REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2579 OF 2004

Md. Nooman & Ors.                                            ….Appellants

Versus

Md. Jabed Alam & Ors.                                    ….Respondents

JUDGMENT

AFTAB ALAM, J.  

1. A finding on the question of title recorded in a suit for eviction would  

how far be binding in a subsequent suit for declaration of title and recovery  

of possession between the same parties? This is the question that arises for  

consideration in this appeal. The answer to the question would depend on, in  

what manner the question of title was raised by the parties and how it was  

dealt with by the court in the eviction proceedings. Ordinarily, it is true, in a  

suit for eviction even if the court goes into the question of title, it examines  

the issue in an ancillary manner and in such cases (which constitute a very

large majority)  any observation or  finding on the question of  title  would  

certainly not be binding in any subsequent suit on the dispute of title. But  

there may be exceptions to the general rule and as we shall find presently,  

the case in hand seems to fall in that exceptional category of very limited  

number of cases.  

2. Amina  Khatoon,  the  mother  of  respondent  nos.1-4,  (who  were  

substituted in her place and brought on record after her death) instituted a  

suit for eviction (Title Suit No.36 of 1973) in the Court of Second Munsif,  

Arrah,  against  Md.  Lukman,  the  father  of  appellant  nos.1-6  (who  were  

similarly  substituted  in  his  place  and brought  on  record  after  his  death).  

According  to  the  plaintiff  Amina  Khatoon,  the  suit  property  originally  

belonged to her mother-in-law, Sulakshana. Sulakshana had two other sons,  

Md.  Lukman  (the  original  defendant)  and  Md.  Jan,  apart  from Amina’s  

husband, Mahmood Hassan. Amina further claimed that Sulakshana sold the  

suit  house  to  her  through a  registered  sale  deed dated  August  13,  1957.  

Following the purchase of the suit house, she moved the Block Development  

Officer (BDO) and the municipality for mutation of her name in respect of  

the  suit  house in the  revenue and municipal  records.  The defendant  Md.  

Lukman,  filed  an  objection  before  the  BDO,  but  his  objection  was  

disallowed and her name was entered in the revenue and municipal records.  

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Later  on,  the  municipality  filed  a  suit  against  her  for  arrears  of  tax  

whereupon all the outstanding dues of tax were paid by her. It was further  

the case of Amina, that she had let out the suit house to the defendant about  

4 or 5 years prior to the filing of the suit  on a monthly rent of Rs.10.00  

(rupees ten only). The defendant did not pay the rent from September, 1971  

to February 13, 1973. She then sent a registered notice to him under section  

106 of the Transfer of Property Act, 1882 through her lawyer determining  

the defendant’s tenancy and asking him to vacate the house by March 31,  

1973. The defendant did not vacate the house forcing her to go to the court.

3. The  defendant  in  his  written  statement,  apart  from  the  formal  

objections to the maintainability of the suit, denied that Sulakshana executed  

any sale deed with respect to the suit house in favour of the plaintiff. He  

described the sale deed, relied upon by the plaintiff as the basis of her title,  

as a forged and fabricated document. In this connection, the defendant stated  

that Sulakshana had an attack of paralysis before August 13, 1957 when the  

sale was said to have been executed by her. She had lost her senses and she  

was not in a position to execute any sale deed. No consideration was paid by  

the plaintiff to Sulakshana and the title to the house never passed to her. The  

defendant set up a rival claim of title over the suit  house. He stated that  

Sulakshana had transferred the suit house in his favour in 1950, by Hiba  

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(oral gift) and since then he was coming in possession of the suit property.  

Originally,  it  was  parti  (vacant)  land.  He  submitted  a  plan  in  the  

municipality for construction of the house on it and constructed the house  

after the plan was sanctioned. He was living in the house constructed by him  

over the land which was given to him by his mother by Hiba. He denied any  

relationship of landlord and tenant with the plaintiff and also denied to have  

taken the suit house from the plaintiff on a monthly rent of Rs.10.00 (rupees  

ten only).  He never  paid  any rent  to  the  plaintiff,  nor  was  any rent  due  

against him.

4. On the basis  of the pleadings of the  parties,  the trial  court  framed  

seven issues, of which issue nos.3 & 4 relating to the plaintiff’s claim of title  

over the suit property and issue no.5 about the relationship of landlord and  

tenant between the parties are relevant for this appeal. Those three issues are  

as under:

        “3. Has the plaintiff got title to the suit land?

4. Is the sale deed genuine, valid and for consideration?

5. Is there any relationship of landlord and tenant between the  

Parties?”

5. In support of the rival claims of title over the suit property, both the  

plaintiff  and  the  defendant  led  their  respective  evidences,  both  oral  and  

documentary. The defendant also examined the third brother, Md. Jan from  

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his side as DW11. On a consideration of the evidences adduced before it, the  

trial court upheld the plaintiff’s claim of title to the property arriving at the  

following finding:

“In view of the discussion made above I hold that the sale deed  (Ext.4) is genuine and that story set up by the defendant that an  oral hiba was made by Sulachna to him has not been proved.  The plaintiff has got Title to the suit land and the sale deed is  genuine valid and for consideration.”

6. It then took up issue nos.5 and 6 (about the plaintiff’s entitlement to a  

decree of eviction) together and came to hold and find that the relationship  

of landlord and tenant between the parties had not been proved. In light of its  

finding on issue no.5, the court further observed that in case the question of  

title is raised by the defendant and if it is found that there is no contract of  

tenancy, the proper course would be to dismiss the suit and not to convert it  

into a declaratory or possessory suit which is of altogether a different nature.  

The  court  further  pointed  out  that  the  suit  before  it  was  neither  for  

declaration  of  title  nor  the  plaintiff  had  paid  ad valorem court  fee.  The  

plaintiff  was,  therefore,  not  entitled  to  a  decree  of  eviction  since  the  

relationship of landlord and tenant was not established between the parties.  

It, accordingly, dismissed the suit by judgment and order dated December  

23, 1974.

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7. The plaintiff took the matter in appeal, (Title Appeal No.12 of 1975)  

which too was dismissed by the Second Additional District Judge, Arrah, by  

judgment and order dated February 19, 1975. From the judgment of the first  

appellate court, it appears that before it the main focus was on the issue of  

relationship of landlord and tenant between the parties. The trial court found  

that  the  suit  property  was  vacant  land  and not  a  house  (the  case  of  the  

plaintiff was that the suit property was a piece of land 3 kathas and 5 dhurs  

in  area  with  a  fallen  down  house).  It  also  noted  that  on  behalf  of  the  

respondent no argument was advanced on the invalidity of the sale deed and  

the controversy was mainly  about the relationship of  landlord and tenant  

between the parties.  On this  issue,  the  appellate  court  came to  the  same  

finding as the trial court and dismissed the plaintiff’s appeal observing as  

follows:

“10. It is quite clear from the above enunciated principle that in  order to get a decree in such a suit the plaintiff must not come  to the Court with a false story. In the present case, it is quite  obvious the plaintiff has come with a false case that she let out  a house on the suit land to the deft (sic defendant) on a rent of  Rs.10/- per month. If there is no relationship of landlord and  tenant between the parties the plaintiff should have prayed for  declaration  her  title  and  recovery  of  possession  after  paying  advalorem Court  fee  on the  current  market  value  of  the  suit  property.  By  filing  a  suit  for  eviction  of  the  defendant  and  paying  small  Court  fee  on twelve  month alleged  rent  of  the  house, the plaintiff has adopted a tricky way of getting her title  

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declared and possession of the suit house recovered after paying  very low amount of the court fee.”

8. The  plaintiff  did  not  take  the  matter  any  further  but  filed  

another  suit  (Title  Suit  No.16/82 of 1978-79) against  Md. Lukman  

seeking  declaration  of  title  over  the  property  and  recovery  of  its  

possession from the defendant. In this suit, her claim of title over the  

suit  property  was  exactly  the  same  as  in  the  previous  suit.  The  

defendant too, apart from raising the objections based on limitation  

and  res judicata and similar other formal pleas mainly stuck to the  

same story as in the previous case. According to the defendant, the  

sale deed relied upon by the plaintiff was not a genuine document for  

consideration and it was not executed by Sulakshana,  who was the  

mother of the defendant. It was stated on behalf of the defendant that  

Sulakshana died in 1957. In the beginning of that year she suffered  

from fever  for  about  a  month  and  remained  confined  to  bed  and  

thereafter she suffered an attack of paralysis.  She lost all  power of  

understanding  and  continued  in  that  state  till  her  death  in  August  

1957.  The  defendant  specifically  pleaded  that  on  August  13,  1957  

when the disputed sale deed was shown to have been executed, she  

had no power of understanding. It was further stated on his behalf that  

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the plaintiff’s  husband was a clever  litigant  and he  manoeuvred to  

fabricate  the  sale  deed  by  setting  up  some  other  woman  as  

Sulakshana. It was also stated that if there was in existence any sale  

deed  purportedly  executed  by  Sulakshana,  it  must  have  been  

manufactured in collusion with the scribe, the attesting witnesses and  

the registrar and it would not confer any right, title or interest in the  

suit property on the plaintiff. It was further the case of the defendant  

that  the  disputed  sale  deed was never  acted upon and the plaintiff  

never came in actual possession of the suit property on this basis. The  

defendant also denied the case of the plaintiff that she had inducted  

him as a tenant in the suit premises on a monthly rental of Rs.10.00  

(rupees ten only) or as a licensee, as totally false and concocted. The  

defendant claimed that his mother Sulakshana had given him the suit  

property in the year 1950 by Hiba (oral gift) and put him in actual  

physical possession of the suit premises and since then he was coming  

in its possession. He constructed a boundary wall around the land and  

a house consisting of five rooms, etc. It was lastly claimed that the  

defendant was coming and continuing in possession to the knowledge  

of everyone, including the plaintiff and, thus, the defendant had, in  

any event, acquired title by adverse possession.

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9. It is, thus, to be seen that in the second suit too both parties went to  

the court with the same stories as in the previous suit, though, it is true  

that this time each side led some additional evidence in support of its  

case, for example, the plaintiff relied upon and produced a copy of the  

judgment in the earlier suit in which her claim of title over the suit  

property was upheld.

10.     The trial court framed a number of issues, of which issue nos. III, IV,  

V & VI are relevant for this appeal and are as follows:

        “III) Has the plaintiff got title over the suit property?

IV) Is there any relationship of landlord and tenant between the  plaintiff and the defendant?

V) Has the plaintiff acquired title by adverse possession?

         VI) Is the plaintiff entitled to recovery of possession? ”  

The trial court considered issue nos. III, IV & V together and came to find  

and hold that the plaintiff had succeeded in proving her title whereas the  

defendant had failed to prove his adverse possession. Issue nos. III & V were  

therefore decided in the plaintiff’s favour while issue no. IV was decided  

against her. On the basis of its findings, the trial court held that the plaintiff  

had valid cause of action and it, accordingly, decreed the suit by judgment  

and order dated February 28, 1981.  

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11.    Against the judgment and order passed by the trial court the defendant  

preferred an appeal (Title Appeal No.33 of 1981). The first appellate court  

(the  eighth  Additional  District  Judge,  Arrah),  on  a  reappraisal  of  the  

evidence produced by the parties, came to find and hold that the plaintiff had  

failed to prove that Sulakshana had put her left thumb impression on the sale  

deed (Ext.3)  after  understanding  its  contents  and she  had,  thus,  failed  to  

prove  her  title  to  the  suit  premises  on  the  basis  of  the  sale  deed.  The  

appellate court, accordingly, allowed the appeal and by judgment and order  

dated May 21, 1987 set aside the judgment and decree passed by the trial  

court and dismissed the plaintiff’s suit.

12.   The original plaintiff was dead by this time and her heirs and legal  

representatives,  the present respondents,  took the matter in second appeal  

(Appeal from Appellate Decree No.236 of 1987) to the High Court. In the  

High Court, the second appeal was heard on the substantial question of law  

framed as under:

“…whether the judgment and decree regarding title passed in  Title Suit No.36 of 1973 (Ext.15) shall operate as  res judicata  between the parties on the question of title.”

13. The High Court by judgment and order dated May 24, 2002 answered  

the  question  in  the  affirmative,  in  favour  of  the  appellants  (respondents  

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herein), allowed the appeal, set aside the judgment and order passed by the  

appeal court below and restored the judgment and decree of the trial court.  

The High Court noted that the earlier suit (for eviction) and the later suit for  

declaration of title and recovery of possession were between the same parties  

and were contested on exactly the same claims raised by the two sides. The  

plaintiff on each occasion was claiming title to the suit premises on the basis  

of a sale deed executed by Sulakshana in her favour in the year 1950. The  

defendant on each occasion alleged that the sale deed was sham, fake and  

fabricated  and  set  up  a  rival  claim  of  title  on  the  plea  that  his  mother  

Sulakshana had made an oral gift of the suit premises in his favour in the  

year 1950 and since then he was coming in possession over it. The premises,  

when it  was  given to  him in gift,  was  a  vacant  land over  which he had  

constructed a house after obtaining sanction from the municipality. The High  

Court, therefore, observed as under:

“9… The facts of the earlier Title Suit No.36 of 1973, which  was between the same parties and present Title Suit No.16 of  1978 also between the same parties, show that the plea taken by  both the parties regarding title in both the Title Suits are same.   10. In the facts and circumstances of the case, the judgment and  decree  regarding  title  passed  in  Title  Suit  No.36  of  1973  (Ext.15) shall operate as res judicata between the parties on the  question of title.”

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14. Mr.  H.L.  Agrawal,  learned  senior  advocate,  appearing  for  the  

appellant contended that the High Court had seriously erred in holding that  

the finding in the earlier suit of eviction would operate as res judicata in the  

subsequent  suit  for  declaration  of  title  and  recovery  of  possession.  Mr.  

Agrawal contended that a court dealing with an eviction suit was a creature  

of the Rent Act and was a court of limited jurisdiction. It had no authority or  

jurisdiction to decide disputes of title and hence, any finding recorded by it  

on the larger issue of title could not be binding on a court under the Code of  

Civil Procedure adjudicating upon a dispute of title between the two sides.  

He further submitted that there may be instances where in a suit for eviction  

the tenant might deny the title of the person seeking his ejectment and in  

those cases the rent court may incidentally go into the question of title  in  

order to decide on the primary issue of eviction. But its findings on the issue  

of  title  would  only  be  incidental  and  never  binding  in  a  proper  suit  for  

declaration of title and recovery of possession. In support of the submission  

he relied upon a decision of this Court in Shamim Akhtar v. Iqbal Ahmad &  

Anr., (2000) 8 SCC 123, in which it is said that in an eviction suit under the  

Rent Act, the question of title can be considered by the court as an incidental  

question and the final determination of title must be left to the decision of  

the competent court. The decision in Shamim Akhtar arose from U.P. Urban  

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Buildings  (Regulation  of  Letting,  Rent  and  Eviction)  Act,  1972  and  the  

Provincial Small Cause Courts Act, 1887 and it was on a totally different set  

of facts. The observation of the court relied upon by Mr. Agrawal was  of  

course  stating  the  general  rule  and  no  more  than  that.  The  decision  in  

Shamim Akhtar  in no way helps the case of the appellants  in the present  

appeal.

15. The  counsel  for  the  respondents  on  the  other  hand  relied  upon  a  

decision of this court in  Sajjadanashin Sayed Md. B.E.Edr.by LRs. (D) vs.   

Musa Dadabhai Ummer and Ors.,  (2000) 3 SCC 350. The decision in this  

case dealt with the question when a matter can be said to be directly and  

substantially  in  issue and when it  is  only  collaterally  and incidentally  in  

issue.  The  decision  in  Sajjadanashin  does  seem to  help  the  case  of  the  

respondents.  But we may state here that Mr. Agrawal with great fairness  

brought to our notice a decision of the Patna High Court1 in Pardip Singh vs.   

Ram Sundar Singh, AIR (36) 1949 Patna 510, though it is clearly against  

him. It is an old decision in which the division bench of the High Court  

placed  reliance  on two earlier  decisions  of  the  Privy Council.  In  Pardip  

Singh Meredith J., speaking for the division bench of the court observed as  

follows:

1 To which both, Mr. Agrawal and the two of us have been very closely associated at some time.

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“The decision in a rent suit is not res judicata on the question of  title unless the question of title had to be decided, was expressly  raised, and was expressly decided between the parties and in  each case it is necessary to examine carefully the decision in the  rent  suit  before  any opinion can  be  formed as  to  whether  it  operates  as  res  judicata on  the  question  of  title  or  not.  Ordinarily the decision would be res judicata only with regard  to the existence of the relationship of landlord and tenant. The  difference in the two classes of cases is very well illustrated in  two Privy Council decisions, namely,  Run Bahadoor Singh v.  Mt. Lucho Koer, 12 I.A. 23: (11 Cal. 301 P.C.), where it was  held that the decision was not  res judicata as the question of  title had been gone into only incidentally and collaterally, and  Radhamadhub Holdar  v.  Manohar Mookerji,  15 I.A. 97:  (15  Cal. 756 P.C.), where the question of title was directly decided  in a rent suit, and the decision was held to be res judicata.”

16. We respectfully  concur  with  the  view expressed in the decision in  

Pardip Singh.

17. We have carefully examined the pleadings of the parties in the two  

suits and the evidences led by them in support of their  respective claims  

regarding title in the two suits. And, we are satisfied that the issue of title  

was expressly raised by the parties in the earlier  eviction suit  and it  was  

expressly decided by the eviction court. The question of title was directly  

and substantially in issue between the parties in the earlier suit for eviction.  

Hence,  the  High Court  was right  in holding that  the  finding recorded in  

favour of the plaintiff in the earlier suit for eviction would operate as  res  

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judicata in  the  subsequent  suit  for  declaration  of  title  and  recovery  of  

possession between the parties.

18. We, thus, find no merit in the appeal. It is dismissed, but in the facts  

and circumstances of the case there will be no order as to costs.  

……………………………..J (AFTAB ALAM)  

………………………………J (R.M. LODHA)   

New Delhi, September 22, 2010

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