Ashutosh Roy v. Ananta Ram Bhattacharjee

1. This is an appeal by defendant 9 against the decision of the Subordinate Judge of Bankura, dated 8th August 1917. The question that arises on the appeal is a very short one, namely, whether a prior suit in which the predecessors-in-title of defendant 9 were parties acts as res judicata in the present suit as against appellant-defendant 9. It appears that in the month of May 1905 the suit which it is said makes the matter res judicata was filed in the Munsif's Court. It was found that the value of the suit exceeded the jurisdiction of the Munsif's Court, and accordingly on 21st June 1906 the suit was refiled in the proper Court. The defendants in that suit represented two families, one of whom is described as the Kars and the others as the Mandals. We are only concerned with the Mandals who were defendants 4, 5 and 6 in that suit. On 29th November 1907 the Mandals appeared for the first time and filed a written statement which is not before us and for the contents of which we have to rely upon extracts from the judgment of 31st March 1909 in Title Suit No. 193 of 1906 in the Court of the Subordinate Judge at Bankura. The Mandals in their written statement, so it appears from the judgment in the Bankura suit, stated that they had disposed of their interest to one Haradhan Chatterjee, who admittedly was the Benamdar for the present appellant-defendant 9. The Mandal defendants contended that the suit was bad for defect of parties and that having regard to the transfer of their interest it was necessary that Haradhan and Asu Roy, the appellant before us for whom Haradhan was Benamdar, should be added as parties to the suit.

2. The decision of the Court was that Haradhan's actual possession of the Kanpore mauza, which was the property in dispute so far as the Mandals were concerned, was not admitted by the plaintiff and that it was not proved, and he therefore found that neither Hardhan nor Asu Roy was a necessary par ??? to the suit. He went on to add ??? they would therefore not be bound ??? any adjudication in the suit, and he ??? that the suit was not defective for ??? of parties.

3. The material facts are ??? follows: On 4th March 1907 two-third of the rights of the Mandals in ??? mauza were sold and the sale was ??? firmed on 8th April 1907; the ??? interest of the Mandals in the ??? was sold on 25th April 1907, the being confirmed on 29th June 1907 ???.

4. On behalf of the appellant be ??? two contentions were raised: First of all, it was said that at the time the properties were sold the suit was not being actively prosecuted and that there was in fact no lis pendens; secondly, it was said that after the Mandals on 29th November 1907 filed their written statement stating that this interest in the property had passed, the suit was no longer contested so far as this interest was concerned. We have before us the order-sheet in the Title Suit No. 193 of 1906. It appears that certain witnesses were called on behalf of the defendants, but it is probable that these witnesses were witnesses on behalf of the Kar defendants, and the only part that we can find from the order sheet that the Mandals took in the suit was that on 23rd March 1909 they filed certain Exs. A-5 and B-5, which were put in on behalf of defendant 5 and others, defendant 5 being as already stated one of the Mandal defendants.

5. So far as the first contention of the appellant is concerned, we do not think that there is any substance in this. It appears that on 23rd April 1907 the suit was dismissed for default, neither party being present. But on 24th April 1907, that is to say, prior to the second sale of 25th April 1907 an application was put in for restoration of the suit, and on 4th May 1907 the suit was restored. Under these circumstances it does not seem to us that it really can he contended that there was no lis pendens at the time of the two sales in question, On 4th March 1907, the date of the first sale, the lis was certainly pendens and on 25th April 1907, although the suit was dismissed for default on the 23rd the application of 24th April which was granted on 4th May following would, ??? seems to us, have the effect of ??? the suit as from the date the application was made, that is, 24th April, ??? is nothing in the first contention ??? on behalf of the appellant.

6. In so far as the second contention is ??? it is urged on behalf of the respondents to the appeal that once a ??? becomes a contested suit it never ??? to be such, and that therefore ??? his question of title was decided in a ??? suit and is binding on defendant he appellant, as his predecessors ??? the Mandals were parties to the ??? suit. But it appears to us that it is clear that there was no real contest on the part of the Mandals after they had parted with their interest to the appellant. They had told the Court that they were no longer interested in this suit and the Court expressly stated that the interest of Haradhan and Ashutosh Roy would not be affected by any decision that it gave. It is not clear upon the evidence whether any searches were made upon the purchase by Asu Roy and his Benamidar to ascertain if there was any lis pendens or whether in fact Asu Roy and his Benamdar had any notice of the lis. So nothing turns upon that, and we desire to rest our decision entirely upon the footing that it appears to us that there was no real contest in the suit with regard to the title of the Mandals and that the appeal must succeed on this basis.

7. The result will be that the suit will go back to the lower Court in order that the issues in the suit may be decided upon the merits and that the question of title, in so far as the successors-in-interest of the Mandals are concerned, may be decided in their presence and the rights of the respective parties determined.

8. The costs of this appeal will abide the result of the hearing of the suit on the merits.

V.B/R.K

9. Suit sent back.