ASMATULLA PRAMANIK Vs. GAMIR PRAMANIK

JUDGEMENT

(1.) The facts here are as follows: The land in suit was a non-transferable occupancy holding belonging to one J. N. Moitra and held under him by two brothers Jadab and Madhab in equal shares. The holding was brought to sale by the landlord for arrears of rent and purchased by himself in 1915. In 1916 Jadab mortgaged his half share to plaintiff. In February 1917, the two brothers sold a portion of the jote to defendant No. 1 and defendant No. 2 in the present suit. In 1918 plaintiff sued on his mortgage against Jadab making defendant No. i and defendant No. 2 also parties; the suit was decreed in March 1919 on compromise against Jadab and ex parte as regards defendant No. 1 and defendant No. 2. On the 22nd June, 1921, Jadab's half share was brought to sale in execution and purchased by plaintiff. Upon his going to take possession he was resisted by defend-ant No. 1 and defendant No. 2 on the ground that they had taken a settlement from the landlord in January, 1918 Hence the present suit. This settlement has been found as a fast by the lower Appellate Court which dismissed the suit with costs.

(2.) The main argument before us has been upon the question whether Defendant No. 1. and defendant No. 2 are not now estopped from raising this question of paramount title in the settlement of 1918, seeing that they failed to raise it in the previous mortgage suit brought by the plaintiff against Jadab to which the defendant No. 1 and defendant No. 2 were also made parties, though they did not appear. The question was not argued in the lower Appellate Court, for it was there conceded that no estoppel existed in the present case. The rule of res judicata is set out in Section 11 of the Civil P. C., 1908, which provides that no Court shall try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties litigating under the same title in a Court competent to try such subsequent suit, and has been heard and finally decided. If this part of Section 11 were in itself exhaustive it would be impossible in the circumstances of the present case to support the plea, But then comes Explanation IV which lets in the principle of constructive res judicata by explaining that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. In the circumstances of the present suit it is conceded that the matter of the paramount title might have been made a ground of defence in the previous mortgage suit, and the dispute is narrowed down to the question whether it ought so to have been. It is clear enough that as a general rule the proper scope of a mortgage suit is to cut off the equity of redemption and bar the rights of the mortgagor and those claiming under him; the only proper parties to such a suit being the mortgagor and the mortgagee and those who have acquired an interest under them subsequent to the mortgage. In such a case a stranger setting up an adverse claim of title cannot be made a party for the purpose of litigating that in the mortgage suit. Jaggeswar Dutt V/s. Bhuban Mohan Mitra 33 C. 425 : 3 C.L.J. 205. In Nilakant Banerjee V/s. Sureshchandra Mulick 12 I.A. 171 : 12 C. 414 : 9 Ind. Jur. 439 : 4 Sar. P.C.J. 685 (P.C.) certain defendants impleaded in a mortgage suit as being interested in the equity of redemption subsequent to the mortgage set up a title paramount and claimed not to be proper parties : they were accordingly dismissed from the suit, and the Judicial Committee agreed that that was the correct view; otherwise it was said, the suit would have been multifarious and confused in the highest degree if it had gone on in that shape, as the defence raised was quite foreign to the scope of a mortgage suit. Certain other decisions are to be found in the reports bearing upon this question where, as in the present case, the person subsequently setting up a claim of paramount title is a party to the former litigation in another capacity which brings him within the legitimate arena of the mortgage suit. Thus Hare Krishna V/s. Robert Watson & Co. 8 C.W.N. 3658 C.W.N. 365 is a case where the question of paramount title had been raised by a defendant whom the mortgagee had made a party as being interested in the equity of redemption : the plaintiff accepted the issue on that footing, and was not allowed subsequently to maintain that it should not have been raised. In Girija Kanta Chakrabutty v. Mohim Chandra Acharjya 35 Ind. Cas. 294 : 23 C.L.J. 587 : 20 C.W.N. 675 the facts were that three brothers A, B and C were owners of the disputed property. A and B executed a mortgage of the entire property to the plaintiff. Then A died and subsequently the mortgagee sued B and C to enforce his security. B was made a party as an original mortgagor and as one of A's representatives: C only as the representative of his deceased brother A. There was no suggestion that the mortgage was operative otherwise against C. A decree was then made ex parte in the mortgage suit and the property was brought to sale and purchased by the plaintiff: He failed to get actual possession and sued to eject B and C. It was held that C was entitled to plead his paramount title and was not bound by the doctrine of res judicata that as C was a party to the previous suit only as representing his brother A the question whether the mortgage was operative against him in his personal capacity was not and could not have been raised in that litigation, as the suit was framed. The principle of this case was followed in Gobardhan V/s. Manna Lal 46 Ind. Cas. 559 : 40 A. 584 : 16 A.L.J. 639 where a puisne mortgagee holding also a paramount title in one instance did not appear, and in the other attempted to set up his paramount title but was not allowed to do so See also Yennamani Rammanna V/s. Masunari Venkatarayana . In the case of Srimanta Seal V/s. Bindubasini Das the facts were very similar to those in the present case, and the position is thus summarised, that " the plaintiff was joined as a defendant in the suit instituted by the mortgagees to enforce their security: At that time he had a two-fold character.... He was, no doubt, joined as a defendant as the purchaser of the equity of redemption. But he could also set up his title paramount derived from the landlords." The learned Judge [who was also a party to the decision in Girija Kanta's case 35 Ind. Cas. 294 : 23 C.L.J. 587 : 20 C.W.N. 675 above cited then refers to the case of Hare Krishna V/s. Robert Watson & Co. 8 C.W.N. 365 and continues " Here the plaintiff was a defendant in the mortgage suit. He had a two-fold character. As purchaser of the equity of redemption he was properly before the Court; as settlement-holder from the superior landlord, he could set up a defence that the mortgage could not be enforced against the property in his hands. He did not take that defence and the result was that a decree was made for sale of the mortgaged property in his presence. The decree is operative against him and he will be bound by the result of the sale in execution. In the present litigation, he seeks to avoid the decree and to make it inoperative, though it was passed in his presence and is obligatory upon him. Clearly such a course is not permissible; if this suit were allowed to be maintained, the only possible result would be a multiplicity of litigation."

(3.) This decision in Srimanta Seal V/s. Bindubasini Das has been strongly urged on behalf of the appellant in the present case. It is a matter for observation, however, that throughout the judgment the mind of the Court is directed entirely towards whether the defence of the paramount title " could " be set up in the mortgage suit; nowhere does it appear that the Court applied itself to the consideration of the question whether that was a matter which not only might but also ought to have been made a ground of defence in the former suit, within the meaning of Exp. IV of Section 11, Civil Procedure Coda. Unless both conditions are satisfied the rule will not apply.