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PETITIONER: KOSHAL PAL & ORS.

       Vs.

RESPONDENT: MOHAN LAL & ORS

DATE OF JUDGMENT26/11/1975

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. MATHEW, KUTTYIL KURIEN UNTWALIA, N.L.

CITATION:  1976 AIR  688            1976 SCR  (2) 827  1976 SCC  (1) 449

ACT:      Code of  Civil Procedure  (Act 5 of 1908). Sec.  11-Res judicata-Suit based  on relationship  of landlord and tenant dismissed-Subsequent suit  based on title when barred by res judicata.

HEADNOTE:      A suit  for rent  and possession of a house by eviction of the defendants was dismissed by the trial Court. The suit was filed against 6 defendants but the claim against the 6th defendant was  not pursued. The 4th defendant was the mother of defendants  1 to 3 and the 5th defendant was her brother. Defendants 2 and 3 were minors. The suit was on the basis of a rent  note purported  to have  been executed  by  the  5th defendant on behalf of the defendants 1 to 4 as tenants; and alternatively,  the   plaintiff  relied  on  the  status  of defendants 1  to 4  as tenants  derived from the position of the  father   of  defendants  1  to  3  as  a  tenant  under plaintiff’s father.  The trial  Court held that defendants 1 to 4  were in adverse possession of the house. The plaintiff filed an appeal, but against defendants 2 and 3 it was filed out of  time. The  first appellate  Court observed  that the trial Court  "profed into  unnecessary matters". It passed a decree against  the 5th  defendant "on  his own  account" to vacate the  house, but,  as  admittedly,  he  was  never  in occupation of  the house,  that decree  was infructuous. The appellate Court  also held that the plaintiff’s suit against the defendants  1 to  4 and  6 must fail and that the appeal against defendants  2 and  3 should  fail on  the ground  of limitation as  well. The  plaintiff then  filed another suit against the  same defendants  in the  same trial Court for a declaration of  his title  to the  house and for possession. This suit  was decreed  by the  trial Court  and  the  first appellate Court.  Second appeals  to the High Court, in both matters, were  heard together  and disposed  of by  a common judgment and  both appeals  were dismissed.  The High  Court observed in  its judgment  that as  regards the  question of adverse possession  of defendants  1 to 4 in the first suit, "the lower  appellate Court  held that it did not arise and, therefore, no finding was given on that point". The question whether the  second suit  was barred by res judicata because

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of the  decision in  the first  suit was  not raised  at the hearing before  the High Court. The plaintiff did not file a further  appeal  to  this  Court  in  the  first  suit,  but defendants 1  to 4  filed an  appeal to  this Court  in  the second suit  and  raised  the  plea  of  res  judicata.  The plaintiff contended  in reply  that the  2nd  suit  was  not barred by  res judicata  because, (1)  there  was  no  final decision regarding the adverse possession of defendants 1 to 4 in  the first  suit; and  (2) there  was no finding in the earlier suit  on plaintiff’s  title, as the question was not raised in  the first  suit, and  so the  scope  and  subject matter of the two suits was not the same. ^      HELD:  (Per   Majority-K.   K.   Mathew   and   P.   K. Goswami,JJ.):      The appeal  of defendants  2 and  3  must  be  allowed, because, the  second suit  was barred  by  res  judicata  as against them, but not against defendants I and 4. [834A-B]      (1)(a) Ordinarily,  when there  is an  appeal against a judgment, the  appellate order alone will be operative. But, in the  present case,  on the  dismissal of  the plaintiff’s appeal by  the first  appellate Court  in the first suit, as time barred,  against defendants  2 and 3, the trial Court’s judgment became  final between  them and  the plaintiff. The High Court,  in second  appeal, did  not do  anything to the contrary  with  regard  to  the  appeal  against  these  two defendants. The plaintiff took a specific ground in the High Court that  "the lower  appellate  Court  erred  in  law  in dismissing the  appeal against  defendants 2  and 3  on  the ground of limitation". but the High Court did not record any decision on  this point, and did not disturb the finality of the decision  regarding the adverse possession of defendants 2 and 3. Its observation that no finding was given 828 by the  first appellate  Court on  the question  of  adverse possession shows  that the  finding  of  adverse  possession given  by  the  trial  Court  was  displaced  by  the  first appellate Court  in the  first suit, but only in relation to the adverse  possession of  defendants 1  and 4  and not  of defendants 2  and 3.  When there  is no appeal in law by the plaintiff against  defendants 2 and 3 to the first appellate Court, his  appeal to  the first appellate Court against the other defendants  cannot destroy  the finality  of the trial Court’s decision as far as defendants 2 and 3 are concerned. Hence, defendants  2 and  3 can  claim in this Court that so far as they are concerned, with regard to their title to the house by  adverse possession,  there is  a finding  in their favour by  the trial  Court which was never disturbed by any Court in  appeal, that  it is  binding on the plaintiff, and that it operates as res judicata in the second suit. [832 B- G 833-H]      (b) There  is no  possibility of  inconsistent decrees, one  against   defendants  2   and  3  and  another  against defendants 1  and 4,  being passed.  A  decree  for  partial possession  on  the  basis  of  the  adverse  possession  of defendants 2  and 3  can be  passed,  because,  the  minors’ (defendants 2  and 3)  interest, even  though represented by one of  the other  parties, is  separate and distinguishable from the  interest of  that party and that of the others. In fact, there  was a  decree in the first suit against the 5th defendant alone  "on his account", and the claim against 6th defendant for  eviction from  a portion  of  the  house  was abandoned even in the second suit. [836 E-F]      (c) Defendants  2 and  3 could not have raised the plea of res  judicata before  the High Court. When second appeals

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arising out of two suits filed by the plaintiff, are treated as connected  appeals and disposed of by the High Court by a common  judgment,  there  is,  ordinarily,  no  question  of invoking the  plea of  res judicata before the High Court as the findings in the earlier suit are not till then final for the purpose  of the  second suit.  The plaintiff  not having appealed against the decision of the High Court in the first suit, defendants  2 and  3  could  raise  the  plea  of  res judicata for  the first  time only  in this  Court after the issue of  adverse possession  of defendants 2 and 3 has been finally decided  by the High Court in the first suit. [835C- E]      (2) If  a matter directly and substantially in issue in an earlier suit had been finally adjudicated upon by a court of competent  jurisdiction, the matter becomes rest judicata between the  same  parties  with  regard  to  the  identical subject-matter in a subsequent suit. In the present case, in both the suits, the parties, and the property for possession of which  the suits were filed, are identical. The fact that in the  second suit  title to  the property  was brought  in issue which  was not an adjudicated issue in the first suit, is, however,  not material, since the matter relating to the status  of  the  defendants  as  tenants  was  directly  and substantially in  issue between  the  parties  in  both  the suits. In  the first  suit, the  relief was  claimed on  two alternative pleas  that the  defendants were tenants and the Trial Court  rejected both  the pleas,  and  held  that  the defendants had matured their title by adverse possession. In the second  suit, although  it was  one for  declaration  of title and  for possession,  it  was  on  the  basis  of  the alternative plea  set up  in the earlier suit. The plaintiff sought to  rely upon  constructive  possession  through  the defendants as  tenants under his father and later under him. But, this  very matter  about the  tenancy of  the father of defendants 1  to 3  under plaintiff’s  father had  been gone into in  the earlier  suit and it was found in favour of the defendants by the trial Court-which was not disturbed by the first appellate  Court or  the High  Court-that their father was not  a tenant under the father of the plaintiff and that therefore, the  defendants were  also not  tenants under the plaintiff. This  decision by  the trial  Court in  the first suit against  the plaintiff  was not  a mere  collateral  or incidental decision,  because, it  was necessary for holding that  the   defendants  had   acquired  title   by   adverse possession. [834 C-H]      Krishna Behari Roy v. Bunwari Lall Roy and Another, ILR (1) Calcutta  144: Sheosagar  Singh and  others  v.  Sitaram Singh and  others 24  Indian Appeals  50: Ashgar Ali Khan v. Ganesh Dass,  44 Indian  Appeals 213;  Girdhar Manordas  and others v. Dayabhai Kalabhai and others, ILR (8) Bombay, 174; Dwarkanath Roy  v. Ram  Chand Aich and others, ILR (26) Cal. 428; Dalip  Narain Singh v. Deokinandan Prasad Singh, A.I.R. (1939) Patna  519 and  Ramagya Prasad  Gupta and  others  v. Murli Prasad and others, A.I.R. 1974 S.C. 1320, referred to 829      The appeal must be dismissed, because, the 2nd suit was not barred by res judicata. [844-D-E]      (1)(a)  The   finding  of  the  trial  Court  that  the defendants were  in adverse  possession of the house, in the first suit,  was obliterated by the High Court and there was no final  decision on the question in the first suit. In the judgment of  the first  appellate Court  in that  suit, when observations were  made that  the trial  Court unnecessarily tried the  issue of  adverse possession, the observation was made in respect of all the defendants including defendants 2

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and 3.  That issue  though decided  by the  trial Court, was thought unnecessary  by the first appellate Court. The words "as well’  in the judgment of the first appellate Court show that the ground of limitation against defendants 2 and 3 was only an  additional one.  The High  Court, in second appeal, rested its  judgment only  on the  basis of the finding that there was  no relationship  of landlord  and tenants between the parties.  Although the  High Court  did not  record  any finding expressly  on  the  special  ground  taken-that  the dismissal of  the appeal  against defendants  2 and 3 on the ground of limitation was erroneous-it must be deemed to have done so when it maintained the dismissal of the suit against all the defendants on the ground of non-establishment of the fact of their being tenants in the house. [844C, 843E-G]      (b) The  first appellate  Court, in the first suit, did not intend to pass any inconsistent decrees and did not make any distinction  between the  case of defendants 2 and 3 who were minors  and that  of defendants  1 and 4, their brother and mother,  on the  question or  their acquiring  title  by adverse possession. [843E-F]      (c) The  contention of  res judicata,  if  it  had  any substance, was  available to  defendants 2 and 3 even in the High Court.  It could  have been  argued that  there  was  a finality  of   the  decision  on  the  question  of  adverse possession in  the judgment  of the trial Court in the first suit, as far as defendants 2 and 3 were concerned. [844A]      (2) The  issue  regarding  plaintiff’s  title  was  not decided in  the first  suit even  by the  trial  Court.  The decree of  possession in  the second  suit, on the ground of title, on  which there  was no final decision in the earlier litigation, and  on the  ground of  the plaintiff’s right to possession is,  therefore, not vitiated on the ground of res judicata. [844C-D]      Sheosagar Singh and others v. Sitaram Singh and others, 27 Indian  Appeals. 50;  Ashgar Ali  Khan v. Ganesh Dass, 44 Indian  Appeals  213  and  Venkataratnama  &  others  v.  M. Krishnama and others, A.I.R. 1921, Mad. 21, applied.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 175 of 1968.      Appeal by  special leave  from the  judgment and  order dated the  21-11-1967 of  the High  Court  of  Allahabad  in second appeal No. 1795 of 1965.      S. K.  Mehta, M.  Qamaruddin, K.  R. Nagaraja and P. N. Puri for the appellants.      Sarjoo Prasad, Miss Uma Mehta, Mr. and Mrs. S. K. Bagga and Raj Kumar Mehta, for the respondent.      The Judgement  of K.  K. Mathew  and P. K. Goswami, JJ. was delivered  by Goswami,  J. N.  L. Untwalia,  J.  gave  a dissenting Opinion.      GOSWAMI, J.-In  this appeal  by special  leave from the judgment and  decree of  the Allahabad  High Court  the only question that is raised relates to the plea of res judicata. 830      The facts  so far  as material  for the purpose of this appeal are as follows:-      The plaintiff  (respondent No.  1 herein)  claims to be the adopted  son of  one Param Lal who is the original owner of the  premises  in  suit.  Ram  Sahai  is  the  father  of defendants 1 to 3 and husband of defendant 4. Both Param Lal and Ram  Sahai died some time in 1946. The plaintiff brought a suit  being O.  S. No.  114 of  1952 in  the court  of the

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Munsif of  Etah, Uttar  Pradesh, against  defendants 1 to 6. The allegations in the plaint were that defendant No. 5, who is the  maternal uncle  of defendants  1 to 3 and brother of defendant 4  executed a  rent note  on November 13, 1946, on behalf of  defendants 1  to 4  in favour  of the  plaintiff. Since they were in arrears of rent for nearly 21/2 years the suit was  instituted for  rent and possession by eviction of the defendants.  Defendant No. 5 did not enter appearance to contest the  suit. The defence of defendants 1 to 4 was that defendant No. 5 never executed any rent note on their behalf in favour  of the  plaintiff. They  disclaimed  tenancy  and asserted their  own title to the premises in suit by adverse possession.      The trial  court,  inter  alia,  framed  the  following issues in suit No. 114 of 1952:-           "Issue No.  3: Is  the suit  barred under articles      142 and 144 of the Limitation Act ?           Issue No. 8: Whether the suit against defendants 1      to 4 is barred by time ?"      Apart from depending on the rent note, evidence was led by the  plaintiff  in  the  trial  court  in  that  suit  to establish that  Ram Sahai  was a  tenant under Param Lal and the former  executed rent  notes, Exts.  29, 30  and 31,  in favour of  the latter.  The trial court refused to rely upon these rent  notes and even characterised these as suspicious documents. The  trial court  held that  defendant 5  did not execute the  rent note  on behalf  of defendants  1 to 4 and also found that-           "the plaintiff  has failed to prove that Param Lal      and after  him the  plaintiff has been in possession of      the  kothi  in  dispute  within  twelve  years  of  the      suit....In view of these reasons I hold that it has not      been proved that Ram Sahai and after him the defendants      1 to  4 are  in occupation  of the  house in dispute as      tenants of  the plaintiff  and so  they are  clearly in      adverse possession of the house in dispute". The trial  court dismissed  the suit No. 114 of 1952 against all the defendants.      The lower  appellate court  dismissed  the  plaintiff’s appeal arising out of O.S. No. 114 of 1952 (C. A. No. 152 of 1956) against  defendants 2  and 3  on the  ground that  the appeal was barred by limitation.      We are  not concerned  here with the correctness of the reasons for dismissing the appeal against defendants 2 and 3 (appellants 2  and 3  herein) on  the ground  of limitation. Indeed in considering the plea 831 of res  judicata correctness of the finding is not in issue. The findings arrived at in the adjudication have to be taken at their face value between the parties.      The appeal  was also  dismissed by  the lower appellate court against  defendants 1  and 4  on merits  after  making certain observations which will be dealt with later.      The lower  appellate court, however, allowed the appeal against the  non-contesting defendant No. 5 and decreed that the defendant  No. 5  "shall vacate the house in suit on his own account  and pay  a sum  of Rs.  714/- as the arrears of rent in  respect thereof  for the  period  in  suit  to  the plaintiff". The  appeal was also dismissed against defendant No. 6,  Kalawati, since  dead, and we are not concerned with her and  her heirs in this appeal at all although the latter have been  impleaded as  parties, the  particular portion of the  premises  having  been  admittedly  sold  away  by  the plaintiff to one Mathura Prasad.      The judgment  of the  lower appellate court in C.A. No.

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152 of 1956 was delivered on September 17, 1958.      Later on  the plaintiff  filed a  second suit (No. 6 of 1959) in  the same  court of  the Munsif  of  Etah  claiming declaration of  right and  title to  and possession  of  the identical premises.  The plaintiff  and the  defendants  are identical in  the second  suit. The  suit was decreed by the trial court  and affirmed by the lower appellate court. Both the courts concurrently held-           (1)  that Param Lal was the owner of the house.           (2)   that Mohan  Lal was the adopted son of Param                Lal.           (3)  that Ram  Sahai was  the tenant  of Param Lal                and therefore,  defendant Nos.  1 to  4  were                also tenants of the premises in dispute.      The High  Court dismissed  the  second  appeal  of  the defendants (No.  1795 of  1965) arising  out of  this  suit. Hence this appeal by special leave. The High Court in Second Appeal No. 4658 of 1958 arising out of O.S.  No. 114  of 1952  at the  instance of the plaintiff substantially dismissed  the same  except that  it  slightly modified the  decree of  the lower appellate court only with regard to  the quantum  of future  damages against defendant No. 5.  There is no further appeal by the plaintiff from the judgment and  decree in  the second  appeal 4658  of 1958 to this Court.      As adverted  to earlier, it is true that the High Court observed in  S.A. No.  4658 of  1958 that  "as  regards  the question of  adverse possession  the lower  appellate  court held that  it did  not arise  and, therefore, no finding was given on that point". We will assume that the observation is correct. Basing  upon the  aforesaid observation of the High Court and  such of  those as  are relevant on the particular point in  the judgment  of the  lower appellate  court,  Mr. Sarjoo Prasad, on behalf 832 of the  first respondent,  in answer  to  the  plea  of  the appellants, submits  that no  question of res judicata would arise as  there was  no finding of the lower appellate court in the  earlier suit  regarding the plaintiff’s title to the premises or  with regard  to the  adverse possession  of the defendants. The  learned counsel submits that the finding of the trial  court with  regard to  adverse possession  of the defendants became  non est  in view  of the  finding of  the lower appellate  court which  was even  noticed by  the High Court, as mentioned above. Both questions, says counsel, are open.      It will be ordinarily true that once there is an appeal against a  judgment,  the  appellate  order  alone  will  be operative. Mr.  Sarjoo Prasad  is,  however,  faced  with  a peculiar difficulty  here, in  that,  on  dismissal  of  the plaintiff’s  appeal   by  the   lower  appellate  court,  as timebarred against  defendants 2  and 3, so far as these two defendants were concerned, the trial court’s judgment became final between  them and  the plaintiff.  The lower appellate court having  dismissed the  plaintiff’s appeal against them has affirmed  this position.  The High  Court in  the second appeal did  not do  anything to  the contrary with regard to the appeal  against defendants  2 and  3. It  is, therefore, clear that  so far  as the appellants 2 and 3 in this appeal are concerned  the finding  of the trial court that they had acquired title  to the premises by adverse possession stands concluded and  these two  appellants can  legitimately raise the plea of res judicata in the subsequent suit which is the subject matter of appeal before us.      So far  as defendants  2 and 3 of the earlier suit were

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concerned the  finding of  the trial  court  that  they  had acquired title  to the  premises by  adverse possession  had become conclusive  between the  parties at the time when the matters came to the High Court in second appeal. At any rate the appellants  2 and  3 (who were defendants 2 and 3 in the earlier suit) can definitely claim in this Court that so far as they  are concerned  with regard  to their  title to  the premises by  adverse possession  there is a clear finding in their favour by the trial court which was never disturbed by any  court  in  appeal  and  the  same  is  binding  on  the plaintiff.      Besides, we  find that  in  the  Memorandum  of  appeal before the High Court in S.A. No. 4658 of 1958 the plaintiff had taken  a ground that "the lower appellate court erred in law in  dismissing the  appeal against defendants 2 and 3 on the ground  of limitation"  (ground No. 5 at page 324 of the paper book,  volume II).  The High  Court, however,  did not record any decision on this point. It is, therefore, open to the appellants  2 and 3 before us to call in aid the finding of the  trial court  in their  favour that they had acquired title to  the premises  by  adverse  possession  since  that finding remains operative between the plaintiff and the said two defendants.      The position might have been different if the plaintiff in O.S. No. 114 of 1952 had merely relied upon the rent note dated November  13, 1946,  said to be executed in his favour by defendant  No. 5  on behalf  of defendants  1 to 4 in the earlier suit. The plaintiff would 833 then have  a different  character from  that of his deriving title from  his adoptive  father, Param  Lal. Tenancy of the defendants also  would have been de hors the earlier tenancy of Ram  Sahai under  Param Lal. It could, then, be said that in the  first suit the question of his title to the property was absolutely  irrelevant and that he would succeed or fail on  the   rent  note   from  which   he  would  establish  a relationship of  landlord and  tenant between  him  and  the defendants without any reference to title to the property or to his  relationship with  Param Lal and consequently to Ram Sahai’s relationship  with Param  Lal. That  is exactly what Mr. Sarjoo  Prasad strenously  urges us  to assume.  We  are afraid we cannot.      On the  other hand,  we find  the plaintiff himself did not adopt  that course  in the  first  suit.  The  plaintiff joined issue  with the  defendants,  without  protest,  with regard to  the alternative  case of tenancy of the father of defendants 1  to 4  under his  adoptive father  and produced earlier rent  notes executed by Ram Sahai in favour of Param Lal. This  evidence was  admissible and necessary in view of issues 3  and 8  earlier quoted.  The findings  of the trial court, as  referred to above, were in favour of defendants 1 to 4 and against the plaintiff on the point.      Now, in  the subsequent  suit, out of which the present appeal has  arisen, he  has based  his right to evict on the ground that  he is the adopted son of the original owner and on his  death he  became  the  owner  of  the  premises  and similarly Ram  Sahai, the father of the defendants, was also a tenant  under Param  Lal and  on Ram  Sahai’s  death,  the defendants 1  to 4  became tenants under Param Lal and after his death,  of the  plaintiff.  The  difficulty  has  arisen because the  very matter  about Ram  Sahai’s  tenancy  under Param Lal  had been  gone into  in the earlier trial and the finding  was  reached  by  the  trial  court  in  favour  of defendants 1  to 4 that Ram Sahai was not tenant under Param Lal  and   hence  they  were  also  not  tenants  under  the

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plaintiff. The  lower  appellate  court  did  not  expressly disturb this  finding but  observed  that  the  trial  court "probed into  unnecessary matters".  Even so, the suit stood dismissed against  defendants 1  to 4.  The lower  appellate court decreed  the  suit  for  rent  and  ejectment  against defendant No.  5 only who "shall vacate the house in suit on his own account".      We may  observe, in  passing, that admittedly defendant No. 5 was never in occupation of the premises in suit. Hence this decree for eviction of defendant 5 from the premises in O.S. No. 114 of 1952  is in effect a paper decree.      It is true, as the High Court observed in second appeal No. 4658  of 1958  that "as  regards the question of adverse possession the  lower appellate  court held  that it did not arise and,  therefore, no  finding was given on that point". If this  observation is  held, as we have, as displacing the finding  with  regard  to  the  adverse  possession  of  the defendants, this  will be  only  true  relating  to  adverse possession  by   defendants  1  and  4  and  will  not  bind defendants 2  and 3 in whose favour there had already been a conclusive finding of the trial court 834 and which  was not disturbed by the lower appellate court or in the  second appeal  No. 4658  of 1968. The second suit so far as  appellants 2 and 3 are concerned must, therefore, be held to  be barred  by res judicata. We are prepared to give effect to  the High  Court’s aforesaid observation about the lower appellate  court’s judgment  in favour of defendants 1 and 4  against whom  alone plaintiff’s appeals were disposed of on  merits. The  case of  defendants 2  and 3 stands on a different footing.      It was  contended on  behalf of the respondent that the scope or the subject matter of the earlier suit is different from that  in the  second suit. It is, however, difficult to accept this  submission. In  the earlier  suit the plaintiff prayed for  possession of  the premises  in suit by evicting the defendants  who held  the premises  as tenants under the plaintiff  on   a  rent   note  executed   in  his   favour. Alternatively the  plaintiff  sought  the  same  relief  for possession of  the premises  relying on  the status  of  the defendants 1  to 4  as tenants  derived from the position of their father  being a  tenant under the plaintiff’s adoptive father. In either case the relief was claimed on the plea of tenancy of the defendants. Both these pleas were rejected by the trial  court and  the defendants  1 to  4 were  held  to mature their title by adverse possession. In the second suit out of  which the  present appeal  has arisen,  although the suit is one for declaration of title to the premises and for possession, the  alternative plea set up in the earlier suit has again  been reagitated  to defeat  the plea  of  adverse possession set  up by the defendants and this time the court found in favour of the plaintiff.      It is  well established  that if  a matter directly and substantially in  issue in  an  earlier  suit  of  competent jurisdiction had  been finally  adjudicated upon  the matter becomes res judicata between the same parties with regard to the identical  subject matter  in a  subsequent suit. As the Privy Council observed in Krishna Behari Roy v. Banwari Lall Roy and  Another (1)  "where a material issue has been tried and determined  between the  same parties  in a proper suit, and in a competent Court, as to the status of one of them in relation to  the other,  it cannot be again tried in another suit between them".      Here the  parties are  the same  and the  property  for possession of  which the  suit was  filed is also identical.

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The only  difference is that in the second suit title to the property is  brought in  issue which  was not an adjudicated issue in  the first suit. That, however, is not material for the present  purpose since  the plaintiff’s  adoptive father has been  admittedly out of possession of the premises since about 1938.  It is  not the  plaintiff’s case that he or his father was in physical possession of the premises within the requisite period  prior to  the institution of the suit. The plaintiff,  on   the  other   hand,  seeks   to  rely   upon constructive possession through the defendants as tenants in the second  trial. The  matter relating to the status of the defandants  as   tenants   is,   therefore,   dircetly   and substantially in issue between the parties in both the suits for the reliefs claimed in them 835 It is,  therefore, not possible to hold that the question of even derivative  tenancy of  the defendants was not directly and substantially in issue in both the suits.      It cannot be said that the adverse decision against the plaintiff with  regard to  the status  of the  defendants as derivative tenants,  which was  necessary in  order to  hold that  the   defendants  had   acquired  title   by   adverse possession, was  only collaterally  or incidentally  made in the earlier  suit. For the only relief in the manner claimed in the earlier suit the decision with regard to the issue of adverse possession  was directly  material and  relevant  in that suit. The submission that the scope of the two suits is different is, therefore, devoid of substance.      We are  unable to subscribe to the view that defendants 2 and 3 could raise the plea of res judicata before the High Court. The  decision of  the lower appellate court regarding the plaintiff’s  appeal being barred by limitation was again res sub-judice  in the  High Court in S.A. No. 4658 of 1958. S. A. No. 4658 of 1958 was heard together with S.A. No. 1795 of 1965 resulting in a common judgment.      When second  appeals arising  out of two suits filed by the plaintiff  are treated as connected appeals and disposed of by  the  High  Court  by  a  common  judgment  there  is, ordinarily, no question of invoking the plea of res judicata before the  High Court  as the  findings in the earlier suit are not  till then final for the purpose of the second suit. That is the exact position here.      The plaintiff  having not appealed against the decision in S.A.  No. 4658  of 1958, defendants 2 and 3 could for the first time raise the plea of res judicata only in this court in this  appeal after  the issue  of adverse  possession  in respect of  defendants 2  and 3  (appellants 2 and 3 herein) vis-a-vis the  plaintiff (first respondent) had been finally decided and  set at rest in the High Court in S. A. No. 4658 of 1958.      The Privy  Council’s decisions  in Sheosagar  Singh and others v. Sitaram Singh and others(1) and Ashgar Ali Khan v. Ganesh Dass(2)  do not  support the  first respondent in the peculiar history of the litigation in the present case.      Even in  Sheosagar Singh’s  case (supra)  while dealing with the  expression "heard  and finally decided", the Privy Council observed at page 58 as follows:           "If there had been no appeal in the first suit the      decision of  the Subordinate  Judge would no doubt have      given rise to the plea (of res judicata)". This is exactly the position in the case at hand.      When there was no appeal in the eye of law by the first respondent against  the appellants  2 and  3  to  the  lower appellate court  from the  trial court’s  decree in O.S. No. 114 of  1952, the  appeal by  the first  respondent  against

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other parties to the lower appellate court 836 could not destroy the finality of the trial court’s decision so far as the appellants 2 and 3 were concerned.      The plaintiff  took another  opportunity  in  the  High Court by  raisiing the  question there  in S.A.  No. 4658 of 1958 but  did not  succeed. Therefore  the finality  of  the decision with  regard to  adverse possession  so far  as the appellants 2  and 3 were concerned was not disturbed even in the High Court.      Even in  Ashgar Ali  Khan’s case (supra) which followed Sheosagar Singh’s  case (supra),  the Privy  Council at page 216 observed:           "It is clear, however, that although the two first      courts had  found against  his  allegation,  the  final      Court of Appeal refused to determine the issue."      We are  not required to consider here what would happen if there  were also  a competent appeal against defendants 2 and 3  before the  lower appellate  court and that court had refused to  decide the  question in  their  presence.  As  a matter of  fact we are holding in favour of defendants 1 and 4 since  so far  as they are concerned the finality of trial court’s decision has been held to be destroyed.      It is  submitted by  the first  respondent that adverse possession of  defendants 2  and 3,  who were minors, is not independent of the mother or eldest brother (defendant 1 and 4 respectively)  and on  failure of  the  latter’s  plea  of adverse possession  the said  plea will  not be available in favour  of   the  former.  We  are  unable  to  accept  this submission for three reason :      First, the  minors’ interest  even lawfully represented by a party is separate and distinguishable from that party’s individual interest, if any, in a particular action. Second, even in  the first  suit upto  the High  Court the plaintiff succeeded in  the eviction suit only against defendant 5 and "on his  account" alone.  Third, the second suit of eviction against defendant  No. 6  or her assignees from a particular portion of  the premises  in suit  was abandoned.  There is, therefore, no  difficulty to  grant a  decree for  a partial possession.      From the  above it  also  follows  that  the  principle applicable in  abatement of appeals resulting in possibility of inconsistent  decrees, as sought to be relied upon by the appellants, is not at all attracted in the present case.      Our attention  was drawn  to several decisions relating to the application of the principles of res judicata, but we do  not  find  any  of  the  decisions  in  support  of  the contention advanced  by the first respondent in the peculiar facts and circumstances revealed in this appeal.      For example.  in Girdhar Manordas and other v. Dayabhai Kalabhai and others(1) which is a Full Bench decision it was held by  the majority  in that case that the plaintiffs were not barred  by the judgment in the former suit. A perusal of the facts of that suit will 837 clearly show  that in the first suit the plaintiffs lost the suit for  eviction of  the defendants on the ground that the alleged leases  were not  proved. The plaintiffs gave up the battle on  that plea  and later  on brought  another suit to evict the  defendants on the basis of title. The decision is clearly  distinguishable   from  the   peculiar   facts   of litigation with  which  we  are  concerned  in  the  present appeal.      Similarly the  decision in  Dwarkanath Roy v. Ram Chand Aich and  others(1) is  not of  any assistance  to the first

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respondent. In  that case  a decision  in a  suit  for  rent brought by  a plaintiff  against a  person who is alleged to have been his tenant in respect of certain land was held not to operate  as res  judicata in a subsequent suit brought by the same  plaintiff for  establishment of  his title  to the land not only against the person whose title as landlord the tenant-defendant had set up in the earlier rent suit.      The same  observation would  apply to  the decision  in Dalip Narain  Singh v.  Deokinandan Prasad  Singh(2)  relied upon by the first respondent.      The first  respondent also  drew our  attention to  the decision in  Ramagya Prasad Gupta and others v. Murli Prasad and others(3)  in which  one of us was a party. We, however, find that the ratio of the decision is not at all of any aid to the  respondent. This  Court held  in  that  appeal  that certain appeals  which arose  out of  a subsequent suit were not barred  by res  judicata since the subject matter of the earlier suit  and that  of the subsequent suit were entirely different.      In the  result the appeal is partly allowed, that is to say,  the   suit  No.6  of  1959  stands  dismissed  against defendants 2  and 3  (the appellants 2 and 3 herein) and the decree passed  against others stands. There will be no order as to costs in this appeal.      UNTWALIA, J.  I regret  my inability  to concur  in the judgment delivered  by my  learned Brother  Goswami, J.  for himself and  Mathew,  J.  I  proceed  to  give  my  separate judgment.      This appeal  by special  leave arises  out of  Original Suit No. 6 of 1958 filed by Respondent No. 1 in the Court of the Munsif  of Etah  in Uttar  Pradesh. In the said suit the four appellants  were defendants 1 to 4 and respondents 2, 3 and 4 were respectively defendants 5/1, 5/2 and 6. Since the only point  pressed by the appellants in this appeal is that the trial  of the suit was barred by the law of res judicata engrafted in  section 11 of the Code of Civil Procedure, the history of  the earlier  suit being Original Suit No. 114 of 1952 filed  by respondent  no. 1 in the same Court will have to be stated.      The dispute  relates to an Ahta (a house with compound) situated in  the town of Aliganj, District Etah. One Dileram was the  owner of this house. He transferred it to one Kirpa Ram by a registered 838 sale deed dated March 7, 1914. After the death of Kirpa Ram, his son  Hemraj became the owner of the house and he sold it away to Bohre Param Lal by a registered sale deed dated June 11, 192  Param Lal  died in  the year 1946. Respondent no. 1 claims to  be the  owner of  the house as the adopted son of Param Lal. Respondents 2 and 3 are daughters of one Kalawati and were  substituted in  her place  on her death. Kalawati, claiming to  be the  daughter’s daughter  of Dileram, sold a small portion  of the  Ahta to  one Mathura Prasad by a sale deed dated July 31, 1951.      Respondent no.  1 filed  Suit No.  114 of  1952 in  the Court of  Munsif of  Etah and alleged that respondent no. 4, impleaded as  defendant no.  5 in that suit, was the brother of appellant  4-widow of one Ram Sahai and maternal uncle of respondents 1  to 3,  sons of  Ram Sahai  and  that  he  had executed a  rent note  dated November  13, 1946 in favour of respondent no.  1 taking  the house on rent on behalf of the appellants. They  had sublet  a portion  to Kalawati who was impleaded as  defendant no.  6 in  that suit.  Kalawati  had unauthoridly transferred  the portion  in her  possession to Mathura Prasad.  The tenancy of the appellants (defendants 1

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to 4  in that  suit also)  and others  was terminated  by  a notice to  quit. The  suit was  filed for their eviction and certain other reliefs of realization of rent etc.      Respondent no.  4 did  not contest  that suit.  It  was contested by  the appellants  and Kalawati.  The  appellants denied that  they  were  the  tenants  of  the  house  under respondent no.  1. They  denied that he was the owner of the house and  pleaded that  they had  acquired title by adverse possession. The  learned Munsif  who tried  the suit  framed several issues  including  the  issues  as  to  whether  the appellants were  the tenants  of the  house and Kalawati was their sub-tenant  and whether  the  suit  was  barred  under Articles 142 and 144 of the Limitation Act, 1908.      The Munsif  found  that  Kalawati  was  the  daughter’s daughter of  Dileram and  she had  been living  in the small portion which  she had  sold to  Mathura Prasad  for a  long time; therefore,  the suit was barred under Articles 142 and 144  in  respect  of  that  portion.  I  may  leave  out  of consideration the  dispute in  regard to  this small portion because Mathura  Prasad was  not impleaded  as  a  defendant either in  the first  suit or  in the  second suit.  In  the second suit,  respondent no.  1 stated  that he had sold the small  disputed  portion  to  Mathura  Prasad.  The  dispute regarding this  portion is,  therefore, at an end. We are in this appeal,  concerned with  the substantial portion of the house   and the compound which has been in occupation of the appellants.      Although the  Munsif framed  issue no.  1 as to whether respondent no.  1 was  the owner  of the  house, he  did not decide this  issue because  while deciding the other issues, he held  that it was not proved that the appellants were the tenants of  the house,  rather, they  had  been  in  adverse possession.      Respondent no. 1 filed Civil Appeal No. 182 of 1956. It was disposed  of by the Civil Judge of Etah on September 17, 1958. 839 The appeal  against respondent no. 4 who was defendant no. 5 in that  suit was  allowed and  the suit  for  ejectment  as against him and for certain other reliefs for realization of rent etc.  was decreed.  The Civil  Judge  observed  in  the beginning of his judgment:           "that the  learned Munsif  did not  appreciate the      parties’ pleading  at all.  He probed  into unnecessary      matters and  did not give his finding on the matters in      issue..............................................The      suit aforesaid  was filed  merely on  the tenancy basis      but the learned Munsif went into the matter if Articles      142 and  144 of  the Indian  Limitation Act  barred the      suit aforesaid  and he actually gave a finding thereon.      He did not frame correct issues, which all the more led      him to error."      The argument  in the  appeal before him was confined to the question of tenancy of the appellants and sub-tenancy of KaKlawati. He  found the  rent note  dated November 13, 1946 executed by  respondent no. 4 to be genuine but held that it did not  establish the  relationship of  landlord and tenant between respondent  no. 1  and the  appellants. He also held that sub-tenancy  in favour  of Kalawati was not established and then said:           "The result  of the  above findings  is  that  the      plaintiff’s suit  against the defendants no. 1 to 4 and      6 must  fail. His suit should of course succeed against      the defendant  no.  5  who  has  not  come  forward  to      challenge or  contest the  plaint  allegations  against

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    him." After having  said so  in his  judgment the Civil Judge also found  that   due  to   certain  technical  defects  in  the description of  the guardian  of  defendant  nos.  2  and  3 (appellants 2  and 3  here) who were minors then, the appeal would be deemed to have been filed against them out of time. He, therefore, said:           "Hence, the  appeal against  the defendants  no. 2      and 3  should fail  on the ground of want of limitation      as well."                                         (underlining by me).      Respondent no.  1 filed  Second Appeal no. 4658 of 1958 in the  Allahabad High  Court from the decision of the Lower Appellate Court in Civil Appeal No. 182 of 1956. He wanted a decree against  all the  appellants and  one of  the grounds taken in  the appeal was that "the view of the learned Judge that the  appeal against defendants 2 and 3 was time barred, is erroneous in law;"      Shortly after the decision of the Lower Appellate Court in Civil  Appeal No. 182 of 1956, respondent no. 1 filed the second suit  on  November  13,  1958  which  was  eventually registered as  suit no.  6 of  1959. Since  in  the  written statement filed  in 1952  by the  appellants in  the earlier suit respondent  no 1’s  title to  the house in question had been denied, the present suit was instituted for recovery of possession of the house on the basis of title. After tracing the history 840 of his  title Respondent  no. 1 asserted that the appellants were tenants  of the house not only on the basis of the rent note executed  by respondent  no. 4  (defendent no. 6 in the second  suit)   but  also   because  Ram  Sahai,  father  of appellants 1  to 3  and husband  of appellant  4 had  been a tenant in  the house  under Param Lal the adoptive father of respondent no.  1,  since  1938.  The  appellants  in  their written statement  refuted the  claim of respondent no. 1 to be the  adopted son  of Param Lal or that the house belonged to him.  They reiterated  their stand  that  they  were  not tenants  of   the  house   and  claimed   title  by  adverse possession.      The Munsif  who tried the second suit decreed it by his judgment dated  December 12, 1963 deciding all the issues in favour of  respondent no.  1. The  point of res judicata was answered by  the Munsil against the appellants on the ground that the  matter in  the earlier  suit was sub-judice and it had no  substance either.  He held that respondent no. 1 was the adopted  son  of  Param  Lal.  The  fantastic  claim  of appellant 4 that Kirpa Ram had gifted the house to Ram Sahai was rejected  and it  was held  that the  house belonged  to Param Lal  and thereafter  to respondent  no. 1.  He further held that  Ram Sahai was the tenant of the house under Param Lal and  after his  death in  the year  1946, the appellants became the lessees.      The appellants filed Civil Appeal No. 13 of 1964 in the Lower Appellate  Court. The Temporary Civil & Sessions Judge of Etah who heard the appeal agreed with all the findings of the Munsif  and dismissed  the appeal. He also held agreeing with Munsif that the suit was not barred under section 11 of the Code  of Civil Procedure. The finding of the Munsif that Param Lal  was the  owner of the house could not be assailed by the  appellants before  the Civil Judge. It was, however, claimed on  their behalf that they had acquired title to the house  in  suit  by  adverse  possession.  The  Civil  Judge rejected their claim. The appellants filed second appeal no. 1795 of  1965 in  the High  Court from  the decision  of the

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Lower Appellate Court in Civil Appeal No. 13 of 1964.      Respondent no. 1 filed an application in the High Court for the  hearing of  both the  second appeals  together. His prayer was  allowed. On  the appellants’  objection that the decision in  the earlier  suit operated  as res judicata and hence second  appeal 1795  should  be  heard  later,  C.  B. Kapoor, J. made an order on April 19, 1966 observing that it was open  to the  appellants to raise the point when the two second appeals  were taken  up for hearing. Both the appeals were heard  and dismissed by S. K. Verma, J. as he then was, by his Judgment and order dated November 21, 1967. The point of res  judicata was not raised before him. In second appeal 4658 of 1958 the learned Judge said:           "As regards the question of adverse possession the      lower appellate  court held  that it did not arise and,      therefore, no  finding was given on that point.........      ........................ 841           The finding  that defendants  no. 1  to 4 were not      the tenants  of the  plaintiff is  one of  fact and  it      cannot be disturbed in second appeal." The other second appeal was dismissed on the ground that:           "the courts  below  have  recorded  the  following      categorical findings of fact :           (1)  Param Lal was the owner of the house.           (2)  Mohan Lal was the adopted son of Param Lal.           (3)   Ram Sahai  was the  tenant of Param Lal and,                therefore, defendants  nos. 1  to 4 were also                tenants of the premises in dispute.           These findings,  again, are  findings of  fact and      they cannot be disturbed in second appeal." When a point was taken before the learned Judge that certain documents relied  upon by  the lower appellate court had not been legally proved, he observed:           "the findings  with regard  to  tenancy  has  been      recorded while  the lower  appellate court was deciding      the question of adverse possession. The plaintiff could      have  been  granted  a  decree  on  the  other  finding      recorded by  the lower  appellate court, viz., that the      possession of  the defendants  nos.  1  to  4  was  not      hostile :  whether  that  possession  originated  as  a      result of a contract of tenancy or otherwise was wholly      immaterial. Therefore,  even  if  it  be  assumed  that      certain documents,  which were  not  proved  have  been      relied upon, it is of no consequence."      As already  stated, the  appellants  have  come  up  in appeal to this Court by special leave from the decree of the High Court in second appeal no. 1795 of 1965. Respondent no. 1 has not preferred any appeal from the decision of the High Court  in  second  appeal  no.  4658/1958.  It  is  in  this situation that  counsel for  the appellants  submitted  that this appeal should be allowed and it should be held that the trial of  the second suit was barred under section 11 of the Code of Civil Procedure.      The question of res judicata has got to be decided with reference to  the final  decision in  the earlier litigation because the  words in  paragraph 1 of section 11 of the Code are that  the matter  directly and substantially in issue in the second suit has been directly and substantially in issue in a  former suit  and "has been heard and finally decided." In Sheosagar Singh and others v. Sitaram Singh and others(1) the facts were that in a former suit an issue had been arsed and decided against the plaintiffs by the First Court on the question whether  the defendant  was the  son of  A. But the High Court concurred in dismissing that suit as not properly

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constituted, withholding 842 any decision  of the  issue then  raised. The same issue was raised in a second suit. In this background Lord Macnanghten delivering the  judgment of  the Judicial  Committee of  the Privy Council said at page 58 :           "In support  a plea  of res  judicata  it  is  not      enough that the parties are the same, and that the same      matter is  in issue.  The matter  must have been "heard      and finally  decided". If  there had  been no appeal in      the first  suit the  decision of  the Subordinate Judge      would no  doubt have  given rise  to the  plea. But the      appeal destroyed  the finality  of  the  decision.  The      judgment of  the Lower  Court  was  superseded  by  the      judgment of  the Court  of Appeal.  And the  only thing      finally decided  by the  Court of Appeal was that. in a      suit constituted  as the  suit of 1885 was, no decision      ought to have been pronounced on the merits. This decision was followed in the case of Ashgar Ali Khan v. Ganesh Dass(1)  while interpreting  an identical  expression "finally decided"  occurring in  section 10  of the  British Baluchistan Regulation  IX of  1896. The  facts of this case were  that   the  appellant   in  pursuance  of  a  deed  of dissolution of  partnership executed  a bond for the payment of a  sum of  money to  the respondent. He sued to set aside the bond on the ground of fraudulent misrepresentation as to the amount  due. The  Trial Judge and on appeal the District Judge held  that the  alleged fraud  was not established and dismissed the  suit. Upon  a further  appeal to the Judicial Commissioner, it  was held  without entering into the merits that the  appellant could avoid the bond as he did not claim to avoid  the deed.  In a  subsequent suit by the respondent upon the  bond the  appellant raised  as a  defence the same case of  fraud.  The  respondent  pleaded  the  bar  of  res judicata in  the trial  of the issue of fraud. Rejecting the plea Mr.  Ameer Ali  delivering of the judgment on behalf of the Board has said at page 216 :           "It appears to their Lordships that the contention      is well  founded. "The  matter in issue" in the present      suit is  no doubt  the same  as in  the defendant’s own      action. It  is clear,  however, that,  although the two      first Courts  had found  against  his  allegation,  the      final Court  of Appeal  refused to determine the issue.      Section 10  of the  Regulation creates  an estoppel  by      judgment only  when the  "matter  in  issue"  has  been      "finally decided".  These words  have received judicial      interpretation  in  the  case  of  Sheosagar  Singh  v.      Sitaram Singh."      A full  Bench of  the Madras  High Court in the case of (Maruvada) Venkataratnama  and others  v. M.  Krishnama  and others(2) followed above two decisions of the Privy Council. Abdur Rahim, O.C. J., said at page 22 column 2 :           "That is just what section 13 requires; there must      be a  final decision."  The plaintiffs,  or rather  the      persons 843      whose interest  they represent,  sought a  decision  in      their favour  on two questions on the merits. The Court      of Appeal  decided against  them on  one  question  and      refused  to   decide  the  other  question,  apparently      because they  thought it  unnecessary to  do so in that      suit. I am of opimon that, under the circumstances, the      plea of  res judicata  fails and  the appeal  should be      dismissed with costs."      Applying the  principles aforesaid, simpliciter, to the

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facts of  this case there should be no difficulty in holding that the  trial of  the three  issues, namely  the issue  of respondent no.  1 being  the adopted  son of  Param Lal, his title to  the house,  and the  appellants not  acquiring any title by  adverse possession; is not barred by res judicata. The first  two issues  were not  decided in the earlier suit even by  the Trial  Court. The third issue, although decided by the  Trial Court,  was thought  unnecessary to be decided within the  frame of the carrier suit by the lower appellate court and  the High  Court. The  final decision  of the High Court clearly  confined the  decision in the earlier suit to the issue  of establishment  of relationship of landlord and tenant in  regard to all the appellants. The High Court also said that  the question of tenancy could be gone into in the second  suit  to  repel  the  appellants’  claim  of  having acquired title  to the  house by adverse possession. Failure of  respondent  no.  1  to  establish  the  relationship  of landlord and  tenant between him and the appellants did not, ipso facto, lead to the conclusion that they had any hostile title to the house.      But learned  counsel for  the appellants  endeavored to advance an  ingenious argument.  He  pointed  out  that  the finding  of   adverse  possession   recorded  in  favour  of appellants 2  and 3  by the  Trial Court in the earlier suit remained  undisturbed,   as,  the   lower  appellate   court dismissed the  appeal as  against  them  on  the  ground  of limitation and  hence so far they are concerned the trial of the same  issue as  against them was barred on the ground of res judicata.  In my  opinion there  is no substance in this point. The  lower appellate court did not intend to pass any inconsistent decree  or decision.  The lower appellate court did not  make any  distinction between  the case of the said two appellants who were minors and the case of their brother appellant 1  and their mother appellant 4 on the question of their acquiring  title by adverse possession. In the earlier portion of the judgment when the observations were made that the Munsif had unnecessarily tried the issue, they were made in respect  of all  the defendants. But the dismissal of the appeal as  against appellants 2 and 3 was also rested on the ground of limitation by use of the words "as well." When the matter came to the High Court, the High Court clearly rested its judgment only on the basis of the finding that there was no relationship  of landlord  and tenant  between respondent no. 1  and the  appellants. A special ground, as pointed out above, had  been taken  by respondent  no. 1  in his  second appeal that the dismissal of appeal against appellants 2 and 3 on the ground of limitation was erroneous in law. Although the High  Court in  express  language  did  not  record  any finding in that regard, by necessary implica- 844 tion, it  must be  deemed to have done so when it maintained the dismissal of the suit against all the appellants only on the ground  of nonestablishment  of the  fact of their being tenants of  the house.  If the  point of  res  judicata,  as presented here,  had any  substance, it was available to the appellants in  the High  Court also. Although the two second appeals were  heard together,  pursuant to  the order  dated April 19,  1966 made by Kapoor, J, the point of res judicata could be  and ought  to have been raised. It could be argued even in  the High Court, as was done here, that, there was a finality  of   the  decision  on  the  question  of  adverse possession in  the judgment  of the Trial Court given in the earlier suit  so far  as appellants  2 and  3 were concerned and, therefore, the second suit either ought to fail in toto or at least against the said two appellants on the ground of

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res judicata.  But no  such argument was advanced before the High Court. In these circumstances also I feel no difficulty in coming  to the  conclusion that the final judgment of the High Court  in the earlier suit rested only on the ground of non-establishment of  relationship of  landlord  and  tenant between the  parties. The question of adverse possession was mutilated and  obliterated finally  by the final decision of the High Court in the earlier litigation. That being so, the principle of  law enunciated by the Privy Council in the two decisions referred  to above  are applicable to the facts of the instant  case and  the decree  of possession made in the second suit  on the  ground of title and right to possession of respondent  no. 1 is not vitiated at all on the ground of res judicata.      In the  result I  would dismiss  the appeal but make no order as to costs.                            ORDER      In accordance  with the  judgment of  the majority, the appeal is  partly allowed.  There will  be no  order  as  to costs. V.P.S. 845