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PETITIONER: DEVA RAM AND ANOTHER

       Vs.

RESPONDENT: ISHWAR CHAND AND ANOTHER

DATE OF JUDGMENT16/10/1995

BENCH: AHMAD SAGHIR S. (J) BENCH: AHMAD SAGHIR S. (J) KULDIP SINGH (J)

CITATION:  1996 AIR  378            1995 SCC  (6) 733  JT 1995 (7)   641        1995 SCALE  (6)18

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.SAGHIR AHMAD,J.      The  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certain relief but when their  application   seems  to   have  been   contested   by respondents [plaintiffs],  it was  withdrawn on  August  24, 1971.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.      The 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.      A number  of issues  were framed  in this  suit, one of which, namely, issue No.5, read as under:      "5.  Whether   the   defendant   is   in      possession of  the suit  land as  tenant      under the plaintiff since samvat 2005 as      alleged?"

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    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.      The 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.      The 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 possession.      This 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.      The 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.      The 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.      Learned 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

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been reversed.      We will deal with Order 2 Rule 2 of the Civil Procedure Code first. It provides as under:      "R.2. Suit to include the whole claim.           (1) 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 Court.      Relinquishment of part of claim.           (2) 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.      Omission  to  sue  for  one  of  several      reliefs.           (3) a  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.      In Palaniappa  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.      What 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].      In Sidramappa  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:      "In 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

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    suit was  based; (2)  that in respect of      that cause  of action  the plaintiff was      entitled to  more than  one relief;  (3)      that 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. From  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 of action.      We 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.      The 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.      Learned 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. It is  contended that the finding on Issue No.5 was reversed by  the  lower  appellate  court  in  an  appeal  which  was

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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.      We 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.      Rule 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 below:      "11. Res judicata.           No 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".      Section 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.      In the  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

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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.      Let us 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 decided.      It is  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. Similarly, 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.      Thus, 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).      In Midnapur  Zamindari Co.  Ltd. v.  Naresh Narayan Roy [A.I.R. 1922 P.C.241]. It was observed as under:      "Their 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

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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.      The 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.      In  view  of  what  we  have  held  above,  the  points convassed before us are decided against the appellants.      We,  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.      The appeal  is partly  allowed to  the extent indicated above but without any order as to costs.