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                                                         REPORTABLE

                IN THE SUPREME COURT OF INDIA

                CIVIL APPELALTE JURISDICTION

               CIVIL APPEAL NO. _3495 OF 2008               (Arising out of SLP (C) No. 10317 of 2007)

Dadu Dayalu Mahasabha, Jaipur (Trust)                  .... Appellant

           Versus

Mahant Ram Niwas and another                         .... Respondents

                                WITH

          CONTEMPT PETITION (CIVIL) No. 120 of 2007                                  IN                 CIVIL APPEAL NO. 3495 OF 2008              (Arising out of SLP (C) No. 10317 of 2007)

                          JUDGMENT

S.B. SINHA, J.

1.    Leave granted.

2.    Applicability of the principles of Res Judicata and Order II Rule 2

of the Code of Civil Procedure having regard to an observation made by

this Court, is involved in this appeal, which arises out of a judgment and

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order dated 8th May, 2007 passed by a learned Single Judge of the Punjab

and Haryana High Court in Regular Second Appeal No. 4070 of 2005.

3.    Appellant herein is a Public Trust registered under the provisions

of the Rajasthan Public Trust Act 1959 and governed by the provisions

thereof. Acquisition of a Gaddi and the management thereof was the

subject matter of a suit.

     Mahant Mani Ram Swami, admittedly was the holder of the said

Gaddi.

     First respondent claimed himself to be the ‘Pota Chela’ of the said

Mahant Mani Ram Swami.

4.    Disputes and differences between the parties having arisen as

regards succession and management of the Gaddi, first respondent filed a

suit in the Court of Senior Sub Judge, Rohtak . It was registered as Suit

No. 295/2 of 1964. Another suit was filed by Mahant Mani Ram Sadhu

Dadu Panthi which was marked as Suit No. 46 of 1967. The said suits

were filed for grant of permanent injunction.

5.    Appellant has claimed its entitlement to the management of the

said Gaddi under a Will purported to have been executed by Mahant

Mani Ram Swami. The main controversy between the parties, therefore,

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was which party was entitled to manage the Gaddi at Kalanaur of the said

Trust. The matters relating to management of another Gaddi situated at

another place, i.e., Makhora, however, is not in dispute.

6.    The learned trial judge, having regard to the pleadings of the

parties inter alia, framed the following issues :-

            "1.    Whether the plaintiff is the Chela of Lahar Dass                     and Pota Chela of Mahant Mani Ram?              2.     Whether the plaintiff is entitled to succeed to                     Mahant Nitya Nand according to the custom                     and law as application to the succession of                     Nitya Nand as Mahant and owner of property?               3.    Whether Nitya Nand made a valid will in                     favour of defendant No.1? If so, to what                     effect?              4.     Whether the suit lies in the present form?"

     An additional issue was framed, after the defendant Nos. 3 & 4

were impleaded as parties in the suit, which reads :-

             "5-A.Whether defendant No.3 or defendant No.4 was                    the Chela of the late Mahant Mani Ram and is                    now the present Mahant of the institution?

7.    The principal issues were decided against the first respondent.

The suit was dismissed holdings that he was not entitled to hold or

manage the Gaddi in question.

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     An appeal preferred thereagainst, being Civil Appeal No. 89/13 of

1973, was dismissed by the Additional District Judge, Rohtak by his

orders dated 2nd January, 1973, holding :-

           "Nevertheless, there is sufficient evidence to show             that Nitaya Nand and Mahant Lahar Dass were the             Chelas of Mahant Mani Ram and this appellant is the             Chela of Lahar Dass. Mahant Mani Ram used to be             the Dohli Dar of certain agricultural lands and after             his death the mutation entry Ex.P.13/6 was sanctioned             by the revenue authorities on 16.7.1958. Lahar Dass             had a predeceased Mahant Mani Ram."

     It was furthermore held :-

           "Therefore, my finding also is that the appellant has             failed in improving that he was appointed as the             Mahant of Gaddi by the Bhaik in accordance with the             prevailing custom and practice. Even the writing in             the Bahi showing payments of certain moneys to the             members of the at by the Bhaik by the appellant has             been withheld."

     It was furthermore held :-

           "In that connection it is found that the appellant is the             Chela of Lahar Dass and that Lahar Dass and Mahant             Nitaya Nand were Gurbhai (Chelas of the said Mani             Ram). But, that does not come to the aid of the             appellant for the reason that he has failed to prove that             he was appointed as the mahant by the Bhaik in             accordasnce with the prevailing custom.

           In the connection of issue No.3 it is found that             although Mahant Nitaya Nand did execute this will,

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            which has been attested by two witnesses in a sound              disposing mind he was not competent to execute such              a will because his interest in the properties was              limited by the period of tenure of the office of Mahant              of the Gaddi."

     However, the finding of the trial court on issue No.4 was reversed.

8.    A second appeal was preferred thereagainst before the High Court

which was registered as Regular Second Appeal No.800 of 1973. The

High Court allowed the purported register of the ‘Bhaik’ to be produced

as additional evidence. It entered into the merit of the matter and held as

under:-

            "      The oral evidence produced by the plaintiff to              prove this fact in the Trial Court, was discussed by the              lower Appellate Court as well, but as observed earlier,              the lower Appellate Court did not believe those              witnesses because all of them had stated that such a              writing was made in the register when the plaintiff              was appointed as Mahant and that writing was              attested by some of the members of the Bhaik, yet the              same was not produced in the Trial Court. Thus their              testimony was never disbelieved as such. Because of              the non-production of the writing Exhibit PW 14/A              the finding was given against the plaintiff by the two              Courts below. Since this Court allowed the additional              evidence to be produced in this Court and the said              writing has been duly proved, the findings of the              Courts below under issue No.1 are liable to be set              aside."

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9.    The matter came up before this Court by way of Civil Appeal No.

299 of 1987 (arising out of SLP ) No. 7600 of 1983) and by a judgment

and order dated 2nd February, 1987 a Division Bench of this Court

allowed the said appeal stating :-

            "     Special leave granted. The appeal is heard.

                   Since the High Court has not and could not              have in the circumstances of the case reversed the              finding of the trial court and the First Appellate Court              that the plaintiff was not in possession of the suit              property on the date of the filing of suit, it could not              have reversed the decree passed by the First Appellate              Court and made a decree for injunction for which suit              has been brought. We, therefore, set aside the              judgment and decree of the High Court and restore the              judgment and decree of the First Appellate Court.              This judgment will not come in the way of the              plaintiff/respondent filing a suit for possession, if he              is so advised."

10.   Relying on or on the basis of the said observation made by this

Court, the second round of litigation began.

11.   In the fresh suit, the first respondent also impleaded ‘Gaddi Dadu

Dawara Kalanur’ through himself as the second plaintiff. Appellants

were arrayed as defendants. In the said suit a decree for possession of

the properties mentioned in paragraph 5 of the plaint (consisting of 15

items of properties) was prayed for.

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12.   The learned trial judge by his judgment and order dated 11th

February, 2003 opined that the said suit was barred by the principles of

res judiciata, the issues arising therein being directly and substantially in

issue between the parties in the previous suit as well. It dealt with in

details as to how the causes of actions in both the suits were the same.

     Respondents preferred an appeal thereagainst. The first appellate

court, however, by its judgment and order dated 27th November, 2005

reversed the judgment and decree of the trial court holding that neither

the principles of Res Judicta nor Order II Rule 2 of the Code of Civil

Procedure were applicable in view of the observations made by this

Court in the aforementioned order of this Court dated 2nd February, 1987.

13.   An appeal was preferred thereagainst by the appellants.

     The High Court by reason of the impugned judgment has allowed

the said appeal holding :-

            "       Admittedly, the previous suit was suit for              injunction. In the said suit finding was returned by the              trial Court that the plaintiff has failed to prove the              ownership and possession and, thus, the suit for              injunction was dismissed. Such finding was affirmed              in appeal as well. This Court in second appeal              reversed the findings recorded by the learned first              Appellate Court after admitting additional evidence              and held that the plaintiff is in possession of the suit              property. In the said circumstance, above said order of              Hon’ble Supreme Court was passed whereby

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            judgment and decree passed by the High Court was              set aside and liberty was given to the plaintiff to file a              suit for possession.

                   A perusal of order passed by the Hon’ble              Supreme Court shows that the finding that plaintiff              was not in possession in a suit for injunction recorded              by this Court was set aside and, therefore, it was              clarified that the judgment of the Court will not come              in the way of the plaintiff to file a suit for possession.              Meaning thereby in a suit for possession, the plaintiff              could establish his title. The order of Hon’ble              Supreme Court has to be read in its entirety. Once it is              ordered that the judgment will not come in the way              for suit for possession, the suit for possession could              not be dismissed on the basis of previous judgment in              a suit for injunction."

14.   Dr. Rajiv Dhawan, learned Senior Counsel appearing on behalf of

the appellant in support of the appeal submitted :-

     i)     Where the suit is barred under the principles of res judicata

            or Order II Rule 2 of the Code of Civil Procedure, effect

            thereof cannot be taken away by a mere observation of this

            Court.

     2)     In any event the principle of issue estoppal shall apply.

     3)     In any event the suit should have been held to be barred by

            limitation.

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15.   Mr. Rajiv Datta, learned Senior Counsel, appearing on behalf of

the respondents, on the other hand, urge :-

     1)     The scope of the earlier suits being confined to the question

            of possession as on the date of institution thereof, the

            subsequent suit claiming title over the Gaddi as also

            recovery of possession was not barred under the principles

            of Res Judicata or Order II Rule 2 of the Code of Civil

            Procedure.

     2)     The entire issue between the parties as regards their legal

            rights having been left open, the principle of res judicata

            could not have any application whatsoever particularly in

            view of the fact the issues were totally different.

     3)     Since no issue with regard to res judicata had been framed

            by the learned trial court, any finding thereon was wholly

            unwarranted.

16.   A suit is filed on a cause of action. What would constitute a cause

of action is now well settled. It would mean a bundle of facts which

would be necessary to be proved by the plaintiff so as to enable him to

obtain a decree. First Respondent’s suit for possession was premised on

a legal entitlement. Appellant herein also claimed its right over the

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Gaddi in question. The trial court framed several issues. Its discussion

centred round the respective pleas of the parties which had fully been

gone into.

     The suit was dismissed. The first appellate court not only went

into the question of possession of the first respondent over the Gaddi, as

on the date of institution of the suit, but the other questions.

17.   Rightly or wrongly a decision was arrived at that the first

respondent was held to be not entitled to hold the Gaddi and management

of the same. A legal right of the appellant with regard thereto was found

favour with the first appellate court. On the aforementioned backdrop the

implication of the observations of this Court must be noticed and

considered.

18.   The order of this Court is in four parts, i.e. -

     i)      The High Court could not have reversed the finding of the

             first appellate court that the plaintiff was not in possession

             of the suit property on the date of the filing of the suit.

     ii)     In view of the said finding a decree for injunction for which

             the suit was filed could not have been granted.

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     iii)   The judgment and decree of the first appellate court shall be

            restored after setting aside the judgment and decree of the

            High Court.

     iv)    The said judgment would not come in the way of the

            plaintiff/respondent in filing a suit for possession, if he so is

            so advised.

19.   The judgment of a court, it is trite, should not be interpreted as a

statute. The meaning of the words used in a judgment must be found out

on the backdrop of the fact of each case. The Court while passing a

judgment cannot take away the right of the successful party indirectly

which it cannot do directly. An observation made by a superior court is

not binding. What would be binding is the ratio of the decision. Such a

decision must be arrived at upon entering into the merit of the issues

involved in the case.

20.   If the judgment and order of the first appellate court dated 2nd

January, 1973 was restored by this Court in its order dated 2nd February,

1987, the finding arrived at by it attained finality. The issues determined

therein would be, thus, binding on the parties.

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21.      Section 11 of the Code not only recognizes the general principle of

res judicata, it bars the jurisdiction of the court in terms of Section 12

thereof.

        Explanation V of Section 11 of the Code extends the principle of

res judicata stating that the reliefs which could have been or ought to

have prayed for even if it was not prayed for would operate as res

judicata. Section 12 thereof bars filing of such suit at the instance of a

person who is found to be otherwise bound by the decision in the earlier

round of litigation and in a case where the principle of res judicata shall

apply.

22.      We, however, are not unmindful of the principles of estoppel,

waiver and res judicata, are procedural in nature and, thus, the same will

have no application in a case where judgment has been rendered wholly

without jurisdiction or issues involve only pure questions of law. Even

in such cases, the principle of issue estoppel will have no role to play.

        However, once it is held that the issues which arise in the

subsequent suit were directly and substantial in issue in the earlier suit,

indisputably Section 11 of the Code would apply.

23.      Similarly the provisions of Order II Rule 2 bars the jurisdiction of

the Court in entertaining a second suit where the plaintiff could have but

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failed to claim the entire relief in the first one. We need no go into the

legal philosophy underlying the said principle as we are concerned with

the applicability thereof.

24.   We must also bear in mind the distinction between the decision of

a court of law and a court of equity.

     We may notice that even as far back as in 1869 in Robert Watson

& Co. vs. The Collector : (1869) 13 MIA 1 it was held :-

            "A decision of the late Sudder Court of the 31st of              May, 1853, is a precedent in point, and the marginal              note appended to the case fully shows that a failure to              adduce evidence is not a default to proceed within the              meaning of Act No. XXIX of 1841, which refers only              to steps in procedure necessary to enable a cause to be              prepared for hearing on its merits; the dismissal of a              suit for want of evidence ought not to be on default,              but on the merits. This, then, was clearly the sate of              the law in 1857, when the Judge of Rajshahe              dismissed the suit for want of evidence , and we              cannot allow any words of the Judge to override the              law, and give to parties indulgencies which the law of              procedure does not sanction."          "It cannot for a              moment be argued that, as the law stood in 1857, a              Plaintiff was at liberty to claim a non-suit if, after the              issues were recorded, be neglected to supply evidence              in support of his case, and we are of opinion that the              law and practice of the Courts there was to act upon              the maxim ‘De non aparentibus et non existentibus              eadum est ratio’ (a); and if evidence was wanting, to              dismiss the claim for want of proof. Such order is in              reality a decision on the merits, just as much as if              Plaintiff had produced evidence which the Court

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          considered inadequate as proof, and dismissed it upon            that ground."

25.   The Privy Council In Fateh Singh and others vs.           Jagannath

Baksh Singh and another : AIR 1925 PC 55 observed :-

          "      When the plaintiffs brought their first suit, they            had to show their title to impeach the widow’s gift.            For this purpose they had to show either that they            were some at least of the nearest reversionary heirs, or            that the only nearer reversionary heir had colluded            with the widow. In their plaint they did not rely on            collusion, which they only introduced in their            replication. Taking, however, that view of the            pleadings which is most favourable to them and            treating them as relying equally on both grounds of            claim, it is now clear that they can only make out a            claim to be some of the next feversioners on the            footing of the family custom, and that the allegation            of that custom therefore was an allegation which "            might and ought to have been made" within the            meaning of Explanation 4.

                 Or, to put it in another way. One of the            alternative cases on which they were basing their title            to sue was their nearness of kin, and to prove their            nearness of kin it was essential to aver the family            custom. They claimed as next heirs, and their claim            was dismissed. They cannot fight it over again.

                 But, as the Judges in the Court of the Judicial            Commissioner have observed, some complication was            introduced by the language of the Judge who tried the            first case and by his expressing himself as if he had            power to give leave to bring a fresh suit. It was            contended on behalf of the plaintiffs that in so

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           expressing himself he was purporting to exercise the             powers given to the Court by Order 23, which allows             the Court in certain cases to grant the plaintiff             permission to withdraw from a suit with liberty to             issue a fresh suit, in which case the bar against a fresh             suit which is otherwise imposed on a plaintiff who             abandons his first suit is removed."

     It was furthermore observed :-

           "...There was no application for leave to withdraw the             suit; nor was it withdrawn : it was dismissed and the             power of the learned Judge ceased upon this             dismissal. It may have been unfortunate for the             plaintiffs that the learned Judge thought that he had a             power which he did not possess, but happily, as the             Judges on the appeal observed, it is improbable that             there was substance in the claim which they have             been prevented from further prosecuting."

26.   The above observation of Privy Council came up for consideration

before this Court in Shiv Kumar Sharma vs. Santosh Kumari : (2007) 8

SCC 600, when this Court observed :-

           "21. If the respondent intended to claim damages             and/or mesne profit, in view of Order 2 Rule 2 of the             Code itself, he could have done so, but he chose not             to do so. For one reason or the other, he, therefore,             had full knowledge about his right. Having omitted to

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              make any claim for damages, in our opinion, the                plaintiff cannot be permitted to get the same                indirectly.

              22. Law in this behalf is absolutely clear. What cannot                be done directly cannot be done indirectly."

27.   The question which was posed by the Privy Council was :-

              "Be that, however, as it may, the first question is,                whether the High Court was right in holding that,                notwithstanding the reservation contained in the                decree dismissing the suit of 1856, the question was                to be treated as res judicata."

     The Court noticed that at that point there was no authority which

sanctioned the exercise by the Country Courts of India of that power

which Courts of Equity in that Country occasionally exercise, of

dismissing a suit with liberty to the plaintiff to bring a fresh suit for the

same matter.

28.   Having noticed the effect of a stray observation made by a superior

court viz-a-viz applicability of the principle of res judicata we may also

notice the applicability of the principle of issue estoppel.

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      In Sheodan Singh vs. Daryao Kunwar : [1966] 4 SCR 300, this

Court laid down the ingredients of Section 11 of the Code of Civil

Procedure stating :-

             "9. A plain reading of Section 11 shows that to               constitute a matter res judicata, the following               conditions must be satisfied, namely--

                (i) The matter directly and substantially in issue in               the subsequent suit or issue must be the same matter               which was directly and substantially in issue in the               former suit;

                (ii) The former suit must have been a suit between               the same parties or between parties under whom they               or any of them claim;

                 (iii) The parties must have litigated under the same               title in the former suit;

                (iv) The court which decided the former suit must               be a court competent to try the subsequent suit or the               suit in which such issue is subsequently raised; and

                (v) The matter directly and substantially in issue in               the subsequent suit must have been heard and finally               decided by the court in the first suit. Further               Explanation 1 shows that it is not the date on which               the suit is filed that matters but the date on which the               suit is decided, so that even if a suit was filed later, it               will be a former suit if it has been decided earlier. In               order therefore that the decision in the earlier two               appeals dismissed by the High Court operates as res               judicata it will have to be seen whether all the five               conditions mentioned above have been satisfied."

      The question which is, thus, required to be posed is what was in

issue in the earlier suit.

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     The issue indisputably was the claim of entitlement to Gaddi by

the first respondent and a plea contra thereto raised by the appellants.

Once the issue of entitlement stood determined, the same would operate

as res judicata. We may notice some precedents for appreciating the

underlying principles thereof. Section 11 of the Code, thus, in view of

the issues involved in the earlier suit, the provisions thereof shall apply.

29.   In State of U.P vs. Nawab Hussain : (1977) 2 SCC 806 this Court

held :-

         "3. The principle of estoppel per rem judicatam is a rule           of evidence. As has been stated in Marginson v.           Blackburn Borough Council1, it may be said to be "the           broader rule of evidence which prohibits the reassertion           of a cause of action". This doctrine is based on two           theories: (i) the finality and conclusiveness of judicial           decisions for the final termination of disputes in the           general interest of the community as a matter of public           policy, and (ii) the interest of the individual that he           should be protected from multiplication of litigation. It           therefore serves not only a public but also a private           purpose by obstructing the reopening of matters which           have once been adjudicated upon. It is thus not           permissible to obtain a second judgment for the same           civil relief on the same cause of action, for otherwise the           spirit of contentiousness may give rise to conflicting           judgments of equal authority, lead to multiplicity of           actions and bring the administration of justice into           disrepute. It is the cause of action which gives rise to an           action, and that is why it is necessary for the courts to           recognise that a cause of action which results in a           judgment must lose its identity and vitality and merge in           the judgment when pronounced. It cannot therefore           survive the judgment, or give rise to another cause of           action on the same facts. This is what is known as the           general principle of res judicata."

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     Noticing that the same set of facts may also give rise to two causes

of actions, it was held :-

         "That, in turn, led the High Court to the conclusion that           the principle of constructive res judicata could not be           made applicable to a writ petition, and that was why it           took the view that it was competent for the plaintiff in           this case to raise an additional plea in the suit even           though it was available to him in the writ petition which           was filed by him earlier but was not taken. As is obvious,           the High Court went wrong in taking that view because           the law in regard to the applicability of the principle of           constructive res judicata having been clearly laid down in           the decision in Devilal Modi case, it was not necessary to           reiterate it in Gulabchand case as it did not arise for           consideration there. The clarificatory observation of this           Court in Gulabchand case was thus misunderstood by           the High Court in observing that the matter had been           "left open" by this Court."

30.   Yet again in Home Plantations Ltd. vs. Talaku Land Board,

Peermada and another : (1999) 5 SCC 590.

            "       An adjudication is conclusive and final not only              as to the actual matter determined but as to every              other matter which the parties might and ought to              have litigated and have had it decided as incidental to              or essentially connected with the subject-matter of the              litigation and every matter coming within the              legitimate purview of the original action both in              respect of the matter of claim or defence. The              principle underlying Explanation IV is that where the              parties have had an opportunity of controverting a              matter that should be taken to be the same thing as if              the matter had been actually controverted and              decided. It is true that where a matter has been              constructively in issue it cannot be said to have been              actually heard and decided. It could only be deemed

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          to have been heard and decided. The first reason,            therefore, has absolutely no force."

    It was furthermore opined :-

          "26. It is settled law that the principles of estoppel            and res judicata are based on public policy and            justice. Doctrine of res judicata is often treated as a            branch of the law of estoppel though these two            doctrines differ in some essential particulars. Rule of            res judicata prevents the parties to a judicial            determination from litigating the same question over            again even though the determination may even be            demonstratedly wrong. When the proceedings have            attained finality, parties are bound by the judgment            and are estopped from questioning it. They cannot            litigate again on the same cause of action nor can they            litigate any issue which was necessary for decision in            the earlier litigation. These two aspects are "cause of            action estoppel" and "issue estoppel". These two            terms are of common law origin. Again, once an issue            has been finally determined, parties cannot            subsequently in the same suit advance arguments or            adduce further evidence directed to showing that the            issue was wrongly determined. Their only remedy is            to approach the higher forum if available. The            determination of the issue between the parties gives            rise to, as noted above, an issue estoppel. It operates            in any subsequent proceedings in the same suit in            which the issue had been determined. It also operates            in subsequent suits between the same parties in which            the same issue arises. Section 11 of the Code of Civil            Procedure contains provisions of res judicata but            these are not exhaustive of the general doctrine of res            judicata. Legal principles of estoppel and res judicata            are equally applicable in proceedings before            administrative authorities as they are based on public            policy and justice."

    This Court opined that the Law of England as enunciated by the

House of Lords in Arnold vs. National Westiminster Bank Plc. :

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(1991) 2 AC 93 = (1991) 3 All ER 41, HL to hold that the said principle

will have no application in India stating:-

         "30. Mr Salve’s assertions based on the aforesaid           decision of the House of Lords may be valid to an           extent but then in view of the principles of law laid           down by this Court on the application of res judicata           and estoppel and considering the provisions of Section           11 of the Code, we do not think there is any scope to           incorporate the exception to the rule of issue estoppel           as given in Arnold v. National Westminster Bank Plc.3               31. Law on res judicata and estoppel is well           understood in India and there are ample authoritative           pronouncements by various courts on these subjects. As           noted above, the plea of res judicata, though technical,           is based on public policy in order to put an end to           litigation. It is, however, different if an issue which had           been decided in an earlier litigation again arises for           determination between the same parties in a suit based           on a fresh cause of action or where there is continuous           cause of action. The parties then may not be bound by           the determination made earlier if in the meanwhile, law           has changed or has been interpreted differently by a           higher forum. But that situation does not exist here.           Principles of constructive res judicata apply with full           force. It is the subsequent stage of the same           proceedings. If we refer to Order XLVII of the Code           (Explanation to Rule 1) review is not permissible on the           ground               "that the decision on a question of law on which the               judgment of the Court is based has been reversed or               modified by the subsequent decision of a superior               court in any other case, shall not be a ground for the               review of such judgment".

31.   Principle of issue estoppel and constructive res judicata had also

been discussed at some length by this Court in Bhanu Kumar Jain

(supra) to hold:-

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           "29. There is a distinction between "issue estoppel"             and "res judicata". (See Thoday v. Thoday)

           30. Res judicata debars a court from exercising its             jurisdiction to determine the lis if it has attained             finality between the parties whereas the doctrine issue             estoppel is invoked against the party. If such an issue             is decided against him, he would be estopped from             raising the same in the latter proceeding. The doctrine             of res judicata creates a different kind of estoppel viz.             estoppel by accord."

32.   Yet again in     Annaimuthu Thevar (Dead) by Lrs.            vs.   V.

Alagammal and others : (2005) 6 SCC 202 a Division Bench of this

Court held :-

           "27. The next question that arises is whether the issue             of ownership and title in the suit house was directly             and substantially in issue in the former suit or not. In             the subsequent suit undoubtedly the foundation of             claim is title acquired by the present appellant under             registered sale deed dated 28-2-1983 from             Muthuswami."

33.   Even in a case of title, Explanation IV to Section 11 would apply.

(See also Sulochana Amma vs. Narayanan Nair : 1994 (2) SCC 14).

34.   Furthermore in terms of Section 5 of the Specific Relief Act, 1963

a suit for possession must be filed having regard to the provisions of the

Code of Civil Procedure. If the statute provides for the applicability of

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the Code of Civil Procedure, there cannot be any doubt whatsoever that

all the relevant provisions thereof shall apply. (See Shamsu Suhara

Beevi     vs. G. Alex and another : (2004) 8 SCC 569) & Hardesh Ores

(P) Ltd. vs. Hede and Company :2007 (5) SCC 614).

35.     We have, therefore, no hesitation to hold that the impugned

judgment cannot be sustained. The same is set aside. The appeal is

allowed with costs.      Counsel’s fee assessed at Rs.25,000/- (Rupees

Twenty Five Thousand only).

36.     We, however, do not find any specific ground to initiate contempt

proceedings against the respondent at this stage. Contempt Petition is

dismissed accordingly.

                                              ..............................J.                                                ( S.B. SINHA )

                                               .............................J.                                                 ( P.P. NAOLEKAR ) New Delhi May 12, 2008