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Judgment
These appeals have been preferred to challenge the judgment and decree dated 04/10/1993 passed by the 2nd Additional District Judge, Shahdol in Civil Suit No. 13A/1993, therefore both the appeals are being disposed of by this common judgment.
In this case it is not disputed that earlier suit land was part of Pawai (Jagirdhari) situated in Vindhya Pradesh region in which Gokaran, Indra Datt and Ram Sudharshan had share of 1/3rd each and Ram Sudharshan separated himself after taking 1/3rd from the pawai and Indra Datt and Gokaran continue their status in the pawai with ½ share each. Original plaintiff and Shiv Charan father of defendant no.5 Santosh Kumar were legal heir of Gokaran being his son and defendant no.1 and 2 are widows of Indra Datt's son Bhalchand and Padmesh respectively. On the application filed on bahalf of respondent/defendant no.1 Tara Bai and respondent/defendant no.2 Laliya Bai before the Sub Divisional Officer for partition of the land and on the basis of the wrong entry into revenue record. The SDO passed order on 24/05/1961 with regard to partition of the suit land declaring 1/3rd share of respondent/defendant Tara Bai and 1/3rd share of respondent/defendant Laliya Bai and 1/3rd share of Gokaran. During the pendency of the aforesaid proceeding before the SDO, the father of plaintiff Gokaran filed civil suit claiming ½ share in the suit land against the defendant/respondent no.1 Tara Bai and defendant/respondent no.2 Laliya Bai and the Civil Judge Class-II, Budhar by judgment and decree dated 30/12/1961 decreed the suit of Gokaran declaring him owner of ½ share and the defendant/respondent no.1 Tara Bai and defendant/respondent no.2 Laliya Bai owner of 1/4 share each. The aforesaid decrees of the Civil Judge, Class-II was not challenged in the appeal, hence attained finality. Despite of the aforesaid adjudication, respondent/defendant Tara Bai sold out 1/3rd share in the suit land with specific portion to defendant/respondent no.2 Brijendra Kumar by registered sale deed dated 22/05/69 for consideration and thereafter defendant/ respondent Brijendra Kumar are in possession of the purchased land.
The son of Gokaran, plaintiff Garur Prasad filed this suit on 18/06/69 before the Court of District Judge, Shahdol challenging the sale deed dated 22/05/69 executed by defendant/respondent Tara Bai in favour of defendant/respondent Brijendra Kumar on the ground that in earlier civil suit share of defendant/respondent Tara Bai was determined and she had only 1/2 share while by the aforesaid sale deed she sold out 1/3rd share. Therefore, the sale deed is null and void. The order of the SDO did not provide her 1/3rd share in the suit land. The order of the SDO was null and void, it was passed despite of stay order of the Revenue Commissioner and Civil Court and the decree passed by the Civil Judge is binding on the respondent/defendant Tara Bai, therefore the sale deed is null and void.
On behalf of the defendants the suit has been contested only by appellant/defendant Brijendra Kumar and other respondents/defendants have remained absent before the trial court, therefore the suit has been proceeded ex parte against them.
The stand of the appellant/defendant Brijendra Kumar was that the suit land was partitioned between Gokaran, and Balchand husband of respondent/defendant Tara Bai and Padmesh husband of respondent/defendant Laliya Bai on 12/07/1943 and according to the partition defendant/respondent Tara Bai got 1/3rd share and the order passed by the SDO with regard to partition of the suit land declaring 1/3rd share of respondent/defendant Tara Bai is legal and proper. Therefore the sale deed executed by the respondent/defendant Tara Bai in favour of him with regard to 1/3rd share is valid. Apart from it, after order dated 24/05/1961 the defendant/respondent Tara Bai was in exclusive possession of her share as sole owner and after execution of the sale deed dated 22/05/1969 appellant/defendant Brijendra Kumar has exclusive possession on the purchased land as owner, therefore on the principle of adverse possession the appellant/defendant Brijendra Kumar has acquired ownership right on the purchased land and the appellant after getting decree of civil court did not take further action in the life of Tara Bai, therefore this second suit can't lie against the defendant/respondent Tara Bai and purchaser of the land defendant no.3 Brijendra Kumar and the suit is time barred. Apart from it, it is also pleaded that by the sale deed defendant/respondent Tara Bai has sold out some land of self ownership other than the suit land, that transaction can't be challenged by the plaintiff and if it is decided that respondent/defendant Tara Bai could not transfer more than 1/4th share of the suit land then he be declared to be owner of the land to that extend and his possession be continued on the aforesaid part of the land. Accordingly the suit be dismissed.
The learned trial court has held that no partition was taken place in the year 12/07/1943 and the order of the SDO dated 24/05/1961 is null and void and the earlier decree of Civil Judge is binding on the parties. According to defendant Tara Bai had only 1/4th share in the suit land. Therefore the sale deed dated 22/05/1969 is null and void as respondent/defendant Tara Bai had no right to sell out more than 1/4th share and deliver exclusive possession of certain part of the land and plea of the defendant no.3 with regard to mature adverse possession of the land and dismissal of the suit on the basis of the plea of time barred and non maintainability of the second suit, has been rejected and the trial court has held that the order of the SDO dated 24/05/1961 with regard to partition of the suit land is illegal and it is held that Gokaran had ½ share in the suit property and being his legal heir plaintiff and defendant Santosh have ¼ share each and Tara Bai has ¼ and Laliya Bai has ¼ share in the suit land. Therefore they are entitled to get their share in the partition accordingly and the Collector was directed to make partition of the aforesaid suit land amongst the claimants. The aforesaid judgment and decree is challenged here.
The appellant/defendant no.3 Brijendra has challenged the judgment and decree on the ground that the findings of the learned trial court are erroneous and contrary to law. The order dated 24/05/1961 passed by the SDO with regard to partition of the suit land is binding on the parties. The SDO had exclusive jurisdiction to make partition of the agricultural land at relevant time. Therefore, despite of the decree of the civil court the partition made by the SDO can't be ignored. Apart from it, the suit was time barred and the basis of the adverse possession the appellant/defendant had matured the title on the land purchased from defendant no.1 Tara Bai. The dispute between the defendant no.1 Tara Bai and defendant no.2 Laliya Bai and plaintiff's father Gokaran was adjudicated by the decree of the civil court, therefore for the same relief the second suit is barred. Hence the suit is not maintainable and no further action was taken in pursuance of the earlier decree. Thus all right accrued by the decree has been ceased. Even if it is decided that defendant no.1 Tara Bai has not more than ¼ share in the suit land then to that extent the sale deed made in favour of the appellant is legal under the Transfer of Property Act as co-owner can sell out his share and the purchaser got status of co-owner of the property, therefore to that extent the defendant/appellant share should have been declared. But the trial court has completely set aside the sale deed including the transaction done by defendant no.1 Tara Bai with regard to other land, which was not part of the suit land. Hence the impugned judgment and decree is not sustainable it should be set aside or modified accordingly.
The plaintiff has also challenged the judgment and decree on the ground that before trial court on account of incorrect legal advice, the correct status of the law applicable in the case was not pleaded. Balchand, husband of defendant no.1 Tara Bai died in the year 1932 and simultaneously Padmesh, husband of defendant no.2 Laliya Bai was also died in the year 1932 and the suit property belong to joint hindu property and in the year 1932 widow of co-parcener had no right in the co-parcener property. Therefore in the year 1932 Gokaran being sole co-parcener became absolute owner of the land. Therefore, the defendant no.1 Tara Bai had no right to transfer any share of the property on this account also the sale deed is null and void. Therefore the plaintiff has filed an application under Order 6 Rule 17 of the C.P.C to amend the plaint. Apart from it, the impugned judgment and decree also deserve to be set aside as learned trial court has made actual partition among the parties despite of merely declaring their share and directing to revenue authority to make partition in accordance with the provisions of M.P. Land Revenue Code. Hence the application to amend the plaint be allowed and the judgment and decree be modified in view of the aforesaid legal background of the case.
Having heard the contentions of learned counsel for both parties and on perusal of the record, in these appeals following questions arises for adjudication:-
Whether the suit is time barred and not maintainable ?
Whether the application under Order 6 Rule 17 of the C.P.C to amend the plaint deserve to be allowed ?
Whether the finding in the judgment and decree passed by the Civil Judge, Class-II on 30/12/1961 amongst the plaintiff's father Gokaran and defendant no.1 Tara Bai and defendant no.2 Laliya Bai are binding on the appellant/defendant no.3 Brijendra Kumar and the order dated 24/05/1961 passed by the SDO with regard to partition is null and void ?
Whether the impugned judgment and decree requires modification as claimed by both parties ?
Question no.1:- The plaintiff filed civil suit on 18/06/1969 because defendant no.1 Tara Bai sold out some portion of the suit land by sale deed dated 22/05/1969 and the grievance is that the sale deed is null and void. Therefore the cause of action to file the suit was arise on 23/05/1969 claiming the title on the basis of earlier decree passed on 30/12/1961. Therefore apparently the suit is within time. The objection of the appellant/defendant Brijendra is that defendant no.1 Tara Bai was in exclusive possession of the suit land since 24/05/1961 (the date on which the SDO passed the order of partition of the suit land) and after execution of the sale deed dated 22/05/1969 he is in exclusive possession of the suit land. Therefore the suit is time barred and he acquired the title on the basis of adverse possession; this objection has no substance. After the order of SDO, the suit has been filed within 7 years and 1 month. Therefore there is no claim of exclusive possession of defendant no.1 Tara Bai and appellant/defendant no.3 Brijendra Kumar for more than 12 years, which requires for adverse possession. Hence the learned trial court has not committed any legal error ariving at the conclusion that the suit is not time barred and on the basis of adverse possession no right accrue to the defendant no.3 Brijendra Kumar.
The objection raised by the appellant/defendant no.3 Brijendra Kumar that the second suit for the same relief is not maintainable, also have no substance. The earlier suit was only for declaration of shares in the suit land and present suit has been filed because, without actual partition one co-sharer Tara Bai sold out more share than declared by earlier decree. Therefore, it can't be said that all issues raised in the present suit was determined in the earlier suit while the present suit is based on subsequent event of sale deed dated 22/05/1969 executed by defendant Tara Bai in favour of appellant/defendant no.3 Brijendra. In the present case, it has to be determined that whether the aforesaid sale deed is legal or not, the defendant has got any right and interest in the suit land, which was not the subject matter of the earlier suit. For the aforesaid reason, the learned trial court has not committed any error arriving at the conclusion that present suit is maintainable. The aforesaid question no.1 is answered accordingly.
Question no.2 & 3:-The plaintiff seeks amendment in the plaint with a view to set aside the sale deed dated 22/05/1969 on additional ground that Balchand, husband of defendant no.1 Tara Bai died in the year 1932 and simultaneously Padmesh, husband of defendant no.2 Laliya Bai was also died in the year 1932 and the suit property belong to joint hindu property and in the year 1932 widow of co-parcener had no right in the co-parcener property. Therefore in the year 1932, Gokaran being sole co-parcener became absolute owner of the land. Therefore, the defendant no.1 Tara Bai had no right to transfer any share of the property. The aforesaid prayer to amend the plaint is not acceptable legally, if the earlier decree of Civil Judge, Class-II dated 30/12/1961 has binding affect on the parties of the suit or the parties claiming their right on the basis of right determined in the earlier suit, inasmuchas if plaintiff is allowed to take stand contrary to the adjudication of the issue determined in the earlier suit and it would amount to give permission to raise new plea to determine the issue afresh, which was decided in the earlier suit, which had attained the finality and it would be against the principle of res judicata. If any issue has been adjudicated in the earlier suit can't be raised for re-determination in further suit. The parties of the earlier suit bound to accept the adjudication on such issue. Therefore whether the plaintiff can be permitted to take aforesaid new plea or not it would depend on the answer to next question. Therefore before adjudicating this question, the aforesaid question no.3 is being dealt with followingly.
It is admitted fact that the Civil Judge, Class-II Budhar by judgment and decree dated 30/12/1969 (Ex.P-5) adjudicated that in the suit land the plaintiff's father Gokaran has ½ share and original defendant Tara Bai and Laliya Bai have ¼ share each in the suit land. The defendant Brijendra Kumar is claiming his title on the basis of sale deed executed by Tara Bai. Therefore, the finding against the defendant Tara Bai is also binding on appellant/defendant Brijendra Kumar. As per the provision of section 11 of the C.P.C provides as under:-
Res judicata.-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Accordingly the adjudication in earlier suit with regard to shares of Tara Bai in the suit land is binding on the appellant/defendant Brijendra Kumar and this issue can't be tried by the Court again. Resultantly, the application under Order 6 Rule 17 of the C.P.C to amend the plaint can't be allowed.
Now the question is that whether the order passed by the SDO dated 24/05/1961 is null and void. On perusal of the record, it is clear that this has not been produced before the Court. Contrary to it, the order passed by the Board of Revenue Gwalior (Ex.P-3) shows that in this regard the order was passed on 31/10/1960 by SDO and the order of the SDO was set aside by order dated 23rd November, 1973 in the light of the judgment of the Civil Judge, Class-II dated 30/12/1961. Therefore, there is no order of the SDO in existence as the appellant/defendant no.3 Brijendra kumar has claimed. In the aforesaid circumstance, the question that whether the aforesaid order of the SDO with regard to partition is null and void has no base for adjudication and the same would have no affect on the rights of the parties, which have been adjudicated by the earlier judgment and decree 30/12/1969 (Ex.P-5).
In the aforesaid circumstance, the question that the SDO was having exclusive jurisdiction to partition the agricultural land and the Civil Court had no jurisdiction to entertain the suit for partition has no relevancy. Apart from it, the earlier suit disposed of by judgment and decree dated 30/12/1969 (Ex.P-5) was not for partition. The same was for declaration of the shares in the suit land. In view of the aforesaid discussion, it is held that the finding in the judgment and decree passed by the Civil Judge, Class-II dated 30/12/1969 among the plaintiff's father Gokaran, defendant no.1 Tara Bai and defendant no.2 Laliya Bai are also binding on the appellant/defendant no.3 Brijendra kumar and the order dated 24/05/1961 passed by the SDO with regard to partition has neither been proved to be existed and have no affect in the present case.
In view of the aforesaid finding, the application filed by the plaintiff under Order 6 Rule 17 of the C.P.C to amend the plaint does not deserve to be allowed as it would amount to re-open the issue of determination of the shares between the parties, which was adjudicated in earlier suit. Accordingly, the question no.2 and 3 are answered.
Question no.4:-The learned trial court has completely set aside the sale deed dated 22/05/1969 with regard to the suit land. In this regard on behalf of the appellant/defendant Brijendra Kumar it is contended that the sale deed with regard to 1/4 share of Tara Bai is legal. After the decree dated 30/12/1969 being co-owner of specific share Tara Bai had right to transfer her right by sale deed and as per provision of section 44 of the Transfer of Property Act such purchaser acquire the status of co-owner with rest of co-owner. Hence to that extent the sale deed be declared to be valid and also be declared that the land other than the suit land transfer by the sale deed will also remain unaffected. In other words, for the lands other than suit land the sale deed is also valid and accordingly the decree be modified.
On behalf of the plaintiff, who has also filed the separate appeal has objected that the learned trial court has itself passed the partition decree while the trial court has no power of passing such decree. The trial court can determine only the share of the parties and thereafter Tehsildar under section 178 of the M.PLRC Tenancy Code is competent to partition the holding. Therefore the decree be amended in accordance with the law.
The prayer made by the appellant/defendant Brijendra Kumar is acceptable. The sale deed to the extent of 1/4 share of Tara Bai and with regard to the land other than the suit land is legal as Tara Bai had right to transfer her share in the suit land and other property owned as self owner to the appellant/defendant Brijendra Kumar. Therefore to that extent the sale deed can't be said to be null and void and the decree require to be modified to that extend.
So far the objection raised by the plaintiff is concerned, the same has no substance as the learned trial court by impugned judgment and decree has only determined the shares of the parties and the Collector has been directed to partition the holding in accordance with the provisions of M.PLRC so that the Collector can direct any revenue officer to make the partition in accordance with the decree as per provision of Order 20 Rule 18 of the C.P.C.
In view of the aforesaid reasons, the appeal filed by the plaintiff (i.e F.A No.74/1994) is dismissed and the appeal filed by the appellant/defenand Brijendra Kumar (F.A No.11/1994) is partly allowed and the impugned decree is substituted in the following terms:-
(i) In the suit land, Old Khata No.66 Village Dhurwar Tehsil Suhagpur total area 51.64 acres. (Survey No. described in the schedule A attached with the decree of the trial court) the share of plaintiff and defendant Santosh being legal heirs of Gokaran is ½ and the share of Tara Bai was ¼ and share of Laliya Bai is ¼ share.
(ii) The sale deed dated 22/05/1969 executed by the defendant Tara Bai in favour of appellant/defendant Brijendra Kumar is null and void to the extent of more than 1/4 share of the suit land and on the basis of sale deed in the suit land he is entitled to 1/4 share in the suit land. Accordingly, Original plaintiff Garur Prasad or in case of his death his legal heirs have 1/4 share and Defendant no.5 Santosh Kumar or in case of his death his legal heirs have 1/2 share. Defendant no.2 Laliya Bai or in case of her death her legal heirs have 1/4 share and Defendant Brijendra Kumar have 1/4 share. Accordingly they are entitled of their share in the suit land and their shares are declared accordingly.
A copy of the decree be sent to the Collector District Shahdol to depute a revenue officer to make partition of the suit land amongst the parties accordingly as per the provision of M.P.L.R.C.
A copy of the judgment along with the record be sent to the trial court for compliance.