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Calcutta High Court
Raja Ranajit Sinha Bahadur vs Basanta Kumar Ghosh on 7 April, 1908
Equivalent citations: 4 Ind Cas 81
Bench: Stephen, Mookerjee


1. This is an appeal on behalf of the zemindar defendant in an action for recovery of possession of land commenced against him by the plaintiff respondent. The plaintiff claims title to the disputed land under leases granted by one Chand Mandal who holds under a putni created in his favour so far back as 1853 by the predecessor-in-title of the appellant. The putni lease contained a reservation under which the reserved forest and the service lands of the guards of the forest existing of old” were excepted from the grant. The controversy between the parties raises the question, whether the lands in dispute fall within or without the reserved forests. The plaintiff asserts that the lands are outside the reserved forests and are included in the grant which is the foundation of his title. He further alleges that he and his predecessors have been in adverse possession of the disputed land as part of the grant for a time much longer than the statutory period and have consequently acquired a right to hold the same as part of the leasehold grant. The defendant zemindar on the other hand asserts that the lands are part of the reserved forest and have been enjoyed as such by him and his predecessors for many years past. The Court of first instance found in favour of the plaintiff that the lands were included in the putni grant, and that even if they were not included, the plaintiff has by prescription acquired an indefeasible right to hold possession thereof. Upon appeal, the District Judge dismissed the suit on two preliminary grounds, namely, that the suit was bad for misjoinder of parties and causes of action and that the plaintiff had no interest in the property claimed as he was a benamdar for his wife. Upon appeal to this Court, that decision was reversed, and the case was sent back to the District Judge in order that it might be heard on the merits. The District Judge has now affirmed the finding of the Subordinate Judge that the disputed land is included in the grant which is the root of the title of the plaintiff. He has also found that the plaintiff and his predecessors had possession as alleged by them. The zemindar defendant has appealed to this Court and on his behalf the decision of the District Judge has been challenged substantially upon two grounds namely, first, that the decision in the suit of 1883 does not operate as res judicata, and, secondly, that the decision is not even admissible in evidence upon the question of title.

2. As regards the first objection taken on behalf of the appellant, it is necessary to explain the circumstances under which the litigation of 1883 was commenced. It has been stated to us that Hanumunt Singh, the founder of the family to which the appellant belongs, left a widow Rani Fulkumari and a son Raja Kissen Chand. Kishen Chand left a widow Luchmi Kumari. He had also two sons, namely, Kirti Chand who married Jumna Kumari, and Udoy Chand who married Subhadra Kumari. The appellant Raja Ranajit Sinha is the adopted son of Kirti Chand. It appears that in 1854 Fulkumari created an endowment which included the zemindari of which the disputed land originally formed a part. In 1865 Lachmi Kumari, the daughter-in-law of Fulkumari who was in possession of the properties under the terms of the Will, executed an arpanpatra in favour of her two daughters-in-law, Jamuna Kumari and Subhadra Kumari, who in their turn executed an angikarpatra in favour of their mother-in-law. In 1887 Lachmi Kumari executed a Will in which she made various dispositions of her estate inclusive of the debutter properties. Under this Will the appellant was appointed shebait of the debutter properties. The Will recites that on the 22nd February 1879 Lachmi Kumari had executed an arpannamah in favour of her daugters-in-law under which she had authorised them to make, acquire and grant settlement, etc., in respect of the debutter properties although she had not vested them with the right of shebait or any right of proprietorship or possessory title in them. This arpannamah has not been produced before this Court but the Will recites that in accordance therewith the Court of Wards held possession of the debutter properties and administered the same on behalf of the two daughters-in-law. Daring the period that the Court of Wards was thus in possession of and administered the estate, a litigation was commenced in 1883 against the putnidar of 1853 and his representatives by the Court of Wards as the next friend of Rani Subhadra Kumari. The object of this litigation was to recover possession of a large tract of land which, it was alleged, was really a part of the reserved forest and was not included in the grant of 1853, but had been illegally taken by the putnidar. The litigation was carried on to this Court and the judgment of this Court which has been produced before us was delivered on the 1st December 1885. The substantial controversy between the parties is as to the precise effect and bearing of this judgment upon the matters now in dispute. It has been found concurrently by the Courts below that a considerable portion of the land now in dispute formed the subject-matter of the litigation of 1883 and at that time was found to be included in the putni grant (sic) the limits of the preserved forests. The maps on the record obviously support this conclusion and show that a small portion only of the land now claimed was not the subject-matter of the dispute in the previous litigation. The effect of the decision has to be considered from two points of view which are stated in the two grounds taken before us. As regards the land common to the present and the former litigation, the contention on behalf of the respondent, which has found favour with the Courts below, is that the matter is res judicata. As regards the lands which are not so common, the contention on behalf of the respondent is that the judgment, if not res judicata, at any rate, affords strong evidence in support of his claim. We are now concerned with the first of these points only and shall deal with the other when we come to consider the second ground of appeal. It was suggested on behalf of the appellant that he did not claim through, and is not the representative of Rani Subhadra Kumari and is consequently bound in no way by the decision in the suit of 1883. This contention was overruled and in our opinion rightly overruled, by the Courts below. It is not necessary for our present purposes to examine the precise legal effect of the successive documents by which the debutter was created and under which the devolution of the shebaitship took place. It is sufficient to hold that in 1883, when the previous litigation was commenced, Subhadra Kumari, under the arpannamah of 1879, had authority to represent the debutter estate and that as a matter of fact she did represent that estate. She, undoubtedly, sued in her capacity as representative of the estate and there can be no question that the Court of Wards who carried on the suit as her next friend, held possession on her behalf and was in fact and in law the administrator of the estate. Under such circumstances it is impossible to hold that the estate in the hands of the appellant is not bound by that judgment. If the previous litigation had been brought by the then shebait Lachmi Kumari, there could not have been any possible controversy that the decision would be binding upon the present appellant as shebait on the principle explained by their Lordships of the Judicial Committee in Prosunno Kumari v. Golab Chand Baboo 2 I.A. 145; 14 B.L.R. 450; 23 W.R. 253 and by this Court in Gora Chand Lurki v. Makhan Lal Chakravarti 6 C.L.J. 404 atp. 407; 11 C; W.N. 489 that the successive shebaits formed in effect a continuing, representation of the property of the idol. This is, of course, subject to the qualification that the judgment relied on is untainted by fraud and collusion and that the necessary and proper issues were raised, tried and decided in the suit. No suggestion has been made that any exception can be taken to the judgment in the litigation of 1883 on any such ground. The only question is whether the circumstance that the suit was not commenced in the name of the shebait but in the name of Subhadra Kumari affects the binding character of the judgment. Upon the facts placed before us, it is difficult to say that it does, for so far as we can judge from the materials before us, Subhadra Kumari was in possession of and represented the debutter estate. To use the language of Mr. Justice Muthuswami Ayyar in Venkyya v. Suramma 12 M. 235 the previous suit was brought in the interest of all future successors to the shebaitship consequent on the jural relation between the office and the land, and the decision passed therein is, therefore, binding on the appellant. To put the matter in another way, as the then shebait placed Subhadra Kumari in possession of the debutter estate and authorised her to deal with the property for the benefit of the endowment, she may be taken to have represented the estate; and as observed by Mr. Justice West in Radhabai v. Anantrav Bhagvant Deshpande 9 B. 198 it would be contrary to sound legal principles to hold that the same man should have to prove again and again in successive suits that the piece of land held by him as his own did not form part of the debutter estate. We must consequently hold that so far as the lands common to the present and the previous litigation are concerned, the decision in the suit of 1883 must be taken to be res judicata.

3. The second ground raises the question whether the decision in the suit of 1883 in any way affects the title to lands which were not then in controversy; The Courts below were inclined to adopt the view that even in respect of these lands the decision operates as res judicata. In this Court this view has been controverted on behalf of the appellant on the ground that the doctrine of res judicata has no application inasmuch as the subject-matters are not identical. This, however, is a reason which is obviously untenable. It has been ruled by the Judicial Committee in the case of Rajah of Pittapur v. Rao Buchi Sittayya Goru 12 I.A. 16; 8 M. 219 that an estoppel may be binding not with standing that the suit which raises it relates to a different property. For instance, a question as to the validity of an adoption may be finally decided in a suit in which the controversy relates to one property alone [Krishna Behari Roy v. Bunwari Lal Roy 1 C. 144;2 I.A. 283; 25 W.R. 1 and Soorjomonee Dayee v. Suddanund Mohapatter 12 B.L.R. (P.C.) 304; 20 W.R. 377; I.A. Sup. Vol. 212. In the same manner, an issue as to the factum or validity of a lease or of a partition may be decided conclusively in a litigation which covers only a portion of the property. Sundhya Mala v. Dabi Churn Dutt 6 C. 715; Ananta Balacharya v. Damodhar Makund 13 B. 25 at p. 33; Dinkar Ballal Chakradev v. Hari Shridhar Apte 14 B. 206; Sitanath Midda v. Rasudeb Midda 2 C.L.J. 540. In other words, as put by Mr. Justice Mahmud in Balkishan v. Kishan Lal 11 A. 148 at p. 156 there can be no doubt that for purposes of res judicata it is not essential that the subject-matter of litigation should be identical, with the subject-matter of the previous suit of which the adjudication is made the foundation. If, therefore, the identity of subject-matter is not essential, it is impossible to say that the decision in the suit of 1883 does not operate as res judicata merely on the ground that it related in part to another tract of land. The essential question is, whether in respect of the lands which are not common, the question of boundary between the lands granted and the land reserved was directly and substantially in issue in the former suit. If it was, the matter would be res judicata if it was not, the principle of res judicata would have no application. This is well illustrated by the case of Moni Roy v. Rajbunsee Kooer 25 W.R. 393. There it was held that a decision as to boundaries between disputed lands in a previous suit was not conclusive in a subsequent litigation in respect of other lands, although in the previous litigation the boundary line between the two villages had been incidentally ascertained. It is, therefore, necessary to examine the precise scope of the former litigation, and to ascertain the question which was raised and decided: and this must be determined by reference not merely to the decree, but also to the judgment, and, if need be, to the pleadings themselves [Surjiram Marwari v. Barhamdeo Persad 1 C.L.J. 337 at p. 349; Kurratulain v. Peara Saheb 32 I.A. 244 at p. 255; 33 C. 116; 9 C.W.N. 938; 7 Bom. L.R. 876; 2 A.L.J. 768; 15 M.L.J. 336; 1 C.L.J.594. unfortunately, however, the only document which has been produced before this Court is the final judgment of the High Court in the previous litigation, and all we can gather from that judgment is, that although, a question was raised as to the boundary between the lands granted in putni and the lands reserved as part of the preserved forest, the question was decided only with reference to the lands then in dispute. Under these circumstances, we must hold that the respondent who relies on the doctrine of res judicata has not been able to satisfy us that the principle is applicable in respect of lands which are not common to the two litigations. The question, therefore, which is raised in the second ground of appeal, still remains, namely, whether the judgment in the litigation of 1883 though not operative as res judicata, is not admissible in evidence. It was suggested on the authority of the case of Tepukhan v. Rajani Mohun Das 25 C. 522; 2 C.W.N. 501 that in so far as the subject-matter of the two suits was not indentical, the previous decision was not even admissible in evidence. That case, however, as is clear from an examination of the judgment, does not lay down any universal principle that if the subject-matters are different, the previous decision is necessarily inadmissible. In the circumstances of the case then before the Court, it was held that the titles to the two shares were distinct and consequently a judgment regarding the one might not be relevant and admissible as evidence with regard to the other. Here, however, the position is different. The determination of the boundary between two parcels of land may very well have an important bearing upon the question of boundary of an adjoining parcel. In any event, the decision in the previous suit would be admissible to this extent, namely, to show that on that occasion the title which is now asserted was alleged. On this ground alone, the judgment would be admissible under Section 13 of the Evidence Act [Ram Ranjan Chakerbati v. Ram Narain Singh 22 I.A. 60; 22 C. 533; Bhitto v. Kesho 24 I.A. 10; 1 C.W.N. 265; Dinomoni v. Brojo Mohini 29 I.A. 24; 29 C. 187. Even if, as held by Mr. Justice Geidt in Abinash Chandra Chatterjee v. Paresh Nath 9 C W.N.402 the judgment is not admissible in proof of all the facts found therein, it would be admissible for the limited purpose we have indicated. We are, therefore, unable to say that the Court below have erred in treating the judgment as admissible in evidence.

4. The result, therefore, is that the decree made by the District Judge must be affirmed and this appeal dismissed with costs.

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