2010(4) ALL MR 772
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(PANAJI BENCH)

N.A. BRITTO, J.

Shri. Satchitanand Damodhar Naik & Ors.Vs.Shri. Laxman A. Bordekar & Ors.

Second Appeal No.100 of 2009

22nd March, 2010

Petitioner Counsel: Mr. S. G. DESSAI,Mr. SHIVAN DESSAI

Civil P.C. (1908), S.11 - Res judicata - Issues involved in present suit directly and substantially in issue in the former suit between the similar parties - Therefore, principle of constructive res judicata was applicable and, as such, the suit was liable to be dismissed. AIR 2005 S.C. 3165 - Ref. to. (Para 9)

Cases Cited:
Ishwar Dutt Vs. Land Acquisition Collector, AIR 2005 S.C. 3165 [Para 10]


JUDGMENT

JUDGMENT :- This is plaintiffs' Second Appeal arising from Regular Civil Suit No.66/2004.

2. Heard Shri. S. G. Dessai, the learned Senior Counsel on behalf of the appellants - plaintiffs. The dispute between the plaintiffs and the defendants is regarding a house having house no.63 (old) situated in Survey No.3/13 of Bordem Village.

3. There is no dispute that the plaintiffs are the owners of property surveyed under Nos.3/12 and 3/14. Claiming that the said house was an outhouse of the plaintiffs in which Malinibai Bordekar was temporarily permitted to reside, she being the maid servant of the plaintiffs' parents and the plaintiffs and was residing with her brother Laximan Bordekar (Defendant no.1 ?) and the suit property under Survey No.3/13 was part of the plaintiffs' property purchased by the father of the plaintiff no.1 in an auction held on 23/02/1942 and later having been allotted to the father of the plaintiffs by a deed of division dated 3/12/1951, the plaintiffs filed the suit for the eviction of the defendants from the suit house bearing nos.63(old) and 2/370 (new) of village Bordem and the suit property surveyed under no.3/13.

4. The defendants resisted the suit contending that the suit property surveyed under no.3/13 was purchased by Smt. Audu Bavina, deceased mother of defendant no.1 from one late Hory Pundolica Pol in terms of the sale deed dated 12/09/1933 with the said house existing therein and the said property is a part of the entire property known as "Gorbatulem" commonly known as "Kharat Bharad" having Land Registration No.873 of book B-22 (new). The defendants also pleaded that the deceased parents of plaintiff no.1, namely, Damodar Naik and his wife Jaivanti D. Naik had filed a civil summary suit bearing no.315/62 in the Court of the Civil Judge Senior Division, Bicholim against Smt. Malinibai Bordekar, the deceased sister of defendant no.1, and defendants no.1 & 2 for their eviction from the said house, on the ground that the house belonged to them, but the Hon'ble Civil Judge Senior Division was pleased to dismiss the suit with costs, on merits.

5. The learned trial Court by judgment/decree dated 21/01/2009, after assessing the evidence produced on behalf of the parties, came to the conclusion that the same did not support the case of the plaintiffs to the suit house. The learned trial Court took note of the admission of the plaintiffs that the defendants were in possession of the suit house at least from the year 1960, which destroyed the case of the plaintiffs that the suit house was an outhouse of the plaintiffs and that Malinibai Bordekar was allowed to occupy it temporarily and that the documentary evidence led by the plaintiffs showed the existence of the house in the property prior to its auction. The learned trial Court also noted that the names of Malinibai Bordekar and Laximan Bordekar were recorded as co-occupants of Survey No.3/13 and after considering the other evidence led by both the parties came to the conclusion that the plaintiffs failed to prove that they are the owners in possession of the suit property under Survey No.3/13 through their ancestors. The learned trial Court also concluded that the evidence produced by the plaintiffs did not support the case of the plaintiffs to the suit house. On the contrary, the learned trial Court came to the conclusion that the defendants had established that the suit property was a distinct property and it was purchased by the deceased mother of defendant no.1 from Hory Pundolica Pol along with the existing house therein in the year 1933. The learned trial Court held that the testimony of defendant no.1 was not shaken.

6. The learned first appellate Court also concluded that the plaintiffs had failed to make out a case for eviction of the defendants from the suit property and the suit house, and concurred with the findings given by the learned Civil Judge Senior Division. In other words, both the Courts below have given a clear finding that the plaintiffs are not the owners of the suit house and the suit property, based on documentary as well as oral evidence produced by them and, as such, no interference can be called for, with the said findings, in a second appeal.

7. The summary civil suit bearing no.315/62 was filed by the late parents of plaintiff no.1, namely Damodar Naik and Jaivanti against Malinibai Bordekar and Laximan Bordekar (Defendant no.1 ?) and his wife. The said suit was filed with the allegation that the property was purchased in public auction on 23/02/1942 and a division of it took place on 3/12/1951. In that division one parcel/gleba admeasuring 1303 square meters was allotted to Pundolica Gopal Pol which was enclosed by a compound wall on all sides and in which there was a residential house of the defendants, which was constructed by their mother by name Audu Krisne Bavina, with the consent and tolerance of former owners and as a mundkar. The predecessors of the plaintiffs had prayed in the said suit that the sale deed dated 12/09/1933 be declared as null and void and the said parcel/gleba be declared as exclusive property in possession of the plaintiffs and also for an order of eviction.

8. The said suit was also resisted by the defendants and ultimately by judgment dated 30/09/1967, the said suit came to be dismissed by the learned Civil Judge, Senior Division at Bicholim and that is after the extension of the CPC to this State on 15/06/1966.

9. The learned trial Court on issue no.4 i.e. whether the suit was hit by the principle of res judicata, held that the documents relied by the plaintiffs in this suit and those relied in the earlier suit are same. The learned trial Court further held that the Civil Court had discussed in detail about the title dispute between the plaintiffs and the defendants in respect of the suit property in the said judgment. The issue involved in that suit as well as in the present suit did not defer in principle and, as such, the provisions of Section 11 of CPC were directly applicable to the present case. The learned trial Court further held that the plaintiffs in that suit were admittedly the ancestors of the plaintiffs, whereas, defendants nos.1 and 2 were already parties to their suit. The present plaintiffs were admittedly claiming right to the suit property and the suit house through their ancestors. The issues involved in the present suit were directly and substantially in issue in the former suit between the similar parties and therefore the principle of constructive res judicata was applicable and, as such, the suit was liable to be dismissed.

10. The learned first appellate Court also concluded that the subject matter of the first suit as well as this suit is one and the same, and that there was no dispute that the summary suit was filed by the deceased parents of the plaintiffs against defendants no.1 & 2 and the said Malinibai Bordekar and, therefore, as observed by the learned trial Court, the issues involved in the present suit were directly and substantially between the same parties and thus the principle of constructive res judicata was applicable. The learned first appellate Court also placed reliance on the case of Ishwar Dutt Vs. Land Acquisition Collector and another (AIR 2005 S.C. 3165) to show that when proceedings based on a particular case of auction had attained finality, the principle of res judicata would fully apply. The learned first appellate Court therefore held that the present suit was hit by principle of res judicata.

11. Shri. Dessai, the learned Senior Counsel appearing on behalf of the plaintiffs has made twofold submissions. Learned Senior Counsel contends that the Court of Civil Judge, Senior Division, Bicholim, which decided summary civil suit no.315/62, having decided the suit prior to coming into force of CPC, the principle of res judicata would not apply. Next, learned Senior Counsel contends that the judgment in the first suit was rendered by the Court without jurisdiction. In my view, both the submissions made by the learned Senior Counsel are wholly mis-placed and cannot be accepted.

12. The defendants in the said first suit might have raised the issue of want of jurisdiction but the same was not upheld and on the contrary the suit was decided on merits and against the plaintiffs and the plaintiffs nor their predecessors in title had filed any appeal against the same.

13. Learned Senior Counsel may not be right in contending that the first suit was decided prior to the extension of CPC to this State. The first suit was decided after CPC was extended to this State. That apart, all that Section 11 requires is that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. In the first suit the plaintiffs through their predecessors had failed to obtain an eviction order against the defendants or that their sale deed was null and void. The second suit was clearly hit by the principle of res judicata.

14. Both the Courts below have given concurrent findings that the suit house and the suit property belonged to the defendants, conversely that it did not belong to the plaintiffs. These are concurrent findings of fact. In my view, this Second Appeal is not at all maintainable and, accordingly, the same is hereby dismissed in limine.

Second Appeal dismissed.