Ram & Anr Vs. Ishwar Chand & Anr  INSC 566 (16 October 1995)
Saghir S. (J) Ahmad Saghir S. (J) Kuldip Singh (J) S.Saghir Ahmad,J.
1996 AIR 378 1995 SCC (6) 733 JT 1995 (7) 641 1995 SCALE (6)18
legal proceedings for land comprising Khata Khatauni No.45/63, Khasra No.348
[Area 34.9 bighas] situate in Village Chuling, Distt. Kinnaur in the State of Himachal
Pradesh was initiated by the appellants (defendants) before the Compensation
Officer, Pooh, for certain relief but when their application seems to have been
contested by respondents [plaintiffs], it was withdrawn on August 24, 1971.
Thereafter, the present respondent's father Shri Padam Ram, who is since dead
and is represented by the respondents, came forward with a suit for recovery of
a sum of Rs.6,300/- as sale price for the aforesaid land against the present
applicants on the ground that by document dated September 1, 1976 [referred to
as 2nd September, 1976 at some places in the record], the land in question of
which he was the owner was transferred to the appellant which the appellants
had promised to pay on November 11, 1976 but they did not pay the amount and
continued to remain in possession which they should have surrendered for having
not paid the above stipulated amount.
suit was contested by the appellants on the grounds inter alia that they were
tenants under the plaintiffs, namely Padam Ram, and were already in possession.
They also pleaded that the document dated September 1, 1976 was obtained by
fraud and undue influence and was, in any case, void being against the
provisions of Himachal Pradesh Tenancy and Land Reforms Act under which they
have become owners of the land.
number of issues were framed in this suit, one of which, namely, issue No.5,
read as under:
Whether the defendant is in possession of the suit land as tenant under the
plaintiff since samvat 2005 as alleged?" The suit was dismissed by the
Trial Court (Senior-Sub- Judge, Kinnaur) by Judgment and order dated January 15, 1981 with the findings, inter alia, that
the agreement was without consideration and was hit by the provisions of
Section 91 of the Himachal Pradesh Tenancy and Land Reforms Act. It also
recorded a finding on Issue No.5 that the defendants were tenants of the land
in suit under the plaintiff since Samvat 2005.
judgment of the Trial Court was upheld by the learned Additional District
Judge, Shimla in an appeal filed by the plaintiff which was dismissed with the
findings that the land in question was at no stage sold by the plaintiffs-
respondents to the present appellants and consequently the plaintiffs were not
entitled to recover Rs.6,300/- from the appellants as sale price as the
document in question was only an agreement for sale and not a sale-deed. The
lower appellante court also specifically reversed the finding of the Trial
Court on Issue No.5 and held that the defendants had failed to prove themselves
to be tenants of the disputed land under the plaintiff. Those legal proceedings
terminated at that stage.
plaintiff, however, initiated new proceedings by filing Suit No. 91/1/1982 for
possession against the present appellants on the basis of the title, pleading
inter alia that they were the owners of the land in question and the defendants,
namely, the present appellants who had already been held in the earlier suit
that they were not the tenants of the land in suit, were not entitled to retain
suit was resisted by the appellants on the ground that the Buit was barred by Order
II Rule 2 of the Code of Civil Procedure and that it was barred by time as they
were in possession over the land in question since samvat 2005 and had become
owners of the land in suit by adverse possession.
Trial Court, namely, Senior Sub-Judge, Kinnaur at Kalpa, dismissed the suit by
judgment and order Dated April 21, 1984 with the finding that the suit was
barred by the principles of Order II Rule 2 and was beyond time. In appeal,
decided by the Distt. Judge, Shimla, on March 31, 1986, the findings recorded by the Trial
Court were reversed and the suit was decreed with the findings that it was not
barred by Order 2 Rule 2 of the Civil Procedure Code nor was it beyond time.
appellants then filed a second appeal in the High Court of Himachal Pradesh
which by its judgment dated July 8, 1994
dismissed the appeal and that is how the matter is before us now.
counsel for the appellants has contended that the findings recorded by the
District Judge that the suit of the respondents was not barred by Order 2 Rule
2 of the Civil Procedure Code was erroneous and the appellants having already
been held to be tenants under the respondents by the Trial Court in the earlier
suit, the suit for possession was not maintainable and ought to have been dismissed
by the District Judge as also by the High Court as was done by the Trial Court,
it was also contended that the findings recorded by the Trial Court on the
status of the appellants in the previous suit that they were tenants of the
land in suit should still be treated to hold the field notwithstanding its
reversal by the lower appellate court as the lower appellate court, had
ultimately decided the appeal in their favour with the result that they being
the successful party had no occasion to file the appeal and challenge the
findings. In this situation, it is contended, the findings of the trial court
cannot be treated to have been reversed.
will deal with Order 2 Rule 2 of the Civil Procedure Code first. It provides as
Suit to include the whole claim.
Every suit shall include the whole of the claim which the plaintiff be entitled
to make in respect of the cause of action; but a plaintiff may relinquish any
portion of his claim in order to bring the suit within the jurisdiction of any
of part of claim.
Where a plaintiff omits to sue in respect of, or intentionally relinquishes,
any portion of his claim, he shall not afterwards sue in respect of the portion
so omitted or relinquished.
to sue for one of several reliefs.
person entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs, but if he omits, except with the leave
of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs
so omitted." A bare perusal of the above provisions would indicate that if
a plaintiff is entitled to several reliefs against the defendant in respect of
the same cause of action, he cannot split up the claim so as to omit one part
of the claim and sue for the other. If the cause of action is the same, the
plaintiff has to place all his claims before the court in one suit as Order 2
Rule 2 is based on the cardinal principle that the defendant should not be
vexed twice for the same cause.
Chettiar v. Alagan Chettiar & Ors., A.I.R. 1931 P.C.228, it was laid down
that the plaintiff cannot be permitted to draw the defendant to court twice for
the same cause by splitting up the claim and suing, in the first instance, in
respect of a part of claim only.
the rule, therefore, requires is the unity of all claims based on the same
cause of action in one suit. It does not contemplate unity of distinct and
separate causes of action. If, therefore, the subsequent suit is based on a
different cause of action, the rule will not operate as a bar. [See Arun Lal
Gupta & Ors. v. Mriganka Mohan Sur & Ors.
A.I.R.1975 S.C.207; State of Madhya Pradesh
v. State of Maharashtra & Ors. : A.I.R. 1977 S.C.1466; Kewal Singh v. Mt.Lajwanti
: A.I.R. 1980 S.C. 161].
v. Rajashetty & Ors. : A.I.R. 1970 S.C.1059, it was laid down that if the
cause of action on the basis of which the previous suit was brought, does not
form the foundation of the subsequent suit and in the earlier suit the
plaintiff could not have claimed the relief which he sought in the subsequent
suit, the latter namely, the subsequent suit, will not be barred by the rule
contained in Order II Rule 2, CPC. In Gurbux Singh v. Bhura Lal (A.I.R. 1964
S.C.1810), it was observed:
order that a plea of a bar under 0.2 R.2(3). Civil Procedure Code should
succeed the defendant who raises the plea must make out (i) that the second
suit was in respect of the same cause of action as that on which the previous
suit was based;
in respect of that cause of action the plaintiff was entitled to more than one
being thus entitled to more than one relief the plaintiff, without leave
obtained from the Court, omitted to sue for the relief for which the second suit
had been filed.
this analysis, it would be seen that the defendant would have to establish
primarily and to start with, the precise cause of action upon which the
previous suit was filed, for unless there is identity between the cause of
action on which the earlier suit was filed and that on which the claim in the
later suit is based there would be no scope for the application of the
bar." In view of the above, what is to be seen in the instant case is
whether the cause of action on the basis of which the previous suit was filed,
is identical to the cause of action on which the subsequent suit giving rise to
the present appeal, was filed. If the identity of causes of action is
established, the rule would immediately become applicable and it will have to
be held that since the relief claimed in the subsequent suit was omitted to be
claimed in the earlier suit, without the leave of the court in which the
previous suit was originally filed, the subsequent suit for possession is
liable to be dismissed as the appellants, being the defendants in both the
suits, cannot be vaxed twice by two separate suits in respect of the same cause
have already noticed in the earlier part of the judgment that the previous suit
was filed for recovery of a sum of Rs.6300/- as sale-price of the land in suit
which was dismissed with the finding that the document on which the suit was
filed was not a sale deed but was a mere agreement for sale and, therefore, the
amount in question could not be recovered as sale-price. That document, thus,
constituted the basis of the suit.
subsequent suit was brought by the respondents for recovery of possession on
the ground that they were the owners of the land in suit and were consequently
entitled to recover its possession. The cause of action in the subsequent suit was,
therfore, entirely different. Since the previous suit was for recovery of
sale-price, the respondents could not possibly have claimed the relief of
possession on the basis of title as title in that suit had been pleaded by them
to have been transferred to the defendants [appellants]. The essential
requirement for the applicability of Order 2 Rule 2, namely, the identity of
causes of action in the previous suit and the subsequent suit was not
established. Consequently, the District Judge as also the High Court were
correct in rejecting the plea raised by the appellants with regard to Order 2
Rule 2 of the Civil Procedure Code.
counsel for the appellants next contended that the finding recorded by the
Trial Court in the previous suit on Issue No.5 that the appellants were the
tenants of the land in suit under the respondents since Samvat 2005 should be
treated to be still available to them and on that basis they can legally plead
that the suit of the respondents for possession of the land in suit was liable
to be dismissed.
contended that the finding on Issue No.5 was reversed by the lower appellate
court in an appeal which was ultimately decided in their favour and, therefore,
it was not possible for them to challenge the findings of the lower appellate
court in any higher forum for the simple reason that an appeal under Section
96, or, for that matter, under Section 100 of the Civil Procedure Code, lies
only against a decree and not against a finding. In this situation, it is
contended, the appellate judgment insofar as it relates to the finding on Issue
No.5, is liable to be ignored. It is pointed out that if this is done, the
original findings recorded by the Trial Court on the status of the appellants
that they are the tenants of the land under the respondents, would revive and
operate as res judicate against the respondents who cannot be granted the
relief of possession.
may, at the very outset, point out that in the subsequent suit, the appellants
in their capacity as defendants did not plead the rule of res judicata. As a
matter of fact, they did not in their written statement even refer to the
findings recorded by the Trial Court in the previous suit nor did they claim
that they were tenants of the land in suit under the respondents. Their main defence
was that they were in possession over the land in suit since Samvat 2005 and
had, therefore, acquired title by adverse possession. They also pleaded that
the suit was barred by time and was, in any case, not maintainable in view of
the provisions contained in Order 2 Rule 2 of the Civil Procedure Code. The
appellants, thus, raised an altogether new defence and did not plead that they
were tenants under the respondents. Consequently, an issue whether the
appellants were tenants of the land in dispute was not framed and, therefore,
there was no occasion to refer to the findings recorded in the previous suit.
of res judicata is contained in Section 11 of the Civil Procedure Code, Benefit
of all its Explanations, namely, Explanations I to VIII, Section 11 is quoted
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 and
such subsequent suit or the suit in which such issue has been subsequently
raised, and has been heard and finally decided by such Court." "Res judicata
Pro Veritate Accipitur" is the full maxim which has, over the years,
shrunk to mere "Res Judicata".
11 contains the rule of conclusiveness of the judgment which is based partly on
the maxim of Roman Jurisprudence "Interest reipublicae ut sit finis litium"
(it concerns the State that there be an end to law suits) and partly on the
maxim "Nemo debet bis vexari pro una at eadem causa" (no man should
be vexed twice over for the same cause). The section does not affect the
jurisdiction of the Court but operates as a bar to the trial of the suit or
issue, if the matter in the suit was directly and substantially in issue (and
finally decided) in the previous suit between the same parties litigating under
the same title in a court, competent to try the subsequent suit in which such
issue has been raised.
previous suit, which was instituted by the respondents, an issue, namely, Issue
No.5 was framed on the status of the appellant as to whether they were the
tenants of the land in suit under the respondents but in the subsequent suit
this issue was not raised as the appellant who were the defendants in the
subsequent suits did not plead that they were the tenants under the
respondents. What they pleaded was that they were in possession since a long
time namely from Samvat 2005 and had, therefore, acquired title by adverse
possession. Consequently, in the subsequent suits, the issue which was raised
and tried in the previous suit was not raised, framed or tried and no finding,
therefore, came to be recorded as to whether the defendants were tenants of the
land in suit. It is true that the instant suit which is the subsequent suit, is
between the same parties who had litigated in the previous suit and it is also
true that the subject matter of this suit, namely, the disputed land, is the
same as was involved in the previous suit but the issues and causes of action
were different. Consequently, the basic requirement for the applicability of
rule of res judicata is wanting and, therefore, in the absence of pleadings, in
the absence of issues and in the absence of any finding, it is not open to the
learned counsel for the appellants to invoke the rule of res judicata on the
ground that in the earlier suit it was found by trial court that the appellants
were the tenants of the land in dispute under the respondents.
now consider the plea regarding the effect of an adverse finding recorded by
the court against a party in whose favour the suit or the appeal is ultimately
provided in Section 96 of the C.P.C. that an appeal shall lie from every decree
passed by any court exercising original jurisdiction to the court authorised to
hear appeal from the decision of such court. So also, Section 100 provides that
an appeal shall lie to the High Court from every decree passed in appeal. Thus
sine qua non in both the provisions is the "decree" and unless the
decree is passed, an appeal would not lie under Section 96 nor would it lie
under Section 100 of the Civil Procedure Code.
an appeal lies against an "order" under Section 104 read with Order
43 Rule 1 of the Civil Procedure Code where the "orders" against
which appeal would lie have been enumerated. Unless there is an
"order" as defined in Section 2(14) and unless that "order"
falls within the list of "orders" indicated in Order 43, an appeal
would not lie.
an appeal does not lie against mere "findings" recorded by a court
unless the findings amount to a "decree" or "order". Where
a suit, is dismissed, the defendant against whom an adverse finding might have
come to be recorded on some issue, has no right of appeal and he cannot
question those findings before the appellate court. (See Ganga Bai v. Vinay
Kumar & Ors. : (1974) 3 S.C.R.882).
Zamindari Co. Ltd. v. Naresh Narayan Roy [A.I.R. 1922 P.C.241]. It was observed
Lordships do not consider this will be found an actual plea of res judicata,
for the defendants, having succeeded on the other plea had not occasion to go
further as to the finding against them: but it is the finding of a court which
was dealing with facts nearer of their ken than the facts are to the Board now,
and it certainly creates a paramount duty on the appellant to displace the
finding, a duty which they have now been able to perform." Similar view
was also expressed in an earlier decision in Run Bahadur Singh v. Luchokoer
[1885 ILR 11 CAL.301 (P.C.)].
The Oudh Chief Court in Pateshwar Din & Anr. v. Mahant
Sarjudas (A.I.R. 1938 Oudh 18) held that where a decree in previous suit is
wholly in favour of a person and gives him all the reliefs sought for by him,
he has no right of appeal against the decree so as to enable him to contest any
adverse finding against him in such suit. Hence, such adverse finding cannot
operate as res judicate as against him in a subsequent suit.
High Court of Andhra Pradesh in Bansi Lal Ratwa v. Laxminarayan & Anr. [1969
(2) Andhra Weekly Reporter] and the Full Bench of the High Court of Patna in Arjun Singh & Anr. v. Tara Das
Ghosh & Anr. [A.I.R. 1974 Patna 1] have
taken the view that an appeal would not lie against mere adverse finding unless
such finding would constitute res judicata in subsequent proceedings. We are,
however, not concerned with this aspect of the matter in the present case nor
are we concerned with the earlier aspect as the plea of res judicata having not
been raised in the written statement, the appellant cannot be permitted to
raise the plea here.
view of what we have held above, the points convassed before us are decided
against the appellants.
however, cannot overlook the fact that the appellants are in possession over
the land in suit for a considerably long time and the respondents themselves at
one stage had pleaded (in the previous suit filed by them) that the land had
already been sold to the appellants and that the appellants were liable to pay
the sale consideration of Rs. 6,300/- to them. It is strange that inspite of
the findings having been recorded by the trial court in their favour that they
were the tenants of the land in suit under the respondents, the appellants did
not raise that plea in the subsequent suit filed by the respondents for
recovery of possession. May be, because the finding was set aside by appellate
court. Why this was not done is not within our jurisdiction to enquire. All
that we can say is that the area of the land of the suit is 34.9 bighas and
interest of justice would be met if a compact area of 10 bighas is left with
the appellants and the decree for possession is made executable only in respect
of the remaining area namely an area of 24.9 bighas. The appellants shall be
treated as Protected Tenants in respect of ten bighas of land. The Tehsildar
concerned shall partition the land between the parties as directed by us. The
appellants shall surrender the area failing to the share of the respondents
within one months of the order of Tehsildar. The order of the Tehsildar shall
be final. The judgment of the courts below including that of the High Court shall
stand modified to that extent.
appeal is partly allowed to the extent indicated above but without any order as