ISUP ALI Vs. GOUR CHANDRA DEB

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for conformation establishment of title by inheritance and adverse possession of land, the suit was instituted on the 3 July 1917 by Isup Ali, Goja Ali and Basaratulla, sons of Basir Mohammad, Talukaar against Gour Chandra Deb the son of Nehal Krisha Deb and his brothers instituted a suit against Isup Ali arid his brothers for establishment of their title to the homestead portion of the property involved in the first litigation, The relief in the first suit was valued at Rs. 348, and that in the second suit at Rs. 200. The two suits were tried jointly at the desire of the parties, as the disputed land and the causes of action were common to a certain extent. The first suit, was dispraised, while the second was decreed Thereupon the plaintiffs in the first suit who were the defendants in the second suit, preferred an appeal to the District Judge. The appeal was directed against the decrees in both the suits and was valued at Rs. 548. Copies of both the decrees were attached to the memorandum, which, however, set out the name of Cow Chandra Deb alone as the respondent. The memorandum could not, consequently, be treated as a valid Memorandum of Appeal against the decree in the second suit. That decree endured to the benefit of Gourchandra Deb and his brothers, and as the latter were not made parties to the appeal they could not be prejudiced, even it the decree of the primary Court were reversed. Indeed, as pointed out in Kali Dayal V/s. Nagendra Nath 54 Ind. Cas. 822 : 30 C.L.J. 217 : 24 C.W.N. 44, the appeal, treated as an appeal in the second suit, could not be heard as, even if successful, it would be in fructuous, because such of the plaintiffs as were not brought before the Court as respondents, would still retain the benefit of the decree of the primary Court. The appeal preferred to the lower Appellate Court was, consequently, defective in two respects, namely, first, that, contrary to established procedure, as explained in Rakhal Chandra Ternary V/s. Manmatha Nath Mitter 10 Ind. Cas. 415 : 15 C.W.N. 994.; Rakhal Chandra Tewari v. Monmotha Nath 24 Ind. Cas. 438 and Mahabir Prasad V/s. Bisheshwar Prasad 42 Ind. Cas. 4241 : 4 C.L.J. 512, one appeal was preferred, without an order for consolidation by the Court, against two distinct decrees in two separate suits; secondly ,that even treated as otherwise valid, the appeal was defective, in so far as it was intended to be an appeal in the second suit, inasmuch as some of the successful plaintiffs had not been joined as parties respondents, In these circumstances, the appellants in this Court have conceded that the appeal to the District Judge must be deemed to have been an effective appeal; only in respect of the decree in the first suit, and that the attempt to make it an appeal against the decree in the second suit was abortive. The District Judge has dismissed the appeal on the merits. The position thus is that, though there were two suits in the primary Court, decided by a common judgment, an appeal and a second appeal have been preferred in the first suit, while no appeal has been preferred in the second suit, with the result that the decree made therein has become final. On these facts, the respondent in the present appeal, which is directed against the decree of the District Judge made in affirmance of the decree of the primary Court in the first suit, contends that the trial of the question in controversy is barred by res judicata. The substantial matter in dispute in the first suit, as in the second, was, whether one Aleyer Khan was the real or beneficial owner of the property. This question has been answered in favour of the plaintiffs in the second suit, one of whom, as we have seen, is the defendant in the first suit. He is the respondent in this appeal, and he urges that the decision of this fundamental question, which forms the basis of the decree made in favour of himself and his brothers in the second suit, cannot now be reagitated; in other words, he contends that if the matter were now reinvestigated, the decree in the second suit, which has never been directly challenged by way of appeal, would be collaterally attacked and imperilled.

(2.) The principle applicable to cases of this character was investigated in Balkishan V. Kishan Lal 11 A. 148 : A.W.N. (1889) 42 : 13 Ind. Jur. 309 : 6 Ind.Dec. (N.S.) 523 by Mahmood, J. who had considered the matter also in his earlier judgments in Chajju V/s. Sheo Sahai 10. A. 123 : A.W.N. (1887) 42 : 301 : 6 Ind. Dec.(N.S.) 83 and KashiNath V/s. Mukhta Prasad 6 A. 370 : A.W.N. (1884) 119 : 4 Ind. Dec. (N.S.) 38. At that time, there was some controversy as to the meaning of the expression "former suit," the decision wherein may operate as res judicata in a subsequent suit. The doubt has now been set at rest by, Ex plantation I to Section 11 of the Civil Procedure Code, 1908, which provides that the expression "former suit" denotes a suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto. To put the matter tersely, the expression "former suit" means a previously decided suit, and the same rule applies to appeals. This was in fact the view adopted by Mahmood, J, in Balkishan V/s. Kishan Lal 6 A. 370 : A.W.N. (1884) 119 : 4 Ind. Dec. (N.S.) 38. and has been subsequently followed; Rath Lal V/s. Chhab Nath 12 A. 578 : A.W.N. (1890) 183 : 6 Ind. Dec. (N.S.) 1114; Beni Madho V/s. Indar Sahai 3 Ind. Cas. 707 : 32 A. 67 : 6 A.L.J. 991 and Gurumjam.mah V/s. Venkata krishnama Chetti 24 M. 350 As Herman puts it in his Commentaries on the Law of Res judicata (Vol. I, p. 126), it is not the priority in the commencement of one action that renders the judgment obtained therein a bar to the recovery of a second judgment in another, but because the first judgment when given, whether in the action commenced first or last, extinguished the original cause of action, and gives to the plaintiff, in lieu thereof, one of a higher nature. Mutual Life Insurance Co. V/s. Harris (1877) 97 U.S. XXIV, 959 : 7 Otto 331; Barber V/s. Morris (1904) 67 L.R.A. 761 : 132 Fed. 945. (Van Fleet on former Adjudications, Vol. I, p. 87) from this stand point, Mahmood, J., held in Balkishan V/s. Kishan Lal 11 A. 148 : A.W.N. (1889) 42 : 13 Ind. Jur. 309 : 6 Ind.Dec. (N.S.) 523, that the doctrine of res judicator, so far as it relates to prohibiting the re-trial on an issue, must refer, not to the date of the commencement of the litigation, but to the time when the Judge is called upon to decide the issue; and the rule is not limited to the Courts of first instance, it applies equally to the procedure of the first and second Appellate Courts, and, indeed, even to the miscellaneous proceedings; see the decision of the Judicial Committee in George Henry Hook V/s. Administrator General of Bengal 60 Ind. cas. 631 : 48 I.A. 187 : 48 C. 499 : 19 A.L.J. 366 : 40 M.L.J. 423 : 29 M.L.T. 336 : (1921) M.W.N. 313 : 33 C.L.J. 405 : 3 U.P.L.R. (P.C.) 17 : 23 Bom .L.R. 648 : 25 C.W.N. 915 : 14 L.W. 221 : 48 C. 499 (P.C.). We are in complete agreement with the exposition of the law given by Mahmood, J., in the following passage of his judgment in Balkishan V/s. Kishan Lal 11 A. 148 : A.W.N. (1889) 42 : 13 Ind. Jur. 309 : 6 Ind.Dec. (N.S.) 523: It seems to me that the main object of the doctrine of res judicata is to prevent multiplicity of suits and interminable disputes between litigants, ne autem lites im- mortales essent, dum litigantes mortales sunt. This saying of Voet is in accord with the maxims nemo debet bis vexari pro una eteadem causa, and the broader maxim interest reipublicce ut sit finis litium. This being so, the doctrine, so far as it relates to prohibiting the re-trial of an issue, must refer not to the date of the commencement of the litigation, but to the time when the Judge is called upon to decide the issue. For, even in cases where the Judge has commenced the trial of an issue which is also an issue in a pending litigation, a final judgment pronounced mean: while in such previous litigation by a competent Court, (the identity of parties: and other conditions being satisfied) should: operate as res judicata preventing the Judge dealing with the later litigation from adjudicating differently. If this is not done, it seems to me that the evil against which res judicata aims would not be removed and the doctrine itself would be defeated. So far as the justification of this view from the provisions of the Civil Procedure Code, 1882, is concerned, I may say that the rule contained in Section 13 is; not limited to the Courts of first instance, that it applies equally to the procedure of the first and second Appellate Courts by reason of Secs.582 and 587 respectively, and, indeed, even to miscellaneous proceedings by reason of the general provisions of Section 647 of the Code.

(3.) This view has been repeatedly reaffirmed by the Allahabad High Court; Ram Lal V/s. Chhab Nath 12 A. 578 : A.W.N. (1890) 183 : 6 Ind. Dec. (N.S.) 1114; Zaharia V/s. Debi 7 Ind.cas. 156 : 33 A. 511 : 7 A.L.J. 861; Dxkhnl Din V/s. Ali Asghar 7 Ind. Cas.909 : 33 A. 1511 : 7 A.L.J. 995.; Anant Das V/s. Udaibhan Pargas 19 Ind. Cas. 76 : 35 A. 187 : 1 A.L.J; Ram Faqir v. Bindeshri Singh 47 Ind. Cas. 837 : 41 A. 54 : 16 A.L.J. 782 and Balhari Pande V/s. Shiva Sampat Pande 18 A.L.J. 40 A similar view has been adopted in the Punjab and in Burma; Nur Muhammad V/s. Jamun 153. P.R. 1890; Muhammad Jan V/s. Duli Chand 74 Ind. cas. 583 : 3 L.L.J. 473 and Raman Chetty V/s. Mutuveerappa Chetty 17 Ind. cas. 860 : 6 L.B.R. 93 : 5 Bur. L.T. 199 A different rule was, however, adopted in Panchanada Velan v, Vaithinatha Sastrial 29 m. 333 : 16 M.L.J. 63 There, cross-suits between the same parties on the same facts, were tried together, and judgment was given on the same day, but separate decrees were drawn up, and an appeal was preferred against one of the decrees alone. It was ruled that the decree unappealed did not operate as a bar, so as to preclude the Appellate Court from dealing with the decree appealed against, because, it was said, the doctrine of res judicata has no application when the very object of the appeal, in substance, if not the question raised before us, as it merely lays down that where there are subordinate and dependent decrees, the reversal of the principal decree operates as a supersession of the subordinate decree; see Asutosh Goswamt V/s. Upendra Prosad Mitra 38 Ind. Cas. 17 : 24 C.L.J. 467 : 21 C.W.N. 564 Reliance, however, has been placed by the appellants on the decisions of this Court in Abdul Majid V/s. Jew Narain 16 C. 233 : 8 Ind. dec. (N.S.) 154; Mariamnlssa Bibi V/s. Joynab Bibi 33 C. 110 : 10 C.W.N. 934 : 4 C.L.J. 149. The dicta in Abdul Majid V/s. Jew Narain 16 C. 233 : 8 Ind. dec. (N.S.) 154 cannot be reconciled with the decision of the Judicial Committee in Sri Raja Rao Venkzta Mahipati Gangadhara Rama Rau Raja of Pittapur V/s. Sri Raja Rao Buchi Sitaya 8 M. 212 : 3 Ind. Dec. (N.S.) 152 (P.C.), namely, that an estoppel is binding, notwithstanding that the suit which raises it relates to a different property. The decision is further based on the untenable view that the question of res judicata depends upon the state of facts as they exist at the date of the trial in the primary Court. On the other hand, the decision of the majority in Mariamnissa Bibi V/s. Joynab Bibi 33 C. 110 : 10 C.W.N. 934 : 4 C.L.J. 149. was dependent upon its special facts, although an opinion was expressed that, when two suits have been tried together, either of them cannot be treated as the former suit in relation to the other. This view, as we have seen, cannot be maintained, when Explanation, 1 to Section 11 is taken into account. The substance of the matter, then, is that the dicta in favour of the appellants to be found in the cases of Abdul Majid V/s. Jew Narain 16 C. 233 : 8 Ind. dec. (N.S.) 154 and. Mariamnissa Bibi V/s. Joynab Bibi 33 C. 110 : 10 C.W.N. 934 : 4 C.L.J. 149, were pronounced, while the Code of 1882 was in force and before Explanations I and II to Section 11 of the Code of 1908 had been enacted. We cannot further overlook that the decision of this Court in Midnapore Zemindary Company V/s. Nitya Kali Dasi 24 Ind. Cas. 243, shows that if the same question is in controversy between the same parties in two distinct litigaticns, one after the other, but simultaneously pending, the final decision in the latter suit, if given earlier, operates as res judicata in the earlier suit whose final stage is reached later. The rule of res judicata is, moreover, applicable to all the stages of c. suit, till it is finally terminated and is not confined to Courts of first instance. We are clearly of opinion that, on principle, there is no escape from this position, and Section 11 unquestionably does not authorise a departure there from. The conclusion follows that the decision of the question of title in the suit now under appeal, is barred by the decision in the subsequent suit between the same parties and others, which has terminated earlier in a victory for the present respondent. The decision could have been, but never has be en challenged, and cannot now be collaterally attacked or implicitly ignored.