Full Judgment Text
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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.