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IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL  NO. 4227  OF 2003

Gangai  Vinayagar  Temple  &  Others

.... Appellants

Versus

Meenakashi Ammal & Others .... Respondents

O R D E R

In  view  of  divergence  of  opinion  in  terms  of  

detailed separate judgments, we direct that this matter may  

be placed before another Bench, to be nominated by Hon'ble  

The Chief Justice.  

.....................J.       (MARKANDEY KATJU)

.....................J.                (ASOK KUMAR GANGULY)

NEW DELHI; SEPTEMBER 03, 2009

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Reportable

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4227 OF 2003

Gangai Vinayagar Temple & others .. Appellant   (s)

-vs-

Meenakashi Ammal & others .. Respondent (s)

J  U  D  G  M  E  N  T

Markandey Katju, J.

1. This  appeal  by special  leave against  the  impugned judgment  and order  

dated  6.1.2003 of the High Court Madras passed in L.P.A. No. 17 of  1998.

2. Heard learned counsel for the parties and perused the record.

3. The  appellants  are  the  Trustees  of  Shri  Gangai  Vinayagar  Temple,  

Thirumudi Nagar,  Pondicherry.   They had executed a lease deed on 8.11.1967 in  

favour of one Kanniah Chettiar in respect of a plot of land on which the lessee was to  

erect a theatre.  The lease was for a period of 15 years commencing 1.1.1968.

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4. The original lessee died after constructing the theatre and his widow filed  

a suit being O.S 125 of 1976, which came to be later renumbered as Suit No. 5 of  

1978, impleading therein the temple as the first respondent and the members of the  

Trust Committee as respondent Nos. 2 to 6.  Three persons who were alleged to be  

those to  whom the site  on which the  theatre  stood was sought  to  be sold by the  

Trustees, were also impleaded as defendant Nos. 7 to 9.  The prayer made in Suit No.  

5 of 1978 was for an injunction restraining the defendants from interfering with the  

plaintiff's possession till the expiry of the period of lease.  

5. During pendency of the said suit (Suit No. 5 of 1978), the Trustees filed  

two suits being numbered as O.S. Nos. 6 of 1978 and 7 of 1978, claiming arrears of  

rent from the lessee.  All these three suits were tried together and a common judgment  

was delivered.  The trial court held that the lessee was entitled to retain possession of  

the property for the duration of the lease.  This finding was given in view of the  

statement made by the defendants in their written statement that they had no intention  

to interfere with the plaintiff's possession till the expiry of the lease.  Accordingly,  

Suit No. 5 of 1978 was dismissed.    

6. The Trustees in their additional written statement filed in O.S No. 5 of  

1978 had pleaded that the property was the personal property of the temple and the  

Trustees.  Taking note of this plea the trial court framed an issue being issue No. 2 in  

O.S. No. 5 of 1978 as follows:

Whether  the  suit  property  is   not  the  personal  property  of  Sethuraman Chettiar and whether the plaintiffs are not estopped  from questioning the  title  of the landlord or his vendors ?”  

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7. The lessee or the plaintiff did not question the title of the Trust at any point  

of time.  

8. In O.S. Nos. 6 of 1978 and 7 of 1978, the trial court framed  issue No. 3  

which was decided along with issue No. 2 in O.S. No. 5 of 1978.  In deciding issue  

No. 2, the trial court went into the question whether the temple was a public temple or  

a private temple, and whether permission from the statutory authorities was required  

for effecting the sale of the property to defendant Nos. 7 to 9.  Suit O.S. No. 6 of 1978  

was decreed in part while O.S. No. 7 of 1978 was dismissed.

9. The lessee filed an appeal against the decree in O.S. No. 6 of 1978.  No  

appeal was filed against the judgment in O.S. No. 5 of 1978.  The lessor also did not  

file any appeal against the dismissal of his suit, O.S. No. 7 of 1978.

10. The learned Single Judge of the High Court who heard the appeal against  

the  judgment  in  O.S.  No.  6  of  1978 rejected  the  objection  raised  by  the  learned  

counsel for the temple and its Trustees that the appeal was barred by the principle of  

res judicata.  That objection was on the ground that the finding recorded on issue No.  

2 in O.S. No. 5 of 1978 had become final as no appeal had been filed against the  

judgment in O.S. No. 5 of 1978.  

11. The learned Single Judge also held that the temple is a public temple and  

that the property belonging to the temple cannot be alienated without obtaining the  

requisite permission from the statutory authorities.  The learned Single Judge, thus,  

reversed the judgment of the trial court on issue No. 3 in O.S. No. 6 of 1978.       

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12. The appellant then filed an appeal before the learned Division Bench of the  

High Court against the judgment and order of the learned Single Judge which was  

also dismissed.  Hence, this appeal before us by way of special leave.

13. We have heard learned counsel for the parties at great length.  Shri Jaideep  

Gupta, learned senior counsel appearing for the appellant submitted that the finding in  

the judgment in O.S. No. 5 of 1978 had become res judicata because no appeal had  

been filed  against  the  judgment  in  the  aforesaid  suit.  On the  other  hand,  Shri  L.  

Nageshwar  Rao,  learned  senior  counsel,  assisted  by  Shri  G.  Masilamani,  learned  

senior counsel, submitted that the finding in O.S. No. 5 of 1978 had not become res  

judicata.   

14. I am not inclined to agree with the submission of the learned counsel for  

the appellant for the simple reason that the prayer in O.S. No. 5 of 1978 was only that  

the plaintiff/lessee should not be evicted by the defendants' landlord forcibly.  In their  

written statement in the aforesaid suit, the defendants (appellants before us) stated that  

they were not going to forcibly evict the plaintiff-lessee.  Once this statement was  

given in the written statement by the defendants in O.S. No. 5 of 1978, the aforesaid  

suit (O.S. No. 5 of 1978) should have been straightway dismissed, as the defendants  

had stated that they were not going to forcibly evict/dispossess the plaintiff.  It was  

wholly unnecessary for the trial  court  to go into any other question, including the  

question of title in O.S. No. 5 of 1978.

15. In this connection we may refer to Section 11 of the CPC which states :

“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

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parties under whom they or any of them claim, litigating under  the same tile, in a Court competent to try such subsequent suit  or the suit  in which such issue has been subsequently raised,  and has been heard and finally decided by such Court”.

16. The question sometimes arises as to the meaning of the expression “matter  

directly and substantially in issue”.  One of the tests to decide whether a matter is  

directly and substantially in issue or only collaterally and incidentally in issue, as laid  

down in  the  decision  of  this  Court  in  Sajjadanashin  Sayed (D) by  Lrs. vs.  Musa  

Dadabhai Ummer and others (2000) 3 SCC 350 (vide paragraph 18), is whether it was  

necessary to decide the said issue.

17. In the present case, it is obvious that once the defendants had conceded  

that  they  were  not  going  to  forcibly  evict  the  plaintiff-respondents,  then  the  suit  

should  have  been  straightway  dismissed  on  this  ground  alone,  and  it  was  not  

necessary for the trial court to have gone into any other issue, including the issue of  

title.

18. In  Tamil Nadu Wakf Board vs.  Larabsha Darga, Panruti (2007) 13 SCC  

416, the facts were that the plaintiffs claimed that the suit property was their private  

property and was not wakf property.  The High Court in the impugned judgment gave  

a finding that the suit property was wakf property and was not a private trust property.  

This Court held that the High court had no occasion to consider whether the property  

was private  wakf or  public  wakf.   This Court  held that  the  subsequent  suit  for a  

declaration that the property belongs to wakf-alal-aulad is not barred by the principle  

of res judicata.

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19. In my opinion, the trial court unnecessarily went into the question of title  

etc. when it should have straightway dismissed the suit being O.S. No. 5 of 1978 in  

view of the fact that the defendants had stated in their written statement that they  

were  not  going  to  forcibly  evicit  the  plaintiff,  but  would  only  take  action  in  

accordance with law.

20. For the foregoing reasons I find no merit in this appeal and the same is  

accordingly dismissed.  No costs.

…..............................................J. (Markandey Katju)

New Delhi; 03 September, 2009       

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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4227 OF 2003

Gangai Vinayagar Temple & Ors. ...Appellant(s)

Vs.

Meenakshi Ammal & Ors.        ...Respondent(s)

J U D G M E N   T   

GANGULY, J.

1. I have read the draft judgment prepared by my learned  

brother, Justice Markandey Katju in this appeal and  

which was sent to me on 14.8.2009. Unfortunately, I  

cannot agree with the draft judgment, rendered by His  

Lordship, dismissing the appeal.

2. I am of the view that the appeal should be allowed  

and the reasons for the said view are stated herein  

below.

3. This appeal has been filed on behalf of the temple by  

the trust committee and also by one of the trustees  

impugning the judgment and order of Madras High Court

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dated 6.1.2003 whereby the High Court dismissed the  

appeal filed by the present appellants, inter-alia,  

holding that there is no merit in the appeal.

4. The question involved in the appeal would appear from  

the discussion of the relevant facts in this case.

5. The property in question belonged to the appellants  

and was leased out to respondent Nos. 1 to 6 for a  

period of 15 years with effect from 8.11.1967 and  

which expired in 1983.

6. On or before 1.7.1976, the property in question was  

sold by the appellants to defendant Nos. 7, 8 and 9  

and to that effect a notice was given to the lessees  

on  14.10.1976  calling  upon  them  to  pay  the  

outstanding arrears of rent upto 1st July, 1976 to the  

appellants.

7. Thereupon, the lessees, the respondent Nos. 1 to 6  

filed a Suit which was ultimately numbered as OS 5 of  

1978, inter-alia, alleging that the appellants have  

illegally transferred the property to the defendant  

Nos. 7 to 9 who were seeking to interfere with the  

possession  of  the  respondents  and  as  such  an  

injunction was sought against such interference.

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8. The appellants also filed two Suits, namely, OS 6 and  

OS 7 of 1978 claiming the arrears of rent till the  

date of transfer of property to defendant Nos. 7 to 9  

i.e 1.7.1976 from the respondent Nos. 1 to 6.

9. All the Suits were heard together.

10. Of  these  three  Suits,  OS  5  of  1978  filed  by  the  

respondent Nos. 1 to 6 was dismissed and no appeal  

was filed therefrom. OS 7 of 1978 was also dismissed,  

no appeal was filed from it either.

11. OS 6 of 1978 was partially allowed and only against  

the judgment and decree in OS 6 of 1978, an appeal  

was filed by the respondents 1 to 6.

12. These facts are not disputed.

13. The questions which arise for consideration in this  

case  is  whether  the  Court  while  entertaining  an  

appeal  from  judgment  and  decree  in  Suit  ‘A’  can  

reverse a finding rendered in Suit ‘B’, especially,  

when no appeal was filed from the findings rendered  

in Suit ’B’?

14. As a necessary corollary to the aforesaid issue is  

whether  the  findings  reached  in  Suit  ‘B’,  being

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binding between the parties inter-se, can be modified  

in an appeal from Suit ‘A’ in view of the bar of Res-

Judicata.  

15. Arising  out  of  these  two  questions  is  a  third  

question of general importance about the importance  

of the principle of Res-judicata which is based on  

high principle of public policy in the administration  

of justice.  Whether such principles can be ignored  

by courts, inter-alia, on the ground that the finding  

reached  by  a  Court  of  competent  jurisdiction  in  

another Suit was unnecessary and whether this Court  

in exercise of its discretionary jurisdiction under  

Article 136 should step in to prevent an erosion of  

the doctrine of Res-judicata.

16. Before  answering  these  questions,  I  would  like  to  

examine the necessary pleadings, the issues framed  

and the findings in the Suits in question.

17. OS 5 of 1978   In  this  suit  the  plaint  has  been  filed  by  

respondent  Nos.  1  to  6  challenging  the  sale  of  the  

property by the appellants in favour of defendant Nos. 7  

to  9  and  while  challenging  the  same  the  following  

averments have been made:

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“…..They (the appellants herein)  have no right to sell the property as the  same is trust property belonging to the  1st defendant and such alienation would be  totally void being a breach of trust…..”

18. In paragraph 5 of the plaint, it  

is further averred as under:

“…The alienation in favour of the  defendants 7 to 9 being void,  they have  no title to the property…”

(Emphasis supplied)

19.Opposing the plaint, in the written statement which  

was filed by the present appellants it was stated that  

the suit is highly speculative in nature. It was also  

asserted that the sale made by the present appellants  

in favour of defendant Nos. 7 to 9 is valid in law and  

it was made clear that the plaintiff in the said suit  

(respondent  No.  1  to  6  herein)  have  no  right  to  

challenge the transfer of ownership by the landlord as  

they  admitted  the  title  of  the  defendants  (the  

appellants herein).

20.An additional written statement was filed in that suit  

by the appellants herein in which in paragraph (1) the  

following averments were made:

“1)  These  defendants  submit  that  the  plaintiff  is  estopped  from  either  questioning the title of these defendants

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with respect to suit schedule mentioned  property or about transfer of the suit  schedule mentioned property in favour of  defendants 7 to 9.”

(Emphasis  supplied)

21.In the written statement which was filed  in the said  

suit by the defendant Nos. 7 to 9, it was stated  that  

the plaintiffs (respondents 1 to 6) have no cause of  

action for filing the suit and it is also asserted  

that the alienation made in favour of defendant Nos. 7  

to 9 is legal and valid.

22.On the basis of those pleadings between the parties,  

several issues are framed. The relevant issue for our  

consideration and which was framed in OS 5 of 1978 is  

as follows:

“Whether  the  suit  property  is  not  the  personal property of Sethurama Chettier  and  whether  the  plaintiffs  are  not  estopped  from  questioning  the  title  of  the landlord or his vendors?”

OS 6 of 1978 23.The  relevant  issue  No.  3  in  OS  6  of  1978  is  as  

follows:

“Whether the suit property belongs to a  public temple governed by the Act? If so  whether  the  Suit  is  maintainable  for  want of sanction under Section 26 of the  Hindu Religious Institutions Act.”

OS 7 OF 1978 24.Similarly, Issue No. 3 in OS 7 of 1978 is as follows:

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“Whether the suit property belongs to a  public temple governed by the Act? If so  whether  the  Suit  is  maintainable  for  want of sanction under Section 26 of the  Hindu Religious Institution Act.”

25.As noted above, all the Suits were tried together and  

after trying all these issues, the learned trial Court  

reached the following finding:

“The suit property is therefore not a  public temple governed by the act and  since the property is found to be the  private property of Sethurama Chettiar,  sanction u/s. 26 of the Hindu Religious  Institutions  Act  is  therefore  not  necessary. The suit property being the  personal property of Sethurama Chettiar  and  the  same  having  been  sold  to  defendants  7  to  9,  the  latter  have  become the absolute owners of the suit  property and the plaintiffs in O.S. 5/78  are stopped from challenging the title  of  the  present  landlord  and  they  are  bound to attorn the tenancy.  They have  no right to question the title of the  landlord or his successors-in-title.”  

(Emphasis supplied)

26.After reaching the aforesaid findings in the operating  

portion of the judgment, the trial Court by its order  

dated 6.11.1982 held as under:

      “In the result, O.S. 5/78 is dismissed  with cost. O.S. 6/78 is decreed in part  with cost as per the calculation above.  Regarding O.S. 7/78, since the court has  held that the entire property is one,  there cannot be any lease amount for the

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rear  portion  and  it  dismissed  with  cost.”

27.Against the said judgment and decree, an appeal was  

filed by the lessees i.e respondent Nos. 1 to 6 herein  

only  against  the  decree  of  the  II  Addl.  District  

Court, Pondicherry dated 6.11.1982 in O.S. No. 6/78.  

This is clear from page 84 of the paper book.

28.In the said appeal before the learned Single Judge of  

the  Madras  High  Court,  the  present  appellants  were  

parties and they specifically raised the question that  

the  finding  of  title  in  favour  of  the  present  

appellants by trial Court cannot be disturbed by the  

High Court as it was not hearing any appeal from the  

judgment in O.S. 5 of 1978.

29.Ignoring that objection, the learned Single Judge of  

the High Court held there was no occasion or need for  

the learned trial Judge to frame the issue, namely,  

“whether  the  suit  property  is  not  the  personal  

property  of  Sethurama  Chettiar  and  whether  the  

plaintiffs are not estopped from questioning the title  

of the landlord or his vendors…..” The learned Single  

Judge of the High Court held that the finding given by  

learned  trial  judge  on  the  private  nature  of  the  

property and on title in favour of the appellant was

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wholly irrelevant and unnecessary.  In the concluding  

paragraph of a rather lengthy judgment, the learned  

Single Judge held as follows:

“In the result, the appeal succeeds and  stands allowed in part to the extent that  the findings of the learned trial Judge  given under issue No.2 in O.S. No.5 of  1978 and issue numbers 3 and 4 in O.S.  No.6 and 7 of 1978 alone are hereby set  aside  and  in  respect  of  the  relief  claimed and decreed in part in O.S. No.6  of 1978, the appeal fails and accordingly  it is dismissed partly.  Parties to bear  own costs”.

30.It will thus appear that even though appeal was only  

from the judgment and decree of trial Court in OS No.6  

of 1978, the learned Single Judge in appeal set aside  

findings reached in OS No.5 of 1978 and OS No.7 of  

1978.

31.Against the judgment of the Single Judge, an appeal  

was filed before the Division Bench of the High Court  

by the present appellants.

32.The Division Bench of the High Court also came to a  

finding that the issue No.2 in O.S. 5 of 1978 was  

wholly unnecessary and is not reflective of the pleas  

that had been taken by the parties and the findings on  

that  issue  cannot  be  regarded  as  constituting  the  

immediate foundation for the ultimate decision in the

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suit and therefore the bar of Res-judicata will not  

apply.

33.Hon’ble Justice Katju in the judgment prepared by His  

Lordship has accepted the said view of the High Court  

and  dismissed  the  appeal.   Unfortunately,  I  cannot  

concur with His Lordship.

34.Several questions fall for consideration in this case.

35. The first is one of the framing of issues. Issues can  

be of two kinds; issues of fact and issues of law vide  

Order XIV Rule 1 (1) (a) (b) of the Code of Civil  

Procedure (for short “the Code”).

36. Order XIV Rule 1(1) of the Code enjoins that issues  

arise when a material proposition of fact or law is  

affirmed  by  one  party  and  denied  by  the  other.  

Therefore, issue is a disputed question upon which the  

parties are at variance and it is the duty of the  

Court to ascertain that, vide Order XIV, Rule 1(5) of  

the  Code.   Therefore,  issues  are  those  disputed  

questions  on  which  the  parties  are  desirous  of  

obtaining  the  decision  of  the  Court  (Black’s  Law  

Dictionary 8th Edition, 831).

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37.In the instant case from the pleadings which have been  

discussed  above,  it  appears  that  in  the  plaint  an  

issue relating to title of the present appellant in  

respect  of  the  temple  property  was  raised  by  the  

lessees  i.e.  respondent  Nos.  1  to  6  herein  and  

consequently a dispute has also been raised about the  

character of the temple property and the lessees are  

claiming that the property is a public trust.

38.The appellants herein in their written statement and  

in the additional written statement controverted those  

contentions and specifically questioned the competence  

of the lessees (respondent Nos. 1 to 6) to raise any  

dispute as regards the title of the present appellant.  

39.Therefore, within the meaning of Order XIV Rule 1 of  

the Code, an issue has to be framed by the Court about  

(a) the title of the present appellants and also about  

(b) the nature and character of the temple property.  

Once such issues are framed, it is the duty of the  

Court to pronounce its judgment on those issues and  

the trial Court has done that and from which no appeal  

has been filed.

40.It has been held by the High Court and it has also  

been argued before us on behalf of respondents No.1 to

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6 that the bar of Res-judicata will not apply as the  

aforesaid  two  questions  were  not  ‘directly  and  

substantially in issue’ in OS 5 of 1978. Now, what is  

‘directly  and  substantially  in  issue’  has  not  been  

defined in Section 11 of the Code but it has been  

explained in Explanation III as follows:

“Explanation  III-  The  matter  above  referred to must in the former suit have  been  alleged  by  one  party  and  either  denied  or  admitted,  expressly  or  impliedly, by the other.”

41.Let us look at the provisions of Order XIV Rule 1(1),  

which is set out below:

“1.  Framing of issues: (1) Issues arise  when a material proposition of fact or  law  is  affirmed  by  the  one  party  and  denied by the other.”

42.On a comparison between the two provisions set out  

above, I discern a conceptual proximity between the  

two.  It is thus clear when an issue has been framed  

in a case by the Court and a finding has been reached  

on  the  same  issue,  the  said  finding,  in  view  of  

Explanation III to Section 11 of the said Code, is one  

which has been directly and substantially in issue in  

a former suit between the same parties.

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43. Hon’ble Mr. Justice Katju in support of His Lordship’s  

conclusion that those two questions are not directly  

and substantially in issue in this case relied on two  

judgments of this Court. The first decision on which  

reliance has been placed was rendered in the case of  

Sajjadanashin Sayed Md. B.E. Edr (D) by Lrs. Vs. Musa  Dadabhai Ummer and Ors. - 2000 (3) SCC 350.

44. In Sajjadanashin (supra) learned Judges considered the  distinction between something which is ‘directly and  

substantially  in  issue’  and  something  which  is  

‘collaterally and incidentally in issue’. In doing so,  

learned Judges relied on Mulla’s Civil Procedure Code  

and  various  other  treaties.  In  paragraph  18  of  

Sajjadanashin (supra), learned judges summarized the  principle  by  saying  “a  matter  in  respect  of  which  

relief is claimed in an earlier suit” can be said to  

be generally a matter “directly and substantially in  

issue but it does not mean that if the matter is one  

in respect of which no relief is sought it is not  

directly or substantially in issue. It may or may not  

be”. (Para 18, Page 359 of the report).

45.Therefore, it is clear that Mulla has not given any  

definite opinion and made it clear that answer to such  

a question depends on “the facts of each case”.  The  

test is to find out whether the issue was “necessary”

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to  be  decided  for  adjudicating  on  the  principal  

question and was decided.

46.In the instant case in the plaint, the respondents 1  

to 6 directly challenged the right of the trustees to  

alienate their property inasmuch as they have averred  

that  the  property  is  a  public  trust  and  cannot  be  

alienated without sanction under Section 26 of the Act  

and alienation which has been made by the trustees in  

favour of defendant Nos. 7 to 9 is void as they have  

no title.  This is the clear case in the plaint.

47.Therefore, unless a decision on this aspect and the  

title  of  the  trustees  is  rendered,  the  further  

decision, namely, the dismissal of the suit cannot be  

reached. It may be a suit for injunction for an order  

restraining the defendant Nos. 7 to 9 to interfere  

with the possession of the lessees but nonetheless the  

question  of  title  of  the  trustees  was  prominently  

raised and the pleadings to that effect have already  

been referred to above.

48.As  a  legal  proposition,  it  is  well  settled  that  a  

question  of  title  may  arise  even  in  a  suit  for  

injunction relating to possession. In this connection

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reference may be made to the decisions of this Court  

in the following cases:

1. Sajjadanashin Sayed Md. B.E. Edr(D) by Lrs.    Vs. Musa Dadabhai Ummer and Ors. – (2000) 3  SCC 350.

2. Annaimuthu  Thevar  (dead)  by  Lrs  .  Vs.  Alagammal and others - (2005) 6 SCC 202.

3. Swamy  Atmananda  and  others   Vs.  Sri  Ramakrishna Tapovanam and others - (2005) 10  SCC 51.

4. Williams   Vs.  Lourdusamy and another -(2008)  5 SCC 647

49.It may be true in the instant case the trustees have  

taken a stand before the Court that the possession of  

the lessees will not be interfered during the tenure  

of the lease and save and except in accordance with  

law. But that does not mean that the question of title  

of the trustees which has been raised and decided is  

not a matter which is directly or substantially in  

issue.

50.In order to give a pronouncement for dismissal of OS 5  

of 1978, it was very crucial for the Court to come to  

a finding that defendant Nos. 7 to 9 in the suit were  

landlords having validly purchased the said property  

from the trustees of the temple, as it was alleged in  

the  plaint  that  the  trustees  of  the  temple  have

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unlawfully transferred the property to the defendant  

Nos. 7 to 9.

51.The trustees – appellants herein, can validly transfer  

the temple property in favour of defendant Nos. 7 to 9  

only if they have title to the property and only if  

defendant Nos. 7 to 9 have acquired the valid title to  

the  property,  they  can  initiate  steps  for  

dispossession of the lessees i.e. respondent Nos. 1 to  

6 herein.

52.Therefore,  the  question  whether  the  appellants  had  

title to the property and can effect a valid transfer  

of the property in favour of defendant Nos. 7 to 9 is  

inextricably connected with the ultimate decision of  

dismissal of the suit.

53. It  has  been  held  by  this  Court  in  Vithal  Yeshwant  Jathar Vs.  Shikandarkhan Makhtumkhan Sardesai - 1963  (2) SCR 285 at page 290:

“...It is well settled that if the final  decision in any matter at issue between  the parties is based by a Court on its  decisions on more than one point – each  of which by itself would be sufficient  for the ultimate decision – the decision  on each of these points operates as res  judicate between the parties”.

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54. The said decision has further been relied on by this  

Court in  Commissioner of Endowments and others   Vs.  Vittal Rao and others – (2005) 4 SCC 120.

55. In  Sajjadanashin  (supra)  this  Court  held  whether  a  question is directly and substantially in issue has to  

be decided on examination of the plaint, the written  

statements.

56.Going  by  this  test,  I  am  of  the  opinion  that  the  

question of title of the appellant and the nature of  

the trust property is directly and substantially in  

issue.  The lessees – respondent Nos. 1 to 6 herein  

invited a finding on these issues.  Having done so,  

they cannot wriggle out of the same just because the  

finding had gone against them in the judgment and more  

so  when  they  did  not  file  any  appeal  against  such  

finding. The said finding can only be reversed by a  

competent court only in a manner known to law.

57. So the decision of this Court in Sajjadanashin (supra)  does not support the case of the lessees – respondent  

No. 1 to 6 in this case.

58. The decision in the case of Tamil Nadu Wakf Board Vs.  Larabsha Darga, Panruti – (2007) 13 SCC 416, does not  show throw any light on the controversy in this case.  

In Tamil Nadu Wakf Board (supra) it has been held in

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paragraph 11 at page 421 of the report that in the  

earlier Second Appeal, the High Court had no occasion  

to consider whether it was a private wakf or a public  

wakf.  The plaintiff’s claim in this suit was that the  

suit property was a private property and not a private  

wakf  property.   On  these  claims,  the  High  Court  

rendered its finding in the Second Appeal that the  

suit property was a wakf property and is not a private  

trust property.  The learned Judges expressed their  

agreement with the conclusion of the High Court in the  

said  Second  Appeal  and  held  that  the  same  has  no  

bearing on the issue in the latter proceeding.

59. In the said judgment there is no discussion about the  

principle of Res-judicata.  Head Note ‘B’ of the said  

judgment refers to Section 11 of the Civil Procedure  

Code on Res-judicata, but in the said judgment there  

is  no  discussion  on  the  concept  of  Res-judicata.  

Therefore, in  Tamil Nadu Wakf Board (supra) no point  on law was decided.  It was a decision on the facts of  

that case.  Therefore, the said decision has hardly  

any relevance to decide the controversy in this case.

60.So the bar of Res-judicata under Section 11 of the  

Code is attracted.

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61. Res-judicata  is  an  ancient  doctrine  of  universal  

application and permeates every civilized system of  

jurisprudence.  This doctrine encapsulates the basic  

principles in all judicial systems which provide that  

an  earlier  adjudication  is  conclusive  on  the  same  

subject  matter  between  the  same  parties.   The  

principles of Res-judicata reflect ‘a wisdom that is  

for  all  time’.   [See  Sheoparson  Singh  &  Ors. Vs.  Ramnandan Prasad Narayan Singh & Ors. - 43 I.A. 91,  pg. 98]. In this judgment the Privy Council traced the  

principle of Res-judicata from the Old Hindu Text of  

Katyayana.  Res-judicata was also expounded in Greek  

custom and also by the Roman jurists.  Reference may  

be made to Peter Barnett’s treatise on ‘Res Judicata,  

Estoppel,  and  foreign  Judgments’  Oxford  University  

Press.  In footnote 13 at page 8, the learned author  

has  referred  to  Digest  Book  50  Chapter  17,  which  

quotes  the  maxims  :  res  judicata  pro  verifate  

accipitur  (a  thing  adjudicated  is  received  as  the  

truth);  Justinian,  Institutes  IV  13.5:  ‘si  judicio  

tecum  actum  fuerit  sive  in  rem  sive  in  personam,  

nihilominus  ob  id  actio  durat,  et  ideo  ipso  jure  

posteo de eadem re adversus te agi potest: sed debes  

per  exceptionem  adjurari’:  if  a  defendant  omits,  

either  intentionally  or  negligently,  to  raise  a  

question  of  res  judicata  by  an  exceptio,  no  such  

question will be submitted whereas, if such a question

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is properly raised, it must be considered whether the  

issue  has  been  rendered  res  judicata  pro  veritate  

accipitur.].

(Emphasis  

supplied)

62. English Common Law which is influenced by Roman Law  

also shares the same concept and it has been held by  

Justice Willes in Nelson Vs. Couch - (1863) 15 CB (NS)  99, at 108 that ‘Res-judicata is entirely consistent  

with the rule of the Civil Law’.

63.Paul  A.  McDermott  in  his  famous  treaties  on  Res-

judicata and Double Jeopardy referring to the concept  

of Res-judicata held:

“Such  an  idea  is  not  only  a  fundamental principle of the common law  but is also to be found in Roman law,  Hindu  law,  African  tribal  law,  Native  American Indian law, Canon law and many  modern  civil  codes.   Such  apparently  universal acceptance of the need for a  rule of this kind has led one English  judge  to  eulogise  it  in  the  following  terms:

“the rule of res judicata, while  founded on ancient precedent, was  dictated  by  a  wisdom  which  was  for all time.”    

64.In  the  words  of  Coke,  Res-judicata  stands  for  the  

“inviolable sanctity of the record” which was of “so

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high  and  conclusive  a  nature  as  to  admit  of  no  

contradiction thereof”.  It has been said as nature  

abhors  a  vacuum,  so  “the  common  law…  abhors  

infiniteness”. [See page 19 of Paul A. McDermott – Res  

Judicata and Double Jeopardy].

65.In the recently published Woolf Report in England on  

Access to Justice, the importance of this doctrine has  

been  underlined,  especially  having  regard  to  the  

public  interest  content  in  this  doctrine,  namely  

finality in litigation.

66.Thus, the doctrine of Res-judicata is founded on three  

principles which are non-negotiable in any civilized  

version of jurisprudence.  They are:

1. nemo debet bis vexari pro una et  eadem causa: no man should be vexed twice  for the same cause;

2. interest republicae ut sit finis  litium:  it  is  in  the  interest  of  the  State that there should be an end to a  litigation; and  

3. res  judicata  pro  veritate  occipitur:  a  judicial  decision  must  be  accepted as correct, if I may add, in the  absence of a challenge.

(See:  Code  of  Civil  Procedure  Vol.  I,  Justice C.K. Thakker, Page 119)

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67.In  Corpus  Juris  (Vol.  34  p.  743)  explaining  the  

importance of this doctrine, the following principles  

have been laid down:

“Res  judicata  is  a  rule  of  universal  law  pervading  every  well-  regulated system of jurisprudence, and is  put upon two grounds, embodied in various  maxims of the common law; the one, public  policy and necessity, which makes it to  the  interest  of  the  State  that  there  should  be  an  end  to  litigation;  the  other,  the  hardship  to  the  individual  that he should be vexed twice for the  same cause.”

68. These  very  principles  have  been  accepted  by  a  

Constitution Bench of this Court in Daryao & Ors. V.  State of U.P. & Ors. – AIR 1961 SC 1457 (1462).  

69. In Daryao (supra), it has also been held that Section  11 of the said Court is not exhaustive of the said  

principle of Res-judicata. And this was pointed long  

ago in Hook Vs. Administrator General of Bengal & Ors.  – 1920-21 (48) I.A. 187 at page 194 of the report.

70.Therefore,  the  importance  of  the  doctrine  of  Res-

judicata can hardly be over emphasized.

71. The question whether finding reached by a Court of  

competent jurisdiction in a previous suit between the  

same  parties  should  operate  as  Res-judicata  or  not

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does  not  depend  on  the  reasons  on  which  the  said  

finding is based. In this connection I may refer to  

the observations of Chief Justice Rankin in a full  

Bench decision of the Calcutta High Court in the case  

of Tarini Charan Vs. Kedar Nath - AIR 1928 Cal. 777.  The Chief Justice held as under:

“ ..the question whether  the decision is  correct or erroneous has no bearing upon  the question whether it operates or does  not operate as res-judicata”

72. The learned Chief Justice further held as under:

“...To  say,  as  a  result  of  such  disorderly procedure, that the previous  decision was wrong on a point of law, and  that therefore it may be disregarded, is  an indefensible form of reasoning.”

73.If the Court reaching the finding has the jurisdiction  

to do so, such a finding, in the absence of an appeal,  

cannot  be  diluted  merely  on  the  ground  that  the  

reasoning is weak or that the finding is unnecessary,  

even though it was on a question which was directly  

and substantially in issue between the parties.   

74.An action at law cannot be equated with a game of  

chess where the players can change and choose their  

stand according to their convenience. Some sanctity  

has to be attached to a finding which has been reached

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by a Court on the basis of the pleadings between the  

parties and if such a finding has been invited at the  

instance of a party, that party must be held to be  

bound by such finding unless an appeal is carried by  

the aggrieved party against such a finding.

75. In  a  three  Judge  Bench  decision  in  Premier  Tyres  Limited Vs. Kerala State Road Transport Corporation -  1993 Supp (2) SCC 146, this Court held that where two  

suits connected were tried together and a finding has  

been reached in one suit, such a finding becomes final  

in the absence of any appeal. In paragraph 4 of the  

report,  the  learned  Judges  have  laid  down  the  

following proposition, which I quote:

“...The question is what happens where no  appeal is filed, as in this case from the  decree in connected suit. Effect of non- filing of appeal against a judgment or  decree  is  that  it  becomes  final.  This  finality  can  be  taken  away  only  in  accordance  with  law.  Same  consequences  follow when a judgment or decree in a  connected suit is not appealed from”.

76. The learned judges in coming to the said conclusion  

relied on the principles laid down by a Constitution  

Bench in its decision in the case of  Badri Narayan  Singh Vs. Kamdeo Prasad Singh and another - AIR 1962  SC 338.

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77.Those principles apply on all fours in the present  

case.

78.Therefore, I am of the opinion that neither the Single  

Bench of the Madras High Court nor the Division Bench  

of the same High Court took a correct view in holding  

that the finding reached in OS 5 of 1978 or OS 7 of  

1978 can be modified in the absence of any appeal from  

the aforesaid finding.

79.The following finding which has been reached by the  

learned trial Judge and is set out below stands and  

binds the parties:   

“The  suit  property  is  therefore not  a  public  temple  governed  by  the  act  and  since the property is found to be the  private property of Sethurama Chettiar,  sanction u/s. 26 of the Hindu Religious  Institutions  Act  is  therefore  not  necessary.  The  suit  property  being  the  personal property of Sethurama Chettiar  and  the  same  having  been  sold  to  defendants 7 to 9, the latter have become  the absolute owners of the suit property  and  the  plaintiffs  in  O.S.  5/78  are  stopped from challenging the title of the  present landlord and they are bound to  attorn the tenancy. They have no right to  question the title of the landlord or his  successors-in-title.”  

 (Emphasis  supplied)

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80.The  aforesaid  finding  cannot  be  diluted  or  watered  

down in the manner in which has been done by the High  

Court.

81.The appeal is, therefore, allowed. There shall be no  

order as to costs.

.......................J. New Delhi (ASOK KUMAR GANGULY) September 3, 2009