Chandra Shekhar Sharma, v. Saroj Singh,

IN THE HIGH COURT OF JUDICATURE AT PATNA

CIVIL MISCELLANEOUS JURISDICTION No.1466 of 2018 ====================================================== 1.

Chandra Shekhar Sharma, Son of Late Ram Das Singh, resident of VillageKoriawan, P.O. Hansadih, P.S. Masaurhi, District- Patna. 2.

Ashok Kumar, Son of Chandra Shekhar Sharma, resident of VillageKoriawan, P.O. Hansadih, P.S. Masaurhi, District- Patna. 3.

Rajesh Kumar, Son of Chandra Shekhar Sharma, resident of VillageKoriawan, P.O. Hansadih, P.S. Masaurhi, District- Patna. 4.

Rajeev Ranjan Kumar, Son of Chandra Shekhar Sharma, resident of VillageKoriawan, P.O. Hansadih, P.S. Masaurhi, District- Patna. 5.

Trishul Singh @ Trishul Sharma, Son of Late Ram Sewan Singh, resident of Village- Koriawan, P.O. Hansadih, P.S. Masaurhi, District- Patna. 6.

Tripund Kumar, Son of Trishul Singh @ Trishul Sharma, resident of VillageKoriawan, P.O. Hansadih, P.S. Masaurhi, District- Patna. 7.

Shashi Kumar, minor Son of Trishul Singh @ Trishul Sharma under guardianship of his father petitioner no. 5- Trishul Singh @ Trishul Sharma, resident of Village- Koriawan, P.O. Hansadih, P.S. Masaurhi, District- Patna. ... ... Petitioners

Versus

1.

Saroj Singh, Son of Late Shyam Nandan Singh, resident of VillageSonkukura, P.O. and P.S. Masaurhi, District- Patna. 2.

Sudhanshu Kumar, resident of Village- Sonkukura, P.O. and P.S. Masaurhi, District- Patna.

3.

Gunjan Kumar, resident of Village- Sonkukura, P.O. and P.S. Masaurhi, District- Patna.

4.

Arun Singh, Son of Late Ram Swagat Sharma, resident of VillageSonkukura, P.O. and P.S. Masaurhi, District- Patna. 5.

Rakesh Kumar, Son of Arun Singh, resident of Village- Sonkukura, P.O. and P.S. Masaurhi, District- Patna.

6.

Mukesh Kumar, Son of Arun Singh, resident of Village- Sonkukura, P.O. and P.S. Masaurhi, District- Patna.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s :

Mr. Satyendra Narayan Singh, Advocate For the Respondent/s :

None ====================================================== CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA CAV JUDGMENT Date: 10-04-2024 The instant petition has been filed under Article 227

2/21 of the Constitution of India for setting aside the order dated 31.05.2018 passed by learned Civil Judge (Sr. Div.) 3rd, Patna in Title Partition Suit No. 437 of 2012, whereby the petition dated 04.05.2017 of the defendants-petitioners with prayer to decide the issue of res judicata and limitation as preliminary issue has been rejected.

02. Briefly stated, the facts of the case as emerge from the record are that one Title Partition Suit No. 437 of 2012 has been filed by plaintiffs-respondents 1st set for preliminary decree seeking 1/3rd share in scheduled property and for possession of their share carving out separate Takhta by Pleader Commissioner and for setting aside the compromise decree dated 16.03.1979 passed in Title Suit No. 21 of 1971/46 of 1974. The plaintiffs and defendants are having common ancestor in Ram Kishun Singh. Partition of property took place amongst the sons of Ram Kishun Singh through registered deed of partition dated 10.07.1952 by metes and bounds in which Kamla Singh, who was grandfather of Saroj Singh, plaintiff no. 1 got 1/4th share and other three brothers namely, Janki Singh, Mithila Singh and Ramdas Singh unitedly got 3/4th share and accordingly, parties came in possession of their respective shares. Thereafter, in 1968 there was an amicable khista

3/21 partition among the united brothers namely, Janki Singh, Mithila Singh and Ramdas Singh by metes and bounds in all respects and all of them took their separate defined shares. Soon after the partition of 1968, Mithila Singh gifted his shares through a registered deed of gift dated 15.06.1968 in favour of his nephew Chandra Shekhar Sharma, Son of Ramdas Singh, petitioner no. 1 herein, who accepted the gift and came into its exclusive possession. Later on, in 1970 Mithila Singh died unmarried and issueless. However, in 1971 Ram Sewan Singh, Son of Janki Singh filed Title Suit No. 21 of 1971 challenging the registered deed of gift seeking his share in the property including the properties under gift in which Kamla Singh and his descendants were also made proforma defendants. In Title Suit No.

21 of 1971 aforesaid Saroj Singh and the members of his branch filed a separate written statement on 18.08.1972 stating in paragraph 5 therein that there has been a partition by metes and bounds between the sons of Sri Ram Kishun Singh by a registered deed of partition dated 10.07.

4/21 Bhojpur where these defendants finally settled. These defendants did not claim any share in the suit property at all. However, Title Suit No. 21 of 1971/46 of 1974 was compromised amongst the contesting parties vide final decree dated 16.03.1979 in which the present plaintiff Saroj Singh, his father Shyam Nandan Singh, grandfather Kamla Singh and his uncle Ram Swagat Singh along with his cousin Arun Singh Son of Ram Swagat Singh joined the compromise on their behalf and on behalf of their wards and heirs. After filing of Title Suit No. 437 of 2012, the defendants-petitioners appeared and filed their written statement and also moved petition dated 04.05.2017 under Order XIV Rule 2 of the Code of Civil Procedure (hereinafter referred to as 'Code') praying therein to decide the issue which reads as under:- "Is the suit barred by res judicata and limitation as preliminary issue in the suit."

The learned trial court after hearing the parties refused to frame the issue on res judicata or limitation as preliminary issue and rejected the petition filed for the said purpose. The said order has been challenged in the instant Civil Misc. Petition.

03. Despite opportunities, none appeared on behalf of

5/21 the respondents however, the learned counsel for the petitioners has been heard.

04. Learned counsel for the petitioners submitted that the order of the learned trial court suffers from nonapplication of judicial mind as no lawful reason has been assigned. Learned trial court did not consider the principles of law which provides that if some preliminary issues have been raised, the same need to be decided first and then only the trial could proceed. Learned counsel further submitted that the learned trial court did not consider that if preliminary issues were framed and decided first, it would not be prejudicial to anyone or even to the plaintiffs. Learned counsel further submitted that the plaintiffs are all descendants of Kamla Singh and admittedly partition has taken place amongst Kamla Singh and his brothers and the matter was also compromised in an earlier suit admitting the partition.

So the continuation of the trial of the suit is highly prejudicial to the defendants since nonmaintainability of the suit on the ground of res judicata and limitation must be decided as preliminary issue otherwise there would be miscarriage of justice.

6/21 sale deeds were executed by the plaintiffs-respondents according to their allotted share in partition of 1952. Even the compromise decree of 1972 was in knowledge of the plaintiffs but they falsely stated that they came to know about compromise decree only after Mutation Appeal No. 62/201112. Similarly, ignorance about gift deed dated 15.06.1968 is surprising as in written statement of Title Suit No. 21 of 1971, they recognized the validity of the gift. Thus, the learned counsel submitted that from the facts of the case it is amply clear that the suit of the plaintiffs is barred by principles of res judicata as well as it is hit by limitation since time barred claim has been sought to be adjudicated.

Learned counsel for the petitioners further submitted that the impugned order suffers from apparent errors of record since the learned trial court has observed that the issues have already been framed and the court cannot decide any issue as a preliminary issue. But the record of learned trial court was called for and on previous occasion a Co-ordinate Bench has observed that from order sheet dated 05.03.2019 it appears that the case was adjourned for filing of proposed issues and the report of learned District Judge, Patna dated 05.09.2023 showed that the issues have not been framed.

05. Learned counsel for the petitioners referred to the

7/21 decision of the Hon'ble Supreme Court in the case of Sukhbiri Devi and Ors. Vs. Union of India and Ors. reported in AIR 2022 SC 5058, wherein the Hon'ble Apex Court held that issue of limitation can be framed and determined as preliminary issue under Order 14 Rule 2(2)(b) of the Code in a case where it can be decided on admitted facts. In the case of S. Ramchandra Rao Vs. Nagabhushana Rao & Ors. reported in 2023 (1) BLJ SC 109, the Hon'ble Supreme Court in paragraph 10 held as under:- "10.

For what has been noticed and discussed in the preceding paragraphs, it remains hardly a matter of doubt that the doctrine of res judicata is fundamental to every well regulated system of jurisprudence, for being founded on the consideration of public policy that a judicial decision must be accepted as correct and that no person should be vexed twice with the same kind of litigation. This doctrine of res judicata is attracted not only in separate subsequent proceedings but also at the subsequent stage of the same proceedings. Moreover, a binding decision cannot lightly be ignored and even an erroneous decision remains binding on the parties to the same litigation and concerning the same issue in question if rendered by a Court of competent jurisdiction.

8/21 binding decision cannot be ignored even on the principle of per incuriam because that principle applies to the precedents and not to the doctrine if res judicata."

The said decision has been referred by the learned counsel to underscore the importance of doctrine of res judicata. Learned counsel for the petitioners firstly referred to one of the decisions of this Court in the case of Manik Lal Merhatia Vs. Baijnath Prasad Soni reported in 1966 BLJR 1x. The issue relating to maintainability of suit being issue of law should be determined first as preliminary issue in order to avoid protracted litigation. Learned counsel further relied on a decision of this Court in the case of Ram Sanjeevan Singh Vs. Bhola Prasad Thakur & Ors., reported in BLJ 1990 (1) 161, wherein the Hon'ble Justice S.B.

Sinha (as his Lordship then was) affirmed the order of the learned trial court when the trial court framed the issue of res judicata and even made an attempt to decide the same as a preliminary issue but due to the difficulty being faced by the learned trial court in deciding the complicated question of res judicata without the evidence led by the parties, it refused to decide the issue of res judicata as a preliminary issue.

9/21 preliminary issue.

06. Though none appeared to address this Court on behalf of the respondents, counter affidavit has been filed earlier, whereby it has been submitted that it is the settled principle of law that limitation and res judicata are mixed question of law and fact and for this reason, the impugned order dated 31.05.2018 is valid, legal and proper order in the eyes of law. The issues have been settled in Title Suit No. 437 of 2012 on 07.04.2017 after proper inquiry of documents and pleadings of the parties. The respondents/plaintiffs further submitted in their counter affidavit that the petitioners fraudulently obtained the compromise decree dated 16.03.1979 and even the deed of partition dated 10.07.1952 was fabricated, illegal and ineffective and showy document and is not binding upon the plaintiffs and their ancestors.

The plaintiffs/respondents got knowledge of Title Partition Suit No. 21 of 1971 when the petitioners have filed Mutation Appeal No. 62/2011-12 before the DCLR, Masaurhi against the respondents wherein the petitioners have stated in their appeal that they got the property in question from decree passed in Title Suit No. 21 of 1971. Kamla Singh was married with one Mahaso Kuer @ Navlagan Kuer.

10/21 had only two daughters and other sister of Mahaso Kuer died unmarried. The respondents denied the partition deed dated 10.07.1952 submittin that the said partition deed was forged and fabricated document and the same being a creation of ancestors of the petitioners in collusion and conspiracy with each other. Kamla Singh and his sons and grandsons were having no knowledge and Kamla Singh, his sons and grandsons did not join in execution of the partition deed. The properties shown in share of Kamla Singh of partition deed dated 01.07.1952 were not joint property of the four brothers but the same were properties of his wife Mahaso Kuer and the properties shown in share of three brothers are still joint family ancestral property of all four brothers. No averment has been made in pleadings of Title Suit No.

21 of 1971 about partition deed dated 10.07.1952. The said suit has been filed in collusive manner under conspiracy with each other by the petitioners supressing the documents and showing respondent nos. 1 and 4 as minors but no steps were taken to protect the interest of the minors and provisions under Order 32 Rule 3(4) of the Code were violated. The compromise decree obtained fraudulently is not binding upon the respondents.

11/21 per pleadings of Title Suit No. 437 of 2012. Moreover, limitation runs from the date of knowledge and the questions of limitation and res judicata are mixed questions of law and fact. Thus, it has been submitted by the respondents that the learned trial court rightly rejected the petition of the petitioners vide order dated 31.05.2018 beings questions of law and fact, the issues of res judicata and limitation deserve to be decided after full inquiry and trial and could not be decided as preliminary issue. The respondents have also denied execution of gift dated 15.06.1968. The respondents have also denied filing of written statement dated 10.08.1972. The respondents have further submitted that it was wrong to say that the subject matter of present suit has already been partitioned in 1952 amongst the plaintiffs and the defendants.

It was also denied that after partition of 1952 several transactions have been made by the parties and none of them were ever objected. The respondents further submitted that the petitioners did not file original documents namely, partition deed dated 10.07.1952, gift deed of 1914 and 'Rehan' deed of 1928.

12/21 petition under Order 14(2) of the Code as preliminary issue. The respondents have also stated that the petitioners have filed Title Suit No. 619 of 2012 for declaration of their title and possession on the basis of ex-parte compromise decree dated 16.03.1979 of the learned Sub Judge-II, Patna and the said suit has been stayed by the learned Sub Judge-VIII, Patna vide order dated 14.07.2016. Thus, the respondents have submitted that the learned trial court passed the order within the territory of the law and the present Civil Misc. Petition deserves to be dismissed in limine.

07. Having regard to the rival submission and material available on record, the short point which arises for consideration in this case is whether the issue of res judicata and limitation ought to have been framed as preliminary issue and decided first. Apart from that some factual inaccuracies have also been pointed out in the impunged order to show that the impugned order has been passed in complete nonapplication of mind. The Supreme Court in a catena of decisions has held that preliminary issue can be only an issue of law for which no evidence is required. Moreover, Order 14 Rule 2 of the Code enjoins to court the pronouncement of judgment on all issues.

13/21 Order 14 Rule 2 reads as under:-

2. Court to pronounce judgment on all issues.-- (1) Notwithstanding that a case may be disposed of on a preliminary issue in question the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if the issue relates to-- (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue."

Apparently, after the court is of the opinion that case or any part thereof may be disposed of as an issue of law only, it may try that first if that issue relates to the jurisdiction of the court or a bar to the suit was created by any law for time being in force. Thus the framing of preliminary issue is completely discretionary on part of the court and the court can frame

14/21 preliminary issue only on a point of law. Now coming back to the facts of the case. There is no averment anywhere in the Civil Misc. Petition or in the submission and no contention even during argument on behalf of the petitioners that the issue raised by it to be decided as a preliminary issue is only an issue of law. The petitioners as defendants raised issue on the maintainability of the suit on the ground that the same was barred under the principles of res judicata since the suit properties were already partitioned and there was admission of the plaintiffs on this point. However, in the counter affidavit all the averments to this effect have been denied by the plaintiffs/respondents. Similarly, the knowledge about execution of partition deed or the compromise decree have also been denied by the plaintiffs/respondents.

It could not be said that certain admissions were made at the time of filing of plaint on behalf of the plaintiffs. If plaintiffs set the case on certain facts and the same was denied by the defendants, obviously it would give rise to triable issues for which parties would be required to lead their evidence on these issues. Once evidence is required for deciding some issues, the same can never be raised as a preliminary issue and decide first by the court concerned.

15/21 Sathyanath and Anr. v. Sarojamani reported in (2022) 7 SCC 644 held as under:

"17. This Court in Ramesh B. Desai [Ramesh B. Desai v. Bipin Vadilal Mehta, (2006) 5 SCC 638] held that the principles enunciated in S.S. Khanna [S.S. Khanna v.

F.J. Dillon, AIR 1964 SC 497] still hold good and the Code confers no jurisdiction upon the court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue depends upon the question of fact, it cannot be tried as a preliminary issue. The said finding arises from the provision of Order 14 Rule 2 clauses (a) and (b). After the amendment, discretion has been given to the court by the expression "may"

used in sub-rule (2) to try the issue relating to the jurisdiction of the court i.e. territorial and pecuniary jurisdiction, or a bar to the suit created by any law for the time being in force i.e. the bar to file a suit before the civil court such as under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and numerous other laws particularly relating to land reforms. Hence, if Order 14 Rule 2 is read along with Order 12 Rule 5, the court is expected to decide all the issues together unless the bar of jurisdiction of the court or bar to the suit in terms of sub-rule

(2) clauses (a) and (b) arises. The intention to substitute Rule 2 is the speedy disposal of the lis on a question which oust either the jurisdiction of the court or bars the plaintiff to sue before the civil court.

18. We may state that the First Schedule appended to the Code contains the procedure to be applied in respect of the matters coming for adjudication before the

16/21 civil court. Such procedure is handmaid of justice as laid down by the Constitution Bench judgment of this Court reported as Amarjit Singh Kalra v. Pramod Gupta [Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272] wherein it was observed as under : (SCC p. 300, para 26) "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice."

19. A three-Judge Bench in a subsequent judgment reported as Kailash v. Nanhku [Kailash v. Nanhku, (2005) 4 SCC 480] held that all rules of procedure are handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent but the object of prescribing procedure is to advance the cause of justice. The Court held as under : (SCC p. 495, paras 28-29) "28. All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of justice. In an adversarial system, no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unless compelled by express and specific language of the statute, the provisions of CPC or any other procedural enactment ought not to be construed in a manner which would leave the court helpless

17/21 to meet extraordinary situations in the ends of justice. The observations made by Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar [Sushil Kumar Sen v. State of Bihar, (1975) 1 SCC 774] are pertinent : (SCC p. 777, paras 5-6) '5. ... The mortality of justice at the hands of law troubles a Judge's conscience and points an angry interrogation at the law reformer.

6. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in Judges to act ex debito justitiae where the tragic sequel otherwise would be wholly inequitable. ... Justice is the goal of jurisprudence - processual, as much as substantive.'

29. In State of Punjab v. Shamlal Murari [State of Punjab v. Shamlal Murari, (1976) 1 SCC 719 : 1976 SCC (L&S) 118] the Court approved in no unmistakable terms the approach of moderating into wholesome directions what is regarded as mandatory on the principle that : (SCC p. 720) 'Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.'

In Ghanshyam Dass v. Dominion of India [Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the

18/21 laws of procedure are based on this principle."

(underline supplied for emphasis)

08. The Hon'ble Supreme Court in the case of Nusli Naville Wadia Vs. Ivory Properties reported in (2020)6 SCC 557, held in paragraph-52 as under:- "52. In a case, question of limitation can be decided based on admitted facts, it can be decided as a preliminary issue under Order 14 Rule 2(2)(b). Once facts are disputed about limitation, the determination of the question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts. In case of dispute as to facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. In a case, the question of law is dependent upon the outcome of the investigation of facts, such question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976."

(Underline supplied) Hence, such issue of law, which requires examination of disputed facts, cannot be decided as a preliminary issue. From the case of Nusli Neville Wadia (supra), it is apparent that under Order 14 Rule 2(2) of the Code petitioners could challenge and the court may decide question of law as to jurisdiction of the court or a bar created to the suit by any law for the time being in force, such as under the Limitation Act.

19/21 The court further held that once facts are disputed about limitation, the determination of question of limitation also cannot be made under Order 14 Rule 2(2) as a preliminary issue or any other such issue of law which requires examination of the disputed facts, is necessary to be determined to give a finding on a question of law. Such question cannot be decided as a preliminary issue. The court further held that in a case, the question of jurisdiction also depends upon the proof of facts which are disputed and the question of law cannot be decided as a preliminary issue, is settled proposition of law either before the amendment of CPC and post amendment in the year 1976.

09. However, it appears that the learned trial court in the impugned order dated 31.05.2018 has recorded that issues have not been framed whereas subsequently in order dated 05.03.2019 while allowing the petition filed under Order 6 Rule 17 has held that the issues are yet to be framed and the parties were directed to file proposed issue and same order was continued on 2-3 dates.

10. In the light of facts and circumstances and discussion made hereinabove, I am of the considered opinion that there appears no merit in the contention of the learned

20/21 counsel for the petitioners that the learned trial court committed any jurisdiction of error when it rejected the petition filed under Order 14 Rule 2 of the Code to frame and decide preliminary issue with regard to res judicata and limitation. However, the casual approach of the learned trial court is quite disheartening and certainly it seems an error has been committed so far as a finding has been recorded that issues have already been settled though subsequent orders show the issues are yet to be settled. This fact is itself would not affect on final outcome of the present case since I have already recorded my finding that in the given facts and circumstances, the question of res judicata and limitation needs to be treated as mixed question of law and fact and not merely a question of law. However, the learned trial court is directed to check the records and make necessary correction in the order sheet regarding settlement of issues since two different versions are coming to light from the order sheets. Such casual approach of the learned trial Judge must be deprecated.

11. In the light of discussion made hereinabove, I do not find any jurisdictional error so far as merits of the order dated 31.05.2018 are concerned and hence, the same is affirmed save and except the observation made with regard to

21/21 discrepancy in mentioning the fact about settlement/framing of issues.

12. With the aforesaid observation, the instant Civil Misc. Petition stands dismissed.

13. However, it is made clear that this Court has not made any comment on the merits of the case. The learned trial court would proceed in the matter uninfluenced by any of the observations made by this Court.

(Arun Kumar Jha, J) DKS/- AFR/NAFR AFR CAV DATE 15.03.2024 Uploading Date 11.04.2024 Transmission Date N.A.