V. Rajeshwari Vs. T.C. Saravanabava  Insc 645 (16 December 2003)
Lahoti & Ashok Bhan.R.C. Lahoti, J.
Appeal (civil) 7654 of 1997
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 1, and O.S. No.6008 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.
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.
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.
defendant was in occupation of the entire suit property on the date of the
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.
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 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.
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.
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 :
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.
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.
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.
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.
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.
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.
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.
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: Tondapu Bala Gangadhara Ramakrishna Reddi & Ors. AIR 1948 Kattragadda
China Ramayya & Ors. AIR 1965 A.P.
177 Full Bench). The view taken by the Privy Council was cited with approval
(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.
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 Hanifa (Dead) by Lrs. & Ors. (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 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 (1887-88) 15 Indian Appeals 186,
pointed out that the plea of res judicata cannot be determined without
ascertaining what were the matters in issues in the previous suit and what was
heard and decided.
to say these can be found out only by looking into the pleadings, the issues
and the judgment in the previous suit.
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 and Ors. AIR 1963 Punjab 9 (Full Bench) and Rajani Kumar Mitra ourselves in agreement with the
view taken therein on this point). The Ayissa Bi & Ors. 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
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
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
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.
fail to understand how the judgment in the previous suit can in any way help
the defendant-respondent in the present proceedings.
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.
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.
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
correct position of law, which should apply to the facts of 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