HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A.No.90 of 2001 Date: 29-3-2011 Between Ramachander Narayan Sanghi (died) By his L.Rs., Appellants 2 to 12 … Appellants/Plaintiffs and Mahender Narayan Sanghi (died) Per L.R. Respondent No.2 … Respondents/Defendants HON’BLE SRI JUSTICE B.PRAKASH RAO AND HON’BLE SRI JUSTICE V.SURI APPA RAO C.C.C.A.No.90 of 2001 Judgment: (per V.Suri Appa Rao, J.) This appeal is filed under Section 96 of CPC against the judgment dated 30-12-2000 in O.S.No.87 of 1993 on the file of the VII Senior Civil Judge, City Civil Court, Hyderabad, whereunder the suit filed by the appellants was partly decreed and a preliminary decree for partition was passed in respect of Item No.2 of the schedule property and the suit so far as the relief for partition of Item No.1 of the schedule property had been dismissed. 2. Aggrieved by the judgment and decree insofar as Item No.1 of the schedule property, the plaintiffs filed this appeal. 3. For the sake of convenience, the parties herein are referred to as they are arrayed in the suit. 4. The relevant facts leading to this appeal are as follows: Ramchander Narayan Sanghi instituted the suit against the defendant, who is no other than his son through his first wife Durga Bai who died in April, 1954 when the defendant was aged about 11 years. In the month of December, 1995 the plaintiff married Smt. Radha Bai through whom he got 5 sons and 5 daughters. He purchased a house cum shop i.e., Item No.1 of the schedule property in a public auction held in the year 1955 in the name of his son i.e., the defendant herein. He paid an amount of Rs.4,000/- on the date of auction and the remaining sale consideration was paid by selling the jewellery of his 2nd wife Radha Bai and also by raising funds. The said property was thus purchased benami in the name of the defendant. Earlier to it he has also purchased Item No.2 of the schedule property in the name of his 1st wife Durga Bai. Both the properties were treated as joint properties in which both himself and the defendant have equal shares. After the defendant became an adult disputes arose between them, as a result of which he had to institute a suit O.S.No.53 of 1975 on the file of the I Additional Judge, Hyderabad to declare Item No.1 of the schedule property shall be retained by the plaintiff and Item No.2 of the schedule property to be retained by the defendant and that the plaintiff agreed to pay Rs.20,000/- to the defendant for renovation of that house and it is further agreed that the defendant in turn has to execute a relinquishment deed as regards Item No.1 of the schedule property and that the terms of the said compromise have to be implemented within 6 months but the defendant later did not cooperate for the implementation. He did not vacate Item No.1 of the schedule property where he was residing in the ground floor and the plaintiff with his family members residing in the first floor. On the basis of the above said agreed terms of compromise, the plaintiff has withdrawn the suit. He also got issued a notice Ex.B-2 to the defendant on 08-4-1977 before the expiry of 6 months’ period calling upon to act as per the compromise. Since the disputes are continuing between the plaintiff and the defendant, the plaintiff again instituted another suit O.S.No.73 of 1984 on the file of the Additional Judge, Hyderabad seeking the relief to declare Item No.1 of the schedule property as purchased by the plaintiff benami in the name of the defendant. The suit was dismissed holding that it is not hit by Order XXIII, Rule 1 of CPC by the withdrawal of the suit O.S.No.53 of 1975 and that the plaintiff cannot seek the relief of declaration since Item No.2 of the schedule property is also joint property of them and no relief of partition can be granted. Thereupon the plaintiff preferred appeal C.C.C.A.No.14 of 1988 before this Court and the same was also dismissed on the same ground that the relief of declaration cannot be granted in view of Section 4 of the Benami Transaction (Prohibition) Act, 1988 (for short, ‘the Benami Act’). The plaintiff therefore preferred L.P.A.No.35 of 1992, which was also dismissed on similar grounds. The plaintiff purchased Item No.1 with his funds and with the funds raised by selling the jewellery of his second wife, whereas the defendant contended that it was purchased by selling the jewellery of his mother i.e., the first wife of the plaintiff. In any event at best both the properties should be deemed to be the properties of the first wife of the plaintiff and admittedly the defendant was a minor on the date of purchase of Item No.1 of the schedule property without any independent source of income by operation of personal law applicable to the parties, both of them got right of equal shares in both the properties being members of a Hindu joint family and that there being no severance of status and since the defendant was a minor on the date of purchase of Item No.1, the prohibition under the Benami Act has no application in view of Clause (3) to Section 4 of the Benami Act as that property is a coparcenary property. The plaintiff further pleads that he has been collecting rents from the tenants of Item No.2 of the schedule property, whereas the defendant collecting rents from the tenants of Item No.1 of the schedule property. 5. During the pendency of the suit, the plaintiff Ramchander Narayan Sanghi passed away and his second wife and his sons and daughters through her, joined as parties to the suit as plaintiffs 2 to 12 as per the orders in I.A.No.894 of 1997 dated 13-02-1998. 6. In the written statement, the sole defendant who is the son of late Ramchander Narayan Sanghi, original plaintiff, contended that the suit instituted in its original form for partition of joint family properties without adding the plaintiff’s other children is bad for non-joinder of parties. So far as Item No.1 of the schedule property is concerned, at the time of purchase in the year 1955 the defendant was aged 14 years, his mother just passed away in the previous year and his step- mother was pregnant with her first child. The said property was purchased by selling the jewellery of his mother after her death who came from a renowned rich family of jewelers, bankers and landlords. His father had no ancestral property and through his second wife he got no jewellery or property as she hailed from a very poor family and she has been married by her maternal uncle to the plaintiff though he was 40 years old then. The property was purchased for his benefit. In the year 1961 differences arose between him and his father. Thereafter, he started to live by his own by doing sundry jobs and later in the year 1963 he joined in Dunlop Company and has been residing in the first floor of the said house along with his wife. After coming to know that his father was making trials to sell the property he issued a notice in ‘Hindi Milap’ paper on 11-6-1967 asserting his exclusive right, to which a reply was given by the plaintiff on 21-6-1967 claiming that the property was purchased benami in the name of the defendant. However, the plaintiff could not sell the property as it belonged to the defendant. The defendant is the absolute owner of that property and he was collecting rents from the tenant one Inderlal against whom the defendant filed an eviction petition in R.C.No.222 of 1963 as a owner, even on a later date he filed R.C.No.171 of 1982 against the same Inderlal, the tenant for eviction and all the terms claiming himself as the exclusive owner of that property and knowing well the plaintiff never claimed or intervened that he has exclusive right. The said tenant himself has filed a suit later for specific performance of the contract against the defendant to the suit filed by the defendant against him for eviction, in which suit the tenant made the plaintiff as a party, wherein the plaintiff has not asserted his exclusive right. The name of the defendant was mutated for Item No.1 of the schedule property in the M.C.H. records. The property tax receipts and water bills are in the name of the defendant, which goes to prove his exclusive right and possession. 7. The defendant further admitted about the compromise in the suit O.S.No.53 of 1975 and contended that the suit matter was compromised with the condition that if the terms are not implemented within 6 months the rights of the parties will be as were existing prior to it. It was the plaintiff who has not come forward to perform his duty under that compromise by attorning the tenancy to Item No.2 of the schedule property in his name and delivering the vacant possession by evicting the tenants and also by paying Rs.20,000/- for renovation so as to make it inhabitable for him which matters are condition precedent for the defendant to vacate the first floor premises of Item No.1 of the schedule property and then only both of them to execute a relinquishment deed in favour of each other for Items 1 and 2 of the schedule properties. The plaintiff got issued a false notice without mentioning his failure and that the said suit was not withdrawn obtaining the leave of the Court to file a fresh suit on the same cause of action, but still waiting for 7 years the plaintiff filed the suit O.S.No.73 of 1984 with the same plea to declare his right in Item No.1 of the schedule property, which was dismissed observing that it is not hit by Order XXIII, Rule 1 of CPC. It was further observed in that judgment that the plaintiff failed to prove that he purchased the suit house benami in the name of the defendant. Therefore, the defendant contended that in view of the judgment of the trial Court in O.S.No.73 of 1984 and the appeal judgments of this Court, the plaintiff cannot seek to declare his right in Item No.1 of the schedule property, hence any other subsequent suit is barred by the principle of res judicata. The plaintiff on the basis of a reference made by this Court in the first appeal, which is in fact obiter dicta, that if the plaintiff feel that he has got any interest in the property in spite of the provisions of Section 4 of the Benami Act, it is open to him to take recourse under law, now showing it as a cause of action filed the suit entirely taking a new plea hither to never raised, pleaded or claimed stating that this property is treated as joint family property and hence he has a right of share which he cannot take now by operation of the doctrine of estoppels. 8. So far as Item No.2 of the schedule property, the defendant contended that it is in the name of his mother purchased with ‘Sthree Dhana’ of his mother. Therefore, the plaintiff cannot claim any right. However, in view of the decree passed by the lower Court for partition of Item No.2 of the schedule property, it is not necessary to refer the pleadings regarding Item No.2 of the schedule property. Finally the defendant stated that the suit is hit by Order II, Rule 2 of CPC in view of the plea of relief of this suit having not been sought in the earlier two suits. 9. The trial Court on the basis of the pleadings of both the parties framed the following issues: 1. Whether the suit properties are joint family properties and liable for partition ? 2. Whether plaintiff is entitled for the preliminary decree for partition and separate possession of suit schedule property ? 3. Whether defendant is the absolute owner of the suit property and the plaintiff is not entitled to claim any right in respect of suit property ? 4. To what relief ? 10. During trial, the 5th plaintiff Ashok Kumar Sanghi was examined as P.W.1 and marked Exs.A-1 to A-105. The defendant is examined as D.W.1 and he also examined one Mahender G.Shyam as D.W.2 and marked Exs.B-1 to B-22. 11. Considering the oral and documentary evidence let in by both the parties, the trial Court, as already stated, decreed the suit in part granting preliminary decree for partition of Item No.2 of the schedule property and the relief for partition of Item No.1 of the schedule property was dismissed. 12. The appellant filed this appeal against the finding of the trial Court that in respect of Item No.I of the schedule property, whereby the trial Court dismissed the suit and passing preliminary decree for Item No.I of the schedule property on the ground that the plaintiffs cannot claim in Item No.I of schedule property as it has already been decided in the earlier suit and in an appeal by this Court that the property exclusively belongs to the defendant. 13. Questioning the above finding, the appeal is filed with a prayer that the plaintiff is entitled for partition of Item No.I of the schedule property also as it was purchased by late Ramchander Narayana Sanghi, father of the defendant, by selling the jewellery of his second wife, with joint family and coparcenary funds when the 1st respondent was a minor aged about 11 years, as such Item No.I of the schedule property is also coparcenary and joint family property. 14. The point for consideration is, whether the decision in the earlier suit O.S.No.53 of 1975 with regard to Item No.I of the schedule property operates as res judicata ? 15. Point:- The learned counsel for the appellants submitted that the earlier suit was not decided on merits, that it was ended in compromise and that therefore, the decision in the earlier suit would not operate as res judicata in the subsequent suit. 16. The learned counsel for the appellants has placed reliance on the following judgments: (1) Sheodan Singh v. Daryao Kunwar[1], wherein it was held as under: “In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been on the merits. Where, for example, the former suit was dismissed by the trial Court for want of jurisdiction, or for default of plaintiff’s appearance, or on the ground of non- joinder of parties or misjoinder of parties or multifariousness, or on the ground that the suit was badly framed, or on the ground of a technical mistake, or for failure on the part of the plaintiff of produce probate or letters of administration or succession certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to furnish security for costs, or on the ground of improper valuation or for failure to pay additional Court-fee on a plaint which was undervalued or for want of cause of action or on the ground that it is premature and the dismissal is confirmed in appeal (if any) the decision not being on the merits would not be res judicata in a subsequent suit.” (2 ) SAJJADANASHIN SAYED v. MUSA DADABHAI UMMER[2], wherein it was held by the Hon’ble Supreme Court as under: “The words used in Section 11 CPC are “directly and substantially in issue”. If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only “collaterally or incidentally” in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue. The fundamental rule is that a judgment is not conclusive if any matter came collaterally in question. A collateral or incidental issue is one that is ancillary to a direct and substantive issue; the former is an auxiliary issue and the latter the principal issue. The expression “collaterally or incidentally” in issue implies that there is another matter which is “directly and substantially” in issue.” (3) Bejoy Gopal Mukherji v. Pratul Chandra Ghose[3] wherein it was held that there was no issue regarding the nature of tenancy in the previous suit, either directly or indirectly, whether it was permanent and heritable or otherwise and the decision on the Court is not res judicata on the question. (4) Ram Nandan Prasad Narayan Singh v. Kapildeo Ramjee[4] wherein it was held that in a previous litigation if it is held that the party was entitled to claim benefit of provisions of Bihar Money-Lenders (Regulation of Transactions) Act (7 of 1939), the decision does not amount to hold that interpretation sought to be put by him on particular section of that Act is right one and the doctrine of constructive res judicata will not apply. 17. The appellants herein filed an application C.C.C.A. M.P.No.653 of 2010 praying to receive the Will dated 07-6-1990 executed by the husband of the 2nd petitioner in her favour, as additional evidence, in the appeal and the matter may be remanded to the trial Court for fresh disposal after giving an opportunity to both parties regarding the genuineness of the said Will. 18. The learned counsel for the appellants contended that a learned single Judge of this Court by judgment dated 28-6-1990 in C.C.C.A.No.14 of 1988 observed as under: “On behalf of the appellant it is submitted that the appellant being the father of the first respondent is entitled to a share under Hindu Law in the suit property. On the contra the learned counsel for the respondents submits that in view of the earlier suit and in view of the provisions of Section 4 of the Act, the appellant cannot claim any interest in the suit property. In the event, of the appellant feeling that he has got any interest in the suit property, even, in spite of the provisions of Section 4 of the Act, it is open to him to take such course as is open to him under law.” 19. The learned counsel for the appellants further contended that the plaintiff herein preferred an appeal L.P.A.No.35 of 1992 against the judgment dated 28-6-1990 in C.C.C.A.No.14 of 1988 and a Division Bench of this Court by judgment dated 23-3-1992 while dismissing the said appeal observed as under: “Even if the plea of the plaintiff was to be accepted for the sake of argument, still he would not be entitled for a decree as the basis of the plea is that for the purchase of the house the funds came by sale of the jewellery belonging to his second wife. The bar of Section 4 of the Benami Transactions (Prohibition) Act, 1988 is fully attracted the exception carved out in clause (a) of sub-section (4) of Section 4 in respect of a Hindu coparcener is not attracted to the facts of the present case.” 20. The learned counsel for the respondent further submitted that even if the alleged Will Deed dated 07-6-1990 is received as additional evidence and is proved, it does not change the status of the parties, therefore there are no grounds to remand the matter to the trial Court. 21. The learned counsel for the respondent further submitted that the trial Court rightly dismissed the suit of the plaintiffs so far as the claim of the plaintiff for partition of Item No.I of the schedule property is concerned on the ground that the rights of the parties have already been decided in the earlier suit. 22. In support of his contentions, the leaned counsel for the respondent has placed reliance on the following judgments: (1) N. P. VENKATEWARA PRABHU v. N. P. KRISHNA PRABHU[5], wherein it was observed as under: “We think that Section 11 Civil Procedure Code enables the party to raise the statutory plea of res judicata if the conditions given therein are fulfilled. The principle embodied in the statute is not so much the principle of “estoppel by record”, which the British Courts apply, as one of public policy, based on two maxims derived from Roman jurisprudence: firstly, interest reipublicae ut sit finis litium – it concerns the State that there be an end to law suits; and, secondly, nemo debet bis vexari pro una et eadem cause – no man should be vexed twice over for the same cause.” (2) GOJER BROS. PVT. LTD. v. RATAN LAL SINGH[6]. The Hon’ble Supreme Court while considering the issue of doctrine of merger, observed as under: “That the decree of the trial Court dated November 24, 1958 merged in the decree of the High Court dated January 8, 1969. Since the decree of the High Court was passed after the commencement of the West Bengal Premises Tenancy (Amendment) Act, 1968, that is to say after August 26, 1967, Section 17-D of the Act of 1956 can have no application and therefore the decree of the High Court which is the only decree to be executed cannot be set aside under that Section.” (3) KUNHAY AMMED v. STATE OF KERALA[7], wherein it was held that it is merely a common law doctrine based on principles of propriety in the hierarchy of judicial system. It postulates merger of the subordinate forum’s decision in the decision of the appellate or revisional forum modifying, reversing or affirming such decision.” 23. Lastly, the learned counsel for the respondent argued that the earlier suit O.S.No.53 of 1975 was dismissed as withdrawn in view of the Memo of Compromise entered into between the parties and the subsequent suit filed by the appellant for the same relief cannot be entertained. 24. For the said proposition, the learned counsel for the respondent has placed reliance on a judgment in Aftab Ahmad v. Nasiruddin[8]. While dealing with the question of striking out of the defence, it was observed as under: “The effect of O.23, R.1 read with S.141 is that once an application has been presented claiming a relief and it is not pressed and is dismissed, a subsequent application on the very same ground is barred.” 25. The plaintiff Ramchander Narayan Sanghi admittedly filed the suit O.S.No.53 of 1975 on the file of the First Additional Judge, City Civil Court, Hyderabad for declaration that the schedule property is the self-acquired property and that the said house was purchased benami in the name of the 2nd party i.e., the 1st defendant herein. Both the parties in that suit filed compromise petition, as a result of which the suit O.S.No.53 of 1975 for Item No.I of the schedule property was dismissed as withdrawn on 14-02-1977. 26. Subsequently, in the year 1984 the plaintiff filed another suit O.S.No.73 of 1984 on the file of the Additional Chief Judge, City Civil Court, Hyderabad against the 1st defendant and another for declaration of the title to the property, which is a house bearing Municipal No.21-2-90 situated at Charmakan, Gulzar House and for eviction of the defendants 1 and 2 from out of the portion of the said house and for delivery of the property, on the ground that the said property was purchased by the plaintiff in the auction in the name of the 1st defendant benami, who is no other than his son through his first wife. It is alleged in the plaint in O.S.No.73 of 1984 that the earlier suit O.S.No.53 of 1975 filed by him was ended in compromise and that the 1st defendant failed to comply the conditions of compromise and as the plaintiff withdrew his previous suit with a liberty to file a fresh suit, he filed the suit O.S.No.73 of 1984.