Shankar Gupta and Others vs Dharamdas Gupta and Others

Sunil Kumar Sinha, J.—Being aggrieved with judgment and decree dated 8-8-2007 passed in Civil Suit No. 28-A/2002 by the IXth Additional District Judge (F.T.C.), Raipur (CG), the defendants have preferred this appeal. The facts, briefly stated, are as under:--

1.1 Kaluram and Kapurchand were real brothers. They were sons of Chowalal. Appellants 1 to 3 namely-Shankar Gupta, Shiv Gupta and Shambhulal Gupta are the sons of Kapurchand and are residing in the house situated in Gol-Bazar Ward, Raipur. Kapurchand and his sons, executed a registered conditional sale-deed (Ex.-P/6) of their house in favour of Kaluram on 30-11-1957. A map was also annexed with the sale-deed showing four-corners of the property. According to the map Eastern and Western portions of the land, having house, were 75 feet and Northern and Southern portions of the land were 13 1/2 feet. Kaluram again executed a registered conditional sale-deed dated 1-8-1961 of the same property in favour of his daughter-Ganeshi Bai. The condition was that if Kaluram shall pay back the sale amount of Rs. 1,000/- to Ganeshi Bai within a period of 1 year 4 months, then he shall be entitled to get back the property (house), and if the above condition would not be fulfill, he will have no right or title over the said property (house). The same map, which was prepared and annexed in the conditional sale dated 30-11-1957 was also made part of the conditional sale dated 1-8-1961 (Ex.-P/5). Though the above conditional sale-deeds were executed by respective party, but Kapurchand and his sons remained in possession of the house as the possession was not delivered to the respective purchaser on account of conditional sale. Kaluram did not pay requisite amount to Ganeshi Bai within time, therefore the sale became absolute. Since Ganeshi Bai wanted to get possession of the disputed house, she filed a Civil Suit for possession on 4-2-1970 against Kapurchand, Shankar, Shiv and Shambhulal (all sons of Kapurchand), Kishni Bai (W/o Kapurchand) and Jugru & Jaggannath (2 sons of Kaluram). This came to be registered as Civil Suit No. 26-A/70. In this Civil Suit, defendants 1 to 5 (Kapurchand and his sons etc.) remained ex-parte. Defendants 6 & 7 (sons of Kaluram) admitted the claim of the plaintiff Ganeshi Bai. In the plaint of Civil Suit No. 26- A/70 the maps, which was annexed in the 2 sale-deeds, referred to above, was filed as the plaint map and plaintiff Ganeshi Bai had demanded possession of the suit house according to the said map. This Civil Suit was decreed in favour of Ganeshi Bai on 6-11-1970 and defendants 1 to 7 were directed to handover the vacant possession of the suit house to plaintiff Ganeshi Bai. The above judgment and decree, passed in Civil Suit No. 26-A/70, became final as no one filed any appeal against the said judgment and decree. Ganeshi Bai then filed execution proceeding, but she could not get the possession of disputed house on account of incorrect description of the property in the plaint map. Her execution application was finally disposed of on 19-9-1996 from the Court of IVth Civil Judge, Class-II, Raipur, recording finding that the map contained in the original sale-deeds or the decree cannot be corrected in the execution proceeding and the corrections can be made by filing a Civil Suit alone. According to plaintiff/decree holder, Ganeshi Bai, this gave rise to a fresh cause of action to file instant Civil Suit i.e. Civil Suit No. 28-A/2002 (subject matter of the present appeal) which was filed on 31-10-1996. In the second Civil Suit a different suit map was filed and it was prayed that the decree of possession according to the new plaint map be given in favour of the plaintiff and a declaration in relation to corrections in the map annexed with the sale-deed dated 1-8-1961 be made. Ganeshi Bai (original plaintiff) died during the pendency of the suit and respondents herein were substituted on her place.

1.2 This subsequent Civil Suit was, contested by the appellants/defendants. They filed their written statements and challenged the validity of the 2 sale-deeds. They mainly contended that they are holding the possession of the house on account of being successors of Kapurchand and Kishni Bai. They admitted the facts of filing of the earlier Civil Suit and passing of the decree of possession, in the said Civil Suit, in favour of Ganeshi Bai. However, they contended that the decree was passed on the basis of 2 conditional sale-deeds which according to them never conveyed title to Ganeshi Bai. In reply to Para-8 of the plaint, they contended that after passing of the decree in earlier Civil Suit No. 26-A/70 on 6-11-1970, an execution proceeding bearing Execution Case No. 11/74 was filed by the deceased plaintiff. In the said execution-proceeding, the defendants filed their objection taking ground that the decree passed on 6-11-1970 cannot be executed because there is no such land or house as mentioned in the judgment and decree. In fact, the defendants had challenged the validity of the map of the decree. In the said proceedings, the deceased plaintiff had contended that the suit map was a correct map showing correct position existing on spot. When the above dispute was raised in the execution proceeding, the Executing Court appointed a local Commissioner who submitted his report that no house is existing according to the decree. It was brought to the notice of the Executing Court that there is a lot of difference in the suit map (map annexed with the decree) and physical position at the spot. On this objection the execution filed by the deceased plaintiff was dismissed on 27-9-1977 holding that the above decree was not executable. After passing of such an order in the year 1977 the deceased plaintiff remained silent for a very long time and then on 25-4-80, she again filed an application u/s. 47 read with Section 151 of the CPC and it was clarified to the Court that there was mistake in the plaint map. In this proceeding an application for amendment in the suit map was filed. This amendment application was dismissed and an order dated 27-8-1984 was passed. This order was challenged by the decree holder in Civil Revision which was disposed of on 19-11-1993 and the deceased plaintiff/decree holder was granted an opportunity to examine the Commissioner. According to revisional order, the Commissioner was examined on 6-8-1996, The Commissioner supported the report submitted by him. Thereafter the said proceeding was disposed of by the concerned Court (IVth Civil Judge, Class-II, Raipur) by passing a detailed order on 19-9-1996 holding that the Executing Court cannot make corrections in the map annexed with the decree or the sale-deed, as this can only be corrected by filing a Civil Suit.

1.3 On the above pleadings the defendants contended that mistake in relation to incorrect description of the property in the sale-deed was discovered by the deceased plaintiff much prior to 27-8-1984 and the cause of action for filing the instant suit had arisen on those dates or ultimately on 27-8-1984 when the mistake in the deed was discovered, and thus, the plaintiffs suit which was filed on 31-10-1996 was barred by limitation. The defendants also took the plea of bar of subsequent suit on the principles of res judicata.

1.4 The learned trial Court framed various issues. Issue No. 7 was with relation to limitation and issue No. 11 was with relation to bar on account of principles of res judicata. These 2 issues were taken as preliminary issues and were decided by an order dated 8th of March, 2006 and it was held that the suit was neither barred by limitation nor was barred by principles of res judicata. Thereafter the parties were called upon to adduce their evidence. After taking evidence of both the parties, the trial Court decreed the suit and held that the directions were wrongly mentioned in the map of sale-deed dated 1-8-1961 (Ex.-P/5) and a declaration relating to their corrections were made and it was directed that the defendants shall handover the possession of the disputed land and house as per the plaint map of the instant Civil Suit. It is against this judgment and decree, passed by the trial Court, the defendants have filed this appeal u/s. 96 of the Code of Civil Procedure.

Mr. Ram Kumar Tiwari, learned counsel appearing on behalf of the appellants, mainly argued that this subsequent suit, filed by deceased plaintiff Ganeshi Bai, was barred by principles of res judicata. It was hopelessly barred by limitation. The plaint map filed in the instant suit is entirely different from the plaint map of the earlier Civil Suit. Therefore, the learned trial Judge erred in law in decreeing the suit.

On the other hand, Mr. B.P. Sharma, learned counsel appearing on behalf of the respondents, opposed these arguments and contended that the subsequent suit was based on a different cause of action; this suit was mainly filed for correction of the map annexed in the sale-deed dated 1-8-1961 when the mistake in the sale-deed was discovered, therefore, the subsequent suit based on a different cause of action was not barred by res judicata. About the limitation, he argued that the plaintiff, when finally came to know on 19-9-1996 that a rectification in the map would be required, then, this suit was filed on 30-10-1996, and thus, the instant suit was well within limitation and the learned trial Judge has rightly decreed the suit.

We have heard learned counsel for the parties at length and have also perused the records of the Civil Suit.

The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause. The basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment (See Smt. V. Rajeshwari Vs. T.C. Saravanabava,

The principle of res judicata is a species of the principle of estoppel. When a proceeding based on a particular cause of action has attained finality, the principle of res judicata shall fully apply. Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been litigated between the same parties or their privies and having involved the same subject-matter. In such a case, the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue. Here also the bar is complete to relitigation but its operation can be thwarted under certain circumstances. The underlying principles upon which estoppel is based, public policy and justice have greater force in cause of action estoppel, the subject-matter of the two proceedings being identical, than they do in issue estoppel, where the subject-matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not (See: Ishwar Dutt Vs. Land Acquisition Collector and Another,

In the former Civil Suit, which was a suit for possession based on title, the cause of action for filing the suit was that even after giving notice for vacating the suit house and handing over vacant possession (Ex.-P/3 in the former suit), the defendants did not vacate the suit house. The said suit was filed on the premise that plaintiff Ganeshi Bai was owner of the suit land and house which she had purchased through the registered sale-deed dated 1-8-1961. We find from the judgment of the former suit that the learned Civil Judge firstly recorded a finding that plaintiff Ganeshi Bai was the owner of the suit land and the house and she had permitted the defendants to live in the said house, and thereafter a decree for possession against defendants 1 to 7 was passed in favour of Ganeshi Bai. So far as execution of the sale-deed and question of transfer of valid title through the sale-deed are concerned, these issues were finally adjudicated in the former Civil Suit, and thus had attained finality and for those, issues estoppel would arise and a subsequent suit calling upon to decide the similar issues and even to re-agitate those issues in a suit like present one would be barred by res judicata. Though the trial Court has not gone on this line, yet the relevant issues have been decided in favour of the plaintiff. The position in the instant suit is different. The instant suit is not based on the particular cause of action of not vacating the suit house which arose in favour of the plaintiff in 1970. On the contrary the cause of action for filing instant suit arose when the plaintiff came to know that the four-corners of the suit land and particulars of the suit house were incorrect in sale-deeds and a suit for rectification of the instrument was required to be filed. The pleadings in the plaint of the instant suit would clearly show that when the plaintiff discovered the mistake and her efforts to get it corrected in the execution proceedings failed, then only she had to file the instant suit. It was argued by Mr. Tiwari that basically the instant suit was a suit for possession based on title which was also the subject matter of earlier Civil Suit. The said argument does not appear to be factually correct. In the instant suit the plaintiff has claimed a declaration for rectification of the document (sale-deed dated 1-8-1961) which appears to have been filed u/s. 26 of The Specific Relief Act, 1963 and the plaintiff, in view of Order II Rule 2 of the Code of Civil Procedure, has also claimed possession. On due consideration of the pleadings, we are of the view that the instant suit mainly filed for rectification of the instrument and further praying for delivery of possession was not barred by res judicata as the suit, in fact, was based on a different cause of action which arose in favour of the plaintiff on the date of knowledge that the property was not correctly defined in the sale-deed. In the instant suit cause of action estoppel in the above situation would not arise. Therefore, the learned trial Court has rightly held that the suit was not barred by res judicata.

Now we shall consider the arguments on limitation.

The instant suit was filed for correction of the map in the sale-deed dated 1-8-1961 and also for possession of the suit house. This suit was filed on 31-10-1996. Mr. Tiwari has argued that the suit was hopelessly barred by limitation, therefore, it ought to have been dismissed by the trial Court. Mr. Sharma has contended that the suit was for rectification of the sale-deed, and the cause of action for filing the suit arose when the order dated 19-9-1996 was passed by the Executing Court and observations were made that the corrections in the sale-deed cannot be made by the Executing Court and separate Civil Suit would lie. He has also referred to the judgment of Shankar Singh Thakur Kishansingh, and others Vs. Sanstha Sonabai Sarvakshram, Khurai and another,

Articles 64 & 65 of the Limitation Act, 1963 deal with the period of limitation for filing a suit for possession of immovable property. Article 64 provides that a suit for possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, shall be filed within twelve years from the date of dispossession. Article 65 provides that a suit for possession of immovable property or any interest therein based on title may also be filed within a period of twelve years from the date when the possession of the defendant becomes adverse to the plaintiff. The instant suit was not filed on a cause of action of dispossession, therefore, so far as claim of possession is concerned, the limitation would be governed by Article 65 and a suit for possession, in the above circumstances, would have been filed within the period of twelve years from the date when the possession of the defendants became adverse to the plaintiff. If we look into the judgment of the former Civil Suit, the cause of action taken by the plaintiff in the said Civil Suit was that the defendants denied to give the vacant possession of the suit house, they abused the plaintiff and even after giving notice by the plaintiff, they did not handover the possession to her. Therefore, if we independently think over the cause of action which arose in favour of the plaintiff for filing of the suit for possession, definitely it arose prior to filing of the first Civil Suit i.e. prior to 4-2-1970, when the possession of the defendants became adverse and the instant suit for possession was filed after a very long time from the said date i.e. on 31-10-1996, and thus, in view of Article 65 it was hopelessly barred by limitation. It was argued on behalf of the respondents that the cause of action arose when the order dated 19-9-1996 was passed. The pendency of various proceedings of different nature and not covered u/s 14 of the Limitation Act being not an instance of defect of jurisdiction or other cause of a like nature and passing of a final order like the above in the execution proceedings would not either extend the limitation or give rise to a fresh cause of action to the plaintiff to file a suit for possession. We are of the view that the period of limitation begun to run would never stop. In the present case, though the plaintiff got a decree for possession on 6-11-1970 on a cause of action which arose prior to 4-2-1970, but she could not receive the possession and ultimately execution proceedings prolonged for a long time and the decree could not be executed for want of proper description of the suit property.

It was argued before us that since mistake could be discovered later on, therefore, the later suit was mainly filed for rectification in the sale-deed and possession was also demanded in view of Order II Rule 2 of the Code of Civil Procedure. It was contended that the relief of possession was an ancillary relief, therefore, cause of action which arose for filing suit for rectification would be the actual cause of action for filing the instant suit, which arose on 19-9-1996 when the Executing Court refused to execute the decree and made above observations relating to filing of the Civil Suit.

Section 26(1) of the Specific Relief Act, 1963 provides that when, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 applies) does not express their original intention, then (a) either party or his representative in interest may institute a suit to have the instrument rectified; or (b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or (c) a defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument. No limitation has been prescribed for filing a suit for rectification of the instrument u/s. 26 of the Specific Relief Act, 1963. Therefore, in view of Article 113 of the Limitation Act, 1963, the period of limitation for filing a suit for rectification would be 3 years from the date when the right to sue accrued. The suit for rectification, may be based on fraud or a mutual mistake of the parties. In Shanker Singh Thakur (supra), which was also relied by learned counsel for the respondents, deliberating on Article 113 of the Limitation Act, it was held that in a suit for rectification of document based on fraud or mistake the limitation does not begin to run unless the plaintiff discovers fraud or mistake or could have with due diligence discovered same. Therefore, in the instant case, the cause of action for filing a suit for rectification, if it is held to be main relief of the plaintiff, would arise on the date on which the plaintiff in fact discovered the mistake or she could have with due diligence discovered. The contents of Exhibit-D/1 and various other documents would show that the defendants had challenged the validity of the map in the first execution proceeding saying that there is no such land or house as mentioned in the former judgment and decree. This was the incident of the year 1974. On the above objection the Executing Court appointed a local Commissioner who submitted his report and on his such report the plaintiff could come to know that the map annexed with the decree/sale-deed was incorrect, but she remained silent for a very long time and on 25-4-1980, she filed an application u/s. 47 read with Section 151 of the CPC and it was clarified to the Court, in writing, by plaintiff/ decree holder that there was mistake in the plaint map which was also the map of sale-deed dated 1-8-1961. Her application was dismissed and the order dated 27-8-1984 was passed. The plaintiff/decree holder then filed a Civil Revision which was disposed of on 19-11-1993 and she was granted an opportunity to examine the Commissioner, who was examined on 6-8-1996 and ultimately the execution proceeding was dismissed by the IVth Civil Judge, Class-II, Raipur on 19-9-1996. All this goes to show that the plaintiff/ decree holder must have discovered the mistake in the year 1977 or at worst in the year 1980 when she herself filed an application u/s. 47 read with Section 151 of the CPC before the Executing Court on 25-8-1980. We are of the view that the limitation for filing the instant suit for rectification, thus, shall begin to run from the year 1977 or at the worst from 25-4-1980 when the mistake was admittedly discovered by the plaintiff/ decree holder. Computing the limitation from the said date, the instant suit, which was filed on 31-10-1996, for the main relief of rectification, was hopelessly barred by limitation. Thus the plaintiff''s suit, in the above facts and circumstances, would have been dismissed being barred by limitation.

For the foregoing reasons, the appeal is allowed. The impugned judgment and decree dated 8th of August, 2007 passed in Civil Suit No. 28-A/2002 are set-aside. The plaintiff''s suit is dismissed being barred by limitation. The respondents shall bear their own cost and shall also bear the cost of the appellants.

Advocate''s fee granted as per Schedule. A decree be drawn accordingly.