herein, and it was dismissed on the ground that the respondents/plaintiffs herein had no right or interest in the suit property at the relevant time as they were illegitimate sons and their father was alive and the property is a copersenary property. Being so, there was no occasion for the petitioners herein who were the respondents in the said appeal, to file any second appeal against the said Judgment in Civil Appeal No.77/93. Admittedly, the issue was also not sought to be agitated by the respondents/plaintiffs herein in the Second appeal against the said Judgment and there was no occasion for the petitioners to file any cross-objection in relation to the findings by the lower appellate court in respect of absence of evidence regarding partition of property. The contention of the learned Advocate for the respondent however, is that the finding in relation to absence of division of property has attained finality and the petitioner is not entitled to raise the said issue in the case in hand. I am afraid that the submission is not well founded. Once it was clear that the appellants in Civil Appeal No.77/93 had no locus standi to claim any right or interest in the property which was sought to be partitioned in Civil Suit No.174/90 wherein the said Civil appeal arose, there being a clear finding to that effect by the trial court and confirmed by the lower appellate court, there was neither any occasion nor jurisdiction for the appellate court to address itself to the other issues including the issue regarding the factum of partition. In fact, in the absence of the interest in favour of the respondents/plaintiffs in the suit property, the issue regarding the partition in 1974 could not have been raised and therefore, could not have been considered by the lower appellate court. Discussion or observation on an issue which does not arise for consideration in a proceedings cannot give rise to the principle of resjudicata in a subsequent proceedings wherein such issue arises for consideration. Once it is clear that the respondents/plaintiffs had no interest of what-so-ever nature in the suit property at the time Civil Appeal No.73/99 was decided, findings arrived at on other un-connected and irrelevant issues cannot be said to result in denial of right to the parties to raise such issues in appropriate proceedings before the court and to invite adjudication thereon and therefore, question of applicability of resjudicata does not arise.

6. In fact the law on the above point is very clear. In the Taloda Municipality Vs. Charity Commissioner, Bombay reported in AIR 1968 Supreme Court 418, it was held by the Apex Court that :-

"It was then urged by counsel for the Municipality that by the decree passed in the suit filed against Baba Haridas, the right of the members of the Johari community to the property in dispute was negatived and the same right cannot, because of the rule of res judicata, be re-agitated in these proceedings. In that argument, in our judgment, there is no substance. The only dispute in suit No.510 of 1936 of the Court of the Second Class Sub-Judge, Nandurbar, was about the right of the Municipality to call upon Baba Haridas to vacate and deliver possession of the property which was in his occupation. It is true that the defendant Baba Haridas had contended that the property was the property reserved for "Sadhus, saints and religious mendicants" and he as a Sadhu was entitled to reside therein. But Baba Haridas was not sued in a representative capacity on behalf of the beneficiaries of the trust created in 1883, he was sued as a trespasser. The judgment of the Civil Court does not operate to prevent the Assistant Charity Commissioner from determining in an appropriate proceeding whether the property was the property of a public trust of a religious or charitable nature."

7. In Official Assignee Vs. Madholal Sindhu reported in AIR (34) 1947 Bombay 217, it was held by Justice Chagla that :-

"Now the principle is perfectly clear and it has been affirmed by several decisions of our Court and of other Courts that a matter can never be said to be directly and substantially in issue which calls for a decision only collaterally or incidentally; and it cannot be said to be heard and finally decided if the finding on any particular issue is not necessary for the decision of the suit. In 43 Bom.568 Pratt, J. observed:

"The question whether an issue was substantially raised and decided is a matter of fact to be decided upon the circumstances of each particular case. And although no rule of general application can be laid down, this proposition it well-established that when a decree of the Court is not based upon a finding but was made in spite of it, that finding cannot be resjudicata."

In 44 Bom. 321 Sir Norman Macleod C.J. and Heaton J. held that although the issue was heard and decided, it could not be said to be finally decided if it were not necessary for the decision which the Court gave. The same principle was enunciated in an earlier decision of our Court : 18 Bom. 597. In my opinion, the issue with regard to the tripartite agreement was not substantially raised and decided in Suit No.1001 of 1941, because the decision of the Court was not based upon the finding on that issue but, on the contrary, it came to its decision in spite of the finding on that issue, and also for the purposes of the decision to which the Court came it was not necessary to decide that issue."

(Emphasis supplied)

8. In Kumar Pashupati Nath Malia and Another Vs. Sri Sankari Prosad Singh Deo and Others reported in AIR 1957 CALCUTTA 128, in a suit by A for declaration of his title to a lease-hold property against B, P and S it was found that S was prior transferee from B and at the time of A's lease from B, the latter had no title to the property and it was not necessary to decide the dispute of title between B and P or between S and P and the dismissal of the suit was not based upon the finding on the question of title but was made inspite of it and P who claimed to be the owner of the property had no occasion to appeal from the adverse decision against him on the question of title, and hence it was held that in a suit by P against S in which the question of title arose, that the finding in the previous suit did not operate as res judicata."

9. In Mangu Ramdas Vs. M. Venkataratnam reported in AIR 1973 Andhra Pradesh 256, it was held that though it is true that when parties are arrayed on the same side such as co-defendants or co-respondents, an adjudication between them may be res judicata but that is only in certain circumstances, and one of the conditions to be satisfied is that it must be necessary to decide the conflict in order to give the relief which the plaintiff or the petitioner claims operate as res judicata. But it will not so operate if there was no necessity to decide such conflict for granting relief to the plaintiff."

(Emphasis supplied)

10. The contentions of the learned Advocate for the respondents based on the finding of the lower appellate court in Civil Appeal No.77/93 are to be rejected.

11. As already seen above, once it is clear that Maruti during his life time had already disposed of 1/3rd share in the joint family property and the property which is in possession of the petitioners being out of the said 1/3rd share and the right thereto having been acquired by the petitioners for valuable consideration, merely because there is no evidence of partition of the property that by itself cannot enure to the benefit of the respondents/plaintiffs to obtain equitable relief against the petitioners in relation to the suit land. The contention as to whether the sale was for legal necessity or not is yet to be decided and therefore, to avoid multiplicity of proceedings such a relief is necessary, is also devoid of substance. Once it is clear that the suit property was acquired for valuable consideration, that the same is out of the 1/3rd share which Maruti could have claimed in the entire joint family property, and that the respondents/plaintiffs had no right to claim any interest in the joint family property during the life time of Maruti, it cannot be said that refusal of injunctive relief would have resulted in irreperable loss to the respondents/plaintiffs. In fact, the above referred facts apparently disclose absence of prima facie case for the grant of any equitable relief in favour of plaintiffs.

12. Perusal of the Judgments of both the courts discloses that both the courts merely because there is no evidence regarding the partition of the joint family property in the year 1964 have proceeded to grant injunctive relief. However, the points which were sought to be raised to the effect that Maruti had disposed off an area to the extent of his 1/3rd share of the property and the suit land formed part of such share disposed of by Maruti and the respondents/plaintiffs had no right to claim any interest in the joint property during the life time of Maruti, have not been taken into consideration by the courts below while imposing unwarranted restrictions on the enjoyment of the property lawfully owned by the petitioners. Being so, the courts below while granting temporary injunction have acted illegally and in breach of procedure and the same has resulted in mis-carriage of justice warranting interference by this court in writ jurisdiction.

13. For the reasons stated above, the petition succeeds. The impugned order as far as it imposes restrictions upon the petitioners from transferring or alienating the suit land or any portion thereof or creating any encumberance thereof is hereby quashed and set aside. It is made clear that this court has not interferred with the direction issued by the lower appellate court for expeditious disposal of the suit. Rule is made absolute accordingly with no order as to costs. Certified copy expedited.

At this stage, on oral request by learned Advocate for the respondents the impugned order is restrained to continue for a period of six weeks from today.

Parties to act on ordinary copy of this order duly authenticated by the P.S./Sheristedar of this court as true copy.

Petition allowed.