CHHADEK KARIKAR Vs. SAYAD ALI KAVIRAJ

JUDGEMENT

(1.) The two contentions urged on behalf of the appellant in this appeal are: 1st, that the finding in the suit under Section 9 of the Specific Relief Act, to the effect that the plaintiffs were not in possession within six months before the institution thereof, should have been held to operate as res judicata; and 2nd, that at any rate the judgment in that suit should have been considered as a piece of relevant evidence in the present suit.

(2.) With reference to the aforesaid contentions reliance has been placed upon the case of Lillu V/s. Annaji [1880] 5 Bom. 387 and the case of Jiaullah Sheikh V/s. Inu Khan [1896] 23 Cal. 693 and the principles laid down in the case of the Duchess of Kingston [1776] 2 Sm. L.C. (6th Ed.) 679.

(3.) Now as to the case of the Duchess of Kingston [1776] 2 Sm. L.C. (6 Ed.) 679 it was observed by the Judicial Committee in the case of Gokul Mandar V/s. Pudmanund Singh [1902] 29 Cal 707, while dealing with the provisions of Section 13 of Act XIV of 1882 (which so far as the present question is concerned has remained unaltered in Section 11 of Act V of 1908) that in certain respects, the nature of which need not be referred to here, "the enact-merit goes beyond Section 13 of the previous Act X of 1877 and also appears to their Lordships beyond the law laid down by the Judges in the Duchess of Kingston's case [1776] 2 Sm. L.C. (6 Ed.) 679; they will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction." As the contention in the present case is substantially to the effect that an issue should not be re-tried inasmuch as it was directly and substantially tried in a former suit between the same parties, the question has to be determined upon the provisions of Section 11 of the C.P.C., and it is not open to rely upon the principle of finality which forms the basis of the general law of res judicata apart from those provisions and this principle has been recognized by the Judicial Committee in a series of cases [Krishna Behari Roy V/s. Bunwari Lall Roy (1875) 1 Cal. 144, Soorjomonee Dayee V/s. Suddanund Mohapatter (1873) 12 B.L.R. 304, Ram Kripal V/s. Rup Kuari (1884) 6 All. 269 and George Henry Hook V/s. Administrator-General of Bengal A.I.R. 1921 P.C. 11. Referring to the other cases cited, the case of Lillu V/s. Annaji [1880] 5 Bom. 387] is no authority for the proposition for which it was cited. It is no authority for the proposition that the finding of a Magistrate in a ease under Section 530 of Act X of 1878 (corresponding to Section 145 of Act V of 1898) is conclusive in the sense that it will operate as res judicata in a subsequent civil litigation. All that was done was while contrasting an order as to possession made under that Act with the finding of a mamlatdar in a possessory suit. West, J., held that the latter was of no value, while the former was binding between the parties. That decision is of no assistance to the appellant in the present ease. In considering to what extent if at all the decision in the possessory suit is admissible, one has to distinguish between the judgment or decree in the said suit and the findings on the issues on which it is based. So far as the decree is concerned, it is admissible only if it is relevant under some particular section or other of the Evidence Act. As a rule judgments, orders or decrees are admissible if they are admissible under the provisions of Secs.13, 40,41, 42 or 43 of the Evidence Act. So far as a judgment in a case under Section 9 of the Specific Relief Act is concerned it does not come under Section 41 nor under Section 42, and it is relevant only under Section 13 and Secs.40 and 43, that is to say as evidence of a transaction or instance where the right to possession was claimed or disputed, and also as evidence to show that there was, such a judgment or decree, or in order either to found a further claim or to determine whether cognisance should or should not be taken of a suit or whether a trial should or should not be held. In the case of Radha Churn Ghuttuck V/s. Zumuroonissa Khatoon (1869) 11 W.R. 83 prior to the passing of the Evidence Act where after recovering possession against a defendant in a suit brought under Section 15 of Act XIV of 1859, plaintiff sued to recover mesne profits collected by the defendant while in possession, it was held that the decree in the first suit was sufficient prima facie evidence of plaintiff's title to warrant a decree in his favour for mesne profits, unless defendant could prove a better title. It will be seen that all that was held in that case was that it was some evidence of the plaintiff's title; nothing about conclusive evidence. In the case of Jiaullah Sheikh V/s. Inu Khan [1896] 23 Cal. 693 a decree for possession made under Section 9 of the Specific Relief Act was held to be some evidence of dispossession by the defendants in a subsequent suit against the same defendants to recover mesne profits. The decree was held not to operate as res judicata in that case on the ground that the Munsif who had tried the suit was not competent to try the subsequent suit. It is true that the decision of this Court in that case rested on that ground, but the observations of Macpherson, J. in that case are worth quoting :-"The decree in the former suit is not conclusive on the matter for this "if for no other" reason that the Munsif who passed it was not competent to try this suit which is beyond the pecuniary limit of his jurisdiction." Again: A decree under Section 9 of the Specific Relief Act is final to the extent to which it goes, and the effect of it is, rightly or wrongly, to put the plaintiff in possession, and to put upon the defendant, in any proceedings which he took, the burden of proving his title. The plaintiff in the present case is not, however, satisfied with what the decree gave him. He wants something more, and something which the Court.. could not have given him. It would certainly be very unfair, if the decree against which no appeal lay prevented the defendants, in their defence to the subsequent suit, from questioning the correctness of the grounds on which it was made, although they could not question the decree itself to which full effect had already been given. The decree, by putting the plaintiff in possession, puts him in a position to maintain a suit for damages for the alleged trespass; but, if the Court which made the decree had no jurisdiction to entertain the suit for damages, the decree could not be conclusive on the question of trespass, otherwise the superior Court dealing with the subsequent suit would in many cases merely have to determine the amount of the damages, and an effect would be given to the possessory decree which it was never intended to have. If; is unnecessary to consider what the effect of the decree would be, if the Courts were the same or of concurrent jurisdiction". Although this precise question was left open, the character of a decree under Section 9 of the Specific Relief Act was very aptly described. That, however, was a case in which the decree obtained by the plaintiff was sought to be used against the defendant as evidence of the plaintiffs possession and dispossession. In the present case the decree sought to be used is one dismissing the plaintiff's suit. Section 9 of the Specific Relief Act, itself provides that: " Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof." The use to which the decree may be made in the subsequent suit is only to show that a right to possession was asserted, and it was denied and a suit was instituted and it failed.