DRUPAD CHANDRA NASKAR Vs. BINDUMOYI DASI

JUDGEMENT

(1.) This is an appeal by the defendants against a decision of the Subordinate Judge of Howrah reversing a decision of the Munsif of the second Court of the same place. The suit was brought for a declaration that certain properties, were debutter and for an injunction to restrain the defendants from interfering with the plaintiffs possession therein. The first Court dismissed the suit but the lower Appellate Court has decreed it. The first Court held that a certain deed of dedication under which the plaintiffs claim was not intended to be acted upon. This has been reversed by the lower Appellate Court. It appears that a previous suit was instituted before the Munsif for recovery of possession by the plaintiffs of a portion of the properties which are covered by the deed of dedication. It was held in that suit that the dedication was invalid and accordingly, it is urged before us that the previous suit with regard to the validity of the deed operates as res judicata in the present suit. Secondly, it is urged that in any case the previous decision operates as res judicata so far as the portion of the debutter properties covered by that suit is concerned. Thirdly, it was contended that Jatindra and Brojobala the heirs of Mukunda were not bound by the decree passed by the, lower Appellate Court as it is stated that prior to the passing of that decree Jatindra attained his majority and Mukunda died and there was no substitution of his heirs.

(2.) So far as the first point is concerned what is stated is that the test as to whether the previous decision operates as res judicata or not depends on whether the Court which tried the former suit could have tried, the present suit. We were referred to the provisions of the Court Fees Act, Section 7 and Sub-section (iv) and to Section 8 of the Suits Valuation Act and it was sought to, show that despite the value placed for the purpose of jurisdiction on the present suit the Court which tried the former suit had jurisdiction to try the present suit and that accordingly, the former decision operated as res judicata. Now as we have already stated, the relief claimed in that suit was for a declaration that certain properties were debutter and for an injunction and if you look at the plaint in the present suit you will find that for the purpose of jurisdiction, the value is fixed at Rs. 1,500 and Rs. 100 in respect of the injunction claimed, that is to say a total value of Rs. 1,600. But it is stated that by virtue of the Court Fees Act you have to look at the amount at which the relief sought is valued and that if you look at the real value in the present suit it will appear that it was less than Rs. 1,000 and that accordingly, the suit was triable by the Munsif who dealt with the former suit. I am afraid that this argument does not carry conviction to me. The plaintiffs valued the suit at Rs. 1,500 plus Rs. 100 and we think that they must be bound by the valuation and this being so, clearly the Munsif had no jurisdiction to deal with the relief sought in the present suit with the result that I agree with the decision of the Court below that the prior suit did not operate as res judicata with regard to the matters at issue in the present suit.

(3.) So far as the second point is concerned I agree with the contention of the appellants and we think that so far as the property dealt with in that suit is concerned the decision operates as res judicata with regard to that portion of the property. It is suggested that the second point is governed by the first and that if the previous decision did not operate as res judicata it is open to the plaintiff now, despite the decision against her in the prior suit, to re-open that matter and re-agitate the question which was decided in the previous litigation. We do not think that that contention is correct. We think that as to the properties which measured 1 1/2 bighas of land of schedule kha the decision in the previous suit operates as res judicata and the plaintiff cannot succeed so far as this portion of the land is concerned. So far as the other point is concerned we think that a duty lay on Jatindra when he attained majority to discharge his guardian ad litem and appear himself. Despite the fact that the plaintiff was his grandmother who presumably knew when he attained majority, we do not think that the obligation was on her to discharge the guardian who properly represented the infant during his minority. We think, therefore, that it is not possible to say that Jatindra was not bound by the decree. Other considerations, however, apply so far as Mukunda's heir Brajabala was concerned, Mukunda died prior to the decision in the lower Appellate Court and no substitution was effected and clearly his estate is not bound by the decree which was passed in that suit nor do I think that the mere fact that Brajabala is a party to this appeal and applied to the Court for permission to appeal against the previous decision prevents her from now asserting that Mukunda's estate was nut bound by the decree of the lower Appellate Court. We think, therefore, that so far as Mukunda's interest is concerned the decree obtained by the plaintiff has no binding force or effect as regards that estate.