The main point for decision in this appeal is whether the claim of the Plaintiffs, so far as some of the Defendants are concerned, is barred by the principle of res judicata. The facts which need be stated for the purpose of this appeal briefly are as follows:
The Plaintiffs are two in number and they are Bholanath Chatterjee and Sunil Kumar Chatterjee. These persons instituted a suit against six Defendants, namely (1) Manmatha Nath Dutt, (2) Phani Dutt, (3) Bhupendra Nath Dutt, (4) Patal Dutt, (5) Bibhuti Chatterjee and (6) Jagannath Chaterjee. The suit was for the recovery of khas possession of two strips of land and for a direction upon the Defendants to remove the hut and the wall constructed on these two strips of land by them. The Plaintiffs claimed a niskar brahmattor right to the first plot and a jamai right to the second plot. The two Defendants, Manmatha Nath Dutt and Bhupendra Nath Dutt, were not served with the writ of summons, although the Plaintiffs were directed to serve them. When the suit came for hearing, the following order was passed by the learned Munsif:
“Ordered that the suit be dismissed for default as against the Defendants Nos. 1 and 3 and decreed on part and on contest against the other Defendants Nos. 2 and 4 to 6 without any costs Plaintiff's niskar bmhmottar right to the disputed portion of C.S dag No. 338 as found by the Commissioner and jamai right as claimed to the disputed portion of C.S dag No. 339 as noted in the report and map of the Commissioner be declared and he do recover possession of the same jointly with the Defendants Nos. 2 and 4 to 6. Plaintiff's claim for removal of the hut and wall from the disputed lands fails.
The report map and field book of commissioner do form part of the decree. Each party do bear its own coats of the suit.”
The Plaintiffs thereafter instituted the present suit in the year 1987 relating to the same two strips of land and claiming exactly the same right as they claimed in the former suit. In this suit, however, the Plaintiffs made the following persons Defendants: (1) Manmatha Nath Dutt, (2) Bhupendra Nath Dutt, (3) Durga Sundari Debya, the mother of Bibhuti Bhusan Chatterjee and Jagannath Chatterjee and on her death (3-A) Bibhuti Bhusan Chatterjee, (3-B) Jagannath Chatterjee, (4) Krishna Das Dutta, (5) Dhananjoy Dutta, (6) Mrityunjoy Dutta and on his death his heirs (6-A) Ashalata Dasi, minor and (6-B) Dulal Chandra Dutta, minor; (7) Patal Dutt, (8) Phani Dutt, (9) Bibhuti Bhusan Chatterjee and (10) Jagannath Chatterjee. It is admitted that in the former suit the Defendants pleaded that Durga Sundari was a necessary party. The Court held against that plea, supporting the Plaintiffs' claim that she was not a necessary party. The pro formeâ Defendants Krishna Das Dutt, Dhananjoy Dutt, Mrityunjoy Dutt and his heirs are the landlords and they have really no interest in the claim made by the Plaintiffs. It is thus clear that if one leaves out of consideration the landlords and Durga Sundari, who have no interest at all in the subject-matter of the suit, the parties in the present suit and the parties in the former suit are exactly the same.
The learned Munsif has found that the claim of the Plaintiffs, so far as it relates to the Defendants Bibhuti, Jagannath, Phani and Patal are concerned, is barred by res judicata. As regards the Defendants Monmatha and Bhupendra, the learned Munsif has found that, as they were not served with summons in the former suit and as the former suit was dismissed as against them for default, the Plaintiffs' claim, so far as they are concerned, is not barred by res judicata, and that the Plaintiffs would be entitled to a decree declaring their title to the land in suit as against them. The Munsif next says that the Plaintiffs would be entitled to joint possession with the Defendants Monmatha and Bhupendra. He adds that this joint possession can be given only if it is practicable without the removal of the hut and the wall. As regards the hut and the wall the learned Munsif has said that inasmuch as they had been erected jointly by all the Defendants in the previous suit and inasmuch as the Plaintiffs' claim to have them removed failed against the Defendants on whom summons had been served in the former suit, the Plaintiffs' present claim for the removal of the hut and the wall cannot be granted as the granting of such a claim would render nugatory the decree passed in the former suit, whereby the Plaintiffs' claim for the removal of the hut and the wall had been negatived, so far the Defendants Bibhuti, Jagannath, Phani and Patal were concerned. Accordingly he dismissed the Plaintiffs' claim regarding the removal of the hut and the wall. Against this decision the Plaintiffs appealed to the District Judge and he has dismissed the appeal and upheld the decision of the learned Munsif. The Plaintiffs now appeal to this Court.
Learned Counsel for the Appellants contends, first, that the judgment in the previous suit is not admissible in evidence and, secondly, that even if it be admissible in evidence, it does not bar the present suit even as against the Defendants Bibhuti, Jagannath, Phani and Patal. He contends that the learned Munsif should have reconsidered the Plaintiffs' claim as against all the Defendants and should have given the Plaintiffs a decree.
The correctness of that portion of the decision which was against the Defendants Monmatha and Bhupendra is not seriously challenged by the learned Advocate for the Respondents. I am of opinion that the learned Judge was right in this part of his decision.
The only question for determination, therefore, is whether the decision so far as it relates to the other four Defendants is correct. I shall now take up for consideration the argument of learned Counsel for the Appellants that the judgment in the previous suit is inadmissible in evidence.
Learned Counsel drew my attention to the provisions of secs. 40 to 43 of the Evidence Act. He points out that sec. 43 provides that
“Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 43 are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under tome other provision of this Act.”
He then argued that the judgment in the former suit does not come within the purview of secs. 40 to 42. There can be no doubt that the judgment does not fall within the description given in secs. 41 and 42. I am of opinion, however, that the judgment falls within the description of Sec. 40 of the Evidence Act. Sec. 40 of the Evidence Act runs thus:
“the existence of any judgment, order or decree which by low prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.”
Learned Counsel for the Appellants says that the judgment passed in the previous suit does not prevent the Court from taking cognizance of the present suit. He points out that so far as the Defendants Monmatha and Bhupendra are concerned, the Court has entertained the suit and given the Plaintiffs a decree and he argues that it cannot be said, that the judgment prevented the Court from taking cognizance of the suit. This argument is plausible, but, in my opinion, unsound. Sec. 40 of the Evidence Act does not lay down that the judgment must prevent the Court from taking cognizance of the entire suit as against all the parties. If the judgment prevents the Court from taking cognizance of the suit so far as it relates to some of the parties thereto, then also sec. 40 would apply. If the view taken by the Court below is correct—and in my opinion it is correct—then the Court was prevented from taking cognizance of this suit so far as the Defendants other than the Defendants Monmatha and Bhupendra were concerned; that being so, it would be, in my opinion, entirely wrong to hold that judgment is inadmissible in evidence.
The next point for consideration is whether the decision in the previous suit bars the Plaintiffs' claim against the Defendants, Bibhuti, Jagannath, Phani and Patal. Learned Counsel for the Appellants draws my attention to sec. 11 of the Code of Civil Procedure and he says that the sec. 11 comes into operation only when the parties in the previous suit are the same as the parties in the subsequent suit. He points out that in the previous suit, although Monmatha and Bhupendra were named in the plaint as Defendants, they were not really parties as no summons had been served on them. He points out further that Krishna Das Dutta, Dhananjoy Dutt and Mrityunjoy Dutt, who represent the landlords were not parties in the former suit and also that Durga Sundari was not a party. His argument is that the addition of these parties prevents sec. 11 of the Code of Civil Procedure from applying to this case. In this connection he drew my attention to the case of Radha Binode Mandal v. Gopal Jiu Thakur and to the case of Dwarkanath Roy v. Ram Chand Aich. In my opinion, neither of these cases are of any assistance to the Appellants. In the case of Radha Binode Mandal v. Gopal Jiu Thakur, there were no common parties in the two suits. The first suit was brought by some of the shebaits of Sri Iswar Gopal Jiu Thakur against some other shebaits of the same deity. The second suit was instituted by Sri Sri Iswar Jiu Thakur and Sri Sri God Shambhu Nath Shib Thakur against Radha Binode Mandal and some others. In dealing with the question of res judicata it was pointed out that Sri Sri Gopal Jiu Thakur was not a party at all in the former suit and the reasons given by their Lordships was this:
“It is to be noted that not only were the Plaintiffs described as the shebaits of the God, but the Defendants also were described in the same way. Therefore, if the God Gopal Jiu were to be regarded as a Plaintiff, he must also be regarded as a Defendant, which would be a reductio ad absurdum.”
This case obviously has no application to the present suit.
In the case of Dwarkanath Roy v. Ram Chand Aich, the decision was this. In the former suit the Plaintiff sued the Defendant for rent claiming to be his landlord. The Defendant pleaded that someone else and not the Plaintiff was his landlord. An issue was raised on this question and it was decided against the Plaintiff. Thereupon the Plaintiff brought another suit for a declaration of his title to the land against the person who had been set up as his landlord in the former suit and in that suit he made the tenant also a Defendant. It was contended that the second suit was barred by the doctrine of res judicata and this Court held that it was not so barred, because the issues in both the suits were really different. Chief Justice Maclean said:
“* * * having regard to the nature of the relief sought in the previous suit, and the relief sought in the present suit, it is impossible to say that the Plaintiff is barred in this suit from establishing his title to the land both against the alleged tenant and also against the person whose title as landlord the tenant Defendant has set up in the rent suit.”
It is true that there is a remark made by one of the other Judges who decided this case, namely, Mr. Justice Prinsep, to the effect that the Plaintiffs' claim could not be treated as barred in the subsequent proceedings, inasmuch as the parties were not the same. Learned Counsel, taking advantage of that stray remark, argues that sec. 11 of the Code of Civil Procedure can have no application in the present case. To give effect to this contention urged on behalf of the Appellants would be to set at naught two well established principles, viz., that there should be finality to litigation and that no person should be vexed twice upon the same cause of action. If the argument of learned Counsel for Appellants be accepted, it would lead to the following impossible state of affairs. A brings a suit against B for the declaration of his title to certain land. He fails in the suit. He then brings a suit against B and makes C a party to the suit and claims the identical relief against B and C. C has no interest whatsoever in the land. If what the learned Counsel says is correct, then sec. 11 of the Code of Civil Procedure would have no application and B would be liable to be harassed by A a second time simply because C, who has no interest in the property, is added as a party. In this way it would be possible for A to institute suits interminably for a declaration of his title and to harass B for ever. Obviously such an argument must be unsound. Now let us examine the words of sec. 11 of the Code of Civil Procedure. Sec. 11 of the Code runs thus:
“No Court shall try any suit or issue in which the matter directly and substantially in is issue has been directly and substantially in issue in a former suit between same parties etc.”
Sec. 11 does not bar the trial of suits only but also the trial of issues. Now one of the issues in the former suit was whether the Plaintiff had title to the land as against the Defendants Bibhuti, Jagannath, Phani and Patal. The Court held that the Plaintiff had not. In the present suit the identical issue is being raised with respect to the same Plaintiffs and the same Defendants. It is true that a similar issue is being raised with respect to persons other than these Defendants, but no one suggests that the trial of that issue is barred. What has been held is that the issue as between the Plaintiff on the one side and Bibhuti, Jagannath, Phani and Patal on the other is barred by reason of the provisions of sec. 11. It seems to me that sec. 11 of the Code of Civil Procedure applies in terms to the present case. Sec. 11 of the Code says that where a particular issue which has already been determined between the same parties in a former suit is sought to be put to trial again between the same parties in a subsequent suit the Court will refuse to try the issue. It does not say that entire subject-matter of both the suits should be identical. It deals with suits as well as with particular issues in the suits. If the particular issue raised in both the suits concerns the same parties then the bar provided in sec. 11 would apply to that particular issue even though there may be other issues raised in the subsequent suit and other parties, involved in those issues. If my view, that sec. 11 of the Code of Civil Procedure applies in terms to the facts of the present case, be incorrect, then there is no escape from the position that the Plaintiffs' claim, so far as the Defendants Bibhuti, Jagannath, Phani and Patal are concerned, is barred by the general principles underlying the doctrine of res judicata. It is contended on behalf of the Appellants that where sec. 11 of the Code of Civil Procedure governs a matter it is exhaustive and if the conditions set down by the section are not fulfilled its scope should not be extended by having recourse to the general principles of res judicata; in this connection I was referred to a decision of mine in the case of Sm. Anantamoni Dasi v. Bholanath Manna and to certain decisions of the Judicial Committee which were referred to in that case. There can be no manner of doubt that sec. 11 of the Code of Civil Procedure is exhaustive in those matters in respect of which it declares the law; that has been laid down by the Judicial Committee in the case of Gokul Mandar v. Pudmanund Singh. But I would point out that if effect be given to the learned Counsel's argument that sec. 11 of the Code of Civil Procedure applies only where the parties in both the suits are identical, then the present case would be a matter in respect of which sec. 11 of the Code of Civil Procedure does not declare the law and in dealing with the problem which have arisen out of this matter there can be no difficulty in the way of applying the general principles upon which the doctrine of res judicdta is based. I am of opinion, however, as I have said before, that sec. 11 of the Code of Civil Procedure applies in terms.
I hold that the Plaintiffs' claim so far as the Defendants Bibhuti, Jagannath, Phani and Patal are concerned, is barred by res judicata.
Learned Counsel for the Appellants contended that in any case so far as the Defendants Monmatha and Bhupendra are concerned, the Plaintiffs are entitled to get khas possession and he says that it is possible that he may acquire the interests of other Defendants and then get khas possession of the whole land and remove the hut and the wall erected thereon. In my opinion, the learned Munsif has really given the Plaintiffs what is now being asked although he may not have expressed himself very clearly. In order to avoid any misunderstanding I shall endeavour to explain more clearly the relief to which the Plaintiffs are entitled. So far as Bibhuti, Jagannath, Phani and Patal are concerned, the Plaintiffs can get only joint possession. The Plaintiffs cannot get the wall and the hut removed so long as these Defendants refuse to remove them. The Defendants Monmatha and Bhupendra have no interest in the property decreed in favour of the Plaintiffs. If the Plaintiffs by acquisition or otherwise can induce the Defendants Bibhuti, Jagannath, Phani and Patal to remove the hut and the wall, the Defendants Monmatha and Bhupendra cannot prevent the removal of the hut and the wall. The Plaintiffs in those circumstances would be entitled to remove the hut and the wall and the Defendants Monmatha and Bhupendra are hereby prevented from interfering with the Plaintiffs in those circumstances. I wish to make it quite clear that the Plaintiffs have no title to the structures at all but they have only got the right to get them removed provided they are able to induce the four Defendants Bibhuti, Jagajnnath, Phani and Patal to join in the removal.
Learned Counsel for the Appellants wishes me to state that he argued that the first decree could not operate as res judicata, inasmuch as it was incapable of execution. This argument was made but as in my opinion it has no substance in fact or in law, I do not propose to say anything more about it except to note that such argument was raised.
In these circumstances this appeal must be dismissed with costs.
C.C