TaxTMI 
TaxTMI 
1923 (12) TMI 4
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....plaint. 3. The first and second documents were taken in the name of the plaintiff himself; the third and fourth documents were taken by the plaintiff in the name of the third defendant. On the 19th March, 1913, the four documents were tendered for registration. The executant at first admitted but subsequently denied execution. The result was that the Sub-Registrar refused registration on the 7th May, 1913; this order was confirmed by the Registrar on the 21st October, 1913. On the 19th November, 1913, the plaintiff, along with the third defendant, instituted a suit against the first defendant to enforce registration of the documents under the provisions of Section 77 of the Indian Registration Act. The defendant contended that the deeds had been materially altered after he had executed them, and pleaded in substance that the documents presented for registration did not represent the real agreement between the parties. The Subordinate Judge found against the plaintiff and dismissed the suit on the 3rd March, 1915. On appeal to this Court, Fletcher and Newbould, JJ. on the 24th May, 1917, remitted the case to the trial Court for a finding on the issue whether a document which purp....
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....ttled between the parties. The second defendant pleaded that he had taken leases from the first defendant in good faith and was not liable for mesne profits, as he had been always ready and, willing to give up possession to the plaintiff. He further urged that the claim for mesne profits for a, period antecedent to three years prior to the institution of the suit was barred by limitation. On these pleadings, fifteen issues were raised on the 16th July, 1921. The seventh issue was cancelled as unnecessary on the 10th March, 1922. The remaining issues were in the following, terms: 1. Has the plaintiff any cause of action against defendant No. 1? 2. Is the suit barred under Order 2, Rule 2, Civil Procedure Code and Section 42 of the Specific Relief Act? 3. Is the settlement made by defendant No. 1 with defendant No. 2 not affected by the doctrine of Us pendens? 4. Is the suit not maintainable for the reason stated in paras. 3 and 8 of the written statement of defendant No. 1? 5. Were some of the findings of the previous litigation beyond the scope of that litigation? Were some of the findings without jurisdicti....
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.... 1. That as the result of the previous litigation between the parties and Your Honour's decision of 10-3-22, it is now an established fact, which is not admitted by this defendant, that the documents as they now stand, on which the plaintiff bases his title are genuine documents executed by the defendant in the plaintiff's favour and that the plaintiff committed no forgeries by making material alteration therein after they had been executed by this defendant, as set up by him. 2. That in the present suit the case of this defendant now is that the abovementioned documents do not express the real intention of the parties and do not embody the terms settled between them, that there are new terms embodied therein to which the defendant never agreed and that those terms were embodied in the documents fraudulently at the instance of the plaintiff with the intention of defrauding the defendant. 3. That the said fraud was committed in this way : - That by the terms originally settled the defendant reserved for himself by way of rent the sums of Rs. 300 and Rs. 900, in all Rs. 1,200; but by the deeds as they now stand, it may be a matter of....
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....ition and to adduce evidence to show that new terms had been inserted in the documents before they were executed by him, contrary to his previous allegation that new terms had been interpolated in the documents after they were executed by him. The Subordinate Judge adhered to this view on the 1st May, 1922, on an application for re-consideration. The case was then heard on the merits and ultimately decreed on the 2nd June, 1922, in the following terms: It is ordered that the suit be decreed with costs. That the plaintiff's right to the disputed properties as claimed in the plaint be declared and that he do get khas possession of the same in those rights : she shall get mesne profits and damages in respect of those properties from defendant No. 1 from 4th Magh 1319 to 9th Jyet, 1322 and from defendants Nos. 1 and 2 from 10th Jyet, 1322 to the date of the plaintiff's getting possession or till the expiration of three years from the date of the decree (whichever event occurs first); the amount of mesne profits and damages which the plaintiff is entitled to get, will be ascertained afterwards. 9. The defendants have preferred separate appeals to this Court aga....
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....t are the decisions in Futteh Chand v. Leelumber (1871) 14 M.I.A. 129 (P.C.), In re Haji Abdulla (1876) 2 Cal. 131 (P.C.), Broucke v. Rajah Saheb 14 C.W.N. 12; Ram Ghulam v. Menda A.I.R. 1921 All. 52, Huzurimal v. Kutabuddin (1903) 11 P.R. 1903 and Nawab v. Arjan Das (1904) 13 P.R. 1904; while Chandra Kishore v. Dinendra Nath (1894) 1 C.L.J. 126, perhaps points in a different direction. This limited scope of a suit under Section 77 is reflected in the Court Fees Act, which provides in Schedule II, Article 17(vi) that the fee payable on a plaint and memorandum of appeal from a decree in such a suit is a fixed, fee of Rs. 10 (recently raised to Rs. 20) only, and not an ad valorem fee under Section 7(4)(c) upon the value of the properties comprised in the document : Jantoo v. Radha (1882) 8 Cal. 515; Savrarimuthu v. Alagiam; Ramu Aiyar v. Sankara (1907) 31 Mad. 89; Mahomed v. Fatima (1895) 21 P.R. 1895. But although the scope of the enquiry in a suit under Section 77 may be of a restricted character, it does not follow that the doctrine of res judicata is excluded from full operation. The decision of the Judicial Committee in Badar Bee v. Habib (1909) A.C. 615; Sheoparsan v. Ramnandan....
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....le against re-agitating matter adjudicated is subject generally to this restriction - that however essential the establishment of particular facts may be to the soundness of a judicial decision, however it may proceed on them as established, and however binding and conclusive the decision may, as to its immediate and direct object, be, those facts are not all necessarily established conclusively between the parties, and that either may again litigate them for any other purpose as to which they may come in question, provided the immediate subject of the decision be not attempted to be withdrawn from its operation, so as to defeat fits direct object. This limitation to the rule appears to me, generally speaking, to be consistent with reason and convenience, and not opposed to authority. I am not now referring to the law applicable to certain prize and admiralty questions, which are governed by principles in some respects peculiar. On the whole, I am not at present prepared to say that, according to the proper sense of the expression, the judgment of the Ecclesiastical Court between these parties was directly upon the point of the alleged illegitimacy of Robert James Smith, and had th....
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....lity to the facts of a concrete case, as happened in Ramanandan v. Kaniz Fatima (1917) 39 All. 379, and Indubala v. Atul Chandra (1920) 31 C.L.J. 507. Let us test the contention of the appellant in the light of the principles already expounded. 12. In the previous litigation, the appellant, then defendant, pleaded that although what purported to be his signature on the four leases had been affixed by him thereon, the documents were not genuine, inasmuch as words and clauses had been interpolated, after execution and without his consent. He asserted that the deeds as engrossed accurately represented the contract between the parties, I that he executed them in that state, and that they were then materially altered by the plaintiff, with the result that they no longer represented the real agreement. The trial Court accepted his version. The High Court on appeal directed an enquiry into genuineness of a document which purported to be the draft agreement between the parties. On the result of the supplementary investigation by the trial Court, the High Court pronounced the f draft agreement to be genuine and held that the disputed documents were in the form provided by the contract be....
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.... a party litigant cannot be permitted to assume inconsistent positions in Court, to play fast and loose, to blow hot and cold, to approbate and reprobate to the detriment of his opponent : Bhaja Choudhury v. Chuni Lal 11 C.W.N. 284; Giris v. Bepin (1917) 27 C.L.J. 535; Rama Charan v. Nimai Mandal A.I.R. 1922 Cal. 114. This wholesome doctrine applies not only to the successive stages of the same suit, but also to another suit than the one in which the position was taken up, provided! that the second suit grows out of the judgment in the first. In our opinion, the attempt made by the appellant to circumvent the decision in the previous suit cannot succeed and the doctrine of res judicata presents an insurmountable bar. As regards the application of the rule of limitation to the claim for mesne profits we have been pressed to hold that Article 109 of the first schedule to the Indian Limitation Act bars the claim for a period antecedent to three years prior to the institution of this suit. That article provides that a suit for the profits of immovable property belonging to the plaintiff, which have been wrongfully received by the defendant, must be instituted within three years from th....
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....the 22nd June, 1918. In support of this view, the Subordinate Judge has invoked the principle recognised by the Judicial Committee in Surnomoyee v. Shooshee Mokhee (1868) 12 M.I.A. 244 (P.C.). In that case, a sale under the Patni Regulation having been set aside and the patnidars restored to possession, the zemindar sued them to recover the arrears of rent which had accrued before and during the time they were out of possession; the contention of" the tenants that the claim was barred because the suit had not been brought-within three years from the date wheat each instalment of rent fell due, was overruled, and it was held by the Judicial Committee that the cause of action accrued upon the reversal of the auction sale and the consequent revival of the obligation to pay the rent. The same principle was applied in Bassu Koer v. Lala Dhwn Singh (1888) 11 All. 47 (P.C.). In that case, a debtor agreed to convey certain property to his creditor and to set off the debt against part of the consideration for the conveyance. A sale deed was executed, but a dispute arose as to whether it had been executed in accordance with the contract. Litigation was commenced by the debtor to enforce the ....
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.... be held to arise only on the date when those proceedings finally settle such rights and liabilities. A useful analogy is furnished by cases where it has been ruled that time cannot be held to run against a person who is not in a position to sue for such a person has no enforceable cause of action which is extinguished by lapse of time; examples are furnished by Womesh v. Raj Narain (1868) 10 W.R. 15, where it was ruled that adverse possession against a tenant does not operate against the landlord during the continuance of the tenancy and Priyasakki v. Bireshwar (1916) 44 Cal. 425, where it was ruled that adverse possession against mortgagor does not operate against a simple mortgagee who is not entitled to immediate possession. The substance of the matter is that time runs when the cause of action accrues, and a cause of action accrues when there is in existence a person who can sue and another who can be sued, and when all the facts have happened which are material to be proved to entitle the plaintiff to succeed : Coburn v. Colledge (1897) 1 Q.B. 702; Gelmani v. Morriggia (1913) 2 K.B. 549. The cause of action arises when and only when the aggrieved party has the right to ....
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....cial period of limitation is prescribed for it; the Court-fee leviable is separately provided for; if we were to allow another claim to be included in such a suit, its scope and character would be completely altered. 13. As regards the contention that upon a true construction of the documents, the order for possession and mesne profits should be held erroneous, we observe that the Subordinate Judge has left open the question raised in the eighth issue, namely, whether the first defendant is entitled to separate sets of James on a proper construction of the four pattas. We have been pressed to hold that, as this matter will be tried when the mesne profits are assessed, no decree for possession should have been made in the terms stated in the judgment. We see no substance in this argument, for whatever construction may be placed on the four leases, the plaintiff is entitled to possession thereunder. The exact nature of that possession, no doubt, depends upon the true interpretation of the leases; but such interpretation is really material for the assessment of mesne profits. We shall, consequently, leave it to the Subordinate Judge to determine the true construction of the four le....