Phoola Bhanna vs Rekua Deva

Kumarayya, J.—This is Defendant Phoola's second appeal. Admittedly he is the pattedar of survey No. 649. Plaintiff, Rekha, who claims to be the owner by long possession of the said land brought his suit for declaration of his right to patta alleging that the Defendant had orally agreed to transfer the same to him. The Defendant denied the right of the Plaintiff and also the oral agreement alleged. He, however, admitted his possession for the last four years, but, attributed it to an oral contract of tenancy entered into with him. Both the Courts dismissed the suit of the Plaintiff for patta as the alleged contract was not proved.

The Court of first instance further held that the possession of the Plaintiff as the owner of the property was not proved. The Court of first appeal, however, came to a different opinion and decided issue No. 1 framed in this regard in favour of the Plaintiff. The Defendant aggrieved by this finding has come in appeal before us.

The preliminary objection raised on behalf of the Respondent is that the appeal by the Defendant in whose favour the decree has been, passed is not competent under the provisions of law. The learned advocate for the Appellant, however, relying on the cases, Venkateswaralu v. Lingayya AIR 1924 Mad 689 (A) and Harachandra Das v. Bholanath Das ILR Cal 701 (B) argued that appeal in such cases must be entertained in the interests of justice. The rule laid down, in ILR Cal 701 (B) appears to us to be quite sound, based as it is, on the most equitable principle of law and justice. In our opinion, the remedy of appeal is available also to a party who is aggrieved by an adverse finding which would operate as res judicata in a subsequent proceeding between the parties if left now unchallenged. That seems to be also the current of decisions of various High Courts (See Jamna Das v. Udey Ram ILR All 117 (C)).

We, therefore, carefully considered the facts which have given rise to this appeal. In our opinion having regard to the scope of the suit, the enquiry into the question of possession or ownership of the Plaintiff was quite unnecessary. Patta and possession are two different rights and exist independent of each other. Possession howsoever long and continuous, based though it may even be on the title to the land itself, does not confer a right on a person to get the patta of the land, already in the name of some other, transferred in his own name.

Of course, right of patta like any other right is alienable; but there should a valid contract with the pattedar for the same. Being an intangible right in the immovable property, it can be alienated only under a registered sale deed in accordance with the provisions of S, 54, of the Registration Act (Transfer of Property Act?). Plaintiff's suit, therefore, was liable to be dismissed on the mere ground that there was no such conveyance of right of patta to the Plaintiff by the Defendant, the admitted holder of the said patta. As a matter of fact, that could be the only relevant and necessary issue in the case. Proof or otherwise of either possession or ownership could have made no difference in the decision of the case which was only for patta. But the Courts below have unnecessarily entered into the question of possession and ownership which caused undue delay in the case and unnecessary expense and inconvenience to the parties.

Be that what it may, when these questions were not germane to the subject-matter of the suit and when the decision of the case did not depend thereupon, the question of res judicata in a subsequent'' suit between the parties cannot arise. For the application of the principle of res judicata, it is necessary that the matter must have been substantially in issue. A matter will be substantially in issue if it is of importance & value for the decision of the case. (See Obla Subbier Vs. Ramaswamy Konar, and The Official Assignee Vs. Madholal Sindhu, at p. 235 (E)).

Evidently, an unnecessary issue the decision of which either way will not affect the decision of the suit cannot be said to be substantial for the case. The Defendant seems to be under an apprehension, that the decision of the Court below on points of possession and ownership may prejudice his rights in a subsequent suit, if any. We do not think that the fears of the Defendant are well founded. His appeal is, therefore, dismissed. No order as to costs.