P L D 1967 Dacca 638 (PLP)

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. Appeal dismissed.