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Ramsarup Dass And Others v. Pyare Das And Another
Factual and Procedural Background
The plaintiff filed a title suit seeking declaration of title and recovery of possession in respect of 1 Katha of land described in Schedule 2 of the plaint, being part of Khata No. 310 in village Dumri, Darbhanga. The plaintiff's case was that Sohan Das (recorded tenant) sold that land by registered sale dated 9-10-1924 to Ramsaran Das, and Ramsaran's heir (defendant second party) subsequently sold the suit land to the plaintiff by registered sale deed dated 27-8-1960 (Ext. 2(d)). The plaintiff alleged forcible dispossession by the first defendant on 15th Chait, 1378 Fasli and instituted the present suit.
The defendants first party denied the plaintiff's title and possession, asserting that the land was recorded in the names of Tokan and Bunni, that Sohan Das was a mortgagee whose mortgage had been redeemed by Tokan and Bunni, and that Sohan Das therefore lacked authority to sell in 1924. They also claimed continuous possession/adverse possession through Tokan and Bunni and their descendants, and that defendant No.1 had taken settlement of four khatas (including the Schedule 2 land) in 1930 and had been in possession for more than twelve years.
The trial Court dismissed the suit, finding the plaintiff's sale deed invalid and that the plaintiff had not been in possession. On appeal, the plaintiff sought to admit two additional sale deeds under Order 41, Rule 27 CPC (one by the recorded tenants in favour of Sohan Das and the other by Sohan Das in favour of Ramsaran Das). The lower appellate Court allowed reception of these documents as additional evidence by order dated 19-8-1968 and remitted the record to the trial Court for evidence. The defendants first party challenged that order in Civil Revision No. 1025 of 1968 to this Court, which dismissed the revision on 26-9-1969 and upheld the lower appellate Court's order. After the documents were taken in evidence, the lower appellate Court concluded the recorded tenants had sold to Sohan Das and that the plaintiff had valid title under Ext. 2(d); it disbelieved the defendants' adverse possession plea, allowed the appeal, and decreed the suit.
Legal Issues Presented
- Whether the lower appellate Court's order dated 19-8-1968 allowing the reception of additional documentary evidence (two sale deeds) was illegal and could be challenged in this second appeal.
- Whether the earlier decision of this Court in Civil Revision No. 1025 of 1968 (which dismissed the defendants' revision challenging the 19-8-1968 order) operates as res judicata and thereby precludes the appellants from re-agitating the same objection in the present second appeal.
Arguments of the Parties
Plaintiff's Case (as set out in the plaint and at trial)
- Sohan Das was the recorded tenant who sold the suit land by registered sale dated 9-10-1924 to Ramsaran Das.
- The plaintiff purchased the suit land from the heir of Ramsaran Das by registered sale deed dated 27-8-1960 (Ext. 2(d)), thereby acquiring title.
- The plaintiff alleged forcible dispossession by defendants first party and claimed recovery of possession and declaration of title.
Defendants First Party / Appellants' Plea and Arguments
- Substantive plea at trial: The land was recorded in the names of Tokan and Bunni; Sohan Das was a mortgagee whose mortgage had been redeemed by Tokan and Bunni, so Sohan Das had no right to execute the 1924 sale to Ramsaran Das; consequently the plaintiff did not acquire title from Ramsaran's heir.
- Possession plea at trial: Tokan and Bunni (and their descendants) remained in possession; defendant No.1 had taken settlement in 1930, constructed a house, planted trees, and was in possession for more than twelve years.
- Appellate argument (as advanced before this Court): The order dated 19-8-1968 permitting additional evidence was illegal, and the decision founded essentially on that additional evidence was vitiated. Although this Court had earlier dismissed Civil Revision No. 1025 of 1968 (upholding the 19-8-1968 order), counsel for the appellants contended that the revisional jurisdiction of the High Court is extraordinary and thus a decision in revision would not amount to res judicata so as to bar raising the same objection in a regular appeal.
- Counsel for the appellants (Mr. Prem Lall) conceded he could not challenge the lower courts' findings of fact on title or possession in this second appeal, but sought to challenge the legality of the order admitting additional evidence and the res judicata effect of the earlier revision decision.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Satyadhvan Ghosal v. Smt. Deorajin Debi, AIR 1960 SC 941 | Scope of Section 105(2) CPC regarding orders of remand: an order of remand is interlocutory and, if appeal did not lie from that order, its correctness could be challenged in an appeal from the final decision; addresses when remand orders can be challenged. | The Court held the facts of that decision were different and that it did not assist the appellants here; however, it noted that the Supreme Court in that case also recognized that the principle of res judicata can apply between stages of the same litigation. |
| Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1920 SC 1 | Revisional jurisdiction of the High Court is essentially part of its broader appellate jurisdiction; Section 115 CPC circumscribes but does not exclude appellate character of revisional power. | The Court relied on this to emphasize that revisional orders are an exercise of the High Court's superior appellate jurisdiction and supported the view that when a party has invoked revisional remedy and it has been exhausted, it is not proper to relitigate the same matter in another mode of proceedings. |
| (Referred to as) the Bombay case, (1969) 2 SCC 74 : AIR 1970 SC 1 | Authority concerning the limits of revisional/writ remedies and the relation between revisional and other jurisdictions of the High Court. | The Court observed that in that case the context made the position "rather better" for the petitioner, but stated that here (where both revisional and appellate jurisdictions arise under the CPC and the appeal is before a Single Judge) the principles set by the Supreme Court apply with greater force to bar re-agitation. |
| Balkrishan Dass v. Parmeshar Dass, AIR 1963 Punj 187 | Provincial High Court decision taking a view consistent with the binding Supreme Court authorities on the preclusive effect of prior revisional decisions. | The Court expressed respectful agreement with the Punjab High Court's view as supportive of the Court's conclusion that the earlier revisional decision is binding. |
| Shyamacharan Raghubar Prasad v. Sheojee Bhai Jairam Chattri, AIR 1964 Madh Pra 288 | Full Bench of the Madhya Pradesh High Court adopting a similar approach regarding finality and preventing re-agitation of matters after one remedy before the High Court has been chosen/exhausted. | The Court noted the Full Bench's view with approval and treated it as further support for holding that the earlier revisional decision operated to bar the appellants' present contention. |
| Civil Revision No. 1025 of 1968 (decision of this Court dismissing revision dated 26-9-1969) | Earlier decision by this Court upholding lower appellate Court's 19-8-1968 order to admit additional evidence. | The Court held this earlier decision was binding on the appellants and constituted a bar (res judicata in the context of stages of the same litigation) to re-agitating the legality of the 19-8-1968 order in the present second appeal; this foreclosed the appellants' central contention. |
Court's Reasoning and Analysis
The Court analyzed the submissions primarily on whether the appellants could challenge, in this second appeal, the legality of the lower appellate Court's order dated 19-8-1968 admitting two sale deeds as additional evidence, notwithstanding that the appellants had earlier invoked and exhausted revisional remedy in Civil Revision No. 1025 of 1968 before this Court which dismissed that revision.
The Court acknowledged the general principle in Section 105 CPC that errors in interlocutory orders affecting the decision may be set out as grounds in the memorandum of appeal and conceded that, had the appellants not earlier approached this Court in revision, they could have raised the objection in this second appeal. However, the Court observed that the appellants had in fact availed themselves of an earlier remedy — a revisional petition which was heard and dismissed by this Court — and therefore Section 105 principles provided no advantage to them now.
The appellants' contention that revisional jurisdiction is extraordinary and therefore the decision in revision should not operate as res judicata in a subsequent regular appeal was examined against binding Supreme Court authorities. The Court reviewed Satyadhvan Ghosal (noting that its facts were different and that it dealt with the special provision in Section 105(2) CPC about remand orders), but emphasized that Satyadhvan also affirmed that res judicata principles can apply between stages of the same litigation so that a court which has earlier decided a matter will not allow parties to re-agitate it at a subsequent stage.
The Court relied strongly on Shankar Ramchandra Abhyankar v. Bapat to explain that revisional jurisdiction of the High Court is essentially an aspect of its appellate jurisdiction and that invoking revisional remedy and having it decided is, in principle, choosing a mode of invoking the High Court's superior jurisdiction. The Court cited the Supreme Court's view that once one mode of invoking the High Court's jurisdiction has been chosen and exhausted, it is not proper to seek relief afresh in another mode in respect of the same order, as this would invite abuse of process and undermine finality.
The Court found the cited decisions of the Punjab and Madhya Pradesh High Courts (Balkrishan Dass and Shyamacharan Raghubar Prasad) to be in conformity with the Supreme Court authorities and stated its respectful agreement with them. On this basis the Court concluded that the earlier decision in Civil Revision No. 1025 of 1968 must be treated as binding and that the appellants cannot reopen the same objection in the present second appeal.
Given that the sole substantial point raised by the appellants (the illegality of the 19-8-1968 order and the contention that the earlier revision decision would not be res judicata) was rejected on legal grounds of finality and preclusion, the Court did not find it necessary to consider other authorities and dismissed the appeal.
Holding and Implications
Holding: The appeal is dismissed with costs.
Implications:
- Direct effect: The appellants (defendants first party) have failed in their second appeal; the lower appellate Court's allowance of additional evidence and its subsequent decision in favour of the plaintiff (allowing the appeal and decreeing the suit) stand as between the parties.
- Preclusive consequence: The Court held that the earlier dismissal of Civil Revision No. 1025 of 1968 by this Court operates to preclude re-agitating the same objection in the present appeal; the revisional decision was treated as binding in the stages of the same litigation.
- Broader precedent: The Court applied established Supreme Court authority on the relationship between revisional and appellate remedies and finality; the opinion does not state that it is laying down a new legal principle but rather follows and applies existing precedents. No novel legal rule was asserted beyond application of binding authorities to the facts.
1. This second appeal is by the defendants first party. The plaintiff instituted a title suit for declaration of title and recovery of possession with respect to 1 Katha of land appertaining to plot Nos. 6, 6/2040 and 6/2041, under Khata No. 310, situate in village Dumri, Police Station Mohiuddin Nagar, in the bid district of Darbhanga fully described in Schedule 2 of the plaint. The plaintiff's case was that one Sohan Das was the recorded tenant of Khata No. 310 of village Dumri. He sold one Katha appertaining to plot Nos. 6, 6/2040 and 6/2041 by a registered deed of sale dated 9-10-1924 to one Ramsaran Das. Subsequently, the heir of Ramsaran Das, who is defendant second Party, sold the suit land to the plaintiff by a registered sale deed dated 27-8-1960 (Ext. 2.d). It is alleged that defendants first party forcibly dispossessed the plaintiff from the suit land on the 15th Chait, 1378 Fasli. The present suit was, therefore, instituted.
2. The plea of the defendants 1st party, who contested the suit, was that the land in question was recorded in the names of Tokan and Bunni and Sohan Das was a mortgagee. The mortgage was redeemed by the recorded tenants Tokan and Bunni and, therefore, Sohan Das has no right to execute the sale deed on 9-10-1924 in favour of Ramsaran Das, and, as such, the plaintiff did not acquire any title by virtue of his purchase from the heir of Ramsaran Das. The story of possession and dispossession set up by the plaintiff was also denied and it was asserted that the aforesaid recorded tenants Tokan and Bunni and thereafter their descendants were in possession of the land of Khata No. 310 throughout. In 1930, four Khatas of land under Khata No. 310. Including the Schedule 2 land, was taken settlement of by defendant No. 1 froa the sons of Tokan and Bunni namely. Isser and Jhari at an annual rental of Rs. 4/- and he constructed a house upon a portion of the same and planted several trees and was coming on in possession of the suit land for more than twelve years by virtue of the said settlement.
3. The trial Court dismissed the suit with the findings that the sale deed executed in favour of the plaintiff was not legal, the plaintiff did not acquire any title thereunder and that the plaintiff never came in possession of the suit land. An appeal was filed by the plaintiff, wherein he made an application under Order 41. Rule 27 of the Code of Civil Procedure for admitting two sale deeds by way of additional evidence: one executed by the recorded tenants in favour of Sohan Das and the other executed by Sohan Das in favour of Ramsaran Das, in order to prove the title of the plaintiff to the suit land. The lower appellate Court by an order dated 19-8-1968 allowed the prayer for taking the aforesaid two sale deeds as additional evidence and directed the trial Court to take such documents in evidence after giving reasonable opportunity to the defendants respondents to adduce evidence in rebuttal, if any, and thereafter send back the record to it. Against the aforesaid order dated 19-8-1968, the defendants first party filed Civil Revision No. 1025 of 1968 before this Court and B.D Singh. J., on a consideration of the various authorities cited before him dismissed the said revision on the 26th September, 1969, holding that “the order passed by the lower appellate Court directing to take additional evidence will come under phrase ‘any other substantial cause’ In sub-clause (c) of clause (1) of Rule 27 of Order 41 of the Code, and as such the order of the learned Subordinate Judge has got to be upheld”. The trial Court, accordingly, took the two sale deeds into additional evidence and sent back the record to the lower appellate Court. On the basis of these two sale deeds, the lower appellate Court came to the conclusion that the recorded tenants Tokhan and Bunni had sold away the land of khata No. 310 to Sohan Das and, therefore, the plaintiff had acquired a valid title under his sale deed Exhibit 2(d). It also disbelieved the case of the defendants first party of acquiring title to the suit land by adverse possession and accepted the case of possession and dispossession set up by the plaintiff. The appeal was, accordingly, allowed and the suit was decreed.
4. The findings recorded by the lower appellate Court, either on the question of title or on the question of possession, are based upon a consideration of a large number of materials, documentary and oral. Mr. Prem Lall, learned counsel for the appellants, fairly conceded that it was not possible for him to challenge these findings of fact in this second appeal. Learned counsel, however, submitted that the order dated 19-8-1968 passed by the lower appellate Court allowing the taking of additional evidence was illegal, and the decision, based essentially on the materials brought by way of additional evidence, was vitiated. Counsel submitted that in spite of the decision of this Court in the aforesaid Civil Revision No. 1025 of 1968, upholding the order dated 19-8-1968 passed by the lower appellate Court, it was open for him to challenge the validity of the aforesaid order and the earlier decision in the Civil Revision would not be res judicata.
5. The question raised by learned counsel is an interesting question of law and I propose to consider the same in detail. Learned counsel relied upon the provision of Section 105 of the CPC where it has been provided that where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal. This proposition of law cannot be disputed. In my opinion, if the appellants would not have come to this Court against the order of the lower appellate Court dated 19-8-1968, allowing additional evidence to be taken, it was open to them to challenge the correctness of the said order in this second appeal. The principles of Section 105 of the CPC as such will be of no advantage to the appellants in the present case in view of their having availed a remedy in this Court earlier in Civil Revision No. 1025 of 1968.
6. Learned counsel, however, submitted that the revisional jurisdiction of the High Court was an extraordinary jurisdiction and, therefore, any decision given by this Court in exercise of the revisional powers would not amount to res judicata for entertaining the same objection or ground in a regular appeal. It is difficult to accept this contention. Learned counsel referred to the decision of the Supreme Court in Satyadhvan Ghosal v. Smt. Deorajin Debi, AIR 1960 SC 941. In that case, however, the facts were entirely different. The Supreme Court was considering the scope of Section 105(2) of the CPC and it was held that a special provision was made as regards orders of remand and that was to the effect that if an appeal law and still the appeal was not taken, the correctness of the order of remand could not later be challenged in an appeal from the final decision. If however an appeal did not lie from the order of remand, the correctness thereof could be challenged by an appeal from the final decision. In that case, an order of remand was made by the Calcutta High Court in exercise of its revisional power under Section 115 of the CPC. It was observed by the Supreme Court after referring to the various decisions of the Privy Council that the order of remand was an interlocutory order and did not purport to dispose of the case, and a party was not bound to appeal against every interlocutory order which was a step in the procedure that leads up to a final decision, and as such the correctness of the same could be challenged in an appeal from the final order. It was specifically held in that case that the order of the Calcutta High Court was not appealable to the Supreme Court and, therefore, the bar under sub-section (2) of Section 105 of the Code, of Civil Procedure was not attracted. The Supreme Court, accordingly, set aside the order of the Calcutta High Court. In my opinion, the decision of the Supreme Court in the above case is of no assistance to the appellants. In this very decision, the Supreme Court has laid the foundation for applying the principles of res judicata. In paragraph 8 of the report, their Lordships have clearly observed that the principle of res judicata applies also as between two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court, having at an earlier stage decided a matter in one way, will not allow the Parties to re-agitate the matter again at a subsequent stage of the same proceedings.
7. In the case of Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1920 SC 1 it has been clearly laid down by the Supreme Court that “when the aid of the High Court is invoked on the revisional side, it is done because it is a superior Court and it can Interfere for the purpose of rectifying the error of the Court below. Section 115 of the CPC circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised. In a wider, and larger sense”. In that case in a dispute under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, one of the parties had preferred a petition for revision under Section 115 of the CPC before the Bombay High Court and a learned Single Judge not being satisfied that the appellate Court had acted illegally or with material irregularity in exercise of its jurisdiction had dismissed the petition. Thereupon a writ application under Articles 226 and 227 of the Constitution challenging the same order was filed in the Bombay High Court. A Division Bench of the Bombay High Court Interfered in the exercise of the writ jurisdiction and held that in spite of the dismissal of the petition for revision by the learned Single Judge, the power of the writ Court in a proper case was not ousted. The matter went to the Supreme Court and their Lordships set aside the order of the Division Bench of the Bombay High Court and took the view that a writ application should not have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the CPC. The Supreme Court observed “If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions”.
8. In view of the principles laid down in the aforesaid decisions of the Supreme Court, I am of the opinion that the contention raised on behalf of the appellants must be rejected. In the Bombay case (1969) 2 SCC 74 : AIR 1970 SC 1, the position was rather better, for the petitioner namely, the revisional order had been passed by a learned Single Judge, whereas the writ application was heard and disposed of by a Division Bench and the writ jurisdiction was not a jurisdiction under the Code of Civil Procedure. In the instant case, however, the revisional jurisdiction and the appellate jurisdiction are the creatures of the Code of Civil Procedure and the appeal is also before a Single Judge and the principles laid down by the decisions of the Supreme Court will apply with greater force.
9. In view of the aforesaid decisions of the Supreme Court, it is not necessary for me to advert to any other authority. But suffice it to state that a similar view has been taken by the Punjab High Court in Balkrishan Dass v. Parmeshar Dass, AIR 1963 Punj 187 and by a Full Bench (sic) of the Madhya Pradesh High Court in Shyamacharan Raghubar Prasad v. Sheojee Bhai Jairam Chattri, AIR 1964 Madh Pra 288. I am in respectful agreement with the views expressed by the Punjab and Madhya Pradesh High Courts. In view of the binding effect of the decisions of the Supreme Court referred to above. I am of the definite view that the contention raised by Mr. Prem Lall that the decision in Civil Revision No. 1025 of 1968 will not amount to a res judicata in this appeal has got no substance. The only point raised, therefore, having been rejected, this appeal fails and is dismissed with costs.
10. Appeal dismissed.
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