Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.4227 OF 2003

SRI GANGAI VINAYAGAR TEMPLE & ANR. .…..APPELLANTS

Versus

MEENAKSHI AMMAL & ORS. …..RESPONDENTS

J U D G M E N T

VIKRAMAJIT SEN, J.

1. A maze of facts and events, and a labyrinth of legal conundrums

confront us in the course of the determination of this Appeal. Essentially, it

is the ambit and sweep of the principle of res judicata that is at the centre of

controversy. Additionally, Order II Rule 2 of the Code of Civil Procedure

(“CPC” for brevity), which enshrines but another complexion of res

judicata, also requires to be cogitated upon. The contention of the Appellant

through its Trustees (hereafter referred to as ‘Trust’) is that the

Respondents/Tenants (‘Tenants’ for brevity) of the demised property are

1

Page 2 barred by the principle of res judicata from challenging the findings of the

Trial Court especially the Trust’s ownership of the demised property, since

the said Tenants have filed only one appeal, i.e. arising from O.S.6/78,

without assailing identical conclusions arrived at by the Trial Court in

O.S.5/78 and O.S.7/78.

2.The uncontroverted facts are that the husband of the first

Respondent/Tenants (namely, Kannaiya Chettiar along with another person

Venkatarama Keddiar) the suit land on lease from Sethurama Chettiar on

1.3.1953 for a period of 12 years on a monthly rent of Rs.150/-. The

Tenants were permitted to construct a cinema theatre on the suit land at their

own cost, which they have done in the name and style of ‘Raja Talkies’,

which is still in existence. In 1959 one of the partners died, resulting in the

husband of Respondent No.1 assuming sole proprietorship of ‘Raja Talkies’.

On 8.11.1967 a fresh Registered Notaire Lease Deed was executed for a

period of 15 years commencing from 1.1.1968 between the husband of

Respondent No.1 and the Appellant Trust, Gangai Vinayagar Temple

through its Trustee’s President namely, Shri Sethurama Chettiar.

Consequent on the death of the husband of Respondent No.1, she continued

as the tenant along with her children as legal representatives of her late

husband. It is also not in dispute that the Trust sold the suit property to

2

Page 3 Sarvashri P.Lakshamanan, P.Vadivelu and P.Saibabha who were impleaded

by the Tenants as Defendants 7 to 9 in O.S. 5/78. The Tenants were

informed of this transaction on 14.10.1976, calling upon them to attorn to

the new owners. The repercussion was that in 1976 itself, the Tenants filed

O.S.5/78 (re-numbered) in which they had assailed the sale of the suit land

on the predication that the legal formalities necessary for the transfer of trust

property had not been adhered to as it was a Public Trust, and further that,

subsequent to the aforementioned transaction, the Tenants (Plaintiffs in

O.S.5/78) apprehended their dispossession therefrom at the hands of the

Defendants, including Defendants 7 to 9 (hereinafter called ‘Transferees’).

The Prayers have been reproduced infra. In this suit, the Trust as well as the

Transferees pleaded in their respective Written Statements that they had

neither threatened nor harboured any intention to dispossess the Tenants

without due process of law.

3.The sequel of this first salvo of litigation was the filing of two suits by

the Trust, being O.S.6/78 and O.S.7/78, claiming arrears of rent from the

Tenants (Respondent Nos. 1 to 6 before us, in which the Transferees were

not impleaded) pertaining to the period prior to the transfer of the suit lands

by them to the Transferees. Despite the pleadings therein as mentioned

above, O.S.5/78 came to be ‘dismissed’. O.S.6/78 was partially decreed;

3

Page 4 whilst O.S.7/78 was dismissed on the ground that the alleged claim of

arrears of rent in this suit was not tenable as the said land was part of and

encompassed in the suit land which was the subject matter of O.S.6/78 and,

accordingly, the claim was covered and subsumed therein. The Tenants

have not filed any appeal in respect of O.S.5/78 and O.S.7/78; and the Trust

has not filed any appeal on the dismissal of their suit O.S.7/78. All three

suits have been decided, after recording of common evidence, by a common

Judgment passed on 6.11.1982 by the Court of 2

nd

Additional District Judge

at Pondicherry. Pursuant to this Judgment three different decrees have been

drawn.

4.The prayers contained in O.S.5/78 read as follows:

(i)Establishing the leasehold right of the plaintiffs and to be

in possession of the schedule mentioned property till the

end of the lease period viz. 1-1-1983; and

(ii)For permanent injunction restraining the defendants, their

agents, servants and other representatives from interfering

with the plaintiff’s peaceful possession and enjoyment of

the suit property till 1-1-1983.

(iii)Directing the defendants to pay to the plaintiff the costs of

the suit; and

(iv)Grant such other relief as this Honourable court may be

pleased to order in the circumstances of the case.

4

Page 5 It is noteworthy that the Trust had not pressed for the framing of an Issue

predicated on Section 116 of the Evidence Act. In the plaint in O.S.5/78,

the Tenant had pleaded that the Defendants “have no right to sell the

property as the same is Trust property belonging to the 1

st

Defendant and as

such the alienation would be totally void being a breach of trust….. The

alienation in favour of the Defendants 7 to 9 being void, they have no title to

the property….. The cause of action arose on 30.6.1976 when Defendants 2

to 6 purported to convey the suit property to Defendants 7 to 9 and,

thereafter, when Defendants are threatening to disturb the plaintiffs

possession.” Despite the specificity of these pleadings the Tenants had

ostensibly not prayed for any relief with regard to the title of the Transferee.

Nevertheless, on careful consideration it appears to us that, awkwardly

worded though it avowedly is, the first prayer endeavours to articulate this

very prayer. In any event, the pleadings are sufficient to lay the foundations

for the assumption that the Tenants were desirous of assailing the transfer of

the title of the land. That being the position, the embargo of Order II Rule 2

CPC would become operative against the Tenants. The Issue relevant for

the present purposes (the burden of proof of which was set on the Tenants)

reads thus:-

5

Page 6 (2)Whether the suit property is not the personal property of

Sethurama Chettier and whether the plaintiffs are not estopped

from questioning the title of the landlord or his vendors.

We hasten to clarify that had the Tenants (in O.S. 5/78) merely expressed a

fear or apprehension of dispossession at the hands of the persons that had

been arrayed as defendants, either collectively or individually, without

touching upon the legal character of the suit property as well as the legal

propriety and capacity of Trust (Defendants 2 to 6) to transfer it to the

Transferees (Defendants 7 to 9), Order II Rule 2 would not had been

attracted. These questions could then have been subsequently raised in the

event the new owners, namely, Defendants 7 to 9 were to bring any action or

claim before a court of law against the Tenants. It is for this reason that we

are unable to agree with the determination of the Division Bench in the

Impugned Order that this Issue was not central to Suit O.S.5/78 and that,

therefore, res judicata did not apply despite the failure of the Tenants to

appeal against the verdict in O.S.5/78. We cannot sustain the order of

‘dismissal’ of the Suit O.S.5/78 nay even the necessity of conducting a trial

in that lis in the wake of the Defendants’ averments in their Written

Statement. Ergo, it seems to us that an appeal therefrom was essential. We

also think it to be extremely relevant that the Tenants did not assail the

judgment and decree in O.S.7/78 since it was reiterated therein that the Trust

6

Page 7 was the private property of Sethuram Chettiar. This finding has therefore

attained finality, both in O.S.5/78 and O.S.7/78, which thereupon assumed

the character the “former suit”. Since the Trust had also not filed an appeal

against O.S.7/78 res judicata became operative against it on two aspects –

firstly that there were two tenancies and secondly that any arrears of rent had

separately accrued other than what was claimed in O.S.6/78.

5.It is in similar circumstances that a Coordinate Bench had concluded

in Premier Tyres Limited vs. Kerala State Road Transport Corporation,

1993 (Suppl.) 2 SCC 146, that the effect of non-filing of an appeal against a

decree is that it attains finality and that this consequence would logically

ensue when a decree in a connected suit is not appealed from. It permeates,

as in the case in hand, into the sinews of all suits (O.S.5/78 and O.S.7/78)

since common Issues had been framed, a common Trial had been conducted,

common evidence was recorded, and a common Judgment had been

rendered. It seems to us that the Division Bench had adopted the dialectic

of the challenge to the title being irrelevant in O.S.5/78 in order to

distinguish and then digress from the decision in Premier Tyres. Facially,

all the factors are common to each suit, namely, the commonality of Issues,

Trial and Verdict rendering any effort to differentiate them to be an exercise

in futility. A reading of the plaint and of Issue No.2 in O.S.5/78 (supra) will

7

Page 8 make it impossible to harbour the view that the contours of controversy in

that case concerned only the apprehension of forcible dispossession of the

Tenants by the Trust as well as the Transferees. Otherwise, Issue No.2 was

palpably irrelevant to the decision in O.S.5/78 and an ignorable surplusage.

Furthermore, the dismissal of the suit, even though it was on the specious

and untenable ground that no cause of action had arisen to justify the filing

of O.S.5/78, would inexorably lead to the conclusion that the Tenants were,

thereafter, bereft of any right in the suit property. The dismissal of

O.S.5/78, arguably, would become fatal to the interest of the Tenant, if a

pedantic perspective is pursued.

6.As outlined above, in the impugned Judgment the Division Bench of

the High Court of Judicature at Madras had highlighted that the only

question argued before it was that the principles of res judicata applied

against the Tenant since it negligently if not concertedly did not appeal the

verdict in O.S.5/78. At the threshold of its reasoning, it referred to the

decision of this Court in Premier Tyres and pithily observed that the

argument raised on behalf of the Trust would be “impeccable and would

have to be accepted, only if the Appellant succeeds in establishing that Issue

No. 2 in O.S. 5/78 was, in fact, an issue which directly and substantially

arose for consideration in that suit and that the findings had been recorded

8

Page 9 thereon in favour of the Appellant”. It would have been expected of learned

Counsel for the parties to have cited two decisions of different coordinate

Benches of this Court, namely, Lonankutty vs. Thomman (1976) 3 SCC

528 and Narayana Prabhu Venkateswara Prabhu vs. Narayana Prabhu

Krishna Prabhu (1977) 2 SCC 181, which throw considerable light on this

subject. Regrettably, learned Senior Counsel for the parties have neglected

to draw notice to these two precedents, even before us.

7.Lonankutty concerned a dispute between two owners of adjacent

lands. The land of the Appellant was bounded on two sides by a river while

the land of the respondents was landlocked, which prompted the respondents

to construct a bund with sluice-gates on the border of their lands, so that

they could draw water from the Appellant’s land for the purposes of fishing

and agriculture and thereafter divert the water back through the same land to

the river. The Appellant who was cultivating prawn-fishing on his land

aggrieved by the construction of the bund believing it to have hampered his

prawn fishing; therefore, he filed a suit for perpetual and mandatory

injunction against the respondents. The respondents in turn filed a suit for

injunction against the appellants and claimed rights of easement. The two

suits were disposed of separately by the Court of Munsif and decrees were

passed in both the suits to the effect that the respondents were to have rights

9

Page 10 of easement only with respect to agriculture but not for fishing. From the

decrees, two set of appeals were preferred by both the parties, leading to four

appeals altogether. The District Court dismissed all the appeals and thereby

confirmed the decrees. The respondents then filed second appeals against

the decisions which arose from the appellant’s suit but no second appeal was

preferred from the appeals arising from their own suit. Before the High

Court in Second Appeal, the Appellant promptly pressed the preliminary

objection of res judicata contending that the decrees passed by the District

Court in the appeals arising from the respondents’ suit had become final.

The High Court, however, was not impressed with that contention, primarily

keeping the case of Narhari in perspective, and remanded the matter to the

District Court after setting aside the judgment and decree of the District

Court. The District Court in remand confirmed the previous view taken by it,

against which the respondent again filed a Second Appeal in the High Court

which was allowed, resulting in filing of a SLP by the Appellant. The sole

and central issue canvassed before this Court was whether the Respondents’

right to divert the flow of water through the Appellant’s land for fishing

purposes is barred by res judicata, and this Court answered in the

affirmative. This Court concluded that the Respondents, by not filing further

appeals against the decree passed by the District Court in the appeals arising

10

Page 11 out of their own suit allowed that decision to become final and conclusive. It

observed further:

“That decision, not having been appealed against, could not be

reopened in the second appeal arising out of the appellant’s suit.

The issue whether respondents had the easementary right to the

flow of water through the appellant’s land for fishing purposes

was directly and substantially in issue in the respondent’s suit.

That issue was heard and finally decided by the District Court

in a proceeding between the same parties and the decision was

rendered before the High Court decided the second

appeal…..The circumstance that the District Court disposed of

the 4 appeals by a common judgment cannot affect the

application of Section 11… The failure of the respondents to

challenge the decision of the District Court insofar as it

pertained to their suits attracts the application of Section 11

because to the extent to which the District Court decided issues

arising in the respondents’ suit against them, that decision

would operate as res judicata since it was not appealed

against.”

8.In Prabhu, the parties were descendants of one Narayan Prabhu. The

respondent, third son among four sons of Narayan Prabhu, filed a suit for

partition against all the sons claiming all the concerned items to be joint

family property. The appellant, the eldest son, filed a money suit only

against the respondent on the ground that trade of tobacco shops run by the

parties in that suit was his self-acquired property; consequently, that he was

entitled to money due on account of tobacco delivered to the respondent’s

shop. The Trial Court tried both the suits together and determined them by

way of two decrees on the same date, holding that the shops in question

11

Page 12 belonged to the concerned individuals. The respondent appealed against both

the decrees before the High Court, and the two appeals were decided in

continuation under separate headings. The High Court while reversing the

findings of the Trial Court held the shops to be part of joint family trade in

tobacco and thus dismissed the money suit. The appellant thereafter

approached this Court assailing the judgment and decree passed in the

partition suit, whilst leaving the judgment and decree in the money suit

unchallenged. Expectedly, the issue of res judicata was evoked by the

respondent, which was sought to be doused by the appellant by contending,

inter alia, that no certificate of fitness under the unamended Article 133(1)

(c) of the Constitution of India was granted with respect to the money suit

and also that parties were not common in both the suits. This Court while

disagreeing with the grounds taken by the appellant noted that there were

two separate decrees and appellant could always have challenged the

correctness or finality of the decision of the High Court in the money suit by

means of an application for Special Leave to Appeal and approved the views

taken by this Court in Lonankutty and reiterated:

“The expression “former suit”, according to Explanation I of

Section 11 of the Civil Procedure Code, makes it clear that, if a

decision is given before the institution of the proceeding which

is sought to be barred by res judicata, and that decision is

allowed to become final or becomes final by operation of law, a

bar of res judicata would emerge.”

12

Page 13 9.O.S.6/78 was a suit filed by the Trust claiming an amount of

Rs.11468/- as arrears of rent from the Tenants. Significantly, the three

Transferees (who were Defendants 7 to 9 in O.S.5/78) had not been

impleaded by the Trust palpably because no relief had been claimed against

them and additionally because their presence was not relevant for the

determination of the Issues that had arisen in O.S.6/78 and O.S.7/78. The

claims pertained to a period prior to the assailed transfer of the demised land

from the Trust to the Transferees. It is also noteworthy that even the

Tenants did not seek their impleadments despite the fact that they had

already laid siege to the title of the said Transferees in their plaint in

O.S.5/78 and had specifically pleaded so in their Written Statements in

O.S.6/78 and O.S.7/78. In this Suit, it was averred that the Trust had sold

the suit land to the aforementioned Sarvshri P. Lakshamanan, P. Vadivelu

and P. Saibabha (Transferees being Defendants 7 to 9 in O.S.5/78). It was,

inter alia, pleaded that the advance rent of Rs.7000/- was

repayable/adjustable only at the time of the handing over of the suit property

by the Tenant to the Trust. Since relief claimed in O.S.6/78 or O.S.7/78 had

no causality or connection with the Transferees their impleadment was not

13

Page 14 necessary, in our opinion. The defence of the Tenants was that the Trust

was a public temple which could not have been sold/transferred by Shri

Sethurama Chettiar and secondly that the amount claimed as arrears of rent

was not due and payable. Various other pleas had been raised to which we

need not advert as they are not germane for deciding the present Appeal. It

will be relevant, however, to mention that the Tenants had also denied that

any additional land had been taken on rent. Of the six Issues which came

to be struck in O.S. 6/78 and O.S. 7/78, the following are relevant and,

therefore, reproduced:-

“(2) Whether the entire suit property (‘A’ and ‘B’ schedule) in

possession of the defendants are covered by the lease deed

dated 8-11-67 or whether there was any subsequent oral

agreement in respect of ‘B’ schedule property alone and if

so, what is its lease amount?

(3) Whether the suit property belongs to a public temple

governed by the Act. If so, whether the suit is

maintainable for want of sanction under Section 26 of the

Hindu Religious Institutions Act.”

10.As already noted above, O.S.6/78 was decreed only for a sum of

Rs.268/- holding, inter alia, that the Tenants cannot adjust the advance of

Rs.7000/- as against the rent claim of Rs.11,468/- without the sanction of the

landlord; that since the suit property was not owned by a public temple but

by a private trust, being the personal property of Shri Sethurama Chettiar,

sanction under Section 26 of the Hindu Religious Institutions Act was not

14

Page 15 necessary; and that the Transferees had become the absolute owners of the

suit property by transfer/sale. Most significantly, it was also held that the

Tenants “are stopped from challenging the title of the present landlord and

they are bound to attorn the tenancy. They have no right to question the title

of the landlord or his successors-in-title.” It is also palpably perceptible that

the common Judgment entered into the arena of title and transferability of

the suit property owing to the Tenants’ stance in all three suits, thereby

rendering imperative the filing of Appeals against the decrees in O.S.5/78 as

well as O.S.7/78.

11.In O.S.7/78, as already outlined, the Trust sought recovery of

Rs.2600/- as arrears of rent in respect of an alleged oral lease for the land

mentioned in Schedule ‘B’ situated on the western side of the Schedule ‘A’

property. The defence of the Tenants was that the entire property

comprising both Schedules ‘A’ and ‘B’ was a composite whole, and was let

out for a period of 15 years by means of the Lease Deed dated 8.11.1967. It

was also pleaded that the suit had been filed by a public trust and, thus, was

not competent as framed. The Trial Court held that the entire demised

property was one, covered by the aforementioned Registered Lease Deed,

and, accordingly, O.S. 7/78 was dismissed with costs.It has been

correctly observed in the common Judgment dated 6.11.1982 by which all

15

Page 16 three Suits have been decided, that the Issues framed in O.S.6/78 and

O.S.7/78 were ‘one and the same’. In a nut-shell, the Trial Court returned

the finding that the Trust was not a Public Trust governed by the Hindu

Religious Institutions Act, 1972 and that the sale of the demised suit land by

the Private Trust through Shri Sethurama Chettiar to Sarvashri P.

Lakshamanan, P. Vadivelu and P. Saibabha, was not contrary to law.

12.As has already been reflected and commented upon, the Tenants had

filed an Appeal only in respect of O.S.6/78, although common conclusions

had been arrived at in all three Suits, except for some inconsequential

differences. It is trite that the obligation and duty to frame Issues is cast

solely on the Court which may, nevertheless, elicit suggestions from the

litigating adversaries before it. Issues settled by the Court under Order

XIV CPC constitute the crystallization of the conflict or the distillation of

the dispute between the parties to the lis, and are in the nature of disputed

questions of fact and/or of law. While discharging this primary function, the

Court is expected to peruse the pleadings of the parties in order to extract

their essence, analyse the allegations of the parties and the contents of the

documents produced by them, and, thereafter, proceed to frame the Issues.

In our opinion, so far as O.S.5/78 is concerned, the question of the title of

the property would ordinarily remain irrelevant to that litigation for two

16

Page 17 reasons. Firstly, Section 116 of the Evidence Act bars the Lessee/Licensee

from constructing if not concocting a challenge vis-à-vis the title of the

Lessor/Licensor, if it is the latter who has put the former in possession of the

demised/licensed premises. In the case in hand, the first lease was executed

by Shri Sethurama Chettiar and the renewal or the succeeding lease was

between the Trust through its President, Shri Sethurama Chettiar, on the one

hand, and the Tenants on the other. The Tenants, therefore, stood legally

impeded and foreclosed from assailing the title of the Trust, as has been

correctly concluded by the Trial Court, even though a specific Issue had not

been struck in this context in O.S.5/78. There is no gainsaying that where

parties are aware of the rival cases the failure to formally formulate an Issue

fades into insignificance, especially when it is prominently present in

connected matters and extensive evidence has been recorded on it without

demur. Secondly, on a proper perusal of the plaint, it ought to have been

palpably evident that the Plaintiff/Tenant in O.S.5/78 feared dispossession

from the demised premises because of what they considered to be an illegal

transfer; but since all the Defendants had averred in their Written Statement

that they had no intention of doing so, the suit ought not to have been

dismissed but ought to have been decreed without more ado solely so far as

the prayer of injunction was concerned. But, in the Trial Court the title to

17

Page 18 the leased land had become the fulcrum of the fight, owing to the pleadings

of the Tenant in which it had repeatedly and steadfastly challenged the title

of the Trust as well as the Transferees. The Tenant should not be permitted

to approbate and reprobate, as per its whim or convenience, by disowning or

abandoning a controversy it has sought to have adjudicated.

13.Chapter VIII of the Evidence Act under the heading ‘Estoppel’ is

important for the present purposes. This fasciculus comprises only three

provisions, being Sections 115 to 117. For ease of reference we shall

reproduce Section 116:-

“116. Estoppel of tenant; and of licensee of person in

possession.- No tenant of immovable property, or person

claiming through such tenant, shall, during the continuation of

the tenancy, be permitted to deny that the landlord of such

tenant had, at the beginning of the tenancy, a title to such

immovable property; and no person who came upon any

immovable property by the license of the person in possession

thereof, shall be permitted to deny that such person had a title to

such possession at the time when such license was given.”

Plainly, this provision precludes the consideration of any challenge to the

ownership of the Trust as the claim for arrears of rent was restricted to the

period prior to the sale of the suit land by the Trust to the Transferees,

namely Defendants 7 to 9 in O.S.5/78. The position would have been

appreciably different, were the said Defendants 7 to 9 to lay any claim

18

Page 19 against the Tenants for arrears of rent or, for that matter, any other relief.

This is for the reason that Section 116 of the Evidence Act would not come

into play in any dispute between the Tenants on the one hand and the

Transferees on the other.

14.We think it prudent to extract the conclusion from the Judgment dated

6.11.1982 common to O.S.5/78, O.S.6/78 and O.S.7/78, since it is the

fountainhead, the fulcrum of the legal nodus which we have to unravel. The

Trial Court has opined thus -

When no trustee member or the Government is claiming any

right over the suit property, it is not known why the Tenant

should entertain a doubt as to whether real title has passed on to

the present purchasers of the suit property.

The suit property is therefore not a public temple governed by

the Act and since the property is found to be the private

property of Sethrama Chettiar, sanction O/S.26 of the Hindu

Religious Institutions Act is therefore not necessary. The suit

property being the personal property of Sethurama Chettiar and

the same having been sold to defendants 7 to 9, the latter have

become the absolute owners of the suit property and the

plaintiffs in O.S.5/78 are stopped from challenging the title of

the present landlord and they are bound to attorn the tenancy.

They have no right to question the title of the landlord or his

successors-in-life.

In the result, the ample evidence produced by the defendant

would prove that the suit property is the private property of

Sethurama Chettiar and sale deed dated 30.6.76 in Ex.A.19 is

valid and the defendants 7 to 9 are now the real owners of the

property who are entitled to take possession of the property

19

Page 20 after expiry of the lease. In the result, the issues are answered

accordingly.

…………….

In the result, O.S.5/78 is dismissed with cost. O.S.6/78 is

decreed in part with cost as per the calculation above.

Regarding O.S.7/78, since the court has held that the entire

property is one, there cannot be any lease amount for the rear

portion and it dismissed with cost.

15.The Tenants filed Appeal 581 of 1983 in the High Court of Judicature

at Madras which came to be decided by the learned Single Judge on 25

th

April, 1997. It is indeed significant that the Transferees had not been

impleaded by the Tenants in the First Appeal, although the former were

parties before the Trial Court in the Tenants’ own suit, viz. O.S. 5/78, and

since any decision favourable to the Tenants as regards the legal propriety of

the transfer of title would severely impact upon if not annihilate the

Transferees’ rights, and since O.S.5/78 had been ‘dismissed’, yet, regardless,

no appeal thereagainst had been preferred. Shri Sethurama Chettiar was

represented through his legal representatives in Appeal 581 of 1983 which

had been preferred in respect of O.S.6/78 specifically. We have perused the

contents of the Tenants Appeal, and as we expected, the gravamen of the

assault was the public character and nature of the Trust and the legal

imperfection of its transfer. This also fortifies the analysis that the dispute

20

Page 21 raised by the Tenants in their suit as well as their defence to the Trust’s suits

was that mentioned in the preceding sentence. This is indeed remarkable

since the Tenant was fully alive to the detrimental nature of the decision in

O.S. 5/78 and that it critically crippled its rights and interests, as is evident

from the fact that the Tenant filed a Review bearing CRA No. 1/1993, which

by a detailed Judgment dated 19.3.1999 was dismissed. So far as the

contentions of the parties are concerned, the First Appellate Court had noted,

inter alia, that the Tenants had denied any liability towards the arrears of

rent; that the Tenant had argued that the Trust’s Suits were not maintainable

in law for want of necessary sanction under Section 25 of the Hindu

Religious Institutions Act, 1972; that the Tenant did not admit the validity of

the Sale Deed dated 1.7.1976 on the grounds that, having regard to Section

25 of the Hindu Religious Institutions Act, 1972, it was a nullity. The First

Appellate Court conducted an elaborate and detailed discussions as to the

nature of the Temple/Trust property in order to ascertain whether it partook

of a private or a public trust. We have already highlighted that O.S.5/78 filed

by the Tenants was “dismissed”, nevertheless, this verdict has not been

appealed against. After recording the detailed arguments on both sides, the

First Appellate Court encapsulated the following points for consideration:-

(i) Whether the present appeal by the plaintiff canvassing

the findings of the trial court on issue numbers 2, 3 and 4

21

Page 22 by the learned trial Judge is barred by the doctrine of res-

judicata as contended by the respondents?

(ii) Whether findings given by the learned trial Judge

on the above issues are correct, valid in law and as such it

is sustainable?

(iii) Whether the plaintiff is entitled to question the

validity of the sale-deed in favour of defendants 7 to 9 by

the second defendant?

(iv) What relief, if any, the parties are entitled to?

Obviously, O.S. 5/78 was as focal as the other, otherwise (iii) above would

not have arisen. It is evident that all concerned erroneously assumed that

O.S.5/78 had also been carried in Appeal.

16.The First Appellate Court, in reversal, held that the Plaintiff in

O.S.6/78 was a Public Trust and, accordingly, fell within the purview and

sweep of the Hindu Religious Institutions Act, 1972. So far as the failure of

the Tenants to appeal against the dismissal of O.S.5/78, the First Appellate

Court held, in our opinion questionably, that that was not necessary since

there was no adverse findings against the Tenants. While we can appreciate

that owing to the stands of the defendants in their Written Statements filed in

O.S.5/78 there was, in actuality, no challenge to the Plaint, but nevertheless,

the suit of the Tenants had been ‘dismissed’ and therefore, at the very least,

it would have been proper and prudent to file an appeal and at least in

abundant caution obtain a clarification thereon. The 'dismissal' of suit

O.S.5/78 cannot but be indicative of the opinion that all the assertions of fact

22

Page 23 and law were in the opinion of the Trial Court legally untenable, perforce

including that the Trust could not have transferred the suit property in the

manner it did. For this very reason the Tenant should also have appealed

against the verdict in O.S.7/78 in respect of the findings of the Trial Court

common to O.S.6/78; since the Trust had not assailed the rejection of its plea

that a separate tenancy governed the claim in O.S.7/78 that part of the

verdict had attained finality. The First Appellate Court has opined, in the

event erroneously, that the doctrine of res judicata was not attracted to the

facts of the instant case. It appears to us that the First Appellate Court lost

perspective of the position that Section 116 of the Evidence Act rendered

impermissible and incompetent any challenge to the title of the

Trust/Landlord which had put the Appellant in possession of the demised

property. It is also noteworthy that the Tenant had contested the legal

capacity of the Trust/Landlord to convey the property to the Transferees.

Ergo, it was nobody’s case that although the Trust had title to the suit

property at the inception it had lost it subsequently. There is in fact a stark

omission to discuss this aspect in the Judgment of the First Appellate Court,

which therefore erred in concluding that the Trust/Landlord was a public

trust and was, accordingly, incompetent to sell the Trust property. This is all

the more significant since it reversed the opinion of the Trial Court without

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Page 24 affording any opportunity of hearing to the Transferees who had not been

impleaded by the Tenants in its Appeal although they were defendants in the

Tenants suit; they were not before the High Court because the Tenant

decided to not to appeal against the dismissal of O.S.5/78 in which it had

also raised these very questions. If it is contended that all the three suits

were covered by a common judgment, the Tenant ought to have impleaded

the Transferees in its Appeal.

17.The Trust filed the Second Appeal before the Division Bench of the

High Court of Judicature at Madras, but inexplicably and conspicuously

restricted its challenge only to the opinion of the First Appellate Court vis-à-

vis the impact and effect of the principle of res judicata on that lis. The

Trust had by that time already sold the property and remarkably their only

subsisting interest was for the recovery of the paltry decretal sum of Rs.268/.

We would have expected the Trust to vehemently assert that a decision

adverse to its Transferees could legally not have been delivered in their

absence; and that Section 116 of the Evidence Act disabled the Tenants from

challenging the Trust’s title or legal character, since it is the Trust which had

put the Tenant in possession. However, as it has transpired, the Second

Appellate Court agreed with the interpretation given by the First Appellate

Court that res judicata did not apply against the Tenants.

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Page 25 18.For facility of reference Section 11 of the CPC is extracted below:

Res Judicata- No Court shall try any suit or issue in which the

matter directly and substantially in issue has been directly and

substantially in issue in a former suit between the same parties,

or between parties under whom they or any of them claim,

litigating under the same title, in a Court competent to try such

subsequent suit or the suit in which such issue has been

subsequently raised, and has been heard and finally decided by

such Court.

Explanation I.- The expression “former suit” shall denote a suit

which has been decided prior to the suit in question whether or

not it was instituted prior thereto.

Explanation II.- For the purposes of this section, the

competence of a Court shall be determined irrespective of any

provisions as to a right of appeal from the decision of such

Court.

Explanation III.- The matter above referred to must in the

former suit have been alleged by one party and either denied or

admitted, expressly or impliedly, by the other.

Explanation IV.- Any matter which might and ought to have

been made ground of defence or attack in such former suit shall

be deemed to have been a matter directly and substantially in

issue in such suit.

Explanation V.- Any relief claimed in the plaint, which is not

expressly granted by the decree, shall for the purposes of this

section, be deemed to have been refused.

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Page 26 Explanation VI.- Where persons litigate bona fide in respect of

a public right or of a private right claimed in common for

themselves and others, all persons interested in such right shall,

for the purposes of this section, be deemed to claim under the

persons so litigating.

Explanation VII.- The provisions of this section shall apply to a

proceeding for the execution of a decree and references in this

section to any suit, issue or former suit shall be construed as

references, respectively, to a proceeding for the execution of the

decree; question arising in such proceeding and a former

proceeding for the execution of that decree.

Explanation VIII.- An issue heard and finally decided by a

Court of limited jurisdiction, competent to decide such issue,

shall operate as res judicata in a subsequent suit,

notwithstanding that such Court of limited jurisdiction was not

competent to try such subsequent suit or the suit in which such

issue has been subsequently raised.

The decision rendered by three Co-ordinate Benches of this Court,

namely firstly Lonankutty, secondly Prabhu and thirdly Premier Tyres

have already been discussed above.

19.We must additionally advert to a Four-Judge Bench decision in

Sheodan Singh vs. Daryao Kunwar (1966) 3 SCR 300, in which this Court

has lucidly enumerated five constituent elements of Section 11, namely:-

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Page 27 (i) The matter directly and substantially in issue in the

subsequent suit or issue must be the same matter which was

directly and substantially in issue in the former suit;

(ii) The former suit must have been a suit between the same

parties or between parties under whom they or any of them

claim;

(iii) The parties must have litigated under the same title in

the former suit;

(iv) The court which decided the former suit must be a court

competent to try the subsequent suit or the suit in which such

issue is subsequently raised; and

(v) The matter directly and substantially in issue in the

subsequent suit must have been heard and finally decided by

the court in the first suit. Further Explanation 1 shows that it is

not the date on which the suit is filed that matters but the date

on which the suit is decided, so that even if a suit was filed

later, it will be a former suit if it has been decided earlier.

The conundrum in Sheodan Singh was only marginally different to what

has arisen before us. The Appellate Court was confronted with five

Appeals from five different Suits between the same parties in which the

Issues were common. Two of the Appeals were dismissed, albeit, not on

merits. It was in those premises argued and accepted by this Court that the

principles of res judicata became operational with regard to the decrees

passed in the two suits in respect of which the Appeals filed thereagainst had

been dismissed. It was pithily observed that otherwise “all that the losing

party has to do to destroy the effect of a decision given by the trial court on

the merits is to file an appeal and let that appeal be dismissed on some

preliminary ground, with the result that the decision given on the merits also

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Page 28 becomes useless as between the parties.” Sheodan Singh took note of

several judgments of the High Courts, which preferred to overlook

procedural technicalities ostensibly in the interests of the merits of the

matter, but did not state its final opinion, which has propelled us to do so in

order so that the divergent opinions be interred and dissonance be removed.

20.On the issue of applicability of res judicata in cases where two or

more suits have been disposed of by one common judgment but separate

decrees, and where the decree in one suit has been appealed against but not

against the others, various High Courts have given divergent and conflicting

opinions and decisions. The High Court of Madras and erstwhile High

Courts of Lahore, Nagpur and Oudh have held that there could be no res

judicata in such cases whereas the High Courts of Allahabad, Calcutta,

Patna, Orissa and erstwhile High Court of Rangoon have taken contrary

views. It should also be noted that there are instances of conflicting

judgments within the same High Court as well. The decision of Tek Chand,

J. in Full Bench Judgment of the Lahore High Court in Lachhmi vs. Bhulli

[AIR (1927) Lah 289] and Full Bench Judgment of the Madras High Court

in Panchanda Velan vs. Vaithinatha Sastrial [ILR (1906) 29 Mad 333] and of

the Oudh High Court in B. Shanker Sahai v. B. Bhagwat Sahai [AIR 1946

Oudh 33 (FB)] appear to be the leading decisions against the applicability of

res judicata. Without adverting to the details of those cases, it is sufficient

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Page 29 to note that the hesitancy or reluctance to the applicability of the rigorous of

res judicata flowed from the notion that Section 11 of the Code refers only

to “suits” and as such does not include “appeals” within its ambit; that since

the decisions arrived in the connected suits were articulated simultaneously,

there could be no “former suit” as stipulated by the said section; that

substance, issues and finding being common or substantially similar in the

connected suits tried together, non-filing of an appeal against one or more of

those suits ought not to preclude the consideration of other appeals on

merits; and that the principle of res judicata would be applicable to the

judgment, which is common, and not to the decrees drawn on the basis of

that common judgment.

21.On the other hand, the verdict of Full Bench of the Allahabad High

Court in Zaharia vs. Debia ILR (1911) 33 All 51 and decisions of the

Calcutta High Court in Isup Ali vs. Gour Chandra Deb 37 Cal LJ 184: AIR

1923 Cal 496 and of the Patna High Court in Mrs. Getrude Oastes vs. Mrs

Millicent D’Silva ILR 12 Pat 139 : AIR 1933 Pat 78 are of the contrary

persuasion. These decisions largely proceeded on the predication that the

phraseology “suit” is not limited to the Court of First Instance or Trial Court

but encompasses within its domain proceedings before the Appellate Courts;

that non-applicability of res judicata may lead to inconsistent decrees and

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Page 30 conflicting decrees, not only due to multiplicity of decrees but also due to

multiplicity of the parties, and thereby creating confusion as to which decree

has to be given effect to in execution; that a decree is valid unless it is a

nullity and the same cannot be overruled or interfered with in appellate

proceedings initiated against another decree; that the issue of res judicata

has to be decided with reference to the decrees, which are appealable under

Section 96 of the CPC and not with reference to the judgment (which has

been defined differently), but with respect to decrees in the CPC; that non-

confirmation of a decree in appellate proceedings has no consequence as far

as it reaching finality upon elapsing of the limitation period is concerned in

view of the Explanation II of Section 11, that provides that the competence

of a Court shall be determined irrespective of any provisions as to right of

appeal from the decision of such Court; and that Section 11 of the CPC is

not exhaustive of the doctrine of res judicata, which springs up from the

general principles of law and public policy.

22.Procedural norms, technicalities and processal law evolve after years

of empirical experience, and to ignore them or give them short shrift

inevitably defeats justice. Where a common judgment has been delivered in

cases in which consolidation orders have specifically been passed, we think

it irresistible that the filing of a single appeal leads to the entire dispute

30

Page 31 becoming sub judice once again. Consolidation orders are passed by virtue

of the bestowal of inherent powers on the Courts by Section 151 of the CPC,

as clarified by this Court in Chitivalasa Jute Mills vs. Jaypee Rewa Cement

(2004) 3 SCC 85. In the instance of suits in which common Issues have

been framed and a common Trial has been conducted, the losing party must

file appeals in respect of all adverse decrees founded even on partially

adverse or contrary speaking judgments. While so opining we do not intend

to whittle down the principle that appeals are not expected to be filed against

every inconvenient or disagreeable or unpropitious or unfavourable finding

or observation contained in a judgment, but that this can be done by way of

cross-objections if the occasion arises. The decree not assailed thereupon

metamorphoses into the character of a “former suit”. If this is not to be so

viewed, it would be possible to set at naught a decree passed in Suit A by

only challenging the decree in Suit B. Law considers it an anathema to

allow a party to achieve a result indirectly when it has deliberately or

negligently failed to directly initiate proceedings towards this purpose.

Laws of procedure have picturesquely been referred to as handmaidens to

justice, but this does not mean that they can be wantonly ignored because, if

so done, a miscarriage of justice inevitably and inexorably ensues.

Statutory law and processal law are two sides of the judicial drachma, each

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Page 32 being the obverse of the other. In the case in hand, had the Tenant

diligently filed an appeal against the decree at least in respect of O.S. 5/78,

the legal conundrum that has manifested itself and exhausted so much

judicial time, would not have arisen at all.

23.Adverting in the impugned Judgment to the decision of this Court in

Sajjadanashin Sayed vs. Musa Dadabhai Ummer AIR 2000 SC 1238, the

Division Bench delineated the distinction between an aspect of the litigation

that is collaterally and incidentally, as against one that is directly and

substantially focal to the question the determination of which is the

immediate foundation of the decision. Reference was also drawn to

enunciation of what constitutes res judicata in Hoag vs. New Jersey (1958)

356 U.S. 464, namely that this important legal principle is attracted “if the

records of the formal trial show that the judgment could not have been

rendered without deciding the particular matter, it will be considered as

having settled that matter as to all future actions between the parties”. The

Division Bench also garnered guidance from the observations of this Court

in Isher Singh vs. Sarwan Singh, AIR 1965 SC 948 requiring the

examination of the Pleadings and the Issues in order to ascertain whether the

question was directly and substantially litigated upon. The Division Bench

also considered Asrar Ahmed vs. Durgah Committee, Ajmer, AIR 1947 PC

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Page 33 1 and Pragdasji Guru Bhagwandasji vs. Patel Ishwarlalbhai Narsibhai, AIR

1952 SC 143, before concluding that Issue No.2 framed in O.S. 5/78 was

wholly unnecessary and faulty. The Division Bench held that the findings

on that Issue were unnecessary, did not constitute the minimum foundation

for the ultimate decision and, therefore, would not constitute res judicata.

We have already indicated above that, in our opinion, if O.S.5/78 was

merely a suit for injunction simpliciter, since the Defendants therein (both

the Trustees as well as the Transferees) had posited in their respective

Written Statements that they had no intention to dispossess the

Plaintiff/Tenant, that suit ought not to have been dismissed but should have

been decreed. We have also laid emphasis on the fact that the Tenant had

made a specific and pointed assertion in the plaint that the transfer of the

demised land by the Trust to the Transferees was not in consonance with

Section 26 of the Puducherry Hindu Religious Institutions Act, 1972. We

have also noticed the fact that this was an important objection raised by the

Tenant in their Written Statement in O.S.6/78 and O.S.7/78. It seems to

be incongruous to us to consider ownership of the demised premises to be

irrelevant in O.S.5/78 but nevertheless constitute the kernel or essence or

fulcrum of the disputes in O.S.6/78 and O.S.7/78. The dialectic adopted by

the Court must remain steadfastly constant – if title was irrelevant so far as a

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Page 34 claim for injunction simpliciter, it was similarly so in relation to the party

having the advantage of Section 116 of the Evidence Act in respect of its

claim for arrears of rent from its tenant. It would not be logical to overlook

that the pleadings on behalf of the Tenant were common in all three suits,

and that Issues on this aspect of the dispute had been claimed by the Tenants

in all the three suits. On a holistic and comprehensive reading of the

pleadings of the Tenant in all the three suits, it is inescapable that the Tenant

had intendedly, directly and unequivocally raised in its pleadings the

question of the title to the demised premises and the legal capacity of the

Trustees to convey the lands to the Transferees. This is the common thread

that runs through the pleadings of Tenant in all three suits. It is true that if

O.S.5/78 was a suit for injunction simpliciter, and in the wake of the stance

of the Trustees and Transferees that no threat had been extended to the

Tenants regarding their ouster, any reference or challenge to the ownership

was wholly irrelevant. But the ownership issue had been specifically raised

by the Tenant, who had thus caused it to be directly and substantially in

issue in all three suits. So far as the Suit Nos.6/78 and 7/78 are concerned,

they were also suits simpliciter for the recovery of rents in which the defence

pertaining to ownership was also not relevant; no substantial reason for the

Tenant to file an appeal in O.S. 6/78 had arisen because the monetary part of

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Page 35 the decree was relatively insignificant. Obviously, the Tenant’s resolve was

to make the ownership the central dispute in the litigation and in these

circumstances cannot be allowed to equivocate on the aspect of ownership.

Logically, if the question of ownership was relevant and worthy of

consideration in O.S. 6/78, it was also relevant in O.S. 5/78. Viewed in this

manner, we think it is an inescapable conclusion that an appeal ought to

have been filed by the Tenant even in respect of O.S. 5/78, for fear of

inviting the rigours of res judicata as also for correcting the “dismissal”

order. In our opinion, the Tenant had been completely non-suited once it

was held that no cause of action had arisen in its favour and the suit was

‘dismissed’. Ignoring that finding and allowing it to become final makes

that conclusion impervious to change. In Sheoparsen Singh vs. Ramnandan

Prasad Singh, (1915-16) 43 I.A.91, the Privy Council opined - “Res judicata

is an ancient doctrine of universal application and permeates every civilized

system of jurisprudence. This doctrine encapsulates the basic principle in

all judicial systems which provide that an earlier adjudication is conclusive

on the same subject matter between the same parties.” The raison d’etre and

public policy on which Res judicata is predicated is that the party who has

raised any aspect in a litigation and has had an Issue cast thereon, has lead

evidence in that regard, and has argued on the point, remains bound by the

35

Page 36 curial conclusions once they attain finality. No party must be vexed twice

for the same cause; it is in the interest of the State that there should be an

end to litigation; a judicial decision must be accepted as correct in the

absence of a challenge. The aspect of law which now remains to be

considered is whether filing of an Appeal against a common Judgment in

one case, tantamounts to filing an appeal in all the matters.

24. The application of res judicata, so very often, conjures up

controversies, as is evident from the fact that even in this Court divergent

opinions were expressed by the two Judge Bench, leading to the necessity of

referring the appeal to a Larger Bench. It was for this reason that we

thought it appropriate to deal with the dispute in detail. It seems to us that

had the decisions of the three Judge Bench in Lonankutty and Prabhu been

brought to the attention of our Learned and Esteemed Brothers on the earlier

occasion when this appeal was heard by two Judge Bench, the dichotomy in

opinion would not have arisen. The outcome of the appeal before the High

Court would have also shared a similar fate. On the foregoing analysis,

especially the previous enunciation of law by three Co-ordinate Benches, we

are in agreement with the opinion of our Learned Brother Asok Kumar

Ganguly that the appeal calls to be allowed. We are of the opinion that

having failed or neglected or concertedly avoided filing appeals against the

36

Page 37 decrees in O.S.5/78 and O.S.7/78 the cause of the Respondents/Tenants was

permanently sealed and foreclosed since res judicata applied against them.

We accordingly allow this Appeal but keeping the varying verdicts in view

decline from making any order as to costs.

…………………………..………J.

(ANIL R. DAVE)

…………………………..………J.

(VIKRAMAJIT SEN)

……………………..…………….J

(PINAKI CHANDRA GHOSE)

New Delhi,

October 09, 2014.

37

Page 38 ITEM NO COURT NO.14 SECTION XII

(1A For judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Civil Appeal No.4227/2003

GANGAI VINAYAGAR TEMPLE & ANR. Appellant(s)

VERSUS

MEENAKSHI AMMAL & ORS. Respondent(s)

(with office report)

Date : 09/10/2014 This appeal was called on for

pronouncement of judgment today.

For Appellant(s) Mr. Sanjay R. Hegde,Adv.

For Respondent(s) Mr. K. Ramamoorthy, Sr.Adv.

Mr. Senthil Jagadeesan, Adv.

Mr. V. Ramasubramanian,Adv.

Hon'ble Mr. Justice Vikramajit Sen pronounced the

judgment of the Bench comprising Hon'ble Mr. Justice Anil

R. Dave, His Lordship and Hon'ble Mr. Justice Pinaki

Chandra Ghose.

The appeal is allowed with no order as to costs

in terms of the signed judgment.

(USHA BHARDWAJ) (SAROJ SAINI)

AR-CUM-PS (COURT MASTER)

Signed reportable judgment is placed on the file.

38