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Second Appeal No. 1065 of 1960, decided on 17th February 1965.

‑Recital in judgment in previous case inter partes‑Admissible if it refers to point in issue‑Existence of right to immovable property asserted and recognised in previous suit inter partes‑Factum of possession, in subsequent suit for permanent injunction, can be proved by produc tion of judgment.

Sarkar's "Evidence Act", 7th Edn. page 120; Abinash Chandra Chatterjee v. Paresh Nath Ghose and another 9 C W N 402 and Alaudin Mia and another v. Abdul Latif and others 9 D L R 357 distinguished.

Monir's "Law of Evidence" 4th Edn., Vol. I, page 319 and Ballantyne v. Mackinnon (1896) 2 L R Q B D 455 ref.

‑Objection not taken in Courts below‑Cannot be allowed to be taken at stage of second appeal.

‑Finding of fact based on evidence (judgment in previous suit)‑Cannot be disturbed.

Misri Lal Nayak v. Mst. Surji alias Ramdulari and others 54 C W N 508 rel.

D. C. Bhattacherjee for Appellants.

Farid Ahmad with M. Nurullah for Respondent.

This appeal at the instance of the defendants is directed against the decision of the Subordinate Judge, Additional Court, Chittagong reversing that of the Munsif, Cox's Bazar in a suit for permanent injunction. The case of the plaintiff is briefly this: The case land appertains to etmam Ayenuddin under Tarap No. 3664 as recorded in R. S. Khatian No. 153. Makbul Ahmad Chowdhury and others were the landlords over the etmam. The landlords Makbul Ahmed Chowdhury and others brought a suit for arrears of rent for etmam. The suit was decreed and in execution of the decree the etmam was put to sale. It was purchased by the landlords decree holders on 7‑9‑37. Thereafter the landlords took delivery of possession of the etmam through Court on 22‑2‑38 and possessed the suit land. As the defendant subsequently created disturbances regarding landlords' possession in the suit land, Iskandar, a son of Makbul Ahmed Chowdhury started a criminal proceeding under section 144 of the Code of Criminal Procedure against the defendants. In the proceeding, injunction order was passed restraining the defendants from entering the case land and the landlords continued to possess the case and. While in possession, the landlords leased out the land to Abdur Rashid by a registered patta dated 28‑3‑38 and also by grant of a registered dakhila. Thereafter the interest of Makbul Ahmed Chowdhury and others was auction purchased by Subraj Barua in a revenue sale. Subraj Barua sold his interest to Abdul Fazal and others. All of them recognised Abdur Rashid as a tenant by accepting rent from him. On 11‑9‑44 Abdur Rashid transferred the suit land to the plaintiff Fazal Karim, who instituted Title Suit No. 144 of 1953 against the defendants for ejectment from their land corresponding to R. S. plot No. 612. That suit was dismissed, Thereafter the defendants threatened to dipossess the plaintiff from the suit land. A criminal proceeding under section 145 of the Code of Civil Procedure was started with regard to the entire suit land. In that case a receiver was appointed. He deposited Rs. 100 in Court being the value of usufructs of the suit land for the period for which the land was under the management of the receiver. The proceeding under section 145 of the Code of Criminal Procedure was ultimately dropped. Plaintiff instituted Money Suit No. 44 of 1956 for recovery of the money deposited by the receiver. The suit was decreed. Plaintiff has been in possession of the suit land. Defendants threatened to dispossess. Hence the suit for permanent injunction.

Defendants denied the allegations that the etmam was sold away for arrears of rent or that Makbul Ahmed Choudhury and others purchased it, took delivery of possession of it or settled the suit land with Abdur Rashid. It is alleged that the suit land originally belonged to Ayenuddin and Abdul Karim, predecessor‑in‑interest of defendants, and Uzir Ali, father of the plaintiff and that Uzir Ali being in charge of the Manage ment of the property collusively brought about the sale and created false documents in favour of Abdur Rashid and plaintiff. R is the case of the defendants that they have been in possession of the suit land and that plaintiff has no right and title in it. It is also asserted that defendants have acquired title in the suit land by adverse possession.

The learned Munsif, on a consideration of the evidence, held that plaintiff or his predecessor‑in‑interest. Abdur Rashid, and before him, the landlords did not possess the suit land that defendants were always in possession of it and that they acquired title in it by adverse possession. Accordingly, the suit was dismissed.

On appeal, the learned Subordinate Judge held that plaintiff had prima facie right and title in the suit land and that he was in possession. Accordingly the decision of the learned Munsif was set aside and the suit was decreed. Hence this appeal at the instance of the defendants.

Mr. D. C. Bhattacherjee, the learned Advocate on behalf of the appellants has contended that the lower appellate Court erred in law in disposing of the present case relying on the finding in Money Suit No. 44 of 1956, although the finding in that suit would not operate as res judicata in this case. The contention of Mr. Bhattacherjee is that although the judgment in Money Suit No. 44 of 1956 was admissible in evidence under section 43 read with section 13 of the Evidence Act, the findings contained therein cannot be treated in evidence and were not admissible in evidence as the matter in issue in this suit was not directly or substantially in issue in the money suit. In support of this contention reference has been made to the following observation in Sarkar's Evidence Act, 7th Edition, page 120:‑

" . . . as to the use to which such judgments may be put, it has been held that where a judgment not inter partes is admissible under section 13, the findings contained therein cannot be treated as part of the evidence. It is not the correct ness of the previous decision, but the fact that there has been a previous decision that is established by the judgment."

The above observation has been made with regard to a judgment not inter partes. So, the principle expressed there will not apply to this case as the Money Suit No. 44 of 1956 was inter partes.

Reference has also been made to the case of Abinash Chandra Chatterjee v. Paresh Nath Ghose and another (9 C W N 402), in support of the contention that findings in a previous judgment between the same parties were not admissible in evidence in a subsequent suit of a different nature. In that case his Lordship Geidt, J., observed that the mere existence of a judgment, its date and legal consequences are conclusively proved as against all the world by the production of the record, but that it furnishes no proof whatever of collateral facts even though as between the parties to such judgment themselves, such facts must have been proved. The facts in that case were that a lessor sued to recover his rents from a lessee as well as from a third party on the allegation that his lessee and third party were partners and that the lease had been acquired for the purposes of partnership business. In proof thereof, he relied on a decree passed on an arbitration award made in a suit for dissolution of partnership between the lessee and the third party declaring that the lease was acquired for partnership purposes and that the partners were equally liable for the debts and equally entitled to the outstanding dues of the partnership business. It was further proved that in a suit by the lessee to recover some of the outstanding dues, the third party relying on the award, had claimed and recovered a share of the money sued for. The observation that a previous judgment inter partes furnishes no proof of collateral facts in a subsequent suit between the same parties is an obiter dicta. The above‑mentioned case is of no help to the appellants in this case.

The learned Advocate for the appellants has also referred to the case of Alauddin Mia and another v. Abdul Latif and others (9 D L R 387). In that case it has been laid down by his Lordship Rahman, J., as he then was, that the judgments, not inter partes, are admissible in evidence for and against every one under section 13 of the Evidence Act, but that this admissibility of judgments, not inter partes, cannot extend to the findings or reasons for the findings given in those judgments. The principle laid down there with regard to a judgment not inter partes has no application to this case.

Mr. Farid Ahmed, the learned Advocate on behalf of the respondent has contended in reply that the findings in the judgment in Money Suit No. 44 of 1956 which was inter partes is not only admissible in evidence but is also binding on the parties.

A judgment inter partes is a proof of the particular point which it decides. This view finds support in the following observation by his Lordship M. Munir, J. formerly Chief Justice of Pakistan in his "Law of Evidence", 4th Edition Volume I, page 319.

" . in a judgment in personam the point, whatever it may be, which is adjudicated upon, . . . is conclusive only between parties or privies."

The principle that a judgment inter partes is proof of the particular point which it decides finds support in the following observation in the of Ballantyne v. Mackinnon ((1896) 2 L R Q B D455) :‑

"As to a judgment being only conclusive as to the point decided, there is as to this in our opinion no distinction between a judgment in rem and a Judgment in personam excepting that in one "the point" adjudicated upon (which in a judgment in rem is always as to the status of the res, is conclusive against all the world as to that status, whereas in the other "the point" whatever it may be, which is adjudicated upon, it not being as to the status of the res, is only conclusive between parties or privies."

Money Suit No. 44 of 1956 was instituted by the present plaintiff against the present defendants for recovery of the money deposited by the receiver in the proceeding under section 145 of the Code of Criminal Procedure. In that case defendants raised the pleas that plaintiff or his predecessor‑in‑interest did not possess the case land, that the land was in possession of the defendants and that they acquired 'title in it by adverse posses sion. This plea was not accepted. It was found that the plaintiff was in possession. This finding was admissible in evidence. The learned Judge could rely on this finding. The learned Judge did not state that the judgment in Money Suit No. 44 of 1956 would operate as res judicata.

Mr. Bhattacherjee, the learned Advocate has contended that although the learned Subordinate Judge in express words did not state that the judgment in Money Suit No. 44 of 1956 was res judicata, but he actually treated it as res judicata. I cannot accept this contention as the judgment of the lower appellate Court does not indicate that it was treated as res judicata.

The learned Advocate has further contended that the finding regarding possession could not be considered in evidence in the present case, as the money suit was not with regard to the usufructs of the entire land of the proceeding under section 145 of the Code of Criminal Procedure. In this connection, the learned Advocate has referred to the judgment Exh. 8 (b) in Money Suit No. 44 of 1956 in which it has been stated that plot No. 881 was not the subject‑matter of that suit. Attention has also been drawn to the plaint Exh. 9 of Money Suit No. 44 of 1956 to show that this plot was not included in that suit. The objection that Money Suit No. 44 of 1956 was not with regard to the usufructs of the entire land of the proceeding under section 145 of the Code of Criminal Procedure was not taken at the time of hearing in any of the Courts below. The trial Court did not rely on the judgment in the Money Suit on the ground that the finding therein could not be of any avail as it related to title to recover the amount deposited by the receiver and not to the title or possession directly relating to the suit lands. As this objection was not taken at the time of hearing in any of the Courts below it is difficult to accept it at this stage. The proceeding under section 145 of the Code of Criminal Procedure was with regard to the entire land of this suit the deposit was with regard to the usufructs of the entire land. Plaintiff got the decree for the entire money in deposit. In the circumstances, the finding of possession in the money suit would indicate that he was in possession of the entire disputed land.

The learned Advocate has also contended that the judgment passed by the lower appellate Court is not a proper judgment of reversal as the finding of possession made by the trial Court was not properly reversed on a consideration of all the evidence. The trial Court referred to the evidence of plaintiff Fazal Karim (P. W. I), Iskandar Ali (P. W. 2) and Khalil Bux (P. W. 3). The trial Court disbelieved their evidence regarding possession of the case land by Abdur Rashid. It was also remarked that Abdur Rashid did not come to the dock to state whether he was in land. Plaintiff Fazal Karim deposed that the land lord possessed the land for one year after auction purchase. He also deposed that Efazulla possessed under the auction purchaser landlords. For all these, the learned Munsif disbelieved the plaintiff's case that the auction purchasers possessed the land or that Abdur Rashid possessed the land or that after him the plaintiff possessed the land. The learned Subordinate Judge did not refer to these, but relying on the decision in Money Suit No. 44 of 1956, he held that the plaintiff was in possession of the case land. As the lower appellate Court has given its ;own reason for coming to its own conclusion and as the finding is based on evidence, i.e. on the judgment in Money Suit No. 44 of 1956, the contention of the learned Advocate that this is not a proper judgment of reversal fails. The finding of fact arrived at by the first appellate Court for which there is evidence cannot be disturbed in second appeal Misri Lal Nayak v. Mst. Surji alias Ramdulari and others (54 C W N 508).

The learned Munsif also referred to a kabuliyat Exh. B, dated 3‑8‑55 alleged to have been executed by Uzir Ali, father of the plaintiff in respect of the case land in favour of the landlords. The learned Munsif remarked that there could not be any reason for execution of such a kabuliyat in favour of the landlords if they had already settled the land with Abdul Rashid. From Exh. B also the learned Munsif came to the conclusion that plaintiff could not have title or possession in the case land. The learned Advocate for the appellants has argued that the learned Subordinate Judge did not at all refer to this document. It appears that this document was not executed in favour of the auction purchaser landlords. It was executed in favour of Abul Fazal Choudhury, Abu Bakr Choudhury and Abul Khair Choudhury. There is no evidence to indicate that these persons acquired any interest in the etmam. As this document was not executed in favour of the auction purchaser landlords, no title could be acquired by it. In the circumstances, for non‑discussion about this document, it cannot be said that the judgment of the lower appellate Court is not a proper one. Moreover, plaintiff did not claim the land from his father Uzir Ali. Nothing can be inferred against him from this document.

The learned Advocate has also argued that as it is a suit for permanent injunction, the lower Appellate Court erred in law in decreeing the suit without the finding that the plaintiff has been in possession. The learned Subordinate Judge, after referring to the sale certificate, the writ of delivery of possession, the patta Exh. 3 in favour of Abdur Rashid and the kobala by Abdur Rashid in favour of plaintiff held that the plaintiff had prima facie title in the case land. There is also the finding that plaintiff has been in possession. The learned Subordinate Judge made the following observation:‑

"Concluding I find that the suit is maintainable because the prima facie title is with the plaintiff. There is no necessity for him to get his title established in this suit because this has already been found at more than one stage. At present he has been found to be in possession and therefore he has a right to maintain this suit for permanent injunctions only."

There is no ground to interfere with the decision of the learned Subordinate Judge.

In the result, the appeal is dismissed with costs and the judgment and decree passed by the lower appellate Court are affirmed.

Leave to appeal under clause 15 of the Letters Patent as prayed for is granted.

K. B. A.

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