Full Judgment Text
REPORTABLE
2024 INSC 467
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8829 OF 2010
HAR NARAYAN TEWARI (D) THR. LRS. …APPELLANT(S)
VERSUS
CANTONMENT BOARD, RAMGARH
CANTONMENT & ORS. …RESPONDENT(S)
J U D G M E N T
PANKAJ MITHAL, J.
1. Shri Manoj Goel, learned senior counsel for the appellants
and Shri Manoj Swarup, learned senior counsel for the
respondents were heard.
2. The Title Suit No.9/89 of the plaintiff-appellant (Har
Narayan Tewari) was decreed on 16.03.2000 by the court
of first instance. In an appeal by the Cantonment Board,
Ramgarh, the said decree was reversed by the First
Appellate Court vide judgment and order dated
28.06.2006; basically on the ground that the suit was hit
Signature Not Verified
Digitally signed by
Indu Marwah
Date: 2024.07.08
16:35:55 IST
Reason:
by principle of res judicata in view of the decision in the
earlier Title Suit No.8/64 instituted by Maharani Lalita
1
1
Rajya Lakshmi (wife of Raja Bahadur Kamakshya
2
Narayan Singh ) wherein the plaintiff-appellant was
defendant No.32 and the Cantonment Board, Ramgarh
was the main contesting defendant. The Second Appeal
preferred by the plaintiff-appellant to the High Court was
dismissed on 01.04.2009 simply stating that it does not
raise any substantial question of law.
3. Aggrieved by the judgment and order of the High Court
dated 01.04.2009 dismissing the appeal; the plaintiff-
appellant has preferred this appeal and has also assailed
the judgment and order dated 28.06.2006 of the First
Appellate Court alleging that his suit was not barred by res
judicata and that he has validly acquired title and
possession over the disputed land.
4. The plaintiff-appellant had filed the above referred Title
Suit No.9/89 for declaration of his title over the properties
mentioned in Schedule ‘A’ of the plaint with structures and
buildings standing thereon and for confirmation of his
possession over the same. In the alternative, a prayer was
made that in case the plaintiff-appellant was not found in
1
Hereinafter referred to as “Maharani”
2
Hereinafter referred to as “Raja”
2
possession of the said property, the Cantonment Board,
Ramgarh, or any person claiming through it, be evicted
and he be put in possession with the further direction that
they be restrained by a decree of permanent injunction
from dispossessing the plaintiff-appellant from the said
property in future.
5. According to Schedule ‘A’ of the plaint, the dispute is about
two pieces of land: First, land measuring 0.12 acres out of
2.04 acres of Plot No.432; and secondly land measuring
0.18 acres out of 0.66 acres of Plot No.438 both situate in
village Ramgarh, within the Cantonment Board, Ramgarh
with boundaries as described in the Schedule. In short, the
dispute in the suit is only regarding 0.12 acres of Plot
No.432 and 0.18 acres of Plot No.438 i.e. total of 0.30 acres
of the above two plots and the structures existing thereon.
6. The plaintiff-appellant is claiming title and possession over
the suit land alleging that the Raja, the proprietor of the
village, had settled the aforesaid land measuring 0.30
acres of the land comprising of Plot Nos.432 and 438 in his
favour in the year 1942.
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7. The case of the plaintiff-appellant was that village
Ramgarh was the part of the Estate of Raja. It was under
the management of the Court of Wards and was released
in Raja’s favour in the year 1937. During the period of its
management by the Court of Wards, its manager acquired
5.38 acres of additional land comprised in various plots
including Plot Nos.432 and 438 in proceedings bearing
Case No.1/1926-27 and came in possession thereof.
8. The Raja in the year 1942 made a permanent raiyati
settlement of the suit land in favour of the plaintiff-
appellant and also delivered its possession to him on
payment of rent and salami of Rs.2,000/-. After vesting of
the Estate of Ramgarh in the State of Bihar, the name of
the plaintiff-appellant was mutated upon enhancement of
rent @ Rs.2/- per decimal by an order dated 04.01.1963 of
the Additional Collector, Ramgarh passed in Case
No.115/62-63 (Exh.13) . The plaintiff-appellant had
constructed certain structures on the said land which have
been let out to various persons, all of whom are defendants
in the suit.
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9. Upon the establishment of the Cantonment Board,
Ramgarh, the ex-proprietor Raja handed over 2.55 acres of
land (excluding the suit land) with the dispensary building
etc. to the Cantonment Board temporarily. The
Cantonment Board, as such, never came in possession of
more than 2.55 acres of land that too which was other than
the land settled and occupied by the plaintiff-appellant.
10. In 1964, Maharani, the wife of the Raja, instituted a Title
Suit No.8/64, inter alia, for declaration of her title over
5.38 acres of the land of the village including 0.30 acres
land of the plaintiff-appellant. The aforesaid claim was
made on the basis of the maintenance grant allegedly
made by the Raja in her favour.
11. The aforesaid suit was contested by the plaintiff-appellant
by filing a written statement and claiming 0.30 acres land
on the basis of raiyati rights granted by the Raja in the
year 1942. The Cantonment Board, Ramgarh, claimed
distinct rights in different portions of the land to the extent
of 2.55 acres only, comprising of dispensary building and
quarters of the doctors on the basis of possessory rights
granted by the Raja.
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12. In the aforesaid case, Maharani entered into a compromise
with several defendants including the plaintiff-appellant
(who was defendant No.32 in the said suit). According to
the said compromise, Maharani admitted the possession
of the plaintiff-appellant over the suit land to the extent of
0.30 acres in Plot Nos.432 and 438 and it was agreed that
she will have no concern with the same and that the
plaintiff-appellant will remain in exclusive possession of it.
The Cantonment Board, Ramgarh did not object to it or
challenge the compromise.
13. In the said suit, as many as nine issues were framed
including the maintainability of the suit and about the
right, title and possession of Maharani. The suit of the
Maharani was dismissed vide judgment and order dated
31.03.1984, primarily on the ground that it was not
maintainable as the State of Bihar being a necessary party,
was not made a party and that Maharani had not entered
into the witness box to prove her case. She as such, was
not found to be the owner in possession of the land claimed
by her. The court in dismissing the suit clearly mentioned
that the parties who have entered into the compromise
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with Maharani will not have any right on the basis of the
compromise deed as she herself has failed to prove her
independent rights over the land claimed by her.
14.
The second appeal filed by the plaintiff-appellant was
dismissed by the High Court as it failed to raise any
substantial question of law, which is mandatory for
entertaining an appeal under Section 100 of the Code of
Civil Procedure. Therefore, the first point which arises for
consideration herein is - whether in the facts and
circumstances of the case, any substantial question of law
was involved in the second appeal .
15. The submission is that the plaintiff-appellant was non-
suited by the First Appellate Court, on the ground that his
suit was barred by res judicata . One of the essential
conditions for the applicability of principle of res judicata
as enshrined under Section 11 of the CPC is that the issue
in the earlier suit and the subsequent suit ought to be
directly and substantially the same. In the earlier Suit No.
8/64 instituted by Maharani, her claim was that she is the
lawful owner of the entire 5.38 acre of land of Village
Ramgarh, on the basis of the maintenance grant made in
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her favour by the Raja. In the said suit, the plaintiff-
appellant was defendant no. 32 and the Cantonment
Board, Ramgarh was defendant No. 1. The claim set up by
Maharani was not accepted and ex-facie there was no
adjudication regarding the rights of the co-defendants over
the suit land viz 0.30 acres of land of plot Nos. 432 and
438 as claimed by the plaintiff-appellant in the present
suit. The limited issue therein was whether the Maharani
had acquired any right in the above entire property on the
basis of maintenance in grant alleged to be executed by the
Raja in her favour. There was no issue as to whether the
suit land as claimed by the plaintiff-appellant belonged to
him or was settled or not settled in his favour as claimed.
Thus, in the facts and circumstances of the case, a clear
substantial question of law as to whether the present suit
as filed by the plaintiff-appellant was barred under Section
11 CPC on principle of res judicata inasmuch as there was
no adjudication of the rights of the co-defendants in the
previous suit with regard to the suit land and the issue
therein was not directly or indirectly and substantially the
same as in the present suit.
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16. In view of the above, we are of the opinion that the High
Court manifestly erred in dismissing the second appeal in
limine on the ground that there was no substantial
question of law involved therein.
17. As stated earlier, the substantial question of law arising in
the second appeal was - Whether the suit as setup by the
plaintiff-appellant was barred by principle of res judicata in
view of the decision in the earlier Suit No. 8 of 64 wherein
rights of the co-defendants in respect of the suit land were
never adjudicated and non-acceptance of the claim of
Maharani was not sufficient so as to decide the rights of the
co-defendants.
18. There are no factual disputes which may require
consideration of any evidence so as to answer the above
substantial question of law. Therefore, we consider it
appropriate to decide the above substantial question of law
ourselves instead of leaving it for the High Court to
adjudicate it.
19. It is an admitted position that the suit land i.e., portions
of plot Nos. 432 and 438 were part of the Estate of Raja
who had acquired about 5.38 acres of additional land of
9
village Ramgarh. Maharani had claimed title over the
entire aforesaid land of village Ramgarh but her claim was
not accepted by the court in her Title Suit No.8/64. It
means that she was unable to establish her right, title and
interest over the said land on the basis of the alleged
maintenance grant made in her favour by the Raja, but it
does not mean that the suit land was not settled by the
Raja in favour of the plaintiff-appellant or that the suit
land had come to be settled with Cantonment Board,
Ramgarh in any manner.
20. The lis in the previous suit i.e. Suit No.8/64 was regarding
ownership and entitlement of Maharani over the entire
5.38 acres of land of village Ramgarh qua the Cantonment
Board, Ramgarh; the plaintiff-appellant and other
defendants in the said suit; whereas the controversy in the
present suit is quite distinct with regard to only 0.30 acres
of the suit land vis-à-vis the plaintiff-appellant and the
Cantonment Board, Ramgarh.
21. The judgment and order of the previous suit which is final
and conclusive, in no specific terms adjudicates upon the
right, title and interest of either of the plaintiff-appellant
10
or of the Cantonment Board, Ramgarh with regard to the
suit land. In the said suit, there was no issue with regard
to the right, title and possession of either the plaintiff-
appellant or of the Cantonment Board, Ramgarh and no
finding in this connection was returned by the court in
dismissing the said suit. In simple words, the suit, as filed
by Maharani claiming right, title and interest over 5.38
acres of land of village Ramgarh was dismissed simpliciter
without adjudication of any rights of the plaintiff-appellant
over the suit land vis-à-vis the Cantonment Board,
Ramgarh.
22. It may also be pertinent to point out that the Cantonment
Board, Ramgarh throughout had claimed rights over 2.55
acres of land of village Ramgarh and not in respect of the
entire 5.38 acres of land which was additionally acquired
by the Raja. It is also not the case of the Cantonment
Board, Ramgarh that the land which was temporarily
settled in its favour by the Raja has been occupied by the
plaintiff-appellant or that the plaintiff-appellant is
claiming rights over the land which was settled in its
favour. In other words, the land belonged to the Raja, part
11
of which was settled in favour of the plaintiff-appellant to
the extent of 0.30 acres of plot Nos. 432 and 438, whereas,
another piece of land measuring 2.55 acres with certain
structures but certainly excluding the suit land was settled
in favour of Cantonment Board, Ramgarh. The right of the
plaintiff-appellant to claim the suit land or the right of the
Cantonment Board over the 2.55 acres of land settled in
its favour never came to be adjudicated in previous Title
Suit No. 8 of 64.
23. The general policy behind the principle of res judicata as
enshrined under Section 11 CPC is to avoid parties to
litigate on the same issue which has already been
adjudicated upon and settled. This is in consonance with
the public policy so as to bring to an end the conflict of
interest on the same issue between the same parties. One
of the basic essential ingredients for applying the principle
of res judicata , as stated earlier also, is that the matter
which is directly and substantially in issue in the previous
litigation ought not to be permitted to be raised and
adjudicated upon in the subsequent suit. It is a settled law
that the principle of res judicata is applicable not only
12
between the plaintiff and the defendants but also between
the co-defendants. In applying the principle of res judicata
between the co-defendants, primarily three conditions are
necessary to be fulfilled, namely, (i) there must be a conflict
of interest between the co-defendants; (ii) there is necessity
to decide the said conflict in order to give relief to plaintiff;
and (iii) there is final decision adjudicating the said
conflict. Once all these conditions are satisfied, the
principle of res judicata can be applied inter se the co-
defendants.
24. In context with the above settled principle, though
reference can be made to several decisions starting from
that of Privy Council, but we consider it appropriate to
refer to only one of the latest decisions on the point
rendered by this Court in the case of Govindammal (Dead)
by Legal Representatives and Ors. vs. Vaidiyanathan
3
and Ors. , wherein after considering all previous decisions
regarding application of principle of res judicata between
co-defendants, this Court culled out the above three
conditions for applying the same.
3
(2019) 17 SCC 433
13
25. In the light of the above legal position, we find that there
was no conflict of interest between the co-defendants in
the earlier Suit No. 8 of 64 inasmuch as the plaintiff-
appellant was independently claiming rights over 0.30
acres of suit land whereas the Cantonment Board,
Ramgarh was claiming rights over 2.55 acres of the land
which formed part of the Estate of Raja without asserting
that the land settled in its favour is the same as claimed
by plaintiff-appellant or that there was any encroachment
upon the land settled in its favour. Even assuming that
there was some inter se conflicts between the co-
defendants with regard to the suit land, the adjudication
of the said conflict was not necessary for granting any relief
to Maharani who was the plaintiff in the suit. Since she
was claiming the entire Estate of 5.38 acres of land and
her claim was defeated as she was unable to prove the
grant of the said land in her favour with no specific finding
by the court regarding the claims set up by the co-
defendants, the inter se dispute of the co-defendants as
raised in the present suit never came to be adjudicated.
Thus, none of the conditions as laid down in Govindammal
14
(supra) between co-defendants stood fulfilled for applying
res judicata . In view of the aforesaid facts and
circumstances, we are of the opinion that the principle of
res judicata would not be attracted as the issue in the
present suit was neither directly or indirectly in issue in
the previous suit and there was no conflict of interest
between the co-defendants in the said previous suit which
if any never came to be adjudicated upon. Accordingly, the
suit as filed by the plaintiff-appellant claiming title over the
suit land against the Cantonment Board, Ramgarh is not
barred under Section 11 CPC.
26. Having said so, we proceed to examine the respective
claims of the parties on merits, treating the suit as
maintainable and not barred by res judicata .
27. The plaintiff-appellant has set up his claim over the suit
land as described in Schedule ‘A’ to the plaint. The said
schedule mentions 0.12 acres of land of plot No.432 and
0.18 acres of land of plot No.438 totaling 0.30 acres of land
situate in village Ramgarh. There is no dispute that during
the said period the Estate of the Raja was under the
management of Court of Wards, its manager had acquired
15
5.38 acres of additional land including the suit land and
the same was added to the Estate of the Raja. In the year
1942, the Raja had settled the aforesaid land in favour of
the plaintiff-appellant on 18.10.1942. It was followed by
Hukumnama dated 07.04.1943 ( Exh.9 ) which confirmed
the above settlement.
28. The above settlement was confirmed by the Additional
Collector, Hazaribagh on enhancement of rent @ Rs.2/-
per decimal some time in the year 1963 and had started
realizing rent from the plaintiff-appellant accordingly.
29. There is no dispute by any person claiming rights under
the Raja that the aforesaid land was not so settled in
favour of the plaintiff-appellant. The Maharani had
claimed the entire 5.38 acres of land on the basis of the
maintenance grant executed by Raja in her favour but her
aforesaid claim was not accepted. The Cantonment Board,
Ramgarh on the other hand had staked its claim only in
respect of 2.55 acres of land forming part of 5.38 acres of
the land but has nowhere claimed any right, title and
interest over the suit land as claimed by the plaintiff-
appellant. The Cantonment Board only on the basis of the
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judgment and order dated 16.03.2000 passed in Title Suit
No.8/64 alleges that it has been recognized to be the owner
of the entire 5.38 acres of land by adverse possession and,
therefore, the plaintiff-appellant has no subsisting right in
the suit land. The Cantonment Board further contends
that the entire 5.38 acres of land was leased out by the
Raja on 02.06.1931 for a period of 15 years to the Dublin
University Mission and, therefore, no part of it could have
been settled by him in favour of the plaintiff-appellant in
the year 1942.
30. In respect to the second aspect as raised on behalf of the
Cantonment Board, it is necessary to note that no material
or evidence was adduced by the Cantonment Board to
establish that the entire 5.38 acres of land was transferred
by way of lease to Dublin University Mission; not even any
oral evidence was adduced to prove such a transfer
restricting the right of the Raja to settle the land in favour
of the plaintiff-appellant. Even otherwise assuming there
was such a lease, it would have expired in June 1946 on
completion of 15 year period in which case the settlement
of 1942 and the Hukumnama of 1943 being valid would
17
revive and continue in favour of the plaintiff-appellant,
more particularly with its confirmation by the Additional
Collector and mutation in 1963.
31.
In context with the first contention that in Title Suit
No.8/64, possession of the Cantonment Board over the
entire 5.38 acres was accepted by adverse possession, it
would be pertinent to note that on perusal of the said
judgment and order and decree would reveal that the court
of first instance in the said suit has not given any finding
with regard to the claim to the plaintiff-appellant (who was
defendant No.32 in the said suit) nor with regard to the
claim set up by the Cantonment Board. It is misconceived
to contend that the said judgment and order accepts the
title of the Cantonment Board by adverse possession on
the entire 5.38 acres of land. In the said suit, the
Cantonment Board had claimed rights only in respect of
the part of the aforesaid 5.38 acres of land to the extent of
2.55 acres and, therefore, any observation of the trial court
regarding adverse possession of the Cantonment Board
would be deemed to be in respect of the claim as set up by
the Cantonment Board and would not be construed to be
18
in connection with the entire 5.38 acres of land so as to
include the land of the plaintiff-appellant.
32. The written statement of the Cantonment Board itself as
filed in Title Suit No.8/64 (Exh.12) makes it abundantly
clear that upon the establishment of the Cantonment
Board as a temporary measure in the year 1941, the Raja
on being approached permitted it on 06.11.1941 to use
2.55 acres of land consisting of the dispensary building
and other structures along with adjoining land to be used
by the Cantonment Board for a period of six months which
was extended up to 31.12.1943. There was no other
settlement of any land in favour of the Cantonment Board
and the Cantonment Board was in permissive possession
of only 2.55 acres of land out of the 5.38 acres of the entire
land of village Ramgarh. The land settled in favour of the
plaintiff-appellant and that in favour of the Cantonment
Board by the Raja were distinct and as such there was no
apparent conflict between them.
33. The plaintiff-appellant by sufficient evidence has proved
the settlement of the suit land by the Raja in his favour. It
stands proved by the Amin report ( Exh.8 ) dated 15.04.1942
19
and the Hukumnama ( Exh.9 ) dated 07.04.1943 as well as
the Rent receipt ( Exh.6, 6/A and 7 ). The order of the
Additional Collector, Hazaribagh dated 07.01.1963
( Exh.16 ) directing realization of rent from the plaintiff-
appellant also confirms the above settlement and its
subsequent approval by the State on enhancement of rent.
All these documents have not been confronted by the other
side. The fact that the name of the plaintiff-appellant was
also mutated in the revenue records proves it beyond
doubt, in the absence of any contrary evidence that he is
in possession of the suit land. It may also be worth noting
that in the earlier suit, the Cantonment Board has
accepted that the plaintiff-appellant has been realizing
rent of the shops existing over the suit land from the
tenants.
34. In view of the aforesaid overwhelming unconfronted
evidence, the First Appellate Court manifestly erred in
reversing the finding of the court of first instance that the
plaintiff-appellant is in settled possession of the suit land
and he has successfully proved his ownership rights over
the same.
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35. Accordingly, the judgment and order of the High Court
dated 01.04.2009 and that of the First Appellate Court
dated 28.06.2006 are hereby set aside and the judgment
and order dated 16.03.2000 passed by the trial court is
restored decreeing the title suit of the plaintiff-appellant
but with no order as to costs.
36. The appeal is allowed.
……………………………….. J.
(ABHAY S. OKA)
……………………………….. J.
(PANKAJ MITHAL)
NEW DELHI;
JULY 08, 2024.
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