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Judgment
Sashikanta Mishra, J
The Appellant was the Defendant No.1 in C.S. No.52/2006 of the Court of Civil Judge (Jr. Division), Salipur which was dismissed vide judgment passed on 12th July, 2013 followed by decree on 27th July, 2013. The said judgment and decree was set aside in appeal as per judgment and decree passed on 22nd February, 2014 and 4th March, 2014 respectively by the Addl. District Judge, Cuttack in R.F.A. No.110/2013. The present appeal has been filed questioning the correctness of the judgment passed by the First Appellate Court.
For convenience, the parties are referred to as per their respective status in the Court below.
The Second Appeal was admitted on the following substantial question of law;
“Whether in view of dismissal of the earlier suit bearing C.S. No.61 of 2003 of the court of learned Civil Judge (Jr. Division), Salipur on contest and in view of attainment of the finality of said judgment and decree passed therein, the present suit ought to have been held to be barred under Order 2 Rule 2 of the Code of Civil Procedure?”
The present Respondent No.1 being the Plaintiff filed the aforementioned suit for declaration of right, title and interest including possession over the suit property with an alternative prayer to direct the Defendant No.1(present Appellant), Salipur College to execute a deed of conveyance in favour of the plaintiff. The plaintiff was a wing of Salipur College along with another wing namely, Pharmacy College with both being under the common management of the College. On a proposal submitted by the management of the College as per Resolution passed on 24th August 1980 before the Government in the Department of Education and Youth Services and accepted by it, private land adjoining the College to the extent of Ac.7.388 decs. was allowed to be acquired by Defendant No.1 (Salipur College) on the condition of the entire cost thereof to the tune of Rs.6,20,406.30 being borne by Plaintiff. The entire cost was deposited being collected from different sources including from the two wings. On 4th March, 1986 Salipur College instructed the Plaintiff College to bear the cost of the suit land which was calculated as Rs.75,745.00. On 5th March, 1986, the amount was deposited by the Plaintiff College. The Pharmacy wing was similarly directed to deposit the amount which it did. Thus, on deposit of the entire amount Ac.6.523 decs. of land in place of Ac.7.388 decs. including the suit land was acquired in the name of Salipur College from its private owners. The possession of land was handed over in favour of the Principal-cum-Secretary, Salipur College by way of a certificate granted on 24th August, 1987. On 12th November, 1988 a meeting was held for final allotment of plots of land acquired and accordingly, the suit land was exclusively allotted by Salipur College in favour of the Plaintiff Training College and possession was also delivered. Since then, the Plaintiff is in peaceful, continuous and uninterrupted possession. On 17th July, 2003 the Defendant intended to encroach upon a part of the suit land for which the plaintiff filed a suit being C.S. No.61/2003 with prayer for declaration of title, possession and permanent injunction. The suit was however, dismissed on contest by holding that the same had been filed only to avoid the execution of a deed of conveyance. Thereafter, the plaintiff requested the Defendant No.1 to execute a deed of conveyance in its favour, but the Defendant No.1 refused for which the plaintiff filed the present suit claiming the relief as already stated hereinbefore.
Out of three defendants, only Defendant No.1 contested the suit while Defendant No.3 adopted the written statement filed by Defendant No.1. In its written statement, Defendant No.1 admitted the case of the plaintiff to the extent that the right, title and interest over the suit property is in fact in favour of the plaintiff and therefore, the prayer made in the suit be allowed. Since plaintiff is the owner of the suit property in possession, no deed of conveyance is required to be executed in its favour.
Basing on the rival pleadings, the trial Court framed four issues for determination including the pivotal Issue No.III, which runs as follows;
“III. Whether the plaintiff is entitled to a decree of declaration of its right, title, interest and possession over the suit land or in alternative a direction be issued to the defendant no.1 to execute a deed of conveyance in respect of the suit land in favour of the plaintiff?”
After considering the oral and documentary evidence, the Trial Court observed that despite claiming the relief of declaration of right, title and interest and possession, the prayer of the plaintiff is actually confined to the execution of deed of conveyance by the Defendant No.1 in its favour. However, such prayer was found to be non-specific and abstract inasmuch as the plaintiff had not specified the form and nature of conveyance which it sought from the Defendant No.1. The Trial Court further refused to rely upon the resolution of the Managing Committee on the ground that the same cannot confer title upon any person in respect of any property. As regards the previous suit (C.S. No.61/2003), the Trial court held that both the suits contained identical prayers and only to avoid the principle of res-judicata the plaintiff had added the alternative prayer for direction to defendant no.1 to execute the deed of conveyance. Thus, holding the suit as a collusive one, the Trial Court held that the plaintiff has no cause of action to institute the suit as defendant No.1 is not the rightful person to execute a deed of conveyance in favour of the plaintiff and moreover in the absence of any evidence the relief of declaration of title cannot be granted.
In the First Appellate Court, it was contended on behalf of the plaintiff-appellant that since Defendant No.1 had admitted the title of the plaintiff over the suit land but had only resisted the prayer to execute a deed of conveyance, the Trial Court committed gross error of law in dismissing the suit by holding the same to be barred by the principle of res-judicata. In course of hearing of the appeal, the Government pleader representing the other defendants acknowledged the entire claim of the plaintiff-appellant and as such the plaintiff did not insist upon the other relief claimed by it for execution of deed of conveyance. The First Appellate Court specifically found that such relief had not been claimed in the earlier suit and that the oral and documentary evidence on record clearly revealed that the plaintiff has right, title and interest over the suit property and is in peaceful and exclusive possession thereof since 12th November, 1988. The First Appellate Court therefore, held that under such circumstances, it cannot be held that the plaintiff had no cause of action to agitate. Further, relying upon some case laws the First Appellate Court held that the plaintiff can be said to have possessory title over the suit property. Therefore, applying the principle ‘possession follows title’ it was held that the Trial Court committed an error in denying the relief for declaration of right, title, interest and possession in favour of the plaintiff. The First Appeal was thus allowed in part by issuing necessary declaration in favour of the plaintiff.
Heard Mr. Abhijit Pal, learned counsel for the Appellant and Mr.S.P.Mishra, learned Senior Counsel appearing for the contesting Respondent No.1.
Assailing the judgment of the First Appellate Court, Mr. Pal would argue that the Resolution dated 12th November, 1988 on the basis of which the plaintiff was allotted the suit land was never exhibited before the Trial Court. Therefore, the finding of the First Appellate Court that the plaintiff has possessory title over the suit property is entirely illegal. Mr. Pal would further contend that the earlier suit claiming the same relief having been dismissed on contest, the subsequent suit including the prayer for direction to the Defendant No.1 to execute the deed of conveyance is hit by the principles enshrined under Order II Rule 2 C.P.C. inasmuch as the alternative relief for direction to execute the deed of conveyance was available to be claimed also in the first suit but was not done. Mr. Pal has relied upon a decision of the Apex Court in the case of Gurubux Singh v. Bhoora Lal; reported in AIR 1964 SC 1801 in support of his contention.
Mr. S.P.Mishra, learned Senior counsel appearing for the Plaintiff-Respondent No.1, on the other hand, would argue that the bar under Order II Rule 2 of C.P.C. has no automatic application but has to be pleaded and satisfactorily established. In order to sustain the plea the concerned party is required to make necessary pleadings and also to satisfactorily establish the same. In the case at hand, the Defendant No.1 never took the plea of bar under Order II Rule 2 of C.P.C. in its written statement for which no issue was framed by the Trial Court. According to Mr. Mishra therefore, it is not open to the Defendant No.1 to raise such plea at this belated stage. Mr. Mishra has also relied upon several judgments of the Apex Court in this regard namely;
(1) Alaka Gupta vrs. Narendra Kumar Gupta (Civil Appeal No.8321/2010).
(2) Rikob Das A Oswal vrs. Deepak Jewellers; reported in (1999) 6 SCC-40.
(3) Dalip Singh Vrs. Mehar Singh Rathee; reported in (2004) 7 SCC 650.
(4) B. Santoshamma and another vrs. D. Sarala and another; reported in (2022) 19 SCC 80.
The facts of the case as narrated hereinbefore are undisputed inasmuch as the plaintiff had originally filed a suit being C.S. No.61/2003 claiming the relief of declaration of right, title, interest and possession over the suit property. In the subsequent suit i.e. C.S. No.52/2006 the same relief was claimed and in addition, alternative relief of direction to execute the deed of conveyance was claimed. On the face of it, the subsequent suit appears to be barred by the principles underlined under Order II Rule 2 of C.P.C.. In the case of Gurubux Singh (Supra), the constitution Bench of the Apex Court held as follows;
“In order that a plea of a bar under Order 2 Rule 2 (3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based, (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits………”
So essentially, Gurubux Singh (Supra) dwells upon the conditions necessary for application of the bar under Order II Rule 2 of C.P.C. There is no quarrel with the proposition laid down in Gurubux Singh (supra), but the question raised before this Court is slightly different inasmuch as it relates to the permissibility of taking the plea of bar under Order II Rule 2 C.P.C. at a subsequent stage if not taken earlier.
In the judgments cited by Mr. Mishra particularly the case of Rikob Das A Oswal (supra), the Apex Court held that the plea of bar under Order 2 Rule 2 of C.P.C. is a technical plea which has to be pleaded and satisfactorily established and further that if such plea is not taken, the Court should not suo motu decide the plea. In Dalip Singh (supra), the Apex Court held that the plea of applicability of Order II Rule 2 of C.P.C. and the subsequent suit being barred was not taken by the appellant in his written statement filed in response to the notice of the suit nor any issue framed on the point;
“….. We need not examine the merit of the case as we have held that in the absence of pleadings or the issue regarding the bar of Order 2 Rule 2 of C.P.C. in filing the suit, the appellant cannot be permitted to raise such a plea.”
Thus, in the absence of specific pleading by Defendant No.1 in its written statement of the suit being barred by Order II Rule 2 of C.P.C. nor the same being agitated before the First Appellate Court, cannot be permitted to be raised for the first time before this Court.
For the foregoing reasons therefore, this Court finds that the appeal is based on untenable premises and therefore, cannot be entertained.
In the result, the appeal fails and is therefore, dismissed but in the circumstances, without any cost.
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