Md. Waliar Rahman Vs. Md. Moen Uddin Mollah and others, 2018(1) LNJ 103

Case No: Civil Revision No. 2472 of 2000

Judge: Borhanuddin, J.

Court: High Court Division,

Citation: 2018(1) LNJ 103

Case Year: 2017

Appellant: Md. Waliar Rahman

Respondent: Md. Moen Uddin Mollah @ Md. Ainuddin Mollah and others

Subject: Code of Civil Procedure & Specific Relief Act

Delivery Date: 2018-05-29

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Borhanuddin, J.

 

Judgment on

18.10.2017

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Md. Waliar Rahman

. . . Petitioner

-Versus-

Md. Moen Uddin Mollah @ Md. Ainuddin Mollah and others

. . . Opposite parties

Code of Civil Procedure (V of 1908)

Section 11

By now it is settled that that any matter which might and ought to have been made a ground of attack or defence in the former suit shall be deemed to have been directly and substantially in issue in that suit. This is known as constructive res-judicata. For the application of the principle of res-judicata it is not necessary that the subject matter of both suits should be the same but that the matter in question is directly and substantially in issue in both the suits. It is also settled that res-judicata is not confined to the issues which the court is actually asked to decide but it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.  A matter may be directly and substantively in issue either actually or constructively. A matter is actually in issue when it is alleged by one party and denied or admitted by the other. It is constructively in issue when it might and ought to have been made a ground of attack or defence in the former suit, but has not been done. As a general rule, every ground of attack or defence with reference to title sued must be pleaded, if necessary in the alternative, for the plaintiff will not be allowed to make out a fresh case afterward.                      . . . (19 to 20)

Specific Relief Act (I of 1877)

Section 42

It appears from the plaint of the suit that though the plaintiff prayed for declaration that registered kabala No. 1228 dated 12.03.1969 is forged and not acted upon but did not seek declaration of title in the suit property. Without establishing his title in the property, the plaintiff is not entitled to get any other relief.    . . .(22)

No One appear

. . . For the Parties   

JUDGMENT

Borhanuddin, J: This rule has been issued calling upon the opposite party nos.1 and 2 to show cause as to why the judgment and decree dated 10.05.2000 passed by the learned Additional District Judge, Magura, in Title Appeal No. 91 of 1999 reversing those of dated 29.06.1999 passed by the learned Additional  Assistant Judge, Magura, in title Suit No. 41 of 1999 should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.

2.            Facts relevant for disposal of the rule are that the  petitioner herein as plaintiff instituted Title Suit No.65 of 1994 in the Court of learned Assistant Judge, Mohammadpur, Magura, with the following prayers:

L) BlS£ h¢ZÑa j­a J L¡l­e BlS£l afn£m h¢ZÑa e¡¢mn£ c¡­Nl S¢j pwnË­h nË£ nÉ¡j¡ fËp¡c iVÊ¡Q¡kÑ Hl ¢fa¡-®p±¢l¾cÐ ®j¡qe iVÊ¡Q¡kÑ J 1 ew ¢hh¡c£ NÊq£a¡ hl¡hl£u jqÇjcf¤l p¡h-®l¢Sóªx  A¢g­pl ab¡L¢ba 12/03/69 a¡¢l­Ml ®lx L«a ®M¡o Lhm¡ c¢mm S¡m, S¡¢mu¡a£, i¨u¡, i­uX, Bc¡e-fËc¡e ¢h¢qe üaÄ pªS­el Ae¤fk¤J² c¢mm ®O¡oe¡l ¢XH²£ ¢c­a z

M) k¡ha£u Bc¡ma hÉ­ul ¢XH²£ ¢c­a z

N) BCe J CL¥C¢V j­a h¡c£ ¢hh¡c£NZ ¢hl¦­Ü Bl Bl ®k pLm ¢h¢qa fË¢aL¡l f¡C­a f¡­l a¡q¡lJ ¢XH²£ ¢c­a j¢SÑ qu z(sic)

3.            Schedule of the suit as described in the plaint is quoted hereinunder:

afn£m pÇf¢š

­Sm¡- j¡N¤l¡, b¡e¡-jqÇjcf¤l, 11 ew e¡Ns¡ ®j±S¡l S¢j M¢au¡e ew 434 c¡N ew 250  S¢jl f¢lj¡e .80 naL Hl j­dÉ .54 naL S¢j ¢h­l¡d£uz

4.            On transfer in the court of learned Additional Assistant Judge, Magura, the suit was renumbered as Title Suit No.41 of 1999. 

5.            Facts relevant for disposal of the rule are that suit schedule land originally belonged to Sourendra Mohon Bhattacharji who orally gifted .20 acres of land to the plaintiff school on 15.03.1968 and delivered possession but could not register the land in favour of the school during his life time; Said Sourendra Mohon Bhattacharji had 3 sons namely, Nandadulal, Debprashad and Shyamaprashad; Amongst the sons, Nandadulal and Debprashad left this country for India during life time of their father; Shaymaprashad had been living with his father; Sourendra Mohon Bhattacharji gifted all his moveable and immoveable property in the name of Shaymaprashad by executing a will on 2nd Baishak, 1379 B. S.; Sourendra Mohan Bhattacharji died on 11.04.1973; Shaymaprashad Bhattacharji filed Case No.209 of 1978 for probate of the Will impleading Peoples’ Republic of Bangladesh, represented by the Deputy Commissioner, Jessore, as defendant; Said case was allowed exparte; Shaymaprashad Bhattacharji sold .27 acres of land to Kamala Khatun, wife of Md. Moenuddin Mollah vide registered kabala no.1305 dated 13.02.1975; Kamrul Hassan son of defendant no.3 as plaintiff instituted Title Suit No.54 of 1993 in the Court of learned Assistant Judge, Mohammadpur, impleading Shaymaprashad Bhattacharji as defendant; In the said suit, copy of the registered kabala no.1228 dated 12.03.1969 was submitted by the plaintiff as evidence; During proceeding of the suit, defendant no.3 of the present suit Moenuddin, father of the plaintiff of that suit, submitted an application for withdrawal of the suit and take back the documents filed by the plaintiff; Learned Assistant Judge allowed the application and permitted to take back the documents vide order no.4 dated 23.06.1993;  Shaymaprashad Bhattacharji executed registered deed of gift in favour of the school for the land orally gifted by his father Sourendra Mohon Bhattachargi; After registration, Secretary and Head Master of the school filed an application to the Revenue officer for mutation of the land; At that time defendant nos. 2 and 3 also filed application for mutation of .54 acres of the suit land claiming title by dint of kabala no.1228 dated 12.03.1969 allegedly executed by Sourendra Mohon Bhattacharji in favour of father of the defendant no.1 late Abdul Gani Molla; Said deed is a forged one, created by the defendant no.3 in connivance with defendant no.1 with a motive to grab the land and on the basis of said kabala created another registered deed being no. 3674 dated 15.02.1992; Plaintiff for the 1st time came to know about the forged kabala on 14.06.1993 while he went to the Office of Revenue Officer for mutation of .20 acres of land gifted by Sourendra Mohon and subsequently registered by his son Shaymaprashad and thus constrained to file present suit.

6.            Defendant No. 3 contested the suit by filing written statement contending interalia that the suit is barred by limitation, there is no cause of action and the suit is not maintainable under section 42 of the Specific Relief Act. Further contending that .80 acres of land of Nagra Mouza no.250 belonged to Sourendra Mohon Bhattacharji and settlement khatian recorded in his name; During possession, Sourendra Mohon Bhattacharji sold .54 acres of land vide registered kabala no.1228 dated 12.03.1969 to the defendant no.1; Subsequently, defendant no.3 purchased the land on behalf of his minor son defendant no.2 vide registered kabala dated 15.12.1992; Shaymaprashad Bhattacharji son of Sourendra Mohon Bhattacharji sold .27 acres of land to Kamala Khatun wife of defendant no.3 vide registered kabala dated 13.02.1975; Defendant no.2 and his mother are bonafide purchasers; Kamala Khatun is a necessary party of the suit; Present plaintiff earlier filed Title Suit No.73 of 1993 in the Court of learned Assistant Judge, Mohammadpur, for .04 acres of land under suit plot no.250 and prayed for injunction but his prayer for injunction was rejected by the Court below; Against the order of rejection, plaintiff as appellant preferred Miscellaneous Appeal No.35 of 1993 which is still pending; Present suit is only to harass the defendants; Suit is liable to be dismissed.

7.            After hearing the parties and assessing evidence on record, leaned Assistant Judge, Magura, decreed the suit vide judgment and decree dated 29.06.1999.

8.            Being aggrieved, defendant opposite party nos. 1 and 2 herein as appellants filed Title Appeal No.91 of 1999 in the Court of learned District Judge, Magura, which was ultimately heard and disposed of by the learned Additional District Judge, Magura, who after hearing the parties and reassessing evidence on record allowed the appeal vide judgment and decree dated 10.05.2000.

9.            Having aggrieved by and dissatisfied with the judgment and decree, plaintiff-respondent as petitioner preferred instant civil revision by filing an application under section 115(1) of the Code of Civil Procedure and obtained present rule alongwith an order of stay.

10.        This matter is sent by the Hon’ble Chief Justice to this Bench for hearing and disposal vide order dated 11.08.2016. This matter has been appearing in the cause list since 16.10.2017 with name of the learned advocates for the parties. On 17.10.2017, one of the learned advocate on behalf of the petitioner prays for adjournment for one day. Accordingly, adjournment was allowed. Today court peon again informed learned advocate for the parties but no one appears to press or oppose the rule. Since this matter is of the year 2000, I do not find any reason to sit over the matter without disposing the same.

11.        I have gone through the revisional application, judgment and decree passed by the courts below alongwith lower courts record.

12.        On perusal of the judgment and decree passed by the trial court, it appears that learned Assistant Judge framed following issues for adjudicating the case:

1) ®j¡LŸj¡¢V haÑj¡e BL¡­l lre£u ¢Le¡?

2) ­j¡LŸj¡¢V a¡j¡c£ à¡l¡ h¡¢da ¢Le¡?

3) ­j¡LŸj¡¢V fr­c¡­o c¤ø ¢Le¡?

4) h¢ZÑa Cw 12/03/1969 p¡­m ®l¢S¢øÌL«a 1228 ew c¢mm¢V h¡¢am ®k¡NÉ ¢Lwh¡ S¡m S¡¢mu¡¢a ¢Le¡?

5) h¡c£ a¡q¡l fСbÑ£a fТaL¡l f¡C­a f¡­le ¢Le¡?

6) ­j¡LŸj¡¢V ­cJu¡e£ L¡kÑ¢h¢d BC­el 11 d¡l¡ j­a (res judicata) ®c¡­o AQm ¢Le¡?

7) h¡c£ Bl ¢L ¢L fТaL¡l f¡C­a f¡­l?

13.        In deciding issue no.6, learned Assistant Judge discussed about the earlier suit no.73 of 1993 filed by the plaintiff. Relevant portion of the judgment is quoted herein below:

e¢b cª­ø ®cM¡ k¡u f§­hÑ HC e¡¢mn£ S¢j pwnЭh 73/93 ew ®cJu¡e£ ®j¡LŸj¡¢V HLC frà­ul j­dÉ qCu¡¢Rm, Eš² 73/93 ew ®cJu¡e£ ®j¡LŸj¡ ¢Rm ''L'' afn£m h¢ZÑa S¢j­a pšÆ ü¡hÙÛ, cMm L¡­uj Hhw ''M'' afn£m h¢ZÑa qC­a Ol ¢pL¢ÙÛ f§hÑL M¡p cM­ml fСbÑe¡u Be£a ®cJu¡e£ ®j¡LŸj¡ Hhw haÑj¡­el ®j¡LŸj¡¢V qC­m¡ 1 ew ¢hh¡c£ NËq£a¡, cš¡ ®p±¢l¾cÐ ®j¡qe i–¡Q¡kÑ hl¡hl£u e¡¢mn£ c¡­Nl pwnÐh£u Na Cw­lS£ 12-3-69 a¡¢l­Ml ®l¢S¢øÌL«a ®M¡o Lhm¡ c¢mm ew 1228 S¡m S¡¢mu¡a£, i¨yu¡, i­uX, a’L£, Bc¡e-fÐc¡e ¢hq£e üaÅ pªS­el Ae¤fk¤š² Hhw Eš² a¡¢l­Ml ®l¢S¢øÌL«a 1228 ew c¢mm h¡c£ f­rl Efl h¡dÉLl e­q j­jÑ ®O¡oZ¡j§mL ®j¡LŸj¡z k¢cJ Ef­l¡š² ­j¡LŸj¡ c¤¢V HLC fr­cl j­dÉ, HLC e¡¢mn£ S¢j pwnЭh Hhw haÑj¡­e ®j¡LŸj¡l j§m ¢hQ¡kÑ ¢hou Eš² ®j¡LŸj¡l Cpɤl j­dÉ e¡ b¡¢L­m J Eš² 73/93 ew ®cJu¡e£ ®j¡LŸj¡l B­m¡Qe¡l j­dÉ Eš² 1228 ew c¢mm¢Vl ¢ho­u ¢pÜ¡¿¹ b¡¢L­mJ, Eš² 73/93 ew  ®j¡LŸj¡l fÐL«¢a Hhw haÑj¡e ®j¡LŸj¡l fÐL¢«a HL e­qz ®k­qa¥ Eš² c¤C ®j¡LŸj¡l fÐL«¢a ¢iæ ®pC ®qa¥ ¢hh¡c£ fr La«ÑL Be£a res judicata pwœ²¡¿¹ ¢hou¢V haÑj¡e ®j¡LŸj¡l ®r­œ fЭk¡SÉ e­qz

haÑj¡e ®j¡LŸj¡¢V Cw­lS£ 12-3-69 Cw a¡¢l­Ml ®l¢S¢øÌL«a 1228 ew c¢mm¢V S¡m, S¡¢mu¡a£ ¢Le¡ HC j­jÑ ®O¡oe¡ HM¡­e HC ¢hou R¡s¡ AeÉ ®L¡e ¢hQ¡kÑ ¢ho­ul Efl B­m¡Qe¡ L¢lh¡l AhL¡n ®eCz (emphasis supplied by me)

14.        Appellate Court below controverted above finding of the learned Assistant Judge in the following manner:

¢h‘ ¢ejÀ Bc¡m­al E­õ¢Ma AhS¡l­ine V¤L¥ pÇf¤eÑ i¡­hC BC­el f¢lf¢¿Ûz L¡lZ Eiufr La«ÑL ü£L«a ®k ¢hh¡c£f­rl 12-3-69 Cw a¡¢l­Ml 1228 ew ®l¢S¢øÌL«a Lhm¡¢V S¡m j­jÑ E­õM L¢lu¡C h¡c£ ®lpfe­X¾V fr BlS£l ag¢pm h¢ZÑa pÇf¢š h¡hc üaÅ ®O¡oe¡ pq cMm L¡­u­jl J M¡p cM­ml fСbÑe¡u 73/93 ew ®cJu¡e£ ®j¡LŸj¡ c¡­ul L¢lu¡ ¢R­me Hhw ®pC j¡jm¡u ¢h‘ Bc¡ma HC c¢mmfœ Hhw h¡c£ ®lpfe­X¾V Hl üaÅ cM­ml ¢i¢š­a ¢hÙ¹¡¢la B­m¡Qe¡ L¢lu¡C I ®cJu¡e£ 73/93 ew ®j¡LŸj¡¢V M¡¢lS L¢lu¡­Rez ¢h‘ ¢ejÀ Bc¡ma 73/93 ew ®j¡LŸj¡l fÐL«¢a Hhw haÑj¡e ®j¡LŸj¡l fÐL«¢a HL e­q h¢mu¡ E­õM L¢lu¡­Rez ¢L¿º ¢h‘ ¢ejÀ Bc¡ma HL¢V ¢hou h¤¢T­a i¥m L¢lu¡­Re a¡q¡ qCm h¡c£ ®lpfe­X¾V fr 2 ¢V ®j¡LŸj¡C c¡¢Mm L¢lu¡­Re p¤¢e¢cÑø fТaL¡l BC­el 42 d¡l¡l BJa¡u ®O¡oe¡ j§mL ¢Xœ²£l fСbÑe¡u Hhw haÑj¡e ®j¡LŸj¡u ¢hh¡c£f­rl ®k c¢mm¢V ¢a¢e S¡m j­jÑ ®O¡oe¡l fСbÑe¡ L¢lu¡­Re ®pC c¢mm¢V S¡m h¢mu¡ ¢a¢e a¡q¡l f§­hÑ c¡¢MmL«a ®cw 73/93 ew ®j¡LŸj¡l BlS£­a p¤Øfø i¡­h E­õM L¢lu¡¢R­mez g­m p­¾c­ql ®L¡e AhL¡n e¡C ®k, 12-3-69 Cw a¡¢l­Ml ®l¢SøÌL«a 1228 ew Lhm¡ c¢mm¢V f¤el¡u S¡m h¢mu¡ c¡h£ Ll¡u h¡c£f­rl c¡¢MmL«a ®cJu¡e£ 41/99 ew ®j¡LŸj¡¢V resjudicata ®c¡­o h¡¢laz (emphasis supplied by me)

15.        I have gone through the judgment passed by the learned Senior Assistant Judge, Mohammadpur, Magura, in Title Suit No.73 of 1993 which is produced and marked as exhibit “Ka” in the present suit. It appears from the judgment that the present plaintiff filed Title Suit No.73 of 1993 for declaration of title and confirmation of possession for the ‘ Ka’ schedule land and for eviction of houses and recovery of khas possession from the “kha” schedule land. On perusal of the judgment, it is apparent that in the plaint of that suit it was contended that the kabala no.1228 dated 12.03.1969 in the name of the defendant no.1 is forged. The kabala dated 15.12.1992 in the name of defendant no.2 is collusive and without jurisdiction. Defendant nos. 2-4 of the suit filed written statement denying contention of the plaint. After hearing the parties and assessing evidence on record, learned Senior Assistant Judge dismissed the suit on contest. Relevant portion of the judgment is quoted herein below:

“The crux of this suit is the kabala dated 12.03.1969 bearing number 1228 and when this kabala takes birth then these defdts were not born and came into scence but as it is very much difficult to justify the genuineness of the said kabala but one thing is very much clear that the defendants are in absolute possession of the suit land which somehow substantiate the defendants claim.” (sic)

16.        After thorough and meticulous discussions, learned Senior Assistant Judge arrived at following finding:

“In view of my foregoing discussions it is clear that the plaintiff has failed to prove his case of oral settlement and also possession. On the other hand plaintiff’s witnesses by their evidence have proved the possession of the defendants. Besides that the D.W.2 Iman Uddin sikder and the DW.3 Suzaruddin Sheikh and the DW.4 Bipul Kumar Sarkar all have corroborated the defendants possession in the suit land. So I am not inclined to discuss the evidence all the DWs. at length.

In view of my aforesaid discussions and evidence on record of the plaintiff has failed to prove his title and possession for which all these issues have decided against the plaintiff and in favour of the contesting defendants.” (sic)

17.        Section 11 of the Code of Civil Procedure runs as follows:

“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.

Explanation-I- The expression “ former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation-II For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation-III The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

Explanation-IV- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

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

Explanation-VI- Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.”

18.        It is true that the issue of genuiness of registered kabala no.1228 dated 12.03.1969 was not an issue in the former suit i.e. in Title Suit No.73 of 1993 filed by the present plaintiff for declaration of title and confirmation of possession but as it is discussed above that the plaintiff of that suit i.e. the present plaintiff seriously assailed in that suit that the deed dated 12.03.1969 is forged and the defendant by filing written statement denied contention of the plaintiff. Court below after discussing the evidence on record dismissed the suit.

19.        By now, it is settled that any matter which might and ought to have been made a ground of attack or defence in the former suit shall be deemed to have been directly and substantially in issue in that suit. This is known as constructive res-judicata. For the application of the principle of res-judicata it is not necessary that the subject matter of both suits should be the same but that the matter in question is directly and substantially in issue in both the suits.

20.        It is also settled that res-judicata is not confined to the issues which the court is actually asked to decide but it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.

21.        A matter may be directly and substantively in issue either actually or constructively. A matter is actually in issue when it is alleged by one party and denied or admitted by the other. It is constructively in issue when it might and ought to have been made a ground of attack or defence in the former suit, but has not been done. As a general rule, every ground of attack or defence with reference to title sued must be pleaded, if necessary in the alternative, for the plaintiff will not be allowed to make out a fresh case afterward.

22.        It is apparent from record that the learned Additional District Judge thoroughly and meticulously discussed the issue and arrived at a finding that the suit is barred by resjudicata. The appellate court below also discussed thoroughly facts of the case and arrived at a finding that the suit is barred under order 2 rule II of the Code of Civil Procedure. It appears from the plaint of the suit that though the plaintiff prayed for declaration that registered kabala no.1228 dated 12.03.1969 is forged and not acted upon but did not seek declaration of



Civil Revision No. 2472 of 2000