Full Judgment Text
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5276 OF 2008
Govindammal (Dead) By Lrs. and Ors. ...Appellants
Versus
Vaidiyanathan and Ors. ...Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
The legal representatives of the original defendant in O.S
No.45/85 on the file of the Subordinate Judge, Cuddalore are the
appellants before this Court. For the sake of convenience, the
parties are referred by their status before the Trial Court.
2 The suit was filed by the respondents herein, seeking a
declaration that ‘A schedule’ property (as described in the plaint)
belongs to them or in the alternative for partition of half share in ‘B
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schedule’ property (as described in the plaint) of which ‘A schedule’
is a part. According to the plaintiffs (respondents herein), the
properties originally belonged to two brothers namely, Pazanivelu
Mudaliar and Chokalingam; Pazanivelu Mudaliar had two sons,
namely, Narayanaswamy Mudaliar and Manickam. Narayanaswamy
had a son named Gnanasambandam Mudaliar. The plaintiffs are
the grandsons of Narayanaswamy being the sons of
Gnanasambandam. On 21.7.1912, partition took place between the
branches of Pazanivelu and Chokalingam, and the same was signed
by Narayanaswamy (since Pazanivelu had expired by then) and
Chokalingam. In the said partition, ‘A schedule’ property was
allotted to Narayanaswamy and Manickam (who was then a minor),
while the remaining 50% of the property left in ‘B schedule’ was
allotted to Chokalingam. It is relevant to note here itself that the
suit property totally measured 3.18 acres at the time of partition in
1912, which subsequently got reduced to 2.72 acres in view of
natural calamities, sale of certain portions and resettlement etc.
Thus, the share of each branch was reduced to 1.36 acres each.
The property consisted of Survey No. 67. Narayanaswamy and
2
Manickam being the sons of Pazanivelu Mudaliar partitioned the
property allotted to the branch of their father in such a manner so
as to allot the entire ‘A Schedule’ property to Manickam, on
5.4.1933, as per Exhibit A39. The said property allotted in favour
of Manickam was sold by him to one Appavu Mudaliar on
11.9.1940 as per Exhibit A2. On 26.2.1942, the property
purchased by Appavu Mudaliar was in turn sold in favour of
Sambandam Mudaliar. On 9.2.1950, the property purchased by
Sambandam Mudaliar was sold to Narayanaswamy Mudaliar as per
Exhibit A3. After the death of Narayanaswamy Mudaliar in the
year 1965, the plaintiffs being the grandsons of Narayanaswamy
Mudaliar inherited the whole ‘A schedule’ property.
Meanwhile, Chokalingam’s half share was sold in a court
auction on 21.12.1933 and was purchased by the original
defendant’s father. There are no records to show that there was
delivery of possession pursuant to the court auction sale; at any
rate, the court sale could not confer more than the right, title and
interest of the judgment debtor, namely Chokalingam’s half
interest, which is 1.36 acres out of 2.72 acres recorded in the
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resettlement. Unfortunately, the entire ‘B Schedule’ property which
was partitioned in 1912 was never demarcated inasmuch as the
same was always used as a house site. Since the resettlement
proceedings in 1976, this property comprises 3 pattas numbers.
The plaintiffs’ father had also been paying house tax. The defendant
had no right in ‘A schedule’ property. The defendant’s father and
consequently the defendant did not have any right over the property
in excess of Chokalingam’s half share, i.e., 1.36 acres. On
5.11.1978, in the partition in the family of the plaintiffs and their
father, the ‘A Schedule’ property was allotted to Plaintiff No.2 as per
Exhibit A40. Since the defendant attempted to trespass into the
south western portion of the suit property (which falls under ‘A
Schedule’) and prevented the plaintiffs from enjoying the same, the
suit came to be filed.
The case of the defendant is that his father purchased the
entire extent of Survey Number 67, i.e., 2.72 acres in a court
auction (in execution of the decree in O.S.No. 20 of 1918) on
21.12.1933, which was confirmed on 29.9.1934, and possession
was delivered to him; after his father’s death in 1940, the defendant
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continued to be in possession. In the year 1975, Shri
Puthumariamman Temple, Kurinjipadi filed O.S. No. 66 of 1975
against the defendant and Gnanasambandam Mudaliar (the father
of the plaintiffs) in respect of the said property. The said suit came
to be dismissed, holding that the temple had no right to the
property and that the defendant and his father were entitled to the
same. The appeal filed by the temple also came to be dismissed.
Thus, the title of the defendant and his father was upheld in the
litigation wherein the father of the plaintiffs was a codefendant
along with the defendant as stated above. Subsequently, the SKV
High School filed O.S. No. 1289/1974 for declaration of its title over
the property, claiming that it had got title over the entire property.
The defendant filed O.S. No. 1290/1974 against the SKV High
School. The father of the plaintiffs was one of the defendants in O.S.
No.1289/1974 filed by the school whereas he was not made party
by the defendant in O.S. No.1290/1974. After joint trial in both the
suits, the suit filed by the present defendant was decreed declaring
his title over the suit property, and the suit filed by the school was
dismissed. Such judgment of the Trial Court was confirmed in
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appeal. The defendant denied the validity of the subsequent sale
deeds dated 11.9.1940 and 9.2.1950 in his written statement. Even
the later partition dated 5.11.1978 was attacked as a fraudulent
and collusive transaction. The defendant claimed to be in exclusive
possession of the entire property from the date of the court auction,
i.e., from 1933 continuously, and that he had acquired right by
adverse possession . It was also pleaded by the defendant that the
defendant’s title has already been declared twice by the Civil Court
as mentioned supra and therefore, the present suit is barred by the
principles of res judicata . The claim of joint possession by the
plaintiffs was denied by the defendant.
3. On a fullfledged trial, the Trial Court decreed the suit and
granted the alternative relief of partition. In the first appeal filed by
the defendant, the learned Single Judge reversed the judgment of
the Trial Court and dismissed the suit. The Letters Patent Appeal
filed by the plaintiffs was allowed by the impugned judgment and
consequently the suit came to be decreed by the Division Bench of
the High Court.
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4. Shri V. Prabhakar, appearing on behalf of the appellants/LRs
of the defendant submitted that the suit for partition is not
maintainable inasmuch as even according to the plaintiffs, partition
had taken place way back in the year 1912 between the branches of
their ancestor Pazanivelu Mudaliar and his brother Chokalingam.
The auction sale conducted by the court in the year 1933 remained
unquestioned by the plaintiffs and their predecessors; since the
entire property was sold in the auction sale, the defendant being the
purchaser of the property was entitled to the entire property. It was
submitted that in the earlier litigations filed by the temple and the
school in respect of the entire property, the father of the plaintiffs
was a codefendant along with the father of the defendant and had
pleaded or given evidence to the effect that the entire property was
purchased by the father of the defendant by way of court auction,
and that the father of the defendant was in possession as the owner
of the same. Such disputes were decided in favour of the father of
the defendant, upholding his title, and therefore by operation of the
principles of res judicata as well as estoppel, it could be said that
the defendant and his father had the right to own the property and
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consequently, the plaintiffs did not have any right over ‘A Schedule’
property. It was also contended that the defendant and his father
had remained in uninterrupted possession and had been asserting
the right consistently and openly from 1933 onwards, and therefore
it could be safely said that the defendant had perfected his title by
virtue of adverse possession.
Per contra, Smt. V. Mohana, learned Senior Advocate,
appearing on behalf of the respondents/plaintiffs submitted that
the question of any conflict regarding inter se title between the
plaintiffs’ father and the defendant’s father had not been in issue in
any of the earlier litigations and, therefore, there was no question of
attracting the principles of res judicata with respect to the plaintiffs’
claim. Similarly, the admission of the plaintiffs’ father regarding the
right of the defendant’s father could not operate as an estoppel as it
could not be said that the defendant and his father had acted to the
detriment of their interest on the basis of any admission of the
plaintiffs’ father; even otherwise, such admission could be explained
satisfactorily. Since the partition between the branches of the two
brothers Pazanivelu and Chokalingam which occurred in the year
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1912 through a registered partition deed was not in dispute, 50% of
the share vested with the legal heirs of Pazanivelu Mudaliar, i.e.,
the plaintiffs. It was for the defendant to plead and prove that he
had remained in exclusive possession in respect of such 50% of the
property to the exclusion of the plaintiffs, adverse to the interest of
the plaintiffs for the requisite period; otherwise the question of
acquiring right by adverse possession would not arise.
5. It is not in dispute that the entire property of 3.18 acres (now
reduced to 2.72 acres) was owned by two brothers, Pazanivelu and
Chokalingam. It is also not in dispute that a partition took place
between the families of the two brothers i.e., Chokalingam and his
brother’s son namely Narayanaswamy Mudaliar on 21.7.1912 (since
Pazanivelu had expired by then) through a registered partition
under which each of them got 50% of the property which ultimately
amounted to 1.36 acres each. It is needless to observe that the said
Narayanaswamy Mudaliar is the son of Pazanivelu Mudaliar.
Subsequently, further partition took place between the two sons of
Pazanivelu namely, Narayanaswamy and Manickam on 5.4.1933 in
respect of aforementioned 1.36 acres, i.e., ‘A’ Schedule property
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allotted to their branch, which was entirely allotted to Manickam in
the partition of 1933. This share was subsequently alienated by
Manickam, and eventually repurchased by his brother
Narayanaswamy. Thus, it is clear that 50% of the entire property
had fallen to the share of the sons of Pazanivelu Mudaliar and the
remaining 50% remained with Chokalingam. It is not in dispute
that the plaintiffs are the grandsons of Narayanaswamy Mudaliar.
Thus they have inherited 50% of the property, i.e., to the extent of
1.36 acres. It seems Chokalingam fell into debt and his property in
question was brought to sale through court auction. The auction
was held on 21.12.1933 and Subbaraya Mudaliar, i.e., father of the
defendant was the purchaser in this court auction. Said Subbaraya
Mudaliar died in the year 1940 leaving behind the defendant. Thus,
what could be sold in the court auction was only 50% of 2.72 acres
which was held by Chokalingam, i.e. 1.36 acres. The remaining
50% of the property (i.e. ‘A’ Schedule) which vested with
Narayanaswamy and his family could not be sold in the court
auction. The order relating to the confirmation of sale in Execution
Proceeding Registration No. 2/33 was produced and marked before
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the Trial Court, which contains the schedule of the property.
Unfortunately, none of the parties have produced the judgment
passed in O.S. No. 20/1918 which ultimately ended in court sale in
E.P. No.2/33. Thus, this Court is not in a position to say exactly as
to whether the entire property was the subject matter of the court
sale or not. Be that as it may, since Chokalingam was the judgment
debtor, at most only his share in the property could be sold and it is
not open for the purchaser to contend that he purchased the entire
property though only 50% of the property belonged to the judgment
debtor. The purchaser can not get a higher right, title or interest in
the property than what vested with the seller. Ultimately the
purchaser takes the risk, if he purchases the property which does
not belong to the judgment debtor. The purchaser at an auction
sale takes the property subject to all the defects of title, and the
doctrine of caveat emptor (let the purchaser beware) applies to such
a purchaser. Therefore, even assuming that the court auction sale
was held in respect of the entire property, it cannot be said that
such sale was valid to the entire extent. At most, it can be said that
it was valid to the extent of the property which was owned by the
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judgment debtor i.e. Mr. Chokalingam, i.e. 1.36 out of 2.72 acres.
The remaining 50%, i.e., schedule ‘A’ property was owned by
Narayanaswamy Mudaliar and his legal representatives.
6. The suit out of which this appeal arises is not a mere suit for
partition. On the other hand, primarily it is a suit for declaration of
the plaintiffs’ title to the suit property, i.e., ‘A schedule’ property
and for permanent injunction restraining the defendants from
entering the possession of ‘A schedule’ property, which is nothing
but 50% of the entire ‘B Schedule’ property which fell to the share
of Narayanaswamy Mudaliar. Alternatively, it was prayed by the
plaintiffs that if the plaintiffs and defendant are found to be in joint
possession, they be granted the relief of partition and separate
possession to the plaintiffs’ half share in ‘B schedule’ property. It is
relevant to note here itself that ‘B schedule’ property measures 2.72
acres in its entirety, whereas ‘A schedule’ property is 50% of ‘B
schedule’ property, measuring 1.36 acres, which fell to the share of
Narayanaswamy Mudaliar in the partition of 1912. Since the
partition had taken place in 1912 between Chokalingam and
Narayanswamy Mudaliar (being the son of Pazanivelu), and as the
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plaintiffs inherited the property from Narayanaswamy Mudaliar,
they are entitled to 50% of the share in ‘B schedule’ property. The
Division Bench has rightly held that the plaintiffs are entitled to ‘A
Schedule’ property, which is the half share allotted to their branch
in the partition of 1912, out of ‘B Schedule’ property. Thus, the
question of maintainability raised by the defendant fails.
7. The plaintiffs need not question the auction sale which was
conducted in 1933 inasmuch as, firstly, they are not parties to
those proceedings including the execution proceedings and court
auction. Secondly, by virtue of auction sale, the purchaser would
get only the share vested with Chokalingam inasmuch as
Chokalingam alone was the judgment debtor. The property which is
not owned by the judgment debtor could not be sold at all and
therefore, even assuming that the sale certificate is wrongly issued
in respect of the entire property, the same does not bind the
plaintiffs inasmuch they continued to be the owner of 50% of the
whole of the property.
8. It is no doubt true that in the suit filed by the temple against
the father of the defendant, the father of the plaintiffs was also
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arrayed as Defendant No. 2. It is also not in dispute that the father
of the plaintiffs and the father of the defendant by engaging a
common advocate filed a common written statement pleading that
the temple was not the owner of the property and that Defendant
No.1 was the owner of the property. It is also not in dispute that the
father of the plaintiffs admitted in the said suit that Defendant No.1
in the said suit, namely, the father of the defendant herein, was the
owner of the property. So also, in the suit filed by the school, the
father of the plaintiffs was also arrayed as one of the defendants
along with the father of the defendant. In the said suit also, a
common written statement was filed. Even in the suit filed by the
school, the defendants therein, i.e., the father of the plaintiffs
herein and father of the defendant herein jointly pleaded that the
school was not the owner of the property and that the defendants
were the owners. Both the suits filed by the temple and the school
came to be dismissed, holding that the temple as well as the school
were not the owners of the property. From the aforementioned facts
and the pleadings as well as the evidence recorded in the said suits,
it is amply clear that there was no dispute inter se between the
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defendants. In other words, there was no dispute whatsoever
regarding title between the father of the plaintiffs and the father of
the defendant in those two suits. The main question to be decided
in those suits was whether the third parties who had claimed rights
were entitled the property. Since the question of inter se title
between the defendant’s father and the plaintiffs’ father was not in
issue and was also not required to be decided in the disputes then
raised, obviously, the doctrine of cannot be applied
res judicata
between such codefendants.
9. However, there exist certain situations in which principles of
res judicata may apply as between codefendants. This has been
recognized by the English Courts as well as our Courts for more
than a century. The requisite conditions to apply the principle of
res judicata as between codefendants are that (a) there must be
conflict of interest between the defendants concerned, (b) it must be
necessary to decide this conflict in order to give the plaintiff the
relief he claims and (c) the question between the defendants must
have been finally decided. All the three requisite conditions are
absent in the matter on hand. Firstly, there was no conflict of
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interest between the defendants in the suits filed by the temple and
the school. Secondly, since there was no conflict, it was not
necessary to decide any conflict between the defendants in those
suits in order to give relief to the temple or the school, which were
the plaintiffs. On the other hand, the father of the plaintiffs and the
father of the defendant were colluding in those suits filed by Temple
and School. Both of them unitedly opposed those suits. In view of
the same, the principles of res judicata would not apply. The Privy
Council in the case of Mt. Munni vs. Tirloki Nath , AIR 1931 PC 114
has observed thus:
“The doctrine of res judicata finds a place in S.11 Civil
P.C., 1908, but it has been held by this Board on many
occasions that the statement of it there is not
exhaustive; the latest recognition of this is to be found
in Kalipada De v. Dwijapada Das [AIR 1980 PC 22]. For
the general principles upon which the doctrine should
be applied it is legitimate to refer to decisions in this
country: see Soorjamonee Dayee v. Suddamund
Mahapatter [I.A. Sup, Vol. 212], Krishna Behari Roy v.
Banwari Lal Roy [(1874) 1 Cal. 144], Raja Run Bahadur
Singh v. Mt. Lachoo Koer [(1885) 11 Cal. 301]. That
there may be res judicata as between codefendants
has been recognized by the English Courts and by a
long course of Indian decisions. The conditions under
which this branch of the doctrine should be applied are
thus stated by Wigram V.C., in Cottingham v. Earl of
Shrewsbury [ (1843) 3 Hare 627] at 638:
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“If a plaintiff cannot get at his right without trying
and deciding a case between codefendants, the
Court will try and decide that case, and the co
defendants will be bound, but if the relief given to
the plaintiff does not require or involve a decision
of any case between codefendants, the co
defendants will not be bound as between each
other by any proceeding which may be necessary
only to the decree the plaintiff obtains.”
This statement of the law has been accepted and followed
in many Indian cases: see Ahmad Ali v. Najabat Khan
[(1895) 18 All. 65], Ramchandra Narayan v.Narayan
Mahadev [(1887) 11 Bom. 216], Magniram v. Mehdi
Hossein Khan [(1904) 31 Cal. 95]. It is, in their Lordships’
opinion, in accord with the provisions of S. 11, Civil P.C.,
and they adopt it as the correct criterion in cases where it
is sought to apply the rule of res judicata as between co
defendants. In such a case therefore three conditions are
requisite: (1) There must be a conflict of interest between
the defendants concerned; (2) it must be necessary to
decide this conflict in order to give the plaintiff the relief
he claims; and (3) the question between the defendants
must have been finally decided.”
(emphasis supplied)
10. Once again, the very principles were restated in the case of
Syed Mohammad Saadat Ali Khan vs. Mirza Wiquar Ali Beg and
others, AIR (30) 1943 Privy Council 115, in which the following
observations were made:
“In order that a decision should operate as res judicata
between codefendants three conditions must exist: (1)
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There must be a conflict of interest between those co
defendants; (2) it must be necessary to decide the conflict
in order to give the plaintiff the relief he claims; and (3)
the question between the co defendants must have been
finally decided. There can be no doubt that in the case
under consideration the first and third conditions were
fulfilled. Whether the second condition existed is the
question to be answered. The Chief Court held that it did
not exist for the reasons appearing in the following
extract from their judgment.”
11. Almost the same principles were reiterated in the case of
, AIR (37) 1950 Privy Council 17,
Chandu Lal vs. Khalilur Rahaman
in which the following observations were made:
“In Munni Bibi and Another vs. Tirloki Nath, 58 I.A. 158:
[AIR (18) 1931 PC 114] the conditions for the application
of the doctrine of res judicata as between parties who
have been codefendants in a previous suit are thus laid
down: there must be (1) a conflict of interest between the
codefendants, (2) the necessity to decide that conflict in
order to give the plaintiff the appropriate relief, and (3) a
decision of that question between the codefendants. It
may be added that the doctrine may apply even though
the party, against whom it is sought to enforce it, did not
in the previous suit think fit to enter an appearance and
contest the question. But to this the qualification must
be added that, if such a party is to be bound by a
previous judgment, it must be proved clearly that he had
or must be deemed to have had notice that the relevant
question was in issue and would have to be decided.”
(emphasis supplied)
18
In the case of Md. Saadat Ali (supra), though the first and third
conditions were fulfilled, the second condition was not fulfilled and
hence it was held that the principles of res judicata will not apply,
meaning thereby that all the three conditions should be fulfilled in
order to apply the principles of res judicata .
12. It is true that under Section 11 of the CPC, when the matter
has been directly or 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, the decree in the former
suit would operate as res judicata between the plaintiff and the
defendant or as between the coplaintiffs or codefendants. For
instance, if in a suit by P against D1 and D2, the matter is directly
and substantially in issue between D1 and D2 and adjudication
upon that matter was necessary to determine the suit to grant relief
to P, the adjudication would operate as res judicata in subsequent
suits between D1 and D2 in which either of them is plaintiff or
defendant. In other words, if a plaintiff cannot get his claimed relief
without trying and deciding a case between the codefendants, the
court will try and decide the case in its entirety including the
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conflict of interest between the codefendants and the co
defendants will be bound by the decree. But if the relief given to the
plaintiff does not require or involve a decision of any case between
codefendants, the codefendants will not be bound as between
each other. This Court in the case of Mahboob Sahab vs. Syed
Ismail and others , (1995) 3 SCC 693, considering the applicability of
the doctrine of res judicata between codefendants held that the
following four conditions must be satisfied, namely,
“(1) there must be a conflict of interest between the
defendants concerned;
(2) it must be necessary to decide the conflict in order to
give the reliefs which the plaintiff claims;
(3) the question between the defendants must have been
finally decided; and
(4) the codefendants were necessary or proper parties in
the former suit.”
To reach the conclusion mentioned above, this Court relied
upon the judgments in the cases of Syed. Mohd. Saadat Ali Khan
, AIR 1943 PC 115;
vs. Mirza Wiquar Ali Beg Shashibushan Prasad
Mishra vs. Babuji Rai , AIR 1970 SC 809 and Iftikhar Ahmed vs.
Syed Meharban Ali , (1974) 2 SCC 151.
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13. Coming to the question of estoppel as argued by the
defendant’s counsel based on the admission of the father of the
plaintiffs in the pleadings and in his deposition regarding the title of
the father of the defendant in the aforementioned earlier litigations,
it is no doubt true that an admission is the best piece of evidence.
However, an admission can always be explained, unless such an
admission gives rise to the principle of estoppel. The principle of
estoppel could have arisen if the father of the defendant had acted
to his detriment on the basis of the representation made by the
plaintiffs’ father as the basic requirement for attracting the principle
of estoppel, is that the person to whom the representation has been
made must have acted on the basis of such representation, and
particularly to his own detriment. In the matter on hand, the father
of the defendant knew about the correct position on facts and he
very well knew that he was the owner to the extent of 50% of the
property only, and as he did not act to his detriment, the question
of estoppel does not arise. As mentioned supra, it is well settled that
in an auction purchase, the auction purchaser does not acquire any
right over the property higher than that of the judgment debtor.
21
Since the principles of res judicata between codefendants are not
applicable in this case, and since a mere admission does not
operate as an estoppel, such admission does not create or pass any
title in favour of the defendant’s father and consequently to the
defendant. On the other hand, it is apparent that the defendant’s
father had right over only half of the property in question, which he
had purchased.
14. The Division Bench has rightly negated the contention of the
defendant relating to adverse possession. From the evidence on
record, the trial Court and the Division Bench of the High Court
have come to the conclusion that the defendant has failed to prove
that he and his predecessorininterest had possession over the
entire property to the exclusion of the plaintiffs and their
predecessor. No material is found on record which emphatically
discloses that the physical delivery of possession of the property
was given to the auction purchaser by evicting or in exclusion of all
the persons including the plaintiffs’ father and the plaintiffs. In the
absence of such material, the Trial Court and the Division Bench
have rightly concluded that there was symbolic delivery of
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possession in favour of the auction purchaser. However, the
subsequent documents show joint possession of the plaintiffs and
the defendant. Even now the names of both the parties are found in
the revenue records. The documents do not show exclusive
possession of either of the parties, but would indicate that they are
in joint possession. Exhibits A7, A8 and A9 are the pattas which
disclose the names of both the parties in the revenue records. Even
the house tax receipts are in the name of the plaintiffs’ predecessor.
‘A schedule’ property has already been subjected to partition inter
se among the plaintiffs after the death of Narayanswamy Mudaliar
and the allotment of property in question, i.e. ‘A Schedule’ has been
made in favour of the second plaintiff as per Exhibit A40. The
aforementioned records and certain other material on record would
negative the contention of the defendant relating to adverse
possession. The plaintiffs have proved satisfactorily that they are
the owners of ‘A Schedule’ property, i.e., 50% of the property
partitioned in 1912, which had ultimately fallen in the share of Mr.
Narayanaswamy (grandfather of plaintiffs) as mentioned supra.
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15. In view of the same, we do not find any reason to interfere with
the impugned judgment of the Division Bench of the High Court
passed in L.P.A. No. 70/2002 dated 29.01.2007. The instant
appeal accordingly fails and is hereby dismissed.
……..………………………………….J.
[N.V. RAMANA]
NEW DELHI; …….……………………………………J.
OCTOBER 23, 2018. [MOHAN M. SHANTANAGOUDAR]
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