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CASE NO.: Appeal (civil)  7653 of 1997 Appeal (civil)  7654 of 1997

PETITIONER: Smt. V. Rajeshwari                                       

RESPONDENT: T.C. Saravanabava                                                

DATE OF JUDGMENT: 16/12/2003

BENCH: R.C. Lahoti & Ashok Bhan.

JUDGMENT: J U D G M E N T

R.C. Lahoti, J.

       The property in suit consists of a piece of land together with  building, super-structure and other construction including wells and  fencing of the property bearing house and ground No. 9,  Padavattamman Koil St., Kondithope, Madras \026 1, and O.S. No.6008  \026 R.S. No.20 and R.S. No.20/1 C.C. No.8 patta No.461/1954-55 and  admeasuring 1817 sft., more particularly described in the Schedule to  the plaint dated 19th August, 1984.

       The facts, which at this stage are no longer in dispute and stand  concluded by the findings of fact by the courts below, may briefly be  noticed.  The property originally belonged to one Chakrapani who  purchased the same on 13.6.1921.  He executed a sale deed in favour  of one Damodaran on 8.5.1923.  Damodaran in turn executed a sale  deed in favour of Thiruneelkanda Nainar on 17.10.23.   Thiruneelakanda executed a settlement deed on 1.5.1950 in favour of  his wife Lakshmi and son Loga Ganapathi.  They executed a sale deed  on 3.3.1966 in favour of Mahadevan and his wife Saroja.  The  plaintiff, appellant herein, purchased the property from them as per  sale deed dated 10.3.1980.

       The defendant was in occupation of the entire suit property on  the date of the present suit.   

Prior to the commencement of the present suit, there had been  two other rounds of litigation which are very relevant and need to be  noted.  In the year 1957, the defendant-respondent herein filed  Original Suit No. 2512 of 1957 claiming a share in the suit property,  alleging himself to be the adopted son of Thiruneelakanda.  The suit  was dismissed.  That litigation achieved a finality on 8.1.1964 when  an appeal preferred by the defendant was dismissed by the High Court  of Madras.

In the year 1965, one of the predecessors-in-title of the plaintiff  (appellant herein) filed a suit for declaration of title  and for  possession over 240 sft. area (situated on the upper floor of the  building standing over the suit property) against the respondent.  The  suit was numbered as O.S. 1907 of 1965 and after trial decreed on  30.1.1968.  The decree was put into execution.  Execution Petition  No.2458 of 1975 was pending when the defendant produced before  the Executing Court an injunction issued by one of the civil courts  restraining execution of the decree.  The Executing Court naturally  closed the execution proceedings.  The order of injunction and details  thereof are not available on record.  In what terms the Execution

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Petition was closed and what happened thereafter to such execution  proceedings is also not ascertainable from the record.  The search for  such information need not detain us in deciding the present appeals as  it would be taken care of in such independent proceedings as would be  indicated during the course of this judgment and also looking at the  manner in which these appeals are being disposed of.

On 19.8.1984, the appellant filed the present suit for declaration  of title and recovery of possession over the suit property from the  defendant.  On  7.8.1985, the defendant filed the written statement.   Suffice it to note here itself that though the defendant denied the title  of the plaintiff over the suit property, there is no plea as to the suit  being barred by the principle of res judicata taken in the written  statement.  The only other plea taken in the written statement is one of  adverse possession which is in the following words :         "This defendant has been in  continuous, uninterrupted, open possession  and enjoyment of the suit property for more  than the prescriptive period and had thus  perfected his title to the suit property by  adverse possession.

       This defendant is in occupation of the  suit property in his own right.  This  defendant has been paying the Corporation  tax, Water and Sewage tax and Urban Land  tax for the suit property for all three years  for more than the prescriptive period."

       The Trial Court and the First Appellate Court decreed the suit.

       It appears that during the pendency of the First Appeal, the  plaintiff (appellant herein), moved an application under Order XLI  Rule 27 of the CPC proposing to place on record the judgment and  decree in O.S. No.1907 of 1965 wherein, as stated hereinabove, a  decree was passed in favour of one of the predecessors-in-title of the  plaintiff, upholding his title and directing the defendant-respondent to  deliver possession over the upper floor of the building (240 sft. area)  which was then in the possession of the defendant, to the plaintiff  therein (i.e. predecessor-in-title of the present plaintiff).  It appears  that those judgment and decree have been brought on record by the  plaintiff to provide additional support to his claim for entitlement to  possession, and as a piece of evidence supporting the finding of the  Trial Court which was already in his favour.   The  First Appellate  court allowed the plaintiff’s application, took the judgment and decree  on record and then dismissed the appeal filed by the defendant.  The  defendant preferred a Second Appeal in the High Court.  In the High  Court, the plaintiff once again appears to have relied on the said  judgment and decree to sustain the judgments and decrees of the two  courts below in his favour and here, his step of placing reliance over   the said judgment and decree boomeranged against him.  The High  Court formed an  opinion  that the issue as to title and possession over  the suit property was already decided in the suit filed by the  predecessor-in-title of the plaintiff (O.S. No.1907 of 1965) and  therefore the present suit was barred by principle of res judicata.   Solely on this reasoning, the High Court has, vide its judgment dated   25.4.1996,  allowed the appeal preferred by the defendant and directed  the suit filed by the plaintiff to be dismissed.

       The plaintiff, respondent in the High Court, sought for a review  of the judgment.  Vide its order dated 24.2.1997, the High Court  has  directed the review petition to be dismissed.  Two appeals have been  preferred : one, against the main judgment, and, the other, against the  order dismissing the review petition.

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       We have heard Shri S. Balakrishnan, the learned senior counsel  for the appellant and Shri A.K. Ganguli, the learned senior counsel for  the respondent.  The learned counsel for the parties have taken us  through all the relevant material available on record.  We are satisfied  that the High Court has clearly erred in allowing the defendant’s  appeal and setting aside the judgments and decrees of the courts  below and this we say for more reasons than one.

       The rule of res judicata does not strike at the root of the  jurisdiction of the court trying the subsequent suit.  It is a rule of  estoppel by judgment based on the public policy that there should be a  finality to litigation and no one should be vexed twice for the same  cause.

       The plea of res judicata is founded on proof of certain facts and  then by applying the law to the facts so found.  It is, therefore,  necessary that the foundation for the plea must be laid in the pleadings  and then an issue must be framed and tried.  A plea not properly  raised in the pleadings or in issues at the stage of the trial, would not  be permitted to be raised for the first time at the stage of appeal (See:  (Raja) Jagadish Chandra Deo Dhabal Deb  Vs.  Gour Hari Mahato  & Ors. \026 AIR 1936 Privy Council 258, Medapati Surayya & Ors.  Vs.   Tondapu Bala Gangadhara Ramakrishna Reddi & Ors. \026 AIR 1948  Privy Council 3, Katragadda China Anjaneyulu & Anr.  Vs.   Kattragadda China Ramayya & Ors. \026 AIR 1965 A.P. 177 Full  Bench).  The view taken by the Privy Council was cited with approval  before this Court in The State of Punjab  Vs.  Bua Das Kaushal \026  (1970) 3 SCC  656.  However, an exception was carved out by this  Court and the plea was permitted to be raised, though not taken in the  pleadings nor covered by any issue, because the necessary facts were  present to the mind of the parties and were gone into by the Trial  Court.  The opposite party had ample opportunity of leading the  evidence in rebuttal of the plea.  The Court concluded that the point of  res judicata had through out been in consideration and discussion and  so  the want of pleadings or plea of waiver of res judicata cannot be  allowed to be urged.

       Not only the plea has to be taken, it has to be substantiated by  producing the copies of the pleadings, issues and judgment in the  previous case.  May be in a given case only copy of judgment in  previous suit is filed in proof of plea of res judicata and the judgment  contains exhaustive or in requisite details the statement of pleadings  and the issues which may be taken as enough proof.  But as pointed  out in Syed Mohd. Salie Labbai (Dead) By Lrs. & Ors.  Vs.  Mohd.  Hanifa (Dead) by Lrs. & Ors. \026 (1976) 4 SCC 780, the basic method  to decide the question of res judicata is first to determine the case of  the parties as put forward in their respective pleadings of their  previous suit and then to find out as to what had been decided by the  judgment which operates as res judicata.  It is risky to speculate about  the pleadings merely by a summary of recitals of the allegations made  in the pleadings mentioned in the judgment.  The Constitution Bench  in Gurbux Singh  Vs.  Bhooralal \026 (1964) 7 SCR 831, placing on a  par the plea of res judicata and the plea of estoppel under Order II  Rule 2 of the Code of Civil Procedure, held that proof of the plaint in  the previous suit which is set to create the bar, ought to be brought on  record.  The plea is basically founded on the identity of the cause of  action in the two suits and, therefore, it is necessary for the defence  which raises the bar to establish the cause of action in the previous  suit.  Such pleas cannot be left to be determined by mere speculation  or inferring by a process of deduction what were the facts stated in the  previous pleadings.  Their Lordships of the Privy Council in Kali  Krishna Tagore  Vs.  Secretary of State For India in Council & Anr.  \026 (1887-88) 15 Indian Appeals 186, pointed out that the plea of res  judicata cannot be determined without ascertaining what were the

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matters in issues in the previous suit and what was heard and decided.   Needless to say these can be found out only by looking into the  pleadings, the issues and the judgment in the previous suit.   

       That apart the plea, depending on the facts of a given case, is  capable of being  waived, if not properly raised at an appropriate stage  and in an appropriate manner.  The party adversely affected by the  plea of res judicata may proceed on an assumption that his opponent  had waived the plea by his failure to raise the same.  Reference may  be had to Pritam Kaur w/o S. Mukand Singh  Vs.  State of Pepsu  and Ors. \026 AIR 1963 Punjab 9 (Full Bench) and Rajani Kumar Mitra  & Ors.  Vs.  Ajmaddin Bhuiya \026 AIR 1929 Calcutta 163, and we find  ourselves in agreement with the view taken therein on this point).  The  Privy Council decision in Sha Shivraj Gopalji  Vs.  Edappakath  Ayissa Bi & Ors. \026 AIR 1949 Privy Council 302, appears to have  taken a different view but that is not so.  The plea of res judicata was  raised in the Trial Court, however, it was not pressed but it was sought  to be reiterated at the stage of second appeal.  Their Lordships held  that being a pure plea in law it was available to the appellant for being  raised.  Their Lordships were also of the opinion that in the facts of  that case, apart from the principle of  res judicata, it was unfair to  renew the same plaint in fresh proceedings.  The Privy Council  decision is distinguishable.

       Reverting back to the facts of the present case, admittedly the  plea as to res judicata was not taken in the Trial Court and the First  Appellate Court by raising necessary pleadings.  In the First Appellate  Court the plaintiff sought to bring on record the judgment and decree  in the previous suit, wherein his predecessor-in-title was a party, as a  piece of evidence.  He wanted to urge that not only he had succeeded  in proving his title to the suit property by the series of documents but  the previous judgment which related to a part of this very suit property  had also upheld his predecessor’s title which emboldened his case.   The respondent thereat, apprised of the documents, did not still choose  to raise the plea of res judicata.  The High Court should not have  entered into the misadventure of speculating what was the matter in  issue and what was heard and decided in the previous suit.  The fact  remains that the earlier suit was confined to a small portion of the  entire property now in suit and a decision as to a specified part of the  property could not have necessarily constituted res judicata for the  entire property, which was now the subject matter of litigation.   

       We cannot resist observing that if at all the plea of res judicata  was to be availed and applied then that should have been for the  benefit of the plaintiff inasmuch as his predecessor-in-title had  succeeded in proving his title to part of the property in the earlier suit.   We fail to understand how the judgment in the previous suit can in  any way help the defendant-respondent in the present proceedings.   We are clearly of the opinion that the plea of res judicata has neither  been raised nor proved.  There is no res judicata.  The issue as to title  was rightly determined by the Courts below on the basis of evidence  adduced in this case.  That finding has to be restored.

So is the case with the plea as to adverse possession over the  suit property taken by the defendant in his written statement.  The plea  has been held not substantiated and rightly so.  The plea is too vague.   Earlier the defendant, claiming himself to be an adopted son of one of  the predecessors-in-title of the plaintiff, had filed a suit for partition  claiming half a share therein.  Thus, he was canvassing his claim as a  co-owner in possession.  How and at what point of time he started  prescribing hostile title, was for him to plead and prove, which he has  utterly failed in doing.  The plea of adverse possession raised by the  defendant is devoid of any merit and cannot be countenanced.

The correct position of law, which should apply to the facts of

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the case, may now be stated.  To the extent to which the plaintiff’s  predecessors-in-title have succeeded in securing decree for declaration  of title and recovery of possession over 240 square feet area of the  upper floor of the building, the plaintiff should secure possession by  executing that decree.  As to the remaining property, the plaintiff must  be held entitled to a decree in the present suit.  Accordingly, both the  appeals are allowed.  The judgment and decree of the High Court are  set aside and that of the courts below restored partly.  The suit filed by  the plaintiff shall stand decreed in respect of the suit property as  described in the plaint excluding therefrom the 240 square feet area of  the upper floor of the building forming the subject-matter of decree in  Original Suit No.1907 of 1965.  The plaintiff is declared to be the title  owner of the said property.  The defendant shall deliver vacant and  peaceful possession over the same to the plaintiff.  The plaintiff is also  held entitled to a decree for enquiry into mesne profits in terms of  Order XX Rule 12(1)(c) of the C.P.C., for the period between the date  of the suit and the date of delivery of possession to the decree-holder  pursuant to this decree.  Consistently with the directions, as aforesaid,  a decree shall be drawn up by the trial Court.  The costs throughout  shall be borne by the defendant-respondent.