2008 JTR(SC) 685
2008 66 AIC 202 ; 2008 AIR(SC) 2212 ; 2008 AIR(SCW) 3278 ; 2008 71 AllLR 787 ; 2008 4 AllMR(SC) 427 ; 2008 2 APLJ 85 ; 2008 3 AWC 2438 ; 2008 4 CHN(SC) 1 ; 2008 3 CivCC 22 ; 2008 3 CivLJ 880 ; 2007 Supp DNJ 160 ; 2008 2 GLH 621 ; 2008 5 JT 571 ; 2008 5 JT 572 ; 2008 5 MLJ 760 ; 2008 3 RCR(Civ) 877 ; 2008 3 RLW(Raj) 2289 ; 2008 6 Scale 697 ; 2008 5 SCC 647 ; 2008 6 SCR 929 ; 2008 3 WBLR 579 ; 2008 2 WLC 179 ; 2008 KHC 4649 ; 2008 3 Supreme 165
2008(3) Supreme 165
SUPREME COURT OF INDIA
S.B. Sinha & V.S. Sirpurkar, JJ.
Williams — Petitioner
versus
Lourdusamy & Anr. — Respondents
Appeal (civil) 2894-2895 of 2008
(Arising out of SLP (C) Nos. 153-154 of 2007)
Decided on : 22-04-2008
IMPORTANT POINT
The principles of res judicata have its own limitations.
Act Referred :CIVIL PROCEDURE CODE : S.11
(A) Section 11 of the Code of Civil Procedure applies where the matter directly and substantially in issue in a subsequent suit was already heard and finally decided by a competent court between the same parties under the same title. Explanation VIII clarifies that res judicata operates even if the earlier court was of limited jurisdiction, provided it was competent to decide the specific issue. The principles of res judicata prevent harassment through repeated litigation but do not apply where a necessary party was not impleaded, leaving the earlier finding voidable. The applicability of res judicata thus depends on whether the same title, issue, and parties were present in the prior proceeding.
(B) Res judicata bars re-litigation of the same matter directly and substantially in issue between the same parties litigating under the same title before a competent court. The doctrine operates as a bar where the prior suit ended in a final decision on the merits, and the issue was necessarily and substantially in issue in both proceedings. A party cannot claim res judicata if the earlier proceeding was without jurisdiction over the subject or a necessary party.
Facts of the case:
The second respondent owned properties and executed a registered Deed of Sale dated 25.11.1987, transferring title to the appellant. The first respondent filed a suit seeking permanent injunction against the appellant, asserting that the land was subject to an oral agreement of sale and that the second respondent had been in possession under the Kudiyiruppu Act. The appellant countered that he had entered possession via the deed of sale. The trial judge held the first respondent in possession and granted permanent injunction. Subsequent suits for declaration and specific performance were consolidated. The High Court held that res judicata applied, relying on observations regarding possession based on an oral agreement.
Findings of Court:
The earlier suit did not frame any issue regarding an oral agreement of sale, and respondent No. 2 was not a party, so no finding on the existence of an oral agreement could be valid. The issue of possession was not necessarily connected to title or part performance under Section 53A of the Transfer of Property Act, which requires written agreement. The question of title was incidental and not the necessary basis for the injunction granted. Therefore, the earlier finding did not attract res judicata.
Issues:
Whether the principle of res judicata applies when the earlier suit did not implead a necessary party and did not frame the issue of an oral agreement of sale, and whether a finding on possession in an injunction suit necessarily determines title.
Ratio Decidendi:
Res judicata is not attracted because the earlier proceeding lacked jurisdiction over the essential issue, did not implead respondent No. 2, and did not frame the issue of an oral agreement. The doctrine applies only when the same title, same parties, and the same substantially in issue matter are present, which was not the case here.
Result:
The appeal is allowed. The impugned judgment is set aside. No order as to costs.
(A) Section 11 of the Code of Civil Procedure applies where the matter directly and substantially in issue in a subsequent suit was already heard and finally decided by a competent court between the same parties under the same title. Explanation VIII clarifies that res judicata operates even if the earlier court was of limited jurisdiction, provided it was competent to decide the specific issue. The principles of res judicata prevent harassment through repeated litigation but do not apply where a necessary party was not impleaded, leaving the earlier finding voidable. The applicability of res judicata thus depends on whether the same title, issue, and parties were present in the prior proceeding.
(B) Res judicata bars re-litigation of the same matter directly and substantially in issue between the same parties litigating under the same title before a competent court. The doctrine operates as a bar where the prior suit ended in a final decision on the merits, and the issue was necessarily and substantially in issue in both proceedings. A party cannot claim res judicata if the earlier proceeding was without jurisdiction over the subject or a necessary party.
Facts of the case:
The second respondent owned properties and executed a registered Deed of Sale dated 25.11.1987, transferring title to the appellant. The first respondent filed a suit seeking permanent injunction against the appellant, asserting that the land was subject to an oral agreement of sale and that the second respondent had been in possession under the Kudiyiruppu Act. The appellant countered that he had entered possession via the deed of sale. The trial judge held the first respondent in possession and granted permanent injunction. Subsequent suits for declaration and specific performance were consolidated. The High Court held that res judicata applied, relying on observations regarding possession based on an oral agreement.
Findings of Court:
The earlier suit did not frame any issue regarding an oral agreement of sale, and respondent No. 2 was not a party, so no finding on the existence of an oral agreement could be valid. The issue of possession was not necessarily connected to title or part performance under Section 53A of the Transfer of Property Act, which requires written agreement. The question of title was incidental and not the necessary basis for the injunction granted. Therefore, the earlier finding did not attract res judicata.
Issues:
Whether the principle of res judicata applies when the earlier suit did not implead a necessary party and did not frame the issue of an oral agreement of sale, and whether a finding on possession in an injunction suit necessarily determines title.
Ratio Decidendi:
Res judicata is not attracted because the earlier proceeding lacked jurisdiction over the essential issue, did not implead respondent No. 2, and did not frame the issue of an oral agreement. The doctrine applies only when the same title, same parties, and the same substantially in issue matter are present, which was not the case here.
Result:
The appeal is allowed. The impugned judgment is set aside. No order as to costs.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. Whether principle of res-judicata is applicable to the facts and circumstances of this case, is the question involved herein. The basic fact of the matter is not in dispute. Second respondent was the owner of the properties. He by reason of a registered Deed of Sale dated 25.11.1987 transferred his right, title and interest in favour of the appellant.
3. First respondent, however, filed a suit against the appellant herein in the Court of District Munsif, Thiruvaiyaru praying for a decree for permanent injunction alleging that the land in suit admeasuring 3 cents was the subject matter of an oral agreement of sale by and between himself and the second respondent herein. It was contended that the second respondent had been in possession of the said land in terms of a patta executed under the Kudiyiruppu Act being Act 40 of 1971.
The contention of the appellant, on the other hand, was that he had been put in possession of the suit land by the second respondent in terms of the aforementioned deed of sale dated 25.11.1987.
4. The learned Trial Judge in the said suit, inter alia framed the following issues.
“i) Whether on the date of the suit the plaintiff was in possession of the suit property?
ii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for?
iii) To what else (sic) relief, the plaintiff is entitled to?”
5. The question as to whether the respondent had been put in possession in terms of an oral agreement of sale was not in issue. Respondent No. 2 as noticed hereinbefore was not impleaded as a party. A decree for specific performance of contract was not prayed for in the said suit. Neither any averment was made nor in law the same could be made that he had been put in possession by way of a part performance of contract as envisaged under Section 53A of the Transfer of Property Act.
6. The learned Trial Judge, however, held that the first respondent was in possession of the land in suit as on the date of the institution of the suit and thus granted a decree for permanent injunction.
7. Appellant thereafter filed a suit for declaration of title and recovery of possession, which was marked as O.S. No. 182 of 1989. Both the respondents herein were impleaded their as parties therein. First respondent herein also filed a suit for specific performance of contract against the appellant as also the respondent No. 2. The said suit was registered as O.S. No. 93 of 1990.
Both O.S. No. 182 of 1989 and O.S. No. 93 of 1990 were consolidated. By a judgment and order dated 7.11.1990, the learned Trial Judge while dismissing the aforementioned suit for specific performance of contract filed by the first respondent allowed the suit of the appellant for declaration of his title and confirmation of possession.
8. Two appeals were preferred thereagainst by the first respondent which by reason of a judgment and order dated 28.8.1991 were dismissed by District Judge, Thanjavur (West). First respondent preferred two second appeals before the High Court.
The High Court opined that the only substantial question of law raised by the appellant before it (respondent No. 1 herein) was the applicability of the principles of Res-Judicata.
Relying upon some stray observations made by the learned Trial Judge in the said O.S. No. 402 of 1987, it was held that as possession of the property had been delivered on the basis of a purported oral agreement of sale, the principles of res-judicata would be attracted.
9. Mr. V. Prabhakar, the learned counsel appearing on behalf of the appellant would submit that as no issue was framed in regard to the purported oral agreement of sale by and between respondent No. 1 and 2 nor any specific finding having been arrived at by the learned Trial Judge in the said O.S. No. 402 of 1987, the impugned judgment is wholly unsustainable.
10. Section 11 of the Code of Civil Procedure provides that the Court will have no jurisdiction to try a suit or issue in which the matter directly and substantially in issue had been in issue in a former suit between the same parties.
Explanation 8 appended thereto reads as under :
“Section 11. Res judicata - No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
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Explanation II ***** ***** *****
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Explanation VIII. An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.”
11. The principles of res-judicata although provide for a salutary principle that no person shall be harassed again and again, have its own limitations. In O.S. No. 402 of 1987, the respondent No. 2 was not impleaded as a party. In his absence therefore, the issue as to whether respondent No. 2 had entered into an oral agreement of sale or not could not have been adjudicated upon. The said Court had no jurisdiction in that behalf. If that was decided in the said suit, the findings would have been nullities.
[See Chief Justice of Andhra Pradesh and another etc. Vs. L.V.A. Dikshitulu and others,1 AIR 1979 SC 193 at 198 and Hasham Abbas Sayyad Vs. Usman Abbas Sayyad and Ors.,2 (2007) 2 SCC 355]
12. As a matter of fact even such an issue was not framed. The High Court, therefore, in our opinion posed unto itself a wrong question. In a suit for permanent injunction, the Court had rightly proceeded on the basis that on the date of the institution of the suit, the first respondent was in possession of the disputed land or not. It was not required to enter into any other question. It, in fact, did not.
13. It is one thing to say that a person is in possession of the land in suit and it is another thing to say that he has a right to possess pursuant to or in furtherance of an agreement for sale which would not only bind the vendor but also bind the subsequent predecessor. Had such an issue been framed, the appellant or the respondent No. 2 could have contended that Section 53 A of the Transfer of Property Act had no application. For application of Section 53A of the Act, an agreement has to be entered into in writing. The said section provides for application of an equitable doctrine of part performance. Requisite ingredients therefor must be pleaded and proved.
14. A competent Court of law has dismissed the suit for specific performance of contract filed by the first respondent opining that the respondent had failed to prove the existence of an oral agreement. If the suit for specific performance of contract had not been decreed in favour of the first respondent, the question of his continuing to remain in possession in part performance of contract would not arise. Appellant herein filed a suit for declaration of title and recovery of possession. He proceeded on the basis that the first respondent was in possession.
The learned Trial Judge and the first Appellate Court, in our opinion, have rightly held that the principle of res-judicata was not attracted in this case.
In Sajjadanashin Sayed MD. B.E. EDR. (D) by LRs. Vs. Musa Dadabhai Ummer and Others,3 [(2000) 3 SCC 350] this Court considered the cases where in spite of specific issue and an adverse finding in an earlier suit, the same was not treated as res-judicata being purely incidental or auxiliary or collateral to the main issue stating :
“24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar Uthirasoma-sundareswarar Temple v. Rajanga Asari held (see para 8 therein) that the previous suit was only for injunction relating to the crops. Maybe, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above-referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated :
“Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.”
Following the principle of law as enunciated in the aforementioned decision, we are of the opinion that the principle of res-judicata is not attracted to the facts of the case.
15. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. Appeal is allowed. There shall, however, be no order as to costs.
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