Laishram Aber Singh vs Pebam Subhaschandra Singh and Others

N.G. Das, J.—This is a second appeal from a Judgment and decree dated 20th April, 1983 passed by the learned Additional District Judge, Manipur in Civil Appeal Case No. 7/8214 of 1982. The facts giving rise to this appeal, so far as a statement thereof is necessary for the present purpose, may be shortly stated.

The principal Respondents here-in filed a suit being O.S. 7 of 1968 in the Court of Munsiff, Bishenpur, Manipur for a decree for eviction of the present Appellant Laishram Aber Singh from the suit land measuring 2.22 acres covered by C.S. plot No. 1226 of village No. 45 B.T. under Patta No. 45/466 (New patta No. 45/304 B.T.)

The case of the Respondents was that they and proforma Respondent Nos. 16 and 17 got suit land by way of inheritance and they had been possessing the suit land until 1968 when they were dispossessed by the present Appellant who claimed to have acquired title to the suit land by virtue of a sale deed purported to have been executed by the mother of the Respondents. After their dispossession a proceeding case u/s 107 of Code of Criminal Procedure followed by another proceeding Under Section. 145 of Code of Criminal Procedure were started and in the later case the Respondents were restrained from possessing the suit land. So, they filed the aforesaid suit.

The present Appellant resisted the suit by filing written statement and this suit was dismissed on 8.11.74.

Aggrieved by the Judgment of learned Munsiff, the Respondents filed an appeal being Civil Appeal No. 7/74/3 of 75 which was disposed of on 25.9.75 by learned Additional District Judge, Manipur. The learned Additional District Judge, Manipur partly decreed the suit of the Respondents holding that the sale deed dated 21.11.82 was illegal and was not binding on the principal Respondents. As regards recovery of possession, learned Additional District Judge dismissed the prayer but he left it open to the Respondents for ejectment of the Appellant by filing a separate and properly constituted suit. No appeal was filed against this Judgment of learned Additional District Judge.

Thereafter the present principal Respondents filed the suit No. O.S. 5 of 1978 against the present Appellant its principal Defendant and others in the court of Munsiff, Imphal, Manipur for a decree for eviction of the principal Defendant i.e. the present Appellant from the suit land measuring 2.22 acres covered by C.S. Plot No. 1226 appertaining to patta No. 48/466 corresponding to New Patta No. 45/304 of Village 45 B.T. and for other reliefs such as mesne profit etc.

Defendant No. 1 Appellant here-in contested the suit by filing a written statement where-in he denied all the material averments of the plaint. Upon the pleadings the learned Munsiff framed as many as 17 issue. Out of those, issue No 13 namely "Whether the suit is barred by the principles of res-judicata?" was taken up, at first, as according to him it involved the question of jurisdiction of the court. Learned Munsiff held that the suit was barred by the principles of res judicata and with this finding he dismissed the suit with cost.

Aggrieved by this Judgment the principal Respondents here-in filed an appeal which was numbered as Civil Appeal No. 7 of 1982/14 of 1982 Learned Additional District Judge disposed of the appeal by his Judgment dated 20th of April, 1983 where-by he allowed the appeal without cost setting aside the Judgment and decree of the trial court and remanded the case to the lower court for disposal according to law. Hence this second Appeal.

Now the only question involved in this second appeal is whether the Suit bearing No. O.S. 5 of 1978 brought by the principal Respondents was barred by the principles of res-judicata.

Mr. H. Manglem, the learned Counsel appearing on behalf of the Appellant argues that the suit is barred by the principles of res-judicata as the appellate court i.e. the learned Additional District Judge made a specific finding that the Plaintiff''s suit regarding possession of the suit land by evicting the Defendant No. 1 from the suit land is dismissed. It seems that Mr. Manglem seeks to base his case of res-judicata upon explanation V to Section 11 of CPC runs as follows:

No Court shall try any suit or issue in which the matter directly and substantially in issue has been 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.

Explanation V runs as follows:

Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused.

On a plain reading of this provision, it appears to me that explanation V to Section 11 of CPC indicates that the relief claimed if not expressly granted should be deemed to be refused and this explanation can apply only to a relief which is independent of the relief which has already been granted by the court because if the relief which is implied in a relief which has already been granted by the court, a specific mention of that relief in the decree may not be strictly necessary. In the instant case principal Respondents made a specific prayer for recovery of possession by evicting the Defendant i.e. the present Appellant. It is however, true that the parties are the same and the same matter was in issue in the former suit bearing No. O.S. 7 of 1968. Mr. Kumarjit Singh, the learned Counsel appearing on behalf of the Respondents has quite vehemently argued that the trial court framed no specific issue as to whether the principal Respondents were entitled to get a decree for recovery of possession of the suit land by evicting the Defendant namely the present Appellant. I find much substance in the submission of Mr. Kumarjit as on perusal of the records of the trial court I find that even though there was a specific prayer for eviction of the Defendant, the trial com did not frame any specific issue on that point. That apart, I am of the, view that to support a plea of res-judicata it is not enough that the parties are the same and same matter was in issue. The matter must have been ''heard'' and finally decided.

In the instant case a careful perusal of the Judgment rendered by the Additional District Judge makes it abundantly clear that the question whether the principal Defendants were entitled to get a decree for recovery of possession of the suit land was not at all decided by him, Rather in the penultimate para of his Judgment he made the finding to the following effects:

But the Plaintiffs suit for possession of the suit land by evicting the Defendant No. 1 has to be dismissed leaving it open to them to obtain ejectment of the defdt. No. 1 from the suit land either wholly or partially in a separate and properly constituted suit.

This finding makes it clear that the first appellate com did not decide the question as to whether the Respondents were entitled to get a decree for recovery of possession, Learned first appellate court did not expressly assign any reason for its not deciding the question of recovery of possession of the suit land.

For the reason stated above, I am of opinion that the plea of res-judicata fails and the appeal should be dismissed.

In the result, the appeal is dismissed with costs. Learned trial court is directed to dispose of the suit with expedition in accordance with law.