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CASE NO.: Appeal (civil)  5689 of 2000

PETITIONER: Brij Narain Singh

RESPONDENT: Adya Prasad (dead) & Ors

DATE OF JUDGMENT: 18/02/2008

BENCH: Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

CIVIL APPEAL NO. 5689 OF 2000   

Dr. ARIJIT PASAYAT, J.  

1.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Allahabad High Court allowing the  writ petition filed by the respondents. The writ petitioners had  questioned order dated 24.2.1973 passed by the Assistant  Settlement Officer, Consolidation, Jaunpur and the order  dated 28.2.1978 passed by the Deputy Director, Consolidation  Jaunpur who were the respondents 1 and 2 in the writ  petition.     2.      The factual position needs to be noted in brief as  essentially the pivotal question relates to the applicability of  the principle of res judicata.

2.1 One Gajadhar owned several lands situate in the villages  of Kurthuwa, Meerapur Siroman, Manapur and Ghuskhuri, as  fixed rate tenant, including the suit lands. The fixed rate  tenancy of the lands in those villages was mortgaged by  Gajadhar. Gajadhar died leaving behind him his widow Sirtaji,  who through registered sale deed dated 8.6.1885 sold her right  of redemption in regard to those lands to her relative Mata  Badal.

2.2. On the death of Mata Badal, his wife Sheorani, sold the  right of redemption in regard to some of the lands to third  parties. After the death of Sheorani, the nephews of Mata  Badal, namely Muneshwar, Bindeshwari and Bal Karan, sold  the right of redemption in respect of the suit properties in  Kurthuwa in favour of Bhagwan Din Singh (grandfather of  appellant) under registered sale deed dated 19.6.1911. It  would appear that after the purchase of equity of redemption,  the said Bhagwan Din Singh cleared mortgage and was in  possession of the suit lands. Bhagwan Din Singh died leaving  him surviving his son Bhagwati Din Singh (father of appellant  - respondent no. 3 in the writ petition from which this appeal  arises). 2.3. Sirtaji who executed the sale deed on 8.6.1885 in favour  of Mata Badal died in the year 1940. On her death, Ganga  Prasad and Bhagwati Din (ancestors of Respondents 1 to 6  herein) filed four suits 97 to 100 for partition before the SDC,  Machhli Shahar, Jaunpur, claiming that Gajadhar died  issueless, that his wife Sirtaji had inherited only a life interest  in the lands of her husband Gajadhar in the four villages, and  that on her death, the lands of Gajadhar devolved on the near

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relatives of Gajadhar, namely plaintiffs 1 and 2 and  Defendants 1 and 2 in the four suits, who were reversioners in  regard to estate of Gajadhar. Suits 97, 98, 99 and 100  respectively related to the lands in the villages of Meerapur  Siroman, Kurthuwa, Ghuskhuri and Manapur. Bhagwati Din  Singh (father of Appellant) was impleaded as Defendant No.3  in suit no.98, as his father, Bhagwan Din Singh had  purchased the right of redemption in respect of the Kurthuwa  lands.  2.4. The following genealogical tree accepted in the earlier  proceedings, traces Gajadhar’s relationship with the plaintiffs  (Ganga Prasad and Bhagwati Din Singh) and defendants 1 and  2 (Raj Narain and Chandra Bali), in the four suits as also with  Mata Badal:

Sheo Upadhyay | | _____________________________________________________________________________ |                                                                                                                 | |                                                                                | Meharban                                                                              Palai         |                                        | _____________________________________________________________________ |                                                                            | |                                                                            | Baijnath                                                                     Jagannath     |                                                                        |       |                                                                                                                                 | ____________________________________________                            Jaipal |                       |                          |                                 |                                                                              |   |                       |                          |                               Sarjoo Pr asad             Deep Narain              Kanhai         Mata Badal                           |     |                                   Smt. Sheorani                        |             |                                                                        |     ________________________________________                        ____________________________ ___              |                                              |                        |                            | |                                              |                        |                            | Muneshar                               Bindesari Balkaran       Ganga Prasad                        Bhagwati Deen                                                |                        P3                                    P1                                                |                         _______________________________                         |                                    |                         |                                    |                        Chandrabali                          Rajnarain                         D2                               D1      

2.5. The four suits were decreed by Sri Ishwar Sahai, SDC  Machhali Shahar, Jounpur, by a common judgment dated  20.3.1944. He held that the sale by Sirtaji under deed dated  8.6.1885 was not for legal necessity. Bhagwati Din Singh  challenged the judgment in Suit No.98. The first appellate  court (Additional Commissioner, Varanasi) dismissed the  appeal (Appeal No.4/327) filed by Bhagwati Din Singh on

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2.1.1945 on the ground of delay. No further appeal was filed  and the decision in Suit No.98 attained finality insofar as  Kurthuwa lands claimed by Bhagwati Din Singh. After  dismissal of the appeal on 2.1.1945, on an application by the  plaintiffs in Suit No.98, a final decree was passed on 3.4.1945  and possession was taken by plaintiffs in terms of the decree. 2.6. Two other appeals filed by the purchasers of lands at  Ghuskhuri and Manapur villages, against the common  judgment dated 20.3.1944 in Suit Nos. 99 and 1000 travelled  up to Board of Revenue and were remanded to the first  appellate court. The said two appeals arising out of suit nos.99  and 100 were heard by Additional Commissioner, Varanasi  Division. He held that the sale deed dated 8.6.1885 executed  by Smt. Sirtaji in favour of Mata Badal was for legal necessity,  that Mata Badal got valid title, and that the sale deeds  executed by Sheorani and others as legal heirs of Mata Badal  were valid. He, therefore, dismissed the two suits (Suit Nos. 99  and 100). That decision was upheld by the Board of Revenue  on 26.12.1967 and judgment which ended in dismissal of suit  Nos. 99 and 100 also attained finality. 3.  The resultant position was that there was two diverse  decisions in regard to the same sale deed dated 8.6.1885. The  first in regard to Kurthuwa village lands in Suit No.98  (purchased by Bhagwan Din Singh) where it was held that the  sale by Sirtaji in favour of Mata Badal on 8.6.1885 was not for  legal necessity, that Mata Badal, a relative of her late husband  by taking undue advantage of her young age had obtained the  said sale deed from Sirtaji, and therefore, on her death, the  reversioners of her husband’s estate namely plaintiffs 1 & 2  (Bhagwan Din Singh and Ganga Prasad) and defendants 1 & 2  (Raj Narain and Chandar Bata) were entitled to the lands.  Consequently, sales by persons claiming through Mata Badal  did not have any title after the death of Sirtaji in the year  1940. On the other hand, the second decision, relating to  Ghuskhuri and Manapur villages, in suit nos. 99 and 100, it  was held that the sale by Sirtaji under deed dated 8.6.1885 in  favour of Mata Badal was for legal necessity and therefore,  Mata Badal got valid title and consequently, the sale deeds  executed by persons claiming through Mata Badal were valid,  and the suits filed by persons claiming to be reversioners in  respect of the estate of Gajadhar did not have any right, title  or interests in the lands sold by Sirtaji. 4.      When matters stood thus, in the consolidation  proceedings, the Bhagwati Din Singh (son of Bhagwan Din  Singh and father of appellant) filed an objection under section  9 of UP Consolidation of Holdings Act, 1954 (in short ’Act’)  contending that the finding recorded by the court in Suit  Nos.97 to 100 under section 49 of the UP Tenancy Act, 1939  (in short ’Tenancy Act’) that the sale deed dated 8.6.1885 by  Smt. Sirtaji was not for legal necessity was the subject matter  of appeals before the Addl. Commissioner, Varanasi on  5.9.1966 in Appeal no.231/22 and Appeal no.232/23 who  held that the sale deed dated 8.6.1885 executed by Smt.  Sirtaji in favour of Mata Badal was for discharging the debts  incurred by Gajadhar, and therefore, was for legal necessity.  He contended that judgment dated 20.3.1944 in suit no.98 to  the effect that the sale was not for legal necessity should be  deemed to have been set aside or superseded by the  subsequent appellate judgment in the appeals arising from the  suit nos. 99 and 100 which involved an identical issue and  that the decision dated 5.9.1966 would operate as res judicata,  in any subsequent proceedings relating to the lands which  were the subject matter of Suit No.98 even though the decision  dated 5.9.1966 did not relate to Suit No.98. 5.      The Consolidation Officer held that the order dated

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5.9.1966 was in respect of other village; and was not  concerned with the property in question. He ordered for  expunging the name of Bhagwati Din Singh (the original  respondent no.3) from basic year entry.  Bhagwati Din Singh  filed an appeal before the Settlement Officer (Consolidation)  who allowed the appeal and held that though the writ  petitioners had taken possession on the basis of decree dated  21.6.1945 arising out of Suit No.98, but appeals were filed  relating to arising out of Suit Nos.99 and 100 against the  judgment dated 20.3.1944 and in those appeals the Additional  Commissioner had decided against the writ petitioners on  5.9.1966 and the judgment passed by the trial Court on  20.3.1944 against Bhagwati Din Singh in suit No. 98 shall be  deemed to have been set aside and the judgment dated  5.9.1966 passed by the Commissioner shall be deemed to be  final. It was held that since the order dated 20.3.1944 was a  common judgment, therefore, it shall be deemed to have been  set aside in all the suits. He further  held that though the  possession was delivered on the basis of the order dated  21.6.1945 to the writ petitioners, after the decision dated  5.9.1966, Bhagwati Din Singh had the right to get possession  under Section 144 of the Code of Civil Procedure, 1908 (in  short ’CPC’).  But since the possession is joint, therefore,  possession shall not be deemed to have come to an end.  A  revision petition was filed by the writ petitioners against the  judgment before the Deputy Director of Consolidation, who  dismissed the same affirming the findings of the Settlement  Officer by order dated 28.2.1978.   

6.      Before the High Court the stand of the present appellant  further was that what was necessary to be determined was the  effect of the judgment dated 5.9.1966.  It was pointed out that  since the appeal filed by the writ petitioners (respondents  herein) has been dismissed, holding that the sale deed dated  8.6.1885 was valid, they were not entitled to the benefit of the  judgment dated 20.3.1944.  

7.      Stand of the present appellant was that when the trial  Court’s  common judgment dated 20.3.1944 that the sale was  not for legal necessity, was set aside by the judgment of  appellate authority dated 5.9.1966 in the other appeals arising  from Suit Nos. 99 and 100, it would have binding effect on the  parties in O.S.No.98 also.  The High Court was of the view that  the sole controversy was as to whether judgment dated  20.3.1944 affirmed by the appellate Court in the appeal in  1945  relating to Suit No.98 in the case of appellant’s  predecessor will operate as res judicata between the writ  petitioners and Bhagwati Din Singh or the judgment which  was delivered on 5.9.1966 in the appeals arising from Suit  Nos.99 and 100 will have the effect of res judicata and the  judgment dated 20.3.1944 shall be deemed to have been set  aside. The High Court considered the effect of the principles of  res judicata and held that the judgment dated 5.9.1966 will  not operate as res judicata between the writ petitioners and  Bhagwati Din Singh (respondent no.3) as that judgment was  not between the same parties. Therefore, it was held that the  order of the Consolidation Officer was correct and the orders of  the Settlement Officer and the Deputy Director Consolidation  were not legally sustainable. The writ petition was accordingly  allowed.           

8.      In support of the appeal, learned counsel for the  appellant submitted that the judgment dated 5.9.1966 in the  two connected appeals was in respect of a common judgment  dated 20.3.1944. It was held that the sale was for legal

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necessity and that will have effect notwithstanding the fact  that the appeal filed by the appellant was dismissed. He  placed strong reliance on a decision of this Court in Narhari  and Ors. V. Shanker and Ors.  (AIR 1953 SC 419).  

9.      On the other hand, learned counsel for the respondents  submitted that the appeal filed by the appellant was dismissed  and there was no further challenge.  In the circumstances, the  benefit of the findings recorded in the other appeals cannot be  extended to the appellant.    10.     The submission needs careful consideration. At the  threshold it must be stated that the decision in Narhari’s case  (supra) is clearly distinguishable.  The relevant portion of the  judgment in question relied on by the appellant reads as  follows: "4.     In the judgment of the High Court,  though reference is given to some of these  decisions, it is merely mentioned that the  appellant relies on these decisions. The  learned Judges perhaps thought that in the  presence of the Hyderabad Judicial Committee  decision in Jethmal v. Ranglal  they need not  comment on these decisions at all. There is  also a later decision of the Judicial Committee  of the State in Bansilal v. Mohanlal where the  well known and exhaustive authority of the  Lahore High Court in Mst Lachmi v. Mst Bhuli   was followed. In the Lahore case, there were  two cross suits about the same subject-matter,  filed simultaneously between the same parties,  whereas in the present case, there was only  one suit and one judgment was given by the  trial court and even in the first appeal to the  Sadar Adalat, there was only one judgment, in  spite of there being two appeals by the two sets  of defendants. The plaintiffs in their appeal to  the High Court have impleaded all the  defendants as respondents and their prayer  covers both the appeals and they have paid  consolidated court-fee for the whole suit. It is  now well settled that where there has been one  trial, one finding, and one decision, there need  not be two appeals even though two decrees  may have been drawn up. As has been  observed by Tek Chand, J. in his learned  judgment in Mst Lachmi v. Mst Bhuli   mentioned above, the determining factor is not  the decree but the matter in controversy. As he  puts it later in his judgment, the estoppel is  not created by the decree but it can only be  created by the judgment. The question of res  judicata arises only when there are two suits.  Even when there are two suits, it has been  held that a decision given simultaneously  cannot be a decision in the former suit. When  there is only one suit, the question of res  judicata does not arise at all and in the  present case, both the decrees are in the same  case and based on the same judgment, and the  matter decided concerns the entire suit. As  such, there is no question of the application of  the principle of res judicata. The same  judgment cannot remain effective just because  it was appealed against with a different

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number or a copy of it was attached to a  different appeal. The two decrees in substance  are one. Besides, the High Court was wrong in  not giving to the appellants the benefit of  Section 5 of the Limitation Act because there  was conflict of decisions regarding this  question not only in the High Court of the  State but also among the different High Courts  in India."   11.    Res Judicata is a principle of judicial administration and  is based on the common law maxim of public policy aiming at  finality of litigation and preventing a litigant from being tried  twice over on the same issue. 12.      The Privy Council in a series of  judgments explained  this doctrine. In Kalipada De v. Dwijapada Das reported in 57  IA 24, the Privy Council held:

"The question as to what is to be considered to  be res judicata is dealt with by Section 11 of  the Code of Civil Procedure, 1908. In that  Section are given many examples of  circumstances in which the rule concerning  res judicata applies; but it has often been  explained by this Board that the terms of  Section 11 are not be regarded as exhaustive."

13.     In Kalipada’s case (supra), Lord Justice Darling, speaking  for the Bench, quoted with approval the observations of Sir  Lowrence Jenkins on Res Judicata in Sheoparsan Singh and  Ors. v. Ramnandan Singh reported in 43 LA. 91. Those  observations are oft quoted and read as follows:

"..their Lordships desire to emphasise that the  rule of res-judicata, while-founded on ancient  precedent, is dictated by a wisdom which is for  all time. ’It hath been well said,’ declared Lord  Coke, ’interest reipublicae ut sit finis litium- otherwise, great oppression might be done  under colour and pretence of law’ (6 Coke, 9a).  Though the rule of the Code may be traced to  an English source, it embodies a doctrine in no  way opposed to the spirit of the law as  expounded by the Hindu commentators.  Vijnanesvara and Nilakantha include the plea  of a former Judgment among those allowed by  law, each citing for this purpose the text of  Katyayana, who describes the plea thus: ’If a  person, though defeated at law, sue again, he  should be answered, "You were defeated  formerly." This is called the plea of former  Judgment. (See the Mitakshara (Vyavaharaj,  bk. II., ch. I., edited by J.R. Gharpure, p.14,  and the Mayuka, ch.l., s.l, p.11, of Mandlik’s  edition.) And so the application of the rule by  the Courts in India should be influenced by no  technical considerations of form, but by matter  of substance within the limits allowed by law."

14.     This statement of law in Sheoparsan’s case  (supra) has  been approved by this Court in the case of Iftikhar Ahmed and  Ors. v. Syed Meharban All and Ors. (1974 (2) SCC 151)

15.     This Court in Lal Chand v. Radha Kishan (1977 (2) SCC  88) also held:

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The principle of Res Judicata is conceived in  the larger public interest which requires that  all litigation must, sooner than later, come to  an end. The principle is also founded on  equity, justice and good conscience which  require that a party which has once succeeded  on an issue should not be permitted to be  harassed by a multiplicity of proceedings  involving determination of the same issue.

16.     Apart from following those principles, this Court in order  to apply the bar of res judicata among co-defendants must  consider several criteria pointed out in the case of Mt. Munni  Bibi and Anr. V. Tirloki Nath and Ors. (AIR 1931 PC 114). In  the said case three tests have been laid down to find out  whether the decision in the former suit will operate as Res  Judicata between co-defendants. Those tests are:

(i)     There must be a conflict of interest between the co- defendants.

(ii)    It must be necessary to decide this conflict in order  to give relief to the petitioner.

(iii)   The question between the co-respondent must be  finally decided.  

17.     It is to be noted that the factual scenario was entirely  different in the said case. It related to two separate decrees in  one suit and therefore it was held that the principle of res  judicata did not apply.  Admittedly, in the instant case there  were four suits.  The decision that was relevant was in suit  No.98 which attained finality. The decision in the appeals  relating to Suit Nos. 99 and 100 does not affect the decision in  Suit No.98 which had attained finality. On a closer reading of  the decisions it is clear that it does not help the appellant, it  goes against the submissions made. It also needs to be noted  that the plaintiffs in all the four suits were common but the  defendants in the suit were not common, and the properties  were situated in different villages.

18.     At this juncture, the provisions of the Order 41 Rule 33  CPC also need to be noted.  By the said provision benefit is  available to a party not appealing. But the emphasis is on the  same suit. Therefore, the view of the High Court is irreversible.   

19.     The appeal is without merit and deserves dismissal which  we direct.  There shall be no order as to costs.