Makardhwaj Ram vs Jagdish Rai (Dead) Th. Lrs.

REPORTABLE
2026 INSC 636

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2950 OF 2011



MAKARDHWAJ RAM … APPELLANT(S)

VERSUS

JAGDISH RAI (DEAD) TH. LRS. & ANR. …RESPONDENT(S)


J U D G M E N T

SANJAY KAROL, J.
1. This Civil Appeal has been preferred by the original plaintiffs laying
th
challenge to judgment and order dated 18 September 2009 passed by the High
Court of Chhattisgarh, Bilaspur in Second Appeal No. 617 of 1996. At hand is a
long-standing property dispute that began somewhere in the 1960s. The parties in
Signature Not Verified
Digitally signed by
MINI
Date: 2026.06.11
13:49:36 IST
Reason:
the dispute are in one way or another related to one Gokul Rai. A family chart
shall be useful in contextualising the parties and the facts:
Civil Appeal No.2950 of 2011 Page 1 of 12

2. The properties in question belonged to the grandson of said Gokul Rai i.e.,
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Mahabir Rai. On 27 July 1960, Mahabir Rai, transferred a portion of his property
totalling to 95.80 acres in favour of his mother, Raj Mohani @Roopjhari and his
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son, the present appellant, Makardhwaj. On 23 April 1962, Mahabir Rai, his
wife Gulmati, and mother Raj Mohani @ Rupjhari, executed a General Power of
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Attorney in favour of Rambhajan, who is Mahabir Rai’s cousin that is the son of
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Baldeo’s sister-Dhanmati. In 1969 on two separate occasions i.e., 27 January
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1969 and 4 February 1969, Rambhajan, using the said GPA sold 21.43 acres land
to one Prem Prakash, and 33.76 acres to one Chandra Sao. The said GPA was

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GPA
Civil Appeal No.2950 of 2011 Page 2 of 12

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cancelled by the grantors on 25 June 1969. Thereafter, Mahabir Rai, filed a suit
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seeking cancellation of sale deed qua the transfer of 21.43 acres of land dated 27
January 1969. Said suit was eventually dismissed by the Civil Judge, Class II,
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Jaishpor Nagar, vide judgment dated 21 October 1989 on the ground that the
present appellant, successor-in-interest of the original plaintiff Mahabir Rai,
could not establish his position as his successor-in-interest. The second transfer
of 33.76 acres was challenged by Gulmati, as legal guardian of her minor children
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which too was dismissed by judgment dated 31 July 1975. In the year 1985
Rambhajan applied for mutating his name in the Revenue Records which was
dismissed at the first instance but allowed on appeal. This mutation pushed the
plaintiff, Makardhwaj, the appellant herein to file yet another civil suit. It is this
proceeding that has culminated into the present appeal.

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3. The suit has been filed for declaration of title and possession against
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Rambhajan. By judgment dated 7 May 1993, the suit was partly decreed. As
against the claim of 95.8 acres the plaintiff was held to be entitled to 43.69 acres.
Aggrieved thereof successor- in-interest of Rambhajan i.e., Jagdish Rai, further
represented through LRs, appealed to the Additional District Judge, Raigarh,
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which came to be dismissed on 11 March 1996. Still aggrieved, he took the
matter to the High Court, where, in terms of the impugned judgment, the
judgment and decree of the Courts below were set aside, dismissing the suit as
being barred by constructive res judicata .

4. The case of the appellant is that there is a difference between the two
rounds of litigation regarding the properties since the earlier suits were filed on
the basis of sale deeds seeking to recover the lands lost as a result thereof and the
latter have been filed seeking a declaration of title and possession in respect of
the land that remained after the alienations that have been made. In other words,

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Civil Suit No.195A/87
Civil Appeal No.2950 of 2011 Page 3 of 12

the subject matter of the suit is separate and distinct from the earlier suits. With
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reference to Nagabhushanammal v. C. Chandikeswaralingam , it is submitted
that for res judicata to apply, it has to be shown that not only the cause of action
was the same, but also that the plaintiff had the occasion to seek the same relief
in the earlier proceedings. As a secondary argument, it is submitted that the
question of res judicata is a mixed question of law and fact and while the
defendants did take the plea, but they did not file the requisite documents such as
the plaint, written statement and other documents to establish their claim.

5. Per contra , the respondents contend that there is no requirement of
furnishing plaint, written statement and other documents to plead res judicata ,
when the judgment in the case reflects same and similar cause of action. It is
further submitted that if the sale deed of 1960 was indeed the source of claim of
the plaintiff, that ought to have been pleaded as the main ground and that the
ground of being the exclusive owner of the lands in question by virtue of 1960
sale deed was although available, not taken. The same was also available to them
to challenge the subsequent authorization/alienation ( to Rambhajan through
GPA ) but was not taken and as such, while claiming right over the land based on
inheritance, such ground was intentionally given up and is thus barred.

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6. Section 11 of the Code of Civil Procedure 1908 deals with res judicata. It
reads as under:
11. 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.”


3
(2016) 4 SCC 434
4
CPC
Civil Appeal No.2950 of 2011 Page 4 of 12

Explanation IV thereof provides for rule of constructive res judicata which is as
follows:
“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.”

7. The concept of constructive res judicata has been extensively dealt with by
this Court as also the Privy Council in its judgments. Some of those judgments
are referred to hereinbelow to facilitate an understanding:

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7.1 Morris LJ in Kameswar Pershad v. Rajkumari Ruttun Koer ,
observed:
…That it “might” have been, made a ground of attack is clear.
That it “ought” to have been, appears to their Lordships to
depend upon the particular fact of each case. Where matters are
so dissimilar that their union might lead to confusion, the
construction of the word “ought” would become important…
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7.2 In Daryao v. State of U.P. , it was held that the principle of res
judicata applies to writ proceedings as well. Regarding the nature of the
rule, it has been observed as follows:
“9. But, is the rule of res judicata merely a technical rule or is it
based on high public policy? If the rule of res judicata itself
embodies a principle of public policy which in turn is an essential
part of the rule of law then the objection that the rule cannot be
invoked where fundamental rights are in question may lose much
of its validity. Now, the rule of res judicata as indicated in Section
11 of the Code of Civil Procedure has no doubt some technical
aspects, for instance the rule of constructive res judicata may be
said to be technical; but the basis on which the said rule rests is
founded on considerations of public policy. It is in the interest of
the public at large that a finality should attach to the binding
decisions pronounced by Courts of competent jurisdiction, and it
is also in the public interest that individuals should not be vexed
twice over with the same kind of litigation. If these two principles
form the foundation of the general rule of res judicata they cannot
be treated as irrelevant or inadmissible even in dealing with
fundamental rights in petitions filed under Article 32.”
(emphasis supplied)

5
1892 SCC OnLine PC 16
6
1961 SCC OnLine SC 21
Civil Appeal No.2950 of 2011 Page 5 of 12

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7.3 In State of Karnataka v. All India Manufacturers Organisation ,
B.N. Srikrishna J., writing for the Court, while dealing with this issue
referred to a number of English judgments in the following manner:
“38. The spirit behind Explanation IV is brought out in the pithy
words of Wigram, V.C. in Henderson v. Henderson [(1843-60)
All ER Rep 378 : (1843) 3 Hare 100 : 67 ER 313] as follows: (All
ER pp. 381 I-382 A)
“The plea of res judicata applies, except in special
case (sic), not only to points upon which the court
was actually required by the parties to form an
opinion and pronounce a judgment, but to every
point which properly belonged to the subject of
litigation and which the parties, exercising
reasonable diligence, might have brought forward at
the time.” [ Ibid. , at pp. 381-82]
39. In Greenhalgh v. Mallard [(1947) 2 All ER 255 (CA)]
(hereinafter “ Greenhalgh [(1947) 2 All ER 255 (CA)] ”),
Somervell, L.J. observed thus:
“I think that on the authorities to which I will refer
it would be accurate to say that res judicata for this
purpose is not confined to the issues which the court
is actually asked to decide, but that it covers issues
or facts which are so clearly part of the subject-
matter of the litigation and so clearly could have
been raised that it would be an abuse of the process
of the court to allow a new proceeding to be started
in respect of them. ” [ Ibid. , at p. 257 H (emphasis
supplied)]

40. The judgment in Greenhalgh [(1947) 2 All ER 255 (CA)] was
approvingly referred to by this Court in State of U.P. v. Nawab
Hussain [(1977) 2 SCC 806 at p. 809, para 4 : 1977 SCC (L&S)
362] . Combining all these principles, a Constitution Bench of this
Court in Direct Recruit Class II Engg. Officers' Assn. v. State of
Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990)
13 ATC 348] expounded on the principle laid down in Forward
Construction Co. [(1986) 1 SCC 100] by holding that:

“[A]n adjudication is conclusive and final not only
as to the actual matter determined but as to every
other matter which the parties might and ought to
have litigated and have had (sic) decided as
incidental to or essentially connected with (sic)

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(2006) 4 SCC 683
Civil Appeal No.2950 of 2011 Page 6 of 12

subject-matter of the litigation and every matter
coming into the legitimate purview of the original
action both in respect of the matters of claim and
defence. Thus, the principle of constructive res
judicata underlying Explanation IV of Section 11 of
the Code of Civil Procedure was applied to writ
case. We, accordingly hold that the writ case is fit to
be dismissed on the ground of res judicata.” [ Ibid. ,
at p. 741, para 35, per L.M. Sharma, J.]
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7.4 Recently, in Samir Kumar Majumder v. Union of India , K.V.
Viswanathan J., considered the law on constructive res judicata while
dealing with an employment dispute as follows:
“Law on constructive res judicata
33. Almost two centuries ago,
in Henderson v. Henderson [ Henderson v. Henderson , (1843) 3
Hare 100 : 67 ER 313] , the Vice-Chancellor Sir James Wigram
felicitously puts the principle thus: (ER p. 319)

“In trying this question I believe I state the rule of
the Court correctly when I say that, where a given
matter becomes the subject of litigation in, and of
adjudication by, a court of competent jurisdiction,
the Court requires the parties to that litigation to
bring forward their whole case, and will not (except
under special circumstances) permit the same
parties to open the same subject of litigation in
respect of matter which might have been brought
forward as part of the subject in contest, but which
was not brought forward, only because they have,
from negligence, inadvertence, or even accident,
omitted part of their case. The plea of res judicata
applies, except in special cases, not only to points
upon which the Court was actually required by the
parties to form an opinion and pronounce a
judgment, but to every point which properly
belonged to the subject of litigation, and which the
parties, exercising reasonable diligence, might have
brought forward at the time.”

8. From a considered perusal of the above judgments, the following aspect
of constructive res judicata can be highlighted:

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(2024) 16 SCC 738
Civil Appeal No.2950 of 2011 Page 7 of 12

8.1 Constructive res judicata mandates that all grounds that might and
ought to have been employed in the proceedings, should be employed to
avoid multiplicity of proceedings.
8.2 It is a deeming fiction of law, but its application is not uniform and
instead is dependent on the facts and circumstances of a particular case
with ‘ due regard to ambit of the earlier proceedings ’ and ‘ the nexus
which the matter bears to the nature of the controversy ’.
8.3 This principle is founded on public policy. It is a generally
acceptable rule that one person should not be “vexed twice over” for the
same kind of litigation. As such, it also applies to the proceedings under
Article 226/32 of the Constitution of India.
8.4 In respect of ‘ ought ’ referred above, the said word implies the
threshold to be above mere possibility.
8.5 The parties while conducting litigation are expected to apply
‘ reasonable diligence ’, ‘ legitimate purview ’. It is from this lens that it
shall be adjudicated whether all issues that were properly arising to the
litigation; which ought to have been raised; were raised or not?
8.6 The principle applies with equal force in cases where the ground
that might and ought to have been raised was not done, on account of
negligence, inadvertence or accident. In other words, might and ought to
apply cumulatively with full force, without exception. The party
therefore commits these errors at their own peril.

9. Applying these principles to the present facts, the question is whether the
earlier proceedings provided opportunity enough for the plaintiff by being
substantially similar, to raise the point of his ownership of the suit properties by
virtue of the 1960 sale deed when the main ground urged otherwise was
cancellation of sale deed.

Civil Appeal No.2950 of 2011 Page 8 of 12

10. From the above narration of facts, it is clear that the present proceedings
are indirectly the culmination of a long history of litigation. Although the
previous proceedings are not directly relevant they may nonetheless be set out
below in a tabular form for completeness:

C.S. No. 9A of 1974 and its appeal 157/1975
th
Challenging Sale deed dated 4 February 1969
RESULT
DATE
OF

INSTITUTION
DATE OF
DECISION
PLAINTIFF/
APPELLANT
DEFENDANTS/
RESPONDNETS
1974 31.07.1975 Plaintiff

1. Makardhwaj
Ram (Minor)
2. Mst. Sukhmani
(sister) (Minor)
3. Mst. Basanti
(sister) (Minor)
4. Mst. Gulmati
(mother) (Gaurdian)
Defendants

1. Chander
rd
Sao (3 Party
Purchaser)

2. Rambhajan


Dismissed
1975 14.10.1981 Appellants


1. Makardhwaj
Ram (Minor)
2. Mst. Sukhmani
(sister) (Minor)
3. Mst. Basanti
(sister) (Minor)
4. Mst. Gulmat
(mother)
(Gaurdian)
Respondents


Dismissed

1. Chander Sao
rd
(3 Party
Purchaser)
2. Rambhajan


Civil Appeal No.2950 of 2011 Page 9 of 12

Civil Suit . 5A/87 (Earlier 7A/69) and its appeal 16A/90
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Challenging Sale deed dated 17 January 1969
RESULT
DATE
PLAINTIFF/
APPELLANT
DEFENDANTS/
DATE OF
DECISION
OF
INSTITUTION
RESPONDNETS
1987 21.10.1989 1. Makardhwaj


Dismissed
1. Jagdish Rai
2.
Prem Prakash
rd
Rai (3 Party
Purchaser)
Ram (through
mother as
guardian)

1990 28.06.1994 Appellants
Dismissed
Respondents
1. Jagdish
Rai
2. Prem
Prakash Rai
rd
(3 Party
Purchaser)
1. Makardhwaj
Ram
(through mother as
guardian)





Present suit 195A/87 and the first and second appeal

RESULT
DATE
OF
INSTITUTION
DATE OF
DECISION
PLAINTIFF/
APPELLANT
DEFENDANTS/
RESPONDNETS

1986 07.5.1993 Plaintiff
1. Makardhwaj
Ram (Plaintiff)
Defendant

Decreed

1. Rambhajan
2. State of MP
(through district

collector

Appellant
1993 11.03.1996

Respondent


Appeal
dismissed


Makardhwaj
1. Rambhajan
2.
State of MP


Appellant
1996 18.09.2009

Respondent

Makardhwaj


Second
Appeal

allowed
1. Rambhajan
2. State of MP

Civil Appeal No.2950 of 2011 Page 10 of 12

11. To put the question framed by us in perspective, the total piece of land
with respect to which the above proceedings have taken place was approximately
95.80 acres. The first sale deed to Prem Prakash Rai, was 21.43 acres and the
second sale deed was to Chander Sao for 33.76 acres. For one reason or another
both the suits seeking cancellation of the sale deeds made by Rambhajan as GPA
holder, were dismissed. Undisputedly, when both those suits were instituted the
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appellant-plaintiff was a minor. The third suit that is before us was filed on 1
May 1986 seeking declaration and possession. The issue of constructive res
judicata was framed by the Trial Court and decided in favour of appellant-
plaintiff. Such finding was agreed to by the First Appellate Court, but reversed
in impugned judgment by the High Court. We may record here itself that we are
not in agreement with the High Court.

12. The High Court proceeds on the premise that in both the earlier suits the
appellant-plaintiff could have claimed the right over subject land to be flowing
from the 1960 deed executed in his favour by Mahabir Rai. Since he did not do
that and instead chose to pursue an inferior claim of cancellation of sale deed,
the stronger one stood given up by application of constructive res judicata .

13. On first blush, this reasoning appears attractive but, in our view, cannot be
countenanced for it perhaps misses the mark.

The appellant-plaintiff by virtue of 1960 deed was the owner of a large
portion of land. According to him Rambhajan, had wrongly sold off parts thereof
in two independent transactions therefore, acting through his parents, he
challenged both those transactions. Where and how does the question of
asserting his right over the larger parcel of land emerge when the same already
rests undisputedly in his favour by virtue of the 1960 deed? When the
apprehension arose by virtue of Rambhajan’s application to mutate his name in
the relevant records with respect to the entire property in excess of what was part
Civil Appeal No.2950 of 2011 Page 11 of 12

of sale transaction, came the suit by Makardhwaj, asserting his right which had,
in his view, be hitherto unquestioned. This question missed the attention of the
High Court.

14. It be also observed that the effect of agreeing with the High Court would
be that the appellant-plaintiff would be deprived of the entire property given to
him by Mahabir Rai, and that has been in his name ever since he was born or
shortly thereafter. The application of law, especially when it comes to inter
family disputes is not akin to enforcing the black letter of the law but calls upon
the Judge to understand the surrounding facts and circumstances and in the light
thereof come to a conclusion in accordance with law. The part of the appellant-
plaintiff’s right which was threatened was challenged so in effect, he through his
guardians, was protecting his rights. There was no occasion to do anything
further. When this is the reality, to apply a principle of law which would lead to
an unduly harsh and unjust consequence, would be offensive to both law and
equity in these circumstances. As such, the impugned judgment must be set
aside. Ordered accordingly.

15. Appeal is allowed. The parties to take recourse in law as may be
permissible. They shall bear their own costs.
Pending applications stand disposed of.


………………………………………..…..J.
(SANJAY KAROL)



………………………………………..…….J
(NONGMEIKAPAM KOTISWAR SINGH )


New Delhi;
June 11, 2026
Civil Appeal No.2950 of 2011 Page 12 of 12