Usha Rani Mahatani Vs Smt Kamla Mahatani

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Second Appeal No. 131 of 2019

Usha Rani Mahatani, aged about 60 years, wife of Sri Parsuram Mahto, and daughter of Late Rai Mohan Mahto and Late Lakhi Rani Mahatani, resident of Village- Baskatia, P.O. & P.S.- Dhalbhumgarh, District- East Singhbhum (Jharkhand)

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… … Plaintiff/Appellant/Appellant

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Versus

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Smt. Kamla Mahtani, wife of Late Montu Mahto; ("dead" vide order dated 04.10.2024)

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Sanjay Mahto, son of Late Montu Mahto;

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Jasso Mahatani, daughter of Late Montu Mahto;

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residents of Village- Madakati, P.O. & P.S.- Dhalbhumgarh, DistrictEast Singhbhum (Jharkhand)

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… … Defendants/Respondents/ Respondents

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CORAM :HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Appellant : Ms. Swati Shalini, Advocate For the Respondents : None

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08 /08.01.2025 Heard Ms. Swati Shalini, learned counsel appearing on behalf of the appellant.

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2. This second appeal has been filed against the judgment and decree dated 28.08.2015 (decree signed on 10.09.2015) passed by learned District Judge, East Singhbhum at Ghatsila in Civil Appeal No. 26 of 1990 whereby the appeal has been dismissed and the judgment and decree dated 24.07.1990 (decree signed on 29.07.1990) passed by learned Sub-Judge- III at Jamshedpur in Title Suit No. 110 of 1986 has been upheld. 3. Learned counsel for the appellant submits that though there are concurrent findings of both the learned Courts, but substantial question of law arises in the present case, as to whether the learned Courts could have held that the suit was barred by res judicata without the plaint, written statement and also the final judgment and decree passed in the earlier suit having been exhibited.

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4. Learned counsel for the appellant has relied upon the judgment passed by the Hon'ble Supreme Court in the case of “Nand Ram (Dead) through Legal Representatives and others Vs. Jagdish

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Prasad (Dead) through Legal Representatives” reported in (2020) 9 SCC 393 (paragraph 20 and 26) to submit that in order to come to a finding that the subsequent suit is barred by res judicata, one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. It has been held by the Hon'ble Supreme Court in the aforesaid judgment that which matters are directly in issue and which are only collaterally or incidentally in issue, must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision.

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5. While giving the factual background of the present case in short, the learned counsel for the appellant has submitted that earlier one Mantu Mahto had filed a partition suit being Title Partition Suit No. 3 of 1981 against the husband of the plaintiff of the present case namely Rai Mohan Mahto. Said partition suit was decreed by holding that Mantu Mahto had half share of the property. The learned counsel submits that the decree in Title Partition Suit No. 3 of 1981 was exparte and certain proceedings were taken-up by the husband of the present plaintiff to get the decree set-aside, but the decree was not setaside. Thereafter , the present suit was filed seeking a declaration that the plaintiff had the exclusive raiyati right over the suit land described in the schedule of the plaint and also seeking a declaration that Mantu Mahto was not the son or any heir of late Balram Mahto and also seeking possession of the suit property. She further submits that Balram Mahto was father of the husband of the plaintiff Late Rai Mohan Mahto.

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6. After hearing the learned counsel for the appellant, this Court finds that the case of the plaintiff was that one Mantu Mahto had earlier filed a partition suit bearing Title (Partition) Suit No. 3 of 1981 against Rai Mohan Mahto seeking partition of the suit property involved in this case. The husband of the present plaintiff who was the defendant of the said title (partition) suit did not file any written statement and the partition suit was decreed ex-parte on 21.07.1982. However, the husband of the present plaintiff filed a petition under

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Order IX Rule 13 read with section 151 of Code of Civil Procedure (in short ‘CPC’) which was rejected as time barred on 03.11.1983. In the meantime, the husband of the plaintiff died and the present plaintiff filed an objection at the time of preparation of final decree which was also rejected on 28.06.1986. Mantu Mahto also took delivery of possession of the suit land of his half share.

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7. It was the case of the plaintiff in the present suit that the original defendant (Mantu Mahto) was not the son of Balram Mahto, rather he was the son of Methor Mahto, S/o Bholanath Mahto and in support of that certain documents were also referred. It was also pleaded in the plaint that Mantu Mahto was not entitled to any share in the suit property. It was also asserted that Mantu Mahto had no right, title and possession over the property and cause of action arose on 01.08.1986.

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8. The defendant nos. 1 to 3 appeared and filed their written statement by stating that the suit was barred by principles of res judicata and principles of waiver and estoppel. They further stated that after passing the preliminary decree in Partition Suit No.3 of 1981 several objections were raised by the plaintiff and her husband and the objections were rejected by the learned Court and thereafter, the plaintiff had filed the present suit by stating that Mantu Mahto was not the son of Balram Mahto and it was not in dispute that Balram Mahto was the father of the husband of the plaintiff.

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9. The learned trial Court framed the following issues for consideration:

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"1) Has the plaintiff cause of action for the suit?

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2) Whether the suit is maintainable in the present form, and for the reliefs claimed?

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3) Is the suit barred by res -judicata?

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4) Whether Rai Mohan Mahto and Mantu Mahto were full blood brothers?

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5) Whether the plaintiff is the exclusive owner of the suit property?

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6) Whether the decree obtained in T.S. (P) Suit No. 3 of 1981 is a nullity and obtained by practising fraud upon the Court?

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7) Whether the plaintiff is entitled of the reliefs claimed?"

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10. While considering the point of res judicata which was issue no. 3, the learned trial Court recorded that it was an admitted fact that subject matter of Title Partition Suit No. 3 of 1981 was the suit property involved in the present case. It was also an admitted fact that for setting -aside the decree in title partition suit, miscellaneous case was filed by the late husband of the plaintiff which was rejected. The husband of the plaintiff was party in the partition suit and the plaintiff was litigating under the same title. The learned Court ultimately held that the decree passed in Title Partition Suit No. 3 of 1981 had become absolute and therefore, the suit before the learned Cout was barred by res judicata.

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11. So far as the other issues are concerned, they were also decided in favour of the defendants.

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12. The learned trial Court, while considering issue no. 4 and 5 considered the materials on record and held that Late Rai Mohan Mahto and Late Mantu Mahto were full brothers and both were sons of Balram Mahto, born through Sharda Bala Mahtaani. It was also held that the plaintiff was not the exclusive owner of the suit property. While deciding issue no.6, the learned trial court held that the decree obtained in the earlier Title Partition Suit No. 3 of 1981 was not a fraudulent one and the same was not a nullity.

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13. Thus, the learned trial Court has not only recorded that Mantu Mahto was full brother of the husband of the plaintiff and the plaintiff was not the exclusive owner of the suit property, but has further held that the suit was barred by res judicata as the Title (Partition) Suit No. 3 of 1981 was decided in favour of Mantu Mahto wherein half share of the present suit property was decreed in his favour in which the husband of the plaintiff was the defendant.

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14. The learned First Appellate Court also considered the materials on record and framed the two points for consideration:

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"Point No. 1 – Whether the plaintiff/appellant is exclusive owner of the suit property and whether Raimohan Mahto and Mantu Mahto were full brothers.

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Point No. 2 – is this case barred by principles of res judicata."

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15. Both the aforesaid points were taken into consideration by the learned First Appellate Court together and after considering the materials on record the learned Court decided both the points against the plaintiff and in favour of the defendants.

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16. So far as the judgment relied upon by the learned counsel for the appellant passed in the case of Nand Ram (Supra) is concerned, in the said judgment it has been held in paragraph 20 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 and in the said background, it has been held that to arrive at a finding as to whether the matter was directly and substantially in issue in the earlier suit, one has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. The said principle of law is not in dispute. However, the said judgment does not apply to the facts of the present case in view of the admitted fact on record that Mantu Mahto had filed a suit for partition in connection with the same property involved in the present case against the husband of the present plaintiff and was given the half share of the property and thus, it was not in dispute that the status of Mantu Mahto with respect to the husband of the plaintiff was directly and substantially in issue in Title Partition Suit No. 3 of 1981 in which decree was passed in favour of Mantu Mahto to the extent of half share and the said decree attained finality.

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17. This Court finds that though the plaint, written statement and also the judgment passed in the earlier title suit being Title Partition Suit No. 3 of 1981 was not exhibited before the learned Court, but the fact remained admitted between the parties that there was Title Partition Suit No. 3 of 1981 filed by Mantu Mahto in which the late husband of the plaintiff was the sole defendant and in the partition suit the decree was passed in favour of Mantu Mahto to the extent of half share of the same property which was involved in the present suit .

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18. This Court is of the considered view that the issue of res judicata has been decided by the learned Courts by considering the

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Pankaj

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admitted facts on record. Further, the learned trial Court has recorded a clear finding by considering the materials on record that Mantu Mahto was full brother of late husband of the plaintiff which has also been upheld by the learned appellate court.

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19. Considering the totality of facts and circumstances of this case, this Court finds that the findings recorded by the learned courts are based on materials on record and no perversity as such has been pointed out by the learned counsel appearing on behalf of the appellant in the matter of appreciation of the materials on record. Accordingly, no question of law , much less any substantial question of law arises for consideration in the present second appeal which is hereby dismissed.

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20. Pending interlocutory application, if any, is closed.

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(Anubha Rawat Choudhary, J.)

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Usha Rani Mahatani v. Smt Kamla Mahatani

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Usha Rani Mahatani v. Smt Kamla Mahatani

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