Hussain Ahmed And Ors. v. Mahamad Ali And Ors.

1. Heard Mr. K.K Dey, learned counsel for the appellants. None appears for the respondents.

2. This Second Appeal is preferred by the plaintiffs against the judgment and decree dated 31.5.2005, passed by the learned Civil Judge, Senior Division, Nagaon, in Title Appeal No. 42/03 affirming the judgment and decree dated 20.6.2015, passed by the learned Civil Judge, Junior Division, Hojai, Sankardev Nagar, in Title Suit No. 31/98, whereby the suit of the plaintiffs was dismissed.

3. The case of the plaintiffs is that plaintiff Nos. 1, 2 and 3 are some of the sons and plaintiff Nos. 4, 5 and 6 are daughters of Late Amir Ali. Defendant No. 3 is the wife of Late Amir Ali and mother of the plaintiffs and the defendant Nos. 4, 5 and 6, who are also other sons of Late Amir Ali. After death of Amir Ali 19 years ago, his properties, including the suit land, measuring 2 Katha, 4 Lecha in Schedule-A, and 4 Bigha, 2 Katha-and 1 Lecha in Schedule-B devolved on his successors. At the time of execution of Title Execution Case No. 9/97 arising out of an ex parte decree dated 5.8.1996 in Title Suit No. 27/94, it came to their knowledge that Title Suit No. 27/94 had been filed by the defendant Nos. 1 and 2 against defendant Nos. 3, 4, 5 and 6 as well as against plaintiff Nos. 2 and 3 of the present suit. It was also learnt that two sale deeds, being Sale Deed No. 227/80 and 228/80, pertaining to Schedule-A and Schedule-B, respectively, had been executed by the defendant Nos. 3 to 6 in favour of the defendant Nos. 1 and 2. Plaintiff Nos. 2 and 3 were minors and though the names of the plaintiffs appeared in the suit patta, except plaintiff Nos. 2 and 3, others were not impleaded in the suit. Accordingly, the suit was filed praying for right, title and interest of the plaintiffs over the suit land; for affirmation of possession and for declaration that the decree dated 05.8.96.passed by the learned Civil Judge, Junior Division, Hojai, Sankardev Nagar, in Title Suit No. 27/94, was obtained by fraud and collusion and not binding on the plaintiffs; with the prayer that the defendant Nos. 1 and 2 be restrained permanently from executing the decree or, in the alternative, direction be issued to the effect that the proceedings in T.S No. 27/94 be reopened and the case be tried de novo; for declaration that the sale deeds, in question, are not binding on the plaintiffs and inoperative in law and that precept be issued to the authority to record that the deeds are null and void; for cost of the suit, etc.

4. Defendant Nos. 1 and 2 are the purchasers of the suit land.

5. In the written statement filed by the defendant Nos. 1 and 2, allegation of fraud was denied. It was stated that the suit was barred by the Page: 669principle of res judicata as the subject-matter of the suit had already been decided between the parties in Title Suit No. 21/1985. Vide judgment and decree passed on 2.7.1991 by the Court of Assistant District Judge, Nagaon. It was projected that the defendant Nos. 1 and 2 are the absolute owners of the suit land by virtue of the sale deed Nos. 227 and 228 of 1980. Sale Deed No. 227 of 1980 was executed by the defendant No. 3 in respect of Schedule-A land and Sale Deed No. 228 was executed in respect of Schedule-B land by plaintiff No. 1, defendant Nos. 5 and 6, Md. Bilal Ahmed, S/o Late Amir Ali (it appears he is also known as has Ahmed, plaintiff No. 2) and Md. Masuk Ahmed, plaintiff No. 3, and possession was also delivered on 29.4.85 It was also stated that Jaygun Bibi (defendant No. 3 herein), Md. Hussain Ahmed (plaintiff, No. 1), Md. Rashid Ahmed (defendant No. 5), Md. Bashir Ahmed (defendant No. 6) along with some others attempted to disposes them, which compelled them to file Title Suit No. 21/1985. According to them, the present plaintiff Nos. 1, 2 and 3 and defendant Nos. 3, 5 and 6 were parties in the said suit. Defendant No. 6 therein (plaintiff No. 3 herein) being minor, was represented by Guardian ad litem. The suit was decreed ex-parte and the application, registered as Misc. Case No. 28/91, filed to set aside the ex-parte decree was also dismissed on 31.8.92 Thereafter, on 1.4.94, the plaintiff Nos. 1 and 3, defendant Nos. 3, 5 and 6 and Bilal Ahmed (plaintiff No. 2) dispossessed them and, therefore, a suit under section 6 of the Specific Relief Act for recovery of possession, registered as Title Suit No. 27/94, was filed against them and the said suit was also decreed ex-parte on 5.8.1996 as they remained absent after filing written statement.

6. A written statement was filed by defendant Nos. 3, 5 and 6 stating that defendant No. 4 used to manage the affairs of the property and, at his instance and in collusion with defendant Nos. 1 and 2, sale deeds were prepared and executed by practicing fraud. It is pleaded that defendant No. 3 had no authority or right to sell 2 Katha 4 Lecha of land mentioned in Sale Deed No. 227. She also did not represent minor sons as their guardian for executing any sale deed in respect of the properties left behind by Late Amir Ali.

7. Defendant No. 4 filed written statement stating that defendant Nos. 3, 4, 5 and 6 and plaintiff Nos. 2 and 3 were parties in Title Suit No. 27/94. They did not take any step as the defendant Nos. 1 and 2 had proposed to settle the matter outside the court. He stated that he had been maintaining the estate of Late Amir Ali and because of compelling necessity for cultivation of land, took loan from defendant Nos. 1 and 2 and, as a security for the loan, he had executed two sale deeds by misrepresentation and that such sale deeds were not to be acted upon. Page: 670Defendant Nos. 1 and 2 had also executed a registered Ekrarnama No. 252/1980, which was also a sham transaction.

8. On the basis of the pleadings, the learned Trial court framed the following issues:

“1. Whether the suit is maintainable?

2. Whether the suit is bad for non-joinder of necessary parties?

3. Whether the suit is barred by res judicata?

4. Whether the suit is barred by the principle of waiver, estoppels and acquiescence?

5. Whether the decree passed in Title Suit No. 27/94 dated 5.8.1996 has been obtained fraudulently?

6. Whether the sale deed No. 228 and 227 of 1980 are forged and fraudulent and binding upon the plaintiffs?

7. Whether the plaintiffs are entitled to the decree as prayed for?”

9. In the written statement of defendant Nos. 1 and 2.a false statement was made that the plaintiff No. 1 was also one of the executants in Sale Deed No. 228/80. Plaintiff No. 1 was not an executant, though he was the eldest of the children of Late Amir Ali. Defendant Nos. 1 and 2 had stated that the plaintiff Md. Hussain Ahmed had executed the sale deed instead of Mahammad Hussain, who is the defendant No. 4 in the suit.

10. The learned trial court took up Issue Nos. 3 and 4 together and held that the defendant No. 4 is none other than plaintiff No. 1 on the basis that a written statement, in the name of defendant No. 4, Md. Hussain, was signed by Md. Hussain Ahmed, i.e, plaintiff No. 1 and, therefore, the plea raised by the plaintiffs that they were unaware about of the fact of execution and registration of sale deeds and institution of Title Suit Nos. 21/1985 and 27/94 is not believable at all. It was also held by him that the defendant No. 4 is none other than the plaintiff No. 1. Issue Nos. 3 and 4 were, accordingly, decided against the plaintiffs by holding the same in the affirmative.

11. The defendant Nos. 1 and 2 in the written statement had admitted that the plaintiffs and the defendant Nos. 3 to 6 are the successors of Late Amir Ali. That apart, DW-1, in his cross-examination, had stated that Amir Ali died leaving behind 6 sons, Hussain Ahmed, Mahammad Hussain, Rashid Ahmed, Basir Ahmed, Billal and Masuk Ahmed. Therefore, the finding of the learned trial court that the plaintiff No. 1 and defendant No. 4 is one and the same person is perverse and entire reasoning is, thus, flawed. However, what will be the import of such signing of the document will naturally have to be independently assessed Page: 671especially qua the alleged knowledge of the plaintiffs regarding the events only at the time of pendency of Title Execution case. Plaintiff Nos. 2 and 3, namely, Ilas Ahmed @ Billal Ahmed and Masuk Ahmed were admittedly minors at the time of execution of the sale deed, Ext-‘Kha’. Though in the written statement filed by defendant Nos. 1 and 2 it was stated that plaintiff No. 3, being minor, was represented by guardian ad litem, the learned Trial court had recorded that the plaintiff Nos. 2 and 3 were minors and they were represented by their guardian ad litem in the suit.

11. Issue Nos. 5 and 6 were also decided against the plaintiffs without any reference at all to the plaintiff Nos. 4, 5 and 6. While deciding Issue No. 1, it was held that though plaintiff Nos. 1 and 4 to 6 had not sold the suit land, they had the knowledge about the same in view of his earlier finding that plaintiff No. 1 and the defendant No. 4 is one and the same person.

12. Though the learned Trial court had dismissed the suit primarily basing on the finding recorded in Issue No. 3 relating to res judicata, the learned Lower Appellate court first proceeded to determine Issue Nos. 1, 5 and 6, eventually, recording findings against the appellants and, based on the decision on Issue Nos. 5 and 6, held that the suit was barred by res judicata. In Issue Nos. 5 and 6, it was held that the sale deeds had been Exhibited as Ext.-’Ka’ and ‘Kha’ without any objection and that the defendants had failed to prove that the sale deeds were fraudulent. The finding of res judicata was not preceded by any discussion. The learned Lower Appellate court merely recorded that on perusal of the judgment of the learned Trial court and in view of his decision in Issue Nos. 5 and 6, the suit was barred by res judicata. Issue No. 5 is connected to Title Suit No. 27/94 and had nothing to do with Title Suit No. 21/1985, for final adjudication of which, defendant Nos. 1 and 2 of the instant suit had contended the present suit to be barred by res judicata.

13. The defendant Nos. 1 and 2 did not bring on record the pleadings of Title Suit No. 21/1985. The judgment was rendered in the said case ex-parte. The judgment reads as follows:

“2.7.1991

Defendants are absent without any steps. The suit is taken up ex parte. One witness for the plaintiff has been examined. The fact of the case may be described as under:

The plaintiff and his brother purchased the suit land from the defendants. The possession thereof was duly delivered in favour of the plaintiffs. But, ultimately defendants have been threatening to dispossess them from the suit land. Hence, the plaintiffs were compelled to file this suit.

I have gone through the evidence of the witness and also perused the relevant documents; The documents have been Exhibited. A case is well established in favour of the plaintiffs. Hence, the suit is decreed ex parte with cost.”

14. Section 11 of the CPC provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the 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. This is res judicata.

15. In the case of Pandit Ishwardas v. State of Madhya Pradesh, (1979) 4 SCC 163, the Apex Court held that the plea of res judicata may be sustained without anything more, if the questions at issue and the parties are the same, subject of course to the other conditions prescribed by section 11, CPC. It is, however, not necessary that all the parties to the two litigations must be common. It is sufficient that the issue should be between the same parties or between parties under whom they or any of them claim. Further, once the questions at issue in the two suits are found to be the same, the fact that the material which led to the decision in the earlier suit was not again placed before the court in the second suit cannot make the slightest difference.

16. What were the issues in Title Suit No. 21/1985 is not very clear. From the decree, Exhibited as Ext.-’Gha’, and from the contents of the judgment, it appears that it was a suit for declaration of right, title and interest in respect of the suit land of the present suit with prayer for confirmation of possession.

17. The position that has emerged from Ext.-‘Gha’ is that plaintiff No. 1, 4, 5 and 6 were not parties to Title Suit No. 21/1985. The defendant Nos. 1 and 2, in the written statement, had wrongly stated that plaintiff No. 1 was a party in the suit. Plaintiff Nos. 1, 4, 5 and 6 were also not executants either in Ext-‘Ka’, sale deed, or in Ext-’Kha’, sale deed. Plaintiff Nos. 2 and 3 were minors at the time of execution of Ext-’Kha’ and also when Title Suit No. 21/1985 was instituted. Though technically plaintiff Nos. 2 and. 3 were parties in Title Suit No. 21/1985, they were minors, while other plaintiffs were not parties at all. Therefore, it cannot be said that parties in the present suit and in Title Suit No. 21/1985 are same. It is noticed that Title Suit No. 21/1985 was decreed ex parte. It is stated in the plaint that on the death of Amir Ali, his properties including the suit land devolved on the plaintiffs and the defendant Nos. 3 to 6. In the present suit, amongst others, prayer for right, title and interest of the plaintiffs in the suit land or, in the alternative, declaration that the sale Page: 673deeds in question were not binding on them, was prayed for. The defendant Nos. 1 and 2 failed to establish conclusively that issues in both the suits were same by Exhibiting relevant documents. On the basis of the pleadings in the instant case, it is difficult to hold that the questions posed could have formed an issue in Title Suit No. 21/1985. Therefore, I am of the considered opinion that the learned courts below were wrong in holding the suit to be barred by res judicata.

18. It is already noticed on what basis the trial court had held that the plaintiffs had notice of the execution of sale deeds and which has already been recorded by this court to be perverse. The Lower Appellate Court also opined that the plaintiffs had knowledge of execution of the sale deeds, without however, indicating on what basis such finding was arrived at. Some findings are also recorded by the Lower Appellate Court that the plaintiffs failed to establish that the sale deeds were fraudulent. Such findings are without any reference to the evidence on record.

19. The learned Lower Appellate Court, In paragraph 18, has recorded as follows:

“18. The learned counsel of respondent has fairly submitted that any illegality and merit of the T.S No. 21/85 could have definitely challenged by plaintiffs and defendant Nos. 4 to 6 on the same court or before the appellate court showing sufficient reason of delay in filing the petition but same was not challenged and filed separate suit. This suit is totally not maintainable.”

20. It is to be noticed that the decree of Title Suit No. 21/1985 was not challenged in the instant suit. Rather, the court will have to consider what will be the effect of the decree in the present suit.

21. In View of the discussions above, this Second Appeal is allowed. Impugned judgments of the learned courts below are set aside. As a Title Execution Case is pending disposal, the learned trial court is directed to dispose of the suit within a period of two months from the date of appearance of the parties, by recording findings on each and every issue except issue No. 3, after hearing the parties on the basis of the evidence which is already on record. Till disposal of the suit, the execution of decree in pursuance of the judgment and decree dated 5.8.1996, passed by the learned Civil Judge (Junior Division), Hojai, in Title Suit No. 27/94, shall remain suspended.

23. The appeal is allowed as indicated above. No costs.

24. The appellants/plaintiffs will appear before the learned trial court on 3.8.2015 Thereafter, the learned trial court will issue notice to the defendants and dispose of the case as indicated above.

25. Registry will send back the records immediately so that the records are available before the learned trial court on or before 3.8.2015