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CASE NO.:

Appeal (civil) 7653 of 1997

Appeal (civil) 7654 of 1997

PETITIONER:

Smt. V. Rajeshwari

RESPONDENT:

T.C. Saravanabava

DATE OF JUDGMENT: 16/12/2003

BENCH:

R.C. Lahoti & Ashok Bhan.

JUDGMENT:

J U D G M E N T

R.C. Lahoti, J.

The property in suit consists of a piece of land together with

building, super-structure and other construction including wells and

fencing of the property bearing house and ground No. 9,

Padavattamman Koil St., Kondithope, Madras \026 1, and O.S. No.6008

\026 R.S. No.20 and R.S. No.20/1 C.C. No.8 patta No.461/1954-55 and

admeasuring 1817 sft., more particularly described in the Schedule to

the plaint dated 19th August, 1984.

The facts, which at this stage are no longer in dispute and stand

concluded by the findings of fact by the courts below, may briefly be

noticed. The property originally belonged to one Chakrapani who

purchased the same on 13.6.1921. He executed a sale deed in favour

of one Damodaran on 8.5.1923. Damodaran in turn executed a sale

deed in favour of Thiruneelkanda Nainar on 17.10.23.

Thiruneelakanda executed a settlement deed on 1.5.1950 in favour of

his wife Lakshmi and son Loga Ganapathi. They executed a sale deed

on 3.3.1966 in favour of Mahadevan and his wife Saroja. The

plaintiff, appellant herein, purchased the property from them as per

sale deed dated 10.3.1980.

The defendant was in occupation of the entire suit property on

the date of the present suit.

Prior to the commencement of the present suit, there had been

two other rounds of litigation which are very relevant and need to be

noted. In the year 1957, the defendant-respondent herein filed

Original Suit No. 2512 of 1957 claiming a share in the suit property,

alleging himself to be the adopted son of Thiruneelakanda. The suit

was dismissed. That litigation achieved a finality on 8.1.1964 when

an appeal preferred by the defendant was dismissed by the High Court

of Madras.

In the year 1965, one of the predecessors-in-title of the plaintiff

(appellant herein) filed a suit for declaration of title and for

possession over 240 sft. area (situated on the upper floor of the

building standing over the suit property) against the respondent. The

suit was numbered as O.S. 1907 of 1965 and after trial decreed on

30.1.1968. The decree was put into execution. Execution Petition

No.2458 of 1975 was pending when the defendant produced before

the Executing Court an injunction issued by one of the civil courts

restraining execution of the decree. The Executing Court naturally

closed the execution proceedings. The order of injunction and details

thereof are not available on record. In what terms the Execution

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Petition was closed and what happened thereafter to such execution

proceedings is also not ascertainable from the record. The search for

such information need not detain us in deciding the present appeals as

it would be taken care of in such independent proceedings as would be

indicated during the course of this judgment and also looking at the

manner in which these appeals are being disposed of.

On 19.8.1984, the appellant filed the present suit for declaration

of title and recovery of possession over the suit property from the

defendant. On 7.8.1985, the defendant filed the written statement.

Suffice it to note here itself that though the defendant denied the title

of the plaintiff over the suit property, there is no plea as to the suit

being barred by the principle of res judicata taken in the written

statement. The only other plea taken in the written statement is one of

adverse possession which is in the following words :

"This defendant has been in

continuous, uninterrupted, open possession

and enjoyment of the suit property for more

than the prescriptive period and had thus

perfected his title to the suit property by

adverse possession.

This defendant is in occupation of the

suit property in his own right. This

defendant has been paying the Corporation

tax, Water and Sewage tax and Urban Land

tax for the suit property for all three years

for more than the prescriptive period."

The Trial Court and the First Appellate Court decreed the suit.

It appears that during the pendency of the First Appeal, the

plaintiff (appellant herein), moved an application under Order XLI

Rule 27 of the CPC proposing to place on record the judgment and

decree in O.S. No.1907 of 1965 wherein, as stated hereinabove, a

decree was passed in favour of one of the predecessors-in-title of the

plaintiff, upholding his title and directing the defendant-respondent to

deliver possession over the upper floor of the building (240 sft. area)

which was then in the possession of the defendant, to the plaintiff

therein (i.e. predecessor-in-title of the present plaintiff). It appears

that those judgment and decree have been brought on record by the

plaintiff to provide additional support to his claim for entitlement to

possession, and as a piece of evidence supporting the finding of the

Trial Court which was already in his favour. The First Appellate

court allowed the plaintiff's application, took the judgment and decree

on record and then dismissed the appeal filed by the defendant. The

defendant preferred a Second Appeal in the High Court. In the High

Court, the plaintiff once again appears to have relied on the said

judgment and decree to sustain the judgments and decrees of the two

courts below in his favour and here, his step of placing reliance over

the said judgment and decree boomeranged against him. The High

Court formed an opinion that the issue as to title and possession over

the suit property was already decided in the suit filed by the

predecessor-in-title of the plaintiff (O.S. No.1907 of 1965) and

therefore the present suit was barred by principle of res judicata.

Solely on this reasoning, the High Court has, vide its judgment dated

25.4.1996, allowed the appeal preferred by the defendant and directed

the suit filed by the plaintiff to be dismissed.

The plaintiff, respondent in the High Court, sought for a review

of the judgment. Vide its order dated 24.2.1997, the High Court has

directed the review petition to be dismissed. Two appeals have been

preferred : one, against the main judgment, and, the other, against the

order dismissing the review petition.

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We have heard Shri S. Balakrishnan, the learned senior counsel

for the appellant and Shri A.K. Ganguli, the learned senior counsel for

the respondent. The learned counsel for the parties have taken us

through all the relevant material available on record. We are satisfied

that the High Court has clearly erred in allowing the defendant's

appeal and setting aside the judgments and decrees of the courts

below and this we say for more reasons than one.

The rule of res judicata does not strike at the root of the

jurisdiction of the court trying the subsequent suit. It is a rule of

estoppel by judgment based on the public policy that there should be a

finality to litigation and no one should be vexed twice for the same

cause.

The plea of res judicata is founded on proof of certain facts and

then by applying the law to the facts so found. It is, therefore,

necessary that the foundation for the plea must be laid in the pleadings

and then an issue must be framed and tried. A plea not properly

raised in the pleadings or in issues at the stage of the trial, would not

be permitted to be raised for the first time at the stage of appeal (See:

(Raja) Jagadish Chandra Deo Dhabal Deb Vs. Gour Hari Mahato

& Ors. \026 AIR 1936 Privy Council 258, Medapati Surayya & Ors. Vs.

Tondapu Bala Gangadhara Ramakrishna Reddi & Ors. \026 AIR 1948

Privy Council 3, Katragadda China Anjaneyulu & Anr. Vs.

Kattragadda China Ramayya & Ors. \026 AIR 1965 A.P. 177 Full

Bench). The view taken by the Privy Council was cited with approval

before this Court in The State of Punjab Vs. Bua Das Kaushal \026

(1970) 3 SCC 656. However, an exception was carved out by this

Court and the plea was permitted to be raised, though not taken in the

pleadings nor covered by any issue, because the necessary facts were

present to the mind of the parties and were gone into by the Trial

Court. The opposite party had ample opportunity of leading the

evidence in rebuttal of the plea. The Court concluded that the point of

res judicata had through out been in consideration and discussion and

so the want of pleadings or plea of waiver of res judicata cannot be

allowed to be urged.

Not only the plea has to be taken, it has to be substantiated by

producing the copies of the pleadings, issues and judgment in the

previous case. May be in a given case only copy of judgment in

previous suit is filed in proof of plea of res judicata and the judgment

contains exhaustive or in requisite details the statement of pleadings

and the issues which may be taken as enough proof. But as pointed

out in Syed Mohd. Salie Labbai (Dead) By Lrs. & Ors. Vs. Mohd.

Hanifa (Dead) by Lrs. & Ors. \026 (1976) 4 SCC 780, the basic method

to decide the question of res judicata is first to determine the case of

the parties as put forward in their respective pleadings of their

previous suit and then to find out as to what had been decided by the

judgment which operates as res judicata. It is risky to speculate about

the pleadings merely by a summary of recitals of the allegations made

in the pleadings mentioned in the judgment. The Constitution Bench

in Gurbux Singh Vs. Bhooralal \026 (1964) 7 SCR 831, placing on a

par the plea of res judicata and the plea of estoppel under Order II

Rule 2 of the Code of Civil Procedure, held that proof of the plaint in

the previous suit which is set to create the bar, ought to be brought on

record. The plea is basically founded on the identity of the cause of

action in the two suits and, therefore, it is necessary for the defence

which raises the bar to establish the cause of action in the previous

suit. Such pleas cannot be left to be determined by mere speculation

or inferring by a process of deduction what were the facts stated in the

previous pleadings. Their Lordships of the Privy Council in Kali

Krishna Tagore Vs. Secretary of State For India in Council & Anr.

\026 (1887-88) 15 Indian Appeals 186, pointed out that the plea of res

judicata cannot be determined without ascertaining what were the

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matters in issues in the previous suit and what was heard and decided.

Needless to say these can be found out only by looking into the

pleadings, the issues and the judgment in the previous suit.

That apart the plea, depending on the facts of a given case, is

capable of being waived, if not properly raised at an appropriate stage

and in an appropriate manner. The party adversely affected by the

plea of res judicata may proceed on an assumption that his opponent

had waived the plea by his failure to raise the same. Reference may

be had to Pritam Kaur w/o S. Mukand Singh Vs. State of Pepsu

and Ors. \026 AIR 1963 Punjab 9 (Full Bench) and Rajani Kumar Mitra

& Ors. Vs. Ajmaddin Bhuiya \026 AIR 1929 Calcutta 163, and we find

ourselves in agreement with the view taken therein on this point). The

Privy Council decision in Sha Shivraj Gopalji Vs. Edappakath

Ayissa Bi & Ors. \026 AIR 1949 Privy Council 302, appears to have

taken a different view but that is not so. The plea of res judicata was

raised in the Trial Court, however, it was not pressed but it was sought

to be reiterated at the stage of second appeal. Their Lordships held

that being a pure plea in law it was available to the appellant for being

raised. Their Lordships were also of the opinion that in the facts of

that case, apart from the principle of res judicata, it was unfair to

renew the same plaint in fresh proceedings. The Privy Council

decision is distinguishable.

Reverting back to the facts of the present case, admittedly the

plea as to res judicata was not taken in the Trial Court and the First

Appellate Court by raising necessary pleadings. In the First Appellate

Court the plaintiff sought to bring on record the judgment and decree

in the previous suit, wherein his predecessor-in-title was a party, as a

piece of evidence. He wanted to urge that not only he had succeeded

in proving his title to the suit property by the series of documents but

the previous judgment which related to a part of this very suit property

had also upheld his predecessor's title which emboldened his case.

The respondent thereat, apprised of the documents, did not still choose

to raise the plea of res judicata. The High Court should not have

entered into the misadventure of speculating what was the matter in

issue and what was heard and decided in the previous suit. The fact

remains that the earlier suit was confined to a small portion of the

entire property now in suit and a decision as to a specified part of the

property could not have necessarily constituted res judicata for the

entire property, which was now the subject matter of litigation.

We cannot resist observing that if at all the plea of res judicata

was to be availed and applied then that should have been for the

benefit of the plaintiff inasmuch as his predecessor-in-title had

succeeded in proving his title to part of the property in the earlier suit.

We fail to understand how the judgment in the previous suit can in

any way help the defendant-respondent in the present proceedings.

We are clearly of the opinion that the plea of res judicata has neither

been raised nor proved. There is no res judicata. The issue as to title

was rightly determined by the Courts below on the basis of evidence

adduced in this case. That finding has to be restored.

So is the case with the plea as to adverse possession over the

suit property taken by the defendant in his written statement. The plea

has been held not substantiated and rightly so. The plea is too vague.

Earlier the defendant, claiming himself to be an adopted son of one of

the predecessors-in-title of the plaintiff, had filed a suit for partition

claiming half a share therein. Thus, he was canvassing his claim as a

co-owner in possession. How and at what point of time he started

prescribing hostile title, was for him to plead and prove, which he has

utterly failed in doing. The plea of adverse possession raised by the

defendant is devoid of any merit and cannot be countenanced.

The correct position of law, which should apply to the facts of

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the case, may now be stated. To the extent to which the plaintiff's

predecessors-in-title have succeeded in securing decree for declaration

of title and recovery of possession over 240 square feet area of the

upper floor of the building, the plaintiff should secure possession by

executing that decree. As to the remaining property, the plaintiff must

be held entitled to a decree in the present suit. Accordingly, both the

appeals are allowed. The judgment and decree of the High Court are

set aside and that of the courts below restored partly. The suit filed by

the plaintiff shall stand decreed in respect of the suit property as

described in the plaint excluding therefrom the 240 square feet area of

the upper floor of the building forming the subject-matter of decree in

Original Suit No.1907 of 1965. The plaintiff is declared to be the title

owner of the said property. The defendant shall deliver vacant and

peaceful possession over the same to the plaintiff. The plaintiff is also

held entitled to a decree for enquiry into mesne profits in terms of

Order XX Rule 12(1)(c) of the C.P.C., for the period between the date

of the suit and the date of delivery of possession to the decree-holder

pursuant to this decree. Consistently with the directions, as aforesaid,

a decree shall be drawn up by the trial Court. The costs throughout

shall be borne by the defendant-respondent.