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PETITIONER: RAMESH CHANDRA

       Vs.

RESPONDENT: SHIV CHARAN DASS AND ORS.

DATE OF JUDGMENT21/09/1990

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) KANIA, M.H.

CITATION:  1991 AIR  264            1990 SCR  Supl. (2)  97  1990 SCC  Supl.  633     1990 SCALE  (2)738

ACT:     Code of Civil Procedure, 1908: Section 11-- Res  Judica- ta--Finding recorded in appeal in one suit--Whether operates as Res judicata in latter suit.

HEADNOTE:     The Appellant’s father purchased the house of respondent Nos.  1  and 2 with condition of repurchase by  the  sellers after five years. He permitted the respondents to remain  in possession but got a rent note executed by Respondent  No.3, the  first cousin of Respondent No.1. After the expiry of  5 years when the house was not repurchased by the respondents, the  appellant’s  father (plaintiff) instituted a  suit  for arrears  of rent and ejectment against Respondent Nos. 1,  2 and  3 (Defendant Nos. 2, 3 and 1) claiming  that  defendant No. 1 was in arrears of rent and defendant Nos. 2 and 3 were his  sub-tenants. The Trial Court decreed the suit  for  ar- rears of rent against defendant No. 1 but dismissed the suit for  ejectment against defendant Nos. 2 and 3  holding  that they  were not sub-tenants. Defendant No. 1 filed an  appeal against the decree for arrears of rent. The Appellate  Court dismissed  the  appeal with an observation that  though  the rent note was executed by Defendant No. 1, the possession of Defendant  Nos.  2 and 3 was on behalf of  Defendant  No.  1 since  they were closely related. Relying on these  observa- tions the plaintiff filed a second suit against the  defend- ants  with a change that defendant Nos. 2 and 3 were  licen- sees of defendant No.1. The Trial Court decreed the suit for arrears  of rent against defendant No. 1 and  for  ejectment against  defendant Nos. 2 and 3. Both defendant No. 1  sepa- rately and defendant Nos. 2 and 3 jointly filed two  appeals which were dismissed.     Separate  appeals  were filed in the  High  Court  which dismissed  the  appeal of defendant No. 1  and  allowed  the appeal  of defendant Nos. 2 and 3 holding that the  findings recorded  in  appeal arising out of earlier suit  that  they were licensees did not operate as res judicata.  Accordingly the  High  Court dismissed the suit  for  ejectment  against defendant Nos. 2 and 3. Hence this appeal. Dismissing the appeal, this Court, 98     HELD:  One of the tests to ascertain if a finding  oper-

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ates  as res judicata is if the party aggrieved could  chal- lenge  it.  Since the dismissal of appeal or  the  appellate decree  was not against defendants Nos. 2 and 3  they  could not  challenge it by way of appeal. Even assuming  that  de- fendant No. 1 could challenge the finding that liability  of rent  was of defendant Nos. 2 and 3 as they were in  posses- sion  he  did not file any written statement  in  the  Trial Court raising any dispute between him.. self and  defendants Nos.  2 and 3. There was thus no occasion for the  appellate court to make the observation when there was neither  plead- ing  nor evidence. Therefore, from either point of view  the finding could not operate against defendants Nos. 2 and 3 as res judicata. [100E-G]     Keshardeo Chamria v. Radha Kissen Chamria, [1953] S.C.R. 154; held in applicable.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 2840  of 1982.     From  the  Judgment and Order dated 5.12.  1979  of  the Allahabad High Court in Second Appeal No. 82 of 1972. R.K. Garg and H.K.Puri for the Appellant.     Satish  Chandra, Pramod Swarup and A.K.  Srivastava  for the Respondents. The Judgment of the Court was delivered by     R.M. SAHAI, J. In this appeal by grant of special leave, directed  against  judgment of the Allahabad High  Court  in second appeal arising out of a suit for arrears of rent  and ejectment,  the question is if the High Court committed  any error  of  law in allowing the second appeal on  the  ground that the two courts below had erroneously held that  finding recorded  in an appeal, filed by one of the  defendants  who was sued as tenant in an earlier suit, could not operate  as res  judicata  between plaintiff and  respondents  who  were defendants nos. 2 and 3 in that suit.     Unfortunately for appellant-equity may or may not be  in his favour as his father too acted shrewdly while purchasing house  of daughter-in-law’s father but law is certainly  not in  his favour. How dispute arose between parties,  who  are closely  related, is quite interesting. Shiv Charan Das  and Har Charan Das (respondents nos. 1 99 and  3  in this appeal) are first  cousins.  Ravindra  Kumar (respondent  no.  2) is son of Shiv Charan. His  sister  was married to son of Ganga Prasad who purchased the only  house of  Shiv Charan and Ravindra Kumar with condition of  repur- chase  by  sellers after five years. He  permitted  them  to remain  in possession, but got a rent note executed  by  Har Charan. Purpose of this became apparent later as immediately after  expiry  of five years when the house was  not  repur- chased  Ganga  Prasad (referred  hereinafter  as  plaintiff) filed  suit  for ejectment and arrears of rent  against  Har Charan,  Shiv Charan and Ravindra (hereinafter  referred  as defendants  nos. 1, 2 and 3) claiming that defendant  no.  1 was  in arrears of rent and defendant no. 2 and 3  were  his sub-tenants. The suit was contested by defendants nos. 2 and 3 only. The Trial Court decreed the suit for arrears of rent against  defendant no. 1. It was held that defendant  no.  2 and 3 were not sub-tenants. Therefore suit for ejectment was dismissed.  The  plaintiff submitted to  this  finding.  Ag- grieved  by the decree for arrears of rent defendant  no.  1 filed  appeal which was dismissed. But the  appellate  court while  observing that any evidence led by defendant  nos.  2

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and  3  could not be read against defendant no.  1  observed that it appeared that they being closely related to  defend- ant  no. 1 were in possession on his behalf. This  furnished occasion  for  plaintiff to file second suit  against  three defendants  with  this change that defendants nos. 2  and  3 were  claimed to be licensees of defendant no. 1. The  Trial Court  relying on earlier judgment decreed suit for  arrears of  rent against defendant no. 1 and for  ejectment  against defendants nos.2 and 3 as they were licensees. Both  defend- ant  no.  1 separately and defendants nos. 2 and  3  jointly filed  two  appeals but without any success. Both  the  sets approached  the High Court also by way of separate  appeals. The  appeal of defendant no. 1 came up for  hearing  earlier but it was dismissed.     The appeal of defendant nos. 2 and 3 came up for hearing before  another Hon’ble Judge who allowed it and  held  that the  finding recorded in appeal arising out of earlier  suit that they were licensees did not operate as res judicata and the suit for ejectment was dismissed. It is the  correctness of this finding that has been assailed in this Court.     Although long arguments were advanced but in our opinion the  only question that arises for consideration is  if  the finding  recorded in the appeal filed by defendant no. 1  in which  it  was  held that defendants nos. 2 and  3  were  in possession  on his behalf was binding on them in the  subse- quent suit filed by the plaintiff. In that suit issue no.  2 was if 100 defendant  no. 2 and defendant no. 3 were  sub-tenants.  And issue no. 5 was if they were liable to be ejected. The Trial Court while discussing these two issues held that there  was no question of sub-tenancy of these persons as despite  sale there was never a break in their possession. It was  further held  that they were not sub-tenants nor they claimed to  be in  possession through defendant no. 1. Therefore they  were not liable to ejectment. Against this finding plaintiff  did not  file  any  appeal. The finding  therefore  between  the plaintiff  and  defendants  nos. 2 and 3  became  final  and binding.  The appeal was filed by defendant no. 1 as he  was aggrieved  by the decree of arrears of rent. In that  appeal it  was observed that the evidence led by defendant  nos.  2 and  3  could not be read against him. But the  Court  while dismissing  his  appeal and upholding the  decree  of  Trial Court  observed  that  since they were  close  relations  it appears that even though rent note was executed by defendant no.  1 the possession of defendants nos. 2 and 3 was on  his behalf. This finding could not be taken advantage of by  the plaintiff  for  more than one reason. This  observation  was unnecessary  as the appeal was dismissed. One  could  under- stand if the appeal would have been allowed and the liabili- ty for payment of rent would have been fastened on defendant no. 2 and 3 as they were in possession. But since appeal was dismissed  the  order of Trial Court that liability  to  pay rent was of defendant no. 1 stood affirmed. Therefore it was an observation which was not only off the mark but  unneces- sary.  It  could  not accordingly operate  as  res  judicata between defendant no. 1 and defendants nos. 2 and 3 as  much less  between plaintiff and defendant nos. 2 and 3.  One  of the tests to ascertain if a finding operates as res judicata is  if  the party aggrieved could challenge  it.  Since  the dismissal of appeal or the, appellate decree was not against defendants  nos. 2 and 3 they could not challenge it by  way of  appeal. Even assuming that defendant no. 1  could  chal- lenge  the finding that liability of rent was of  defendants nos. 2 and 3 as they were in possession he did not file  any

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written  statement  in the Trial Court raising  any  dispute between himself and defendants nos. 2 and 3. There was  thus no occasion for the appellate court to make the  observation when  there  was neither pleading nor  evidence.  Therefore, from  either  point of view the finding  could  not  operate against defendants Nos. 2 and 3 as res judicata. Reliance by the appellant on Keshardeo Chamria v. Radha Kissen  Chamria, [1953] SCR 154, is of no assistance as it only lays down the binding effect of a decision in a subsequent suit.     For  the reasons stated above this appeal fails  and  is dismissed. There shall be no order as to costs. T.N.A.                                         Appeal   dis- missed. 101