Full Judgment Text
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PETITIONER:
RAJ LAKSHMI DASI AND OTHERS
Vs.
RESPONDENT:
BANAMALI SEN AND OTHERSBHOLANATH SEN AND OTHERSV.RAJ LAKSHMI
DATE OF JUDGMENT:
27/10/1952
BENCH:
MAHAJAN, MEHR CHAND
BENCH:
MAHAJAN, MEHR CHAND
AIYAR, N. CHANDRASEKHARA
BHAGWATI, NATWARLAL H.
CITATION:
1953 AIR 33 1953 SCR 154
CITATOR INFO :
F 1960 SC1186 (8)
R 1961 SC1457 (12)
R 1964 SC1013 (16)
R 1965 SC1153 (5,51,52)
D 1971 SC 664 (19)
RF 1977 SC1268 (21)
RF 1986 SC 500 (6,7)
R 1987 SC2205 (8)
D 1991 SC 264 (4)
ACT:
Res judicata-Land -acquisition proceedings-Dispute as to
title between rival claimants-Decision after contest-Whether
operates as res judicata in subsequent suit-Effect of
decision on mortgagees.
HEADNOTE:
Where the right to receive compensation for property
acquired in land acquisition proceedings as between rival
claimants depends the title to the property acquired and
the dispute as to title is raised by the parties and is
decided by the Land Acquisition Judge after contest, this
decision as to title operates as res judicata in a
subsequent suit between the same parties the question of
title. The binding force of a judgment delivered under the
Land Acquisition Act depends general principles of law and
not s. 11 of the Civil Procedure Code, and the decision of
a Land Acquisition Judge would operate as res judicata even
though he was not competent to try the subsequent suit.
If a mortgagee intervenes in land acquisition proceedings
and makes a claim for compensation, and any question of
title arises about the title of the mortgagor in respect to
the land acquired which affects the claim for compensation,
he has every right to protect that title and if he defends
that title and the issue is decided against his mortgagor,
the decision would operate as res judicata even as against
the mortgagee.
Certain premises which formed part of the estate of a de-
ceased person were acquired in land acquisition proceedings.
There was a triangular contest about the right to the
compensation money between A and B, two rival claimants to a
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four annas
155
share in the estate of the deceased, and C, a mortgagee from
one of the claimants. The three parties required the
question of apportionment to be referred to the Court and a
Special Judge who was appointed decided the question of
title to the four annas share upon which the right to
receive the compensation depended and made an award. The
Land Acquisition Judge and High Court found the title in
favour of B after due contest between the parties but the
Privy Council reversed the decision and decided the question
of title in favour of A. In a subsequent suit between the
-same parties the question of title was again raised:,
Held (i) that the decision of the Privy Council the ques-
tion of title in the land acquisition proceedings operated
as res judicata as against B &a well as C, even though the
Land Acquisition Judge was a Special Judge who would have
had no juris diction to try the subsequent suit;
(ii)that the rule of res judicata was applicable even though
the subject matter of dispute in the land acquisition
proceedings was the compensation money and not the property
which was in dispute in the subsequent suit ;
(iii)the fact that the mortgagee did not appear at the
hearing before the Privy Council was immaterial as the
judgments in the first two courts were given after full
contest.
Ramachandra Rao v. Ramachandra Rao [1922] 49 I.A. 129, and
Bhagwati v. Ram Kali [1939] 66 I.A. 14 applied.
JUDGMENT:
CIVIL APPFLLATE JURISDICTION: Civil Appeals Nos. 110 and 111
of 1951. Appeals from the Judgment and Decree dated May 6,
1946, of the High Court of Judicature at Calcutta (Biswas
and Chakravartti JJ.) in Original Decree No. 43 of 1942 with
Civil Rule 399 of 1945, arising out-of Judgment and Decree
dated June 30, 1941,, of the Second Court of Additional
Subordinate Judge, 24 Parganas, in Title Suit No. 63 of
1938.
N. C. Chatterjee (Saroj Kumar Chatterjee and A.
N. Sinha, with him) for the appellants in Civil Appeal
No. 110.
Panchanan Ghose (S. N. Mukherjee and Benoyendra
Prasad Bagehi, with him) for Respondents Nos. I (a) and 1
(b) in Civil Appeal No. 110 and the appellants in Civil
Appeal No. I I I.
Ram Krishna Pal (guardian ad litem) for responded No. 5 (3)
in Civil Appeal No. 110 and No.4 (3) in Civil Appeal No.
111,
156
1952. October27. The Judgment of the court wag delivered
by
MAHAJAN J.-These two connected apeals from the judgment and
decree of the High Court of Judicature at Calcutta in appeal
from Original Decree No. 43 of 1942 dated the 6th May, 1946,
arise out of Title Suit No. 63 of 1938, instituted the
21st September, 1938, in the Court of the Second Additional
Subordinate Judge of Alipore, by Rajlakshmi against the Sens
and the Dasses for possession of the properties which
represent a four anna share of the estate once held by one
Raj Ballav Seal.
the 8th June, 1870, two days before his death, Raj Ballav
Seal, a Hindu inhabitant of the town of Calcutta governed by
the Bengal School of Hindu law, executed a will giving
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authority to his widow Mati Dassi to adopt a son and
appointed her and three other persons as executors and
trustees of the estate and gave them elaborate directions
for the administration and distribution of his extensive
properties. Raj Ballav was one of those persons who believe
0in leaving detailed instructions about their property and
the manner in which it is to be managed and taken after
their death and expect their wishes to be dutifully carried
out by those who survive them. How his wishes have been
respected by his descendants is now a matter of history.
Since the year 1890 this is the eighth or ninth litigation
concerning the construction of the testament he made that
fateful &ay, and if by any means Raj Ballav could be
informed of the result of these litigations and was told
that it had been held that he had died intestate, he would
surely rise out of the ashes and lodge an emphatic protest
against what has happened.
Raj Ballav died the 10th June, 1870, leaving him
surviving his widow Mati Dassi and three grandsons, who were
sons of a predeceased daughter by another wife and one of
whom died in 1880 unmarried. The grandsons’ line will be
referred to in this judgment as the Sens. On Raj Ballav’s
death, Mati Dassi entered
157
into possession of the estate and adopted one Jogendra Nath
Seal in 1873 under’ the authority conferred her. Jogendra
married Katyayani, and Rajlakshmi, the plaintiff in the suit
out of which these appeals arise, is their only child. She
was less than one year old when Jogendra died in 1886.
Shortly after the death of Jogendra, Mati Dassi adopted
Amulya Charan, a brother of Katyayani in further exercise of
the authority conferred her. Mati Dassi died in 1899 and
the Sens then appeared to have taken possesion of the
estate. During the lifetime of Mati Dassi, the two
grandsons commenced a suit 22nd July, 1890, against Mati
Dassi and the other executors then living, Amulya and
Katyayani, for a declaration of the rights of the parties
under the will, administration of the estate, accounts and a
declaration’ as regardit their quarter share of the net
income. Trevelyan J. declared that the grandsons were
entitled to an onefourth share of the estate absolutely and
directed accounts to be taken. This declaration was granted
against Mati Dassi alone, the suit having been dismissed
against the other defendants. The two grandsons having
taken possession of the whole estate after the death of Mati
Dassi, Amulya brought a suit the 9th October, 1901,
against them and Katyayani for construction of the will and
a declaration that he was the duly adopted son and heir of
Raj Ballav and that as such, he was entitled to a three-
fourth share of the estate and the Sens were entitled only
to the remaining one-fourth share. By a judgment dated 5th
January, 1903, the trial court dismissed the suit the view
that under the will the first adopted son had acquired an
absolute right, Pitle and interest.in the share -of the
estate left by the will of his adoptive father and he having
left a widow and a daughter, Mati Dassi had no authority to
make a second adoption. This decision was affirmed
appeal. [Amitlya Charan Seal v. Kalidas Sen(1)].
13th January, 1903, eight days after the decision -of the
trial, court dismissing Amulya’s suit,
(I) (1905) I.LR. 32 Cal. 361
158
Katyayani commenced suit No. 11 of 1903 against the Sens,
Amulya and the receiver appointed in Amulya’s suit, for
construction of the will, declaration of title, partition
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and accounts. In, the plaint as originally filed, Katyayani
admitted the title of the Sens to an one-fourth share of the
estate and claimed only a three-fourth share for herself as
the widow of Jogendra. The Sens claimed the whole estate
for themselves as the heirs of Raj Ballav. They pleaded
that the will was not genuine and that even if it was
genuine, the bequests in favour of the adopted son and for
the worship of the deity were invalid and that even if they
were valid, Jogendra having died before attaining the age of
20 years had taken nothing under the will.
During the pendency of this suit, the 25th September,
1903, the Sens mortgaged the whole sixteen annas of the
estate to one Shib Krishna Das in order to secure a loan of
Rs. 7,000. The mortgagee and his representatives in
interest will be described in this judgment as the Dasses.
Amulya’s appeal against the judgment of the trial court
dated 5th January, 1903, was decided in 1905, during the
pendency of Katyayani’s suit No. 1 1 of 1903 instituted
the 13th January, 1903, and after the Dasses as mortgagees
had entered into possession. the 26th September, 1905,
after the decision of the High Court in Amulya’s suit,
Katyayani applied for an amendment of the plaint so as to
include a claim for the whole estate in accordance with that
decision. This application was allowed. To this amended
plaint no further written statement was filed by the Sens.
By a judgment dated 21st December, 1905, the trial Judge
decreed the claim of Katyayani for,the whole of Raj Ballav’s
estate and a decree for recovery of possession of the whole
estate was passed in her favour. It was held that the whole
of the corpus of the estate had vested in Jogendra and the
provisions of the will whereby a fourth-share had been
bequeathed to the grandsons were void and ineffectual. The
plea of adverse possession and limitation taken by the Sens
was abandoned at the trial,
159
Against this decision an appeal was taken to the District
Judge. The mortgagee Shib Krishna Das was also added as a
party in the appeal. The appeal was compromised and under
the compromise Katyayani was to get a six anna share in
absolute right in the estate, Kanai, her father, was to get
another six anna share for his supposed troubles and
expenses in connection with the litigation and each of the
Sons a two anna share, their shares to be subject to the
mortgage. charge. The compromise decree was passed 9th
January, 1907, and the suit was remanded to the trial court
in order that a partition might be effected and a final
decree passed. A partition was made in due course and final
decree was passed 10th September, 1907.
On the 18th April, 1907, after the consent decree had been
made by the appellate court in Katyayani’s suit, Rajlakshmi,
daughter of Katyayani and the next reversioner to the estate
of Jogendra, commenced suit No. 59 of 1907 ’against the
parties to the compromise for a declaration that the
compromise and the consent decree were void and inoperative
and that they were not binding her. The trial court held
that the compromise was binding Rajalakshmi but that she
was entitled to a declaration that Katyayani had taken only
a widow’s estate ’in the six annas share given to her.
appeal by Rajlakshmi, the High Court 8th August, 1910,
reversed the trial court’s decree and declared that the
consent decree was void and inoperative as against
Rajlakshmi and that she was in no way bound by the partition
proceedings which had taken place in execution thereof. The
appeal was not contested by the Sons but was contested by
the representatives of their mortgagees (the Dasses) who
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asserted the title of their mortgagors to an one fourth-
share of the estate both under the compromise decree and the
will. (Bajlakshmi Dassee v. Katyayani Dassee(1).
In the year 1919, two cross suits were commenced by the
grandsons and by Katyayani and Rajlakshmi
(I) (1911) I.L.R 38 Cal. 639.
160
for recovery of the twelve annas share and the four annas
share respectively in the possession of the respective
parties. Katyayani brought suit No. 115 of 1919 for
recovery of the four anna share against the Sens and the
Dasses, while the Sens brought suit No. 112 of 1919 for
recovery of the twelve annas share of the estate against
Katyayani and Rajlakshmi. Both these suits were dismissed
by the trial judge and his decision was affirmed appeal
21st July, 1925. Before the commencement of this suit, the
Dasses had brought a suit the foot of their mortgage and
had obtained a mortgage decree which was made final 23rd
November, 1918.
The property described as 2, Deb Lane, Calcutta, forming
part of Raj Ballav’s estate and which had’ been allotted
under the compromise to the share of the Sens was notified
by a declaration under the Land Acquisition Act for
acquisition the 16th January, 1921. the 27th April,
1928, Ajit Nath Das, mortgagee, made an application’
claiming the entire amount of compensation money and
contended that the mortgagee decree-holders were entitled to
the whole of it. Rajlakshmi claimed the entire amount as
owner of the sixteen anna share of Raj Ballav’s estate.
the 7th July, 1928, a joint award was made in favour of ’all
the claimants. Rajalakshmi asked for a reference to the
court the point of apportionment of compensation by a
petition made by her the 18th July, 1928. She asserted
that the Sens and the Dasses were not entitled to any
portion of the compensation money. Ajit Nath Das,
mortgagee, also made an application for reference the 18th
August, 1928. A similar petition was made by Jogender Mohan
Das. Bholanath Sen filed a statement of the claim 8th
June, 1929. A special judge was appointed under the Land
Acquisition Act to try the matter. He disallowed
Rajlakshmi’s claim and held that the Sens were entitled to
the entire compensation money. Both the Sens and the Dasses
were represented by their respective counsel and made common
cause against Rajlaksbmi.
161
Rajlakshmi appealed to the High Court against the decision
of the special judge but without any success. Her appeal
was dismissed 8th March, 1935. She preferred an appeal to
the Privy Council. This was allowed and Rajlakshmi was
declared entitled to the entire compensation money.
(Rajlakshmi v. Bholanath Sen) (1).
Within two months of the decision of the Privy Council, the
suit out of which these appeals &rise was commenced, as
already stated, by Rajlakshmi 21st September, 1938,
against the Sens and the Dsses for possession of the
properties which represented the four anna share of the
estate allotted to the Sens, and possession of which was
delivered to them in pursuance of the terms of the final
decree in suit No. 11 of 1903. A portion of these had since
then been purchased by the Dasses in execution of the
mortgage decree. This suit was dismissed by the trial
judge. Rajlakshmi appealed to the High Court against the
dismissal of her suit. The High Court allowed the appeal
in part, the judgment and, decree of the trial court in so
far as they dismissed the plaintiff’s suit as against the
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Sens were set aside and the suit was decreed against them
and the plaintiff’s title to the properties in suit was
declared as against them. It was ordered that she should
recover possession from them, as also from defendant 14 as
receiver but that her title and possession were subject to
the rights of the defendants-respondents 3 to 13 (Dasses) to
proceed against the properties in execution of their
mortgage decree the basis that these properties were in
the possession of and dealt with by defendantsrespondents 1
and 2 as representing the four anna share of the estate to
which they had title. An enquiry was also ordered as to the
amount of the mesne profits. The appeal was dismissed as
against respondents 3 to 13, the Dasses. The correctness of
this decision has been impugned before us in these appeals
by the respective parties to the extent that it goes against
them.
(I) (1938) 65 I.A. 365.
162
In order to appreciate the contentions raised in the two
appeals it is necessary to determine the true scope and
effect of the decision of the Privy Council in the land
acquisition case of 1928 (Rajlakshmi v. Bholanath Sen) (1).
The premises acquired in those proceedings admittedly formed
Part of the estate of Raj Ballav Seal, which under the
compromise decree of 1907 had by partition fallen to the
four anna share allotted to the Sens. There was a
triangular contest about the award of the compensation and a
joint award was made in their favour after notice to all the
parties interested in the property acquired including the
mortgagees. That the mortgagees were within the definition
of the phrase " person interested" is plain from the
language of section 10 of the Act and perhaps it would have
been unnecessary to mention this elementary fact by
reference to the provisions of the Act had not the High
Court thought otherwise. As already stated, the Sens, the
Dasses and Rajlakshmi required the question of apportionment
of compensation to be referred to the determination of the
court and they stated the grounds which their claims were
based. The dispute that arose between the parties is
apparent the face of those proceedings and in the words of
Lord Thankerton who delivered the decision of the Board, the
matter in controversy was whether Rajlakshmi was entitled to
the compensation money awarded in respect of the acquisition
of part of the premises, 2 Deb Lane, in the town of Calcutta
as successor to the estate of Raj Ballav Seal of which the
said premises formed part. The claim to compensation made
by the respective parties was founded the assertion of
their respective titles in that part of Raj Ballav’s estate
which under the partition decree of 1607 had been allotted
to the Sens subject to the charge of the Dasses, and the
decision the question of apportionment depended the
determination of that title. The land acquisition court had
thus jurisdiction to decide the question of title of the
parties in the property
(I) (1938) 65 I.A. 365.
163
acquired and that title could not be decided except by
deciding the controversy between the parties about the
ownership of the four anna share claimed by the Sens and
Rajlakshmi.
The Land Acquisition Court and the High Court appeal held
the title of the four annas share proved in the Sens. But
their Lordships of the Privy Council held otherwise and
found that the Sens had no such title, and that Rajlakshmi
alone was entitled to the whole of the estate of Raj Ballav
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Seat including the four anna share that was in possession of
the Sens and which their mortgagees had a charge. This is
how their Lordships settled the matter in controversy:-
"It is important to get a clear view of the position of the
estate after the decision of the High Court of 8th August,
1910, the effect of which (inter alia) was to annul the
consent decree of the District Court in No. 11 of 1903, and
to leave the decree of the Subordinate Judge, dated December
21, 1905, which has been already quoted, as final and
binding. This decree declaring Katyayani’s title to the
whole estate, was clearly a decree in Katyayani’s favour as
representing the whole interests in the estate, and it has
rightly been so regarded by both the courts below in the
present case; and it formed res judicata in any I question
with the Sens. As regards possession of the estate, while
the decree made an order for recovery of possession, the
possession given under the partition of 1907 continued, the
Sens being in possession of the four annas. It seems clear
that possession under an agreement which was not binding
the reversionary heirs could not avail the Sens in a
question with a reversionary heir, whose right to possess
could not arise until the succession opened to such heir."
The above is a clear determination of the question of title
between the Sens and Rajlakshmi in regard to the four anna
share. It was argued behalf of the Sens before the Privy
Council that in any case
164
the decision in suit No. 115 of 1919instituted by Katyayani
against the Sens and their mortgagees for recovery of the
four anna share operated as res judicata the claim of
Rajlakshmi. This plea was Inegatived and it was held that
the decree in suit No. 115 of 1919 could not and did not
affect Rajlakshmi’s right to possession. There can thus be
no doubt that the determination of the question of title to
this part of Raj Ballav’s estate was within the scope of the
land acquisition proceedings and the title was finally
determined in those proceedings.
In order successfully to establish a plea of res judicaia or
estoppel by record it is necessary to show that in a
previous case a court, having jurisdiction to try the
question, came to a decision necessarily and substantially
involving the determination of the matter in issue in the
later case. It was at one time a matter of doubt whether
the determination of a court to which a matter had been
referred by the collector was such a decision and that doubt
was resolved by the judgment of the Privy Council in
Bamachandra Bao v. Ramachandra Rao(1), which decided that
where a dispute as to the title to receive the compensation
had been referred to the court, a decree thereon not
Appealed from renders the question of title resjudicata in a
suit between the parties to the dispute. In that case it
was observed as follows:-
"The High Court appear only to have regarded the matter as
concluded to the extent of the co’mpensation money, but that
is not the true view of what occurred, for, as pointed in
Badar Bee v. Habib Merican Noordin(2) it is not competent
for the court, in the case of the same question arising
between the same parties, to review a previous decision no
longer open to appeal, given by another court having
jurisdiction to try the second case. If the decision was
wrong, it ought to have been appealed from in due time. Nor
in such circumstances can the interested parties be heard to
say that the value of the subject-matter
(1) (1922) 49 I.A. 129.
(2) [1909] A.C. 623.
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165
which the former decision was pronounced was comparatively
so trifling that it was not worth their while to appeal from
it. If such a plea were admissible, there would be no
finality-in litigation. The importance of a judicial
decision is not to be measured by the pecuniary value of the
particular item in dispute. It has been suggested that the
decision was not in a former suit, but whether this were so
or not makes no difference, for it has been recently pointed
out by this Board in Hook v. Administrator-General of
Bengal(1) that the principle which prevents the same matter
being twice litigated is of general application, and is not
limited by the specific words of the Code in this respect."
In Bhagwati v. Bam Kali(1) an issue was decided in favour of
B in a land acquisition proceeding that she was entitled to
the whole of the compensation money. In a subsequent suit
by another widow, who was also a claimant in the land
acquisit ion proceedings, for a declaration that she was
entitled to a half share in the estate inherited by her-
husband and his brothers, it was held that her suit was
barred by the rule of res judicata, the District Judge
having in the previous proceeding decided that she had no
title to the land. In that case part of the property in
dispute was, acquired under the Land Acquisition Act and the
Collector by his award apportioned the compensation between
the widows in equal shares. Both the widows raised the
question of title to the compensation. The objections were
referred under the Act to the District Judge and the
District Judge the issue as to whether Bhagwati was
entitled to the entire compensation or whether Ram Kali was
entitled to a half, found in favour of Bhagwati. Ram Kali
then brought a suit’ against Bhagwati for a declaration of
her right to a half share of the whole of the property
inherited by the brothers and their mother. The Subordinate
Judge held that the suit was barred by res judicala by the
decision of the District Judge in the reference under the
Land Acquisition Act. The High Court
(1) (1921) 48 I.A. 187.
(2) (1939) 66 I.A. 145.
166
reversed this decision holding that Ram Kali’s title ,was
not the subject-matter of the reforence to the ;District
Judge and he was not therefore competent to try it. The
Privy Council reversed this decision and held that the
District Judge did determine the question of the ownership
and his decision was binding upon the parties and the-matter
was res judicata.
These two decisions, in our opinion, are conclusive the
point of resjudicata raised in the present case and in these
circumstances it has to be hold that the question of title
to the four anna share was necessarily and substantially
involved in the land acquisition proceedings and was finally
decided by a court having jurisdiction to try it and that
decision(thus operates as res judicata and estops the Sens @
and the mortgagees from re-agitating that matter in this
suit. We are not now concerned with the question whether
the Privy Council was right or wrong.
The High Court held that there can be no question that this
decision is binding the Sens and concludes them the
question of their title as against Rajlakshmi and that
there could be no question also that it is binding the
mortagees who were parties to the proceeding. In the
concluding part of the judgment they observed as follows --
"Our conclusion, therefore, is that there is nothing in the
decision of the Privy Council which can operate as res
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judicata against the Dasses, either directly or
constructively, the question of the title of the Sens to
the mortgaged properties. They are bound by the decision so
far as it goes: just as the Sens can no longer say that the
decision in suit No. 11 ,is not res judicata against them in
a question with the plaintiff, both as regards title and the
right to possession,so cannot the Dasses say that the
decision is not res judicata against the Sens. But their
own right to prove the title of the Sens against the plaint-
iff is in no way affected. This may look anomalous, ’but
such anomaly is -inherent in the doctrine of res judicata
which does not create or destroy title but is only a rule of
estoppel,"
167
With great respect it seems to us that the, conclusion
reached as regards the mortgagees is neither illuminating
nor sound. The anomalous result arrived at is account of
a wrong approach to the solution of the problem and is not
the result of any anomaly inherent -in the doctrine of res
judicata. The learned Judges posed certain questions and
then attempted to answer them in view of the limited
provisions of section 11, Civil Procedure Code, which in
terms apply only to suits, forgetting for the moment, if we
may say so with respect, that the doctrine of res judicata
is based general principles of jurisprudence. The
questions were: (1) Did the judgment of the Privy Council in
the 1928 land acquisition proceedings decide any question as
to the right of the mortgagees to hold from the Sens a
mortgage of the four anna share, or their right to prove the
title of their mortgagors in a question between themselves
and the reversioners to Jogendra’s estate ? (2) Could the
mortgagees have raised these questions in the land acquisi-
tion proceedings and even if they could have, are the
questions such that they ought to have been raised? It is
difficult to appreciate how both these questions were
germane to the issue to be decided in the case. Here it is
worthwhile repeating what was said by Sir Lawrence Jenkins
in delivering the judgment of the Board in Sheoparsan Singh
v. Ramnandan Singh(1):"
‘‘ In view of the arguments addressed to them, their
Lordships desire to emphasize that the rule of res judicata
while founded ancient precedent, is dictated by a wisdom
which is for all time. ’It hath been well said’ declared
Lord Coke, ’interest reipublicaeut sit finis litium-
otherwise, great oppression might be done under colour and
pretence of law’ (6 Coke 9a). Though the rule of the Code
May be traced to an English source, it embodies a doctrine
in no way opposed to the spirit of the law as expounded by
the Hindu commentators. Vijnaneswara and Nilakantha include
the plea of a former judgment among those allowed by law,
each citing for this purpose the text of
(i) (1916) 43 I.A. 91 at p. 98
168
Katyayana who describes the plea thus: If a person, though
defeated at law, sue again, he should be answered, "you were
defeated formerly". This is called the ple a of former
judgment. And so the application of the rule by the courts
in India should ,’,be influenced by no technical
considerations of form, but by matter of substance within
the limits allowed by law."
The binding force of a judgment delivered under the Land
Acquisition Act depends general principles of law and not
upon section 11 of the Act. If it were not binding, there
would be no end to litigation,
The- mortgagees had been fighting about the title of the
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mortgagors from - the year 1910. When Rajakshmi lost her
suit instituted 18th April, 1917, to contest the
compromise decree in suit No. 59 of 1907 and preferred an
appeal to the High Court, that appeal was not contested by
the Sens at all, but was contested by the representatives of
their mortgagee who asserted the title of the mortgagors to
one-fourth share of the estate both under the compromise
decree and under the will. In the year 1919 when the two
cross suits above mentioned wore commenced, the mortgagees
were impleaded as parties and took an active interest in the
cases. When the proceedings under the Land Acquisition Act
were commenced in the year 1928 a joint award was made in
their favour along with the Sens and Rajlaksmi. As parties
interested in the property acquired they asked for a
reference and gotit. They were represented by counsel
before the land acquisition court and got a decision the
question of title as to the four anna share of the estate of
the late Raj Ballav in favourofthemortgagorsandthemselves.
They were impleaded as parties in the appeal preferred by
Rajlakshmi to the High Court and before that court also they
were represented by counsel and were successful in defending
that appeal. They were again impleaded as parties by
Rajlakshmi in the appeal preferred by her to the Privy
Council. They took active part in the proceedings for leave
to appeal and in
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having the papers prepared for the use of the Privy Council.
As a matter of fact, they paid part of the printing cost.
Their non-appearance before the Privy Council at the time of
hearing cannot thus relieve them of the consequence of an
adverse decision given against them by, the Privy Council.
They had every, right in those proceedings to defend the
title of their, mortgagors to the four anna share and they
fully exercised their right except that at the last stage,
possibly having won in the two courts below, they assumed
that the decision in the final court would also be
favourable to them and did not appear before the Privy
Council. It had been held in a number of cases prior to the
amendment made in section 73 of the Transfer of Property Act
by Act XX of 1929 that where the property acquired forms
part of an estate which is mortgaged for an amount larger
than the amount awarded as compensation, the mortgagee is
entitled to the whole of the compensation in liqcuidation of
the mortgage debt. This view was accepted by the
legislature when it added sub-sections (2) and (3) to
section 73. Sub-section (2) is in these terms
"Where the mortgaged property or any part thereof or any
interest therein is acquired under the Land’ Acquisition
Act, 1894, or any other enactment for the time being in
force providing for the compulsory acquisition of immoveable
property, the mortgagee shall be entitled to claim payment
of the mortgagemoney, in whole or in part, out of the amount
due to the mortgagor as compensation."
In view of the provisions of sections 9, 10, 18 and 30 of
the Land Acquisition Act, it is evident that if the
mortgagee actually intervenes in the land acquisition
proceedings and makes a claim for the compensation, and any
question of title arises about the right of the mortgagor in
respect to the land acquired which affects the claim for
compensation, he has every right to protect that title. In
the proceedings commenced in 1928 for the acquisition of 2,
Deb Lane, Calcutta, as already stated, the mortgagees
actually
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intervened and defended the title of their martgagors but
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without success. In those circumstances the view taken by
the High Court that they-had no locus standi to make the
claim, as it was not based their own title cannot be
sustained because a mortgagee has no other title than the
title of his mortgagor. The judgment of the High Court when
it says that the Dasses claimed it the footing that they
being; creditors of the Sens, with a lien the property,
were entitled to receive the money towards the satisfaction
of their debt and their claim therefore was not a claim of
title, but only- a claim to receive the compensation money,
is clearly erroneous as the claim could be established only
by proving the title of their mortgagors as against
Rajlakshmi. We have further not been able to follow the
judgment of the High Court when it says that the and
acquisition court must be presumed to have dismissed the
mortgagees’ claim the proper and legal ground that the
mortgagees being mere mortgagees had no locus standi to lay
claim for the compensation money. It would have been more
accurate if it was said that the land acquisition court
having held the title of the Sens proved to the premises
acquired, presumed that the compensation money to which the
Sons were entitled would be paid in due course to their
mortgagees as both of them were sailing together and had a
common cause against Rajlakshmi. The High Court further
observed that the mortgagees were bound by the decision of
the Privy Council so far as it goes against them. We are
not able to see to which part of the decision this remark
relates. The only decision that the Privy Council gave was
the question of the title of the Sens. The award of
compensation to Rajlakshmi was a mere consequence of it, and
if the Sens had no title in the four anna share of Raj
Ballav’s estate, the mortgagees obviously can have no lien
any part of the property included in that share. The
strangest part of the judgment of the High Court is when it
says that the right of the Dasses to prove the title of the
Sens against the plaintiff was in no way affected by the
Privy Council decision.
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,It seems to have lost sight of the fact that that right was
advanced by the Dasses more than once. It was exercised by
them in the litigation of the year 1907 which ended in the
decision of the High Court in 1910. It was exercised by
them in the 1919 litigation and was again exercised by them
in the land acquisition proceedings of 1928. In these
circumstances it appears to us that they had no further
right left to establish the title of their mortgagors in the
four anna share of Raj Ballav’s estate claimed by them.
It may be pointed out that the mortgagees having got a
decision in their favour from the High Court, absented
themselves before us. One of the representatives of the
original mortgagees, Ram Krishen Das, is a minor and was
represented by a guardian ad litem appointed for the suit in
the court below. He appeared and contested the appeal and
urged that the mortgagees had no interest whatever in the
property acquired and that they were interested only in
realising their debt. This contention is directly opposed
to the provisions of section 58 of the Transfer of Property
Act and the clear provisions of section 73 which only states
the law that prevailed even before then. The result is that
we are of the opinion that the High Court was in error in
holding that the decision of the Privy Council in the land
acquisition case of 1928. was not binding the mortgagees
the question of the title of the Sens to the four anna share
of Raj Ballav’s. estate as against Rajlakshmi.
Mr. Panchanan Ghose for the. Sens made a valiant effort to
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escape from the effect of the Privy Council judgment in
Rajalakshmi v. Bholanath Sen(1) a number of grounds.
None of his arguments, however, was convincing and might
well have been summarily ,rejected but we think that it is
due to Mr. Ghose and ,his long standing at the Bar that the
arguments are noticed and met.
The first contention raised by :him was that the judgment of
the Privy Council could not operate as
(i) [1938] 65 I.A. 365.
172
res judicata against the present contention of the Sens and
the mortgagees,about the title to the four anna share of Raj
Ballav’s estate, because the subject matter of those
proceedings was the compensation money, a sum of Rs. 900,
and not the property that is the subject-matter of the
present suit. He argued that when the plea of res judicata
is founded general principles of law, that plea can only
prevail provided the subject-matter in the two cases is
identical. It was conceded that such contention could not
be sustained under the provisions of section 11 of the Code.
In our opinion this argument is untenable and was negatived
by their Lordships of the Privy Council in Bhagwati v. Bam
Kali(1), cited above, in clear and emphatic terms. In that
case, in a regular suit which concerned the rest of the
property the plea of res judicata was upheld by reason of
the decision in the land acquisition case which concerned
another part of the property which had been acquired and for
which compensation was payable. The quotation already cited
earlier from this decision brings out that point clearly.
The test of res judicata is the identity of title in the two
litigations and not the identity of the actual property
involved in the two cases.
It was then argued by Mr. Ghose that the judge who decided
the apportionment issue in the land acquisition proceedings
of 1928 was a special judge appointed under the Land
Acquisition Act and not being a District Judge, the two
decisions of the Privy Council., i.e., Bamachandra Bao v.
Bamachandra Rao(2) and Bhagwati v. Bam Kali(1), had no
application, as the special judge had no jurisdiction to
hear the present suit, while the District Judge in those
cases would have jurisdiction to hear the regular suits. It
was urged that to substantiate the plea of resjudicata even
general principles of law it was necessary that the court
that heard and decided the former case should be a court
competent to hear the subsequent case. This contention was
based the language of
(I) [1939] 66 I. A. 145.
(2) [1922] 49 I.A. 129.
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section 11. The condition regarding the competency of the
former court to try the subsequent suit is one of the
limitations engrafted the general rule of res judicata by
section 11 of the Code and has application to suits alone.
When a plea of res judicata is founded general principles
of law, all that is necessary to establish is that the court
that heard and decided the former case was a court of
competent jurisdiction. It does not seem necessary in such
cases to further prove that it has jurisdiction to hear the
later suit. A plea of res judicata general principles can
be successfully taken in respect of judgments of courts of
exclusive jurisdiction, like revenue courts, land
acquisition courts, administration courts, etc. It is
obvious that these courts are not entitled to try a regular
suit and they only exercise special jurisdiction conferred
them by the statute. We have not been able to appreciate
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the distinction sought to be made out by Mr. Ghose that had
this matter been decided by a District Judge, then the
decision of the Privy Council would have been res judicata
but as it was decided by a special judge the effect was
different. The District Judge when exercising powers of a
court under the Land Acquisition Act, in that capacity is
not entitled to try a regular suit and his jurisdiction
under the Land Acquisition Act is quite different from the
jurisdiction he exercises the regular civil side.
Next it was urged that the decision given by the Privy
Council was ex parte, and it had not the force of res
judicata unless the subject-matter of the two proceedings
was identical. Reliance for this proposition was placed
certain observations contained in the decision of the House
of Lords in NeW Brunswick Rly. Co. v. British,* French
Trust Corporation(1). in that case a view was expressed that
in the case of a judgment in default of appearance, a
defendant is only estopped from setting up in a subsequent
action a defence which was necessarily, and with complete
precision, decided by the previous judgment, and it
(I) (1939] A.C. I.
23
174
was said that if a Writ is issued for a small claim, the
defendant may well think it is better to let judgment ,go by
default rather than incur the trouble and expense of
contesting it and that in such cases the default judgment
one bond cannot be used as governing the construction of 992
other bonds even if identical in tenor as it would involve a
great hardship were the defendat precluded from contesting
the later case. These observations have no apposite.
application to the circumstances of the present case where
the judgments of the first two courts were given after full
contest and then a party defaulted in appearing before the
Privy Council after having obtained judgment in his favour
in the courts below.
A now point was taken for the first time before us which had
not been taken in express terms in the written statement and
which had not been argued either before the Subordinate
Judge or before the High Court. The point was that the
present suit of Rajlakshmi was barred by section 47, Civil
Procedure Code, inasmuch as she obtained a decree for
possession of the whole estate including the four anna share
now in dispute in her suit No. II of 1903 and having
obtained a decree for possession, her remedy to recover
possession of that share along with the twelve anna share
was by executing that decree and not by a separate suit. ,
The plea has no substance in it. The decree given in suit
No. 11 of 1903 became unexecutable by reason of the
compromise arrived at in appeal in that case in 1907, which
compromise was given full effect by actual partition of the
property. When that, decree was declared null and void at
the instance of Rajlakshmi, it still remained binding inter
partes during the lifetime of Katyayani and that was the
reason why Katyayani’s suit brought in 1919 for recovery of
possession of the four anna share was dismissed. That suit,
however, was held to have been instituted by Katyayani for
protection of her personal rights and not as a
representative of Jogendra’s estate. It was for this reason
that the Privy Council in, the 1928 land acquisition case
held that it
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had not the effect of res judicata Rajlakshmis suit
claiming title in the four anna share of Raj Ballav’s estate
which under the partition decree had gone to the Sens.
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Katyayani in view of the compromise decree had no right to
execute the decree as a different situation had arisen after
the decree had been passed. She had a fresh cause of
action’ to bring a new suit for possession by setting aside
the compromise. This she did but failed. As against Raj-
lakshmi the plea of section 47 in these circumstances can
have no validity. Even as against Katyayani it was
untenable-and it seems it was for this reason that this plea
was never taken either in the earlier suit of 1919 or in the
present suit. For the reasons given above this contention
of Mr. Ghose also fails.
Mr. Ghose raised a question of limitation and urged that
Rajlakshmi’s suit was barred by time inasmuch as the cause
of action to sue for possession of the four anna share
accrued to Jogendra and he having failed to file a suit,
both Katyayani and Rajlakshmi must be taken to have lost the
title to the part of the property in the possession of the
Sens. The premises which this contention is based is
erroneous. Jogendra died long before the Sens took
possession of the property and therefore Jogendra before his
death had no cause of action against the Sens to eject them
as they were not in possession. the other hand, the
trustees were holding the property his behalf. The pleas
of limitation and adverse possession were abandoned by the
Sens a former occasion, as already stated in the earlier
part of this judgment, and they were negatived by the Privy
Council in the land acquisition proceedings. It is evident
that the possession of the Sens during the lifetime of
Katyayani could not confer any title them as against
Rajlakshmi, the next reversioner, whose title to the estate
could only arise the death of Katyayani.
For the reasons given above we hold that the appeal (No. 111
of 1951) preferred behalf of the
176
Sens has no merits and must fail. It is accordingly
dismissed with costs. The appeal preferred by Rajlakshmi
against the mortgagees ’(No. 110 of 1951) is allowed with
costs in all the courts and her title to the property in
suit and for possession of the f same is decreed and it is
directed that the defendants do deliver Possession of the
suit properties to the plaintiff. It is further declared
that the plaintiff is entitled to mesne profits from the
defendants. An enquiry will be made as to the amount of
mesne profits due prior and-subsequent to the institution of
the suit and there will be a decree for the amount so
determined.
In conclusion we do express the hope that this judgment will
finally conclude the ruinous litigations which have-been
going in courts since the last 62 years in respect of Raj
Ballav’s estate and ingenuity of counsel will no longer-be
pressed into service to again reopen questions which must
now be taken as finally settled.
Appeal No. 110 allowed. Appeal No. 111 dismissed.
Agent for the appellants in C. A. No. 110 and respondent No.
1 in C.A. No. Ill S. C. Bannerjee.
Agent for respondents Nos. 1 (a) and (b) in C.A. No. 110 and
appellants in C. A. No. Ill: Sukumar Ghose.
177