Raman Sukumaran v. Padmanabha Kurup Madhava Kurup — 1985 DIGILAW 86 (KER)

JUDGMENT M.M. Pareed Pillai, J. 1. The appellants are plaintiffs, 1 and 3 in O.S. 11 of 1979 of the Munsiff Court, Harippad. Appellants along with the 2nd plaintiff filed the suit under O.21, R.103 of the Code of Civil Procedure for declaring their leasehold interest in the property after setting aside the order in E.A. 2543/1967 in O.S. 86/1958 rejecting their obstruction petition. The learned Munsiff accepting the finding of the Land Tribunal held that plaintiffs are entitled to have their leasehold interest declared over the plaint schedule property and the order passed in E.A. 2543/1967 rejecting the obstruction petition was set aside. It has been found that the plaintiffs are in possession of the property under their father's lease and that defendants 1 to 4 have no right to recover it from them in execution of the decree in O.S. 86/1958. Aggrieved by the judgment of the Trial Court, defendants 1 to 3 preferred A.S. 147/1977 before the Additional District Court, Mavelikara. The learned Additional District Judge allowed the appeal and dismissed the suit with costs. 2. When the second appeal came for hearing, the learned Single Judge referred it to the Division Bench to consider the question of the competence of one of the several cotenants to surrender leasehold right. 3. The suit is for declaration of the leasehold right of the plaintiffs over the plaint scheduled property and to set aside the order passed in the obstruction petition in O.S. 86/1958. Defendants 1 to 4 are the owners of the property. Plaintiffs, defendants 5 to 7, their deceased brother Raghavan and their mother 8th defendant are the legal heirs of deceased Raman who had leasehold right over the property. Defendants 1 to 4 are plaintiffs had filed O.S. 86/1958 against defendants 6 to 8 and deceased Raghavan for injunction restraining them from trespassing upon the property. Later, the plaint in O.S. 86/1958 was amended for declaration of title and recovery of possession of the property. Present plaintiffs were not parties to that suit. Plaintiffs in O.S. 86/1958 (present defendants 1 to 4) obtained decree and while the said decree was being executed, present plaintiffs obstructed the execution. It was there upon that defendants 1 to 4 filed E. A. 2543/1967 for removal of obstruction. That petition was allowed and the obstruction petition filed by the present plaintiffs was dismissed. 4. Plaintiffs in O.S. 86/1958 (present defendants 1 to 4) obtained decree and while the said decree was being executed, present plaintiffs obstructed the execution. It was there upon that defendants 1 to 4 filed E. A. 2543/1967 for removal of obstruction. That petition was allowed and the obstruction petition filed by the present plaintiffs was dismissed. 4. It is the case of the plaintiffs that after their father Raman's death in 1132 M.E. his leasehold right in the property devolved upon them and defendants 5 to 8 and deceased Raghavan (another son of Raman) and since then 1st plaintiff has been cultivating and enjoying the property. O.S. 86/1958 was filed by defendants 1 to 4. In that case, defendants 6 to 8 and deceased Raghavan were defendants. Appellants contend that the plaintiffs in that suit obtained a decree in collusion with defendants 6 to 8 and deceased Raghavan and so the said decree is not binding upon them and other legal heirs. It is the admitted case that in O.S. 86/1958 present defendants 6 to 8 and deceased Raghavan alone were parties. 5. Defendants 1 to 3 filed joint written statement contending inter alia that the plaintiffs have no right or possession in the plaint schedule property. The averment that the decree in O.S. 86/1958 is the result of collusion is refuted. 6. It is common case that plaintiffs' father Raman was the lessee of the property till his death in 1132 M.E. The case of the defendants 1 to 3 is that Raghavan, S/o Raman (2nd defendant in O.S. 86/1958) went to their house and surrendered the property to them. O.S. 86/1958 was contested by the second defendant Raghavan in that suit. He disputed the alleged surrender of the property set up in the plant. The Trial Court held that the case of the plaintiffs in O.S. 86/1958 regarding the alleged surrender of lease was not established and dismissed the suit. The appellate court reversed the judgment of the Trial Court and remanded the suit for trial on certain issues. The conclusion arrived at by the 1st appellate court in A.S. 152/1961 was sustained in C.M. A. 138/1964 filed by the 2nd defendant before the High Court. The appellate court reversed the judgment of the Trial Court and remanded the suit for trial on certain issues. The conclusion arrived at by the 1st appellate court in A.S. 152/1961 was sustained in C.M. A. 138/1964 filed by the 2nd defendant before the High Court. As O.S. 86/1958 was keenly contested by the 2nd defendant right upto this court, the contention of the plaintiffs that decree obtained in that suit is the result of collusion between plaintiffs and defendants in that suit can for no moment be accepted. 7. Learned counsel for the plaintiffs submitted that evidence of the alleged surrender of the leasehold right by Raghavan is far from satisfactory and therefore version of the defendants regarding the said surrender is only to be rejected. Counsel pointed out that Raghavan alone could not have surrendered the leasehold interest in the property to defendants 1 to 4 as admittedly other legal heirs are also there on whom rights of their predecessor devolved. 1st defendant was examined as D.W. 1 before the Land Tribunal in O.A. 144/1972 when the case was referred to it. In cross examination, D.W. 1 stated that after death of Raman, his son Raghavan, approached him on 5th January 1958 and expressed desire to surrender the property. D.W. 1 deposed that since 5th January 1958, the property is in his possession. D.W. 1 admitted that Raghavan had 5 to 6 children. It is also admitted by him that when the property was surrendered by Raghavan he did not get any document evidencing the same. The contention of the plaintiffs that Raghavan did not actually surrender the leasehold right in the property cannot be accepted in view of the decision in O.S. 86/1958. There is no dispute that though O.S. 86/1958 was dismissed at the first instance, the first appellate court reversed it and consequent to the remand the suit was decreed allowing the plaintiffs to recover the suit property. As O.S. 86/1958 was contested zealously, it is really difficult to hold that plaintiffs and defendants in that suit colluded and as a result of it the decree was obtained. 8. Counsel for the plaintiffs next contended that assuming that there was surrender of the lease by Raghavan, it can only bind him and the defendants in O.S. 86/1958 and it can never have any binding force on the plaintiffs who were not parties to that suit. 8. Counsel for the plaintiffs next contended that assuming that there was surrender of the lease by Raghavan, it can only bind him and the defendants in O.S. 86/1958 and it can never have any binding force on the plaintiffs who were not parties to that suit. It is also contended by the counsel that Raghavan was not entitled to surrender any interest other than what he had and as a tenant in common, he could not have surrendered any right depriving the legitimate rights of others. 9. The learned counsel for the appellants submitted that after death of Raman the leasehold fight devolved upon his legal heirs and as they held the property as tenants in common and as there is no unity of title and only unity of possession, Raghavan one of the sons of Raman alone could not have surrendered the leasehold right in the property to the landlords. Counsel referred to the decision reported in V. Konnappan v. Kunniyil Manikkan AIR 1968 Ker. 229 wherein it has been held that a notice issued to one of the tenants who was holding the property as tenant in common would not be sufficient notice to determine the tenancy with respect to all others. Relying on the above ruling counsel argued that as notice terminating lease to one of the cotenants will not be sufficient to terminate the tenancy the surrender of lease by one cotenant can never bind others. In the case of joint tenants, notice to one may be sufficient whereas in the case of tenants in common it would not be so. While in a joint tenancy unity of title, possession, interest and commencement of title are essential ingredients, in a tenancy-in-common there will be unity of possession and commencement of title. After death of Raman, as the leasehold interest devolved on his legal representatives there is unity of possession among them though there is no unity of title. There cannot be any two opinion that after Raman's death Raghavan alone could not have surrendered the lease in utter disregard of the rights of other legal heirs. 10. Counsel for the appellants relying on the decision Joseph v. Joseph 1958 KLT 957 argued that as all the heirs of Raman were not impleaded in O.S. 86/1958 the decree in that suit cannot bind those heirs who were not made parties. 10. Counsel for the appellants relying on the decision Joseph v. Joseph 1958 KLT 957 argued that as all the heirs of Raman were not impleaded in O.S. 86/1958 the decree in that suit cannot bind those heirs who were not made parties. In the above decision it has been held as follows: "A party must suffer the consequence of his own default to implead all the heirs of the opposite party. The decree he had obtained against some of the heirs cannot be binding on the rest however few they may be, however little interest they may for themselves represent. The doctrine of substantial representation of the deceased opponent's estate" cannot apply to a suit when it is laid." 1958 KLT 957 case is similar to the present case. In reply to the above contention of the appellants, learned, counsel for the defendants Mr. P. Sukumaran Nair submitted that after death of a lessee some of his heirs can be in possession of the property and such persons can make a valid surrender of the property to the landlord. It is pointed out that after death of Raman, his son Raghavan was cultivating the property and therefore the surrender of the property by him cannot be seriously challenged by the persons who were not in possession of the property. It is also pointed out that the 1st plaintiff was only aged 18, that 2nd plaintiff was an incapacitated person and that the 3rd plaintiff was not in station as she was residing elsewhere and therefore the surrender of the lease by Raghavan who alone was in the occupation of the property has conferred full rights on defendants 1 to 4. It is next contended by Advocate Sri P. Sukumaran Nair that the decision, reported in 1958 KLT 957 is not relevant at all as that decision was rendered when concept of substantial representation was not there. He relied on the decision reported in Mohammed Sulaiman v. Mohammed Ismail AIR 1966 SC 796 and contended that though in O.S. 86/1958 all legal heirs of Raman were not parties, his eldest son Raghavan and some others were parties and as Raghavan keenly contested the suit right up to the High Court, it can safely be inferred that there was substantial representation and hence the failure to implead all legal heirs of Raman is not at all fatal. Advocate Sri Subramonia Iyer for the appellants submitted that the dictum laid down in AIR 1966 SC 796 applies only to pending cases where some of the legal representatives were not impleaded and cannot have any application to a case like the one in hand. It is urged that the Supreme Court decision relates to only such cases where death occurred during the pendency of a suit and not when the suit itself was laid. When O.S. 86/1958 was filed, admittedly Raman had Children other than those who were impleaded as defendants in that suit. D.W. 1 admitted that Raman had other children. Despite that knowledge, present plaintiffs and 5th defendant were not impleaded in O.S. 86/1958. As present plaintiffs and 5th defendant were necessary parties having obtained rights over the property after the death of their father the suit filed against some of the heirs cannot bind them and therefore it is difficult to accept the contention of the defendants that there was substantial representation and so it would be binding upon them as well. 11. Counsel for the appellants pointed out that AIR 1966 SC 792 has no application to the facts of the case in hand. In the above decision it is held as follows: "Where on account of a bona fide error, the plaintiff seeking relief institutes his suit against a person who is not representing the estate of a deceased person against whom the plaintiff has a claim either at all or even partially, in the absence of fraud or collusion or other ground which taint the decree, a decree passed against the persons impleaded as heirs binds the estate, even though other persons interested in the estate are not brought on the record. This principle is a part of the law of procedure which regulates all matters going to the remedy and applies to all parties irrespective of their personal law." For the application of the above decision it has to be established that there was bona fide error when the plaintiff instituted the suit leaving out some of the parties. It is true that in the absence of fraud or collusion which taint the decree it would be binding on the persons impleaded as heirs of the deceased and the entire estate. It is true that in the absence of fraud or collusion which taint the decree it would be binding on the persons impleaded as heirs of the deceased and the entire estate. The principle of substantial representation would apply to cases where a plaintiff filed suit against the estate of a deceased person without impleading all the heirs but impleading some of them on the bona fide belief that there were no other legal heirs to be impleaded and it was not the result of fraud or collusion. It has to be noted that in the present case defendants 1 to 3 have no case in the written statement that while they filed O.S. 86/1958 they made bona fide enquiry and had come to realise that Raghavan and the other defendants in that suit were the only legal representatives of Raman. As D.W. 1 has admitted that Raman had other children and as he has no case that O.S. 86/1958 was instituted against the defendants only after making due enquiries it is difficult to hold that on the principle of substantial representation the decree in O.S. 86/1958 would be binding on all the heirs of Raman and the estate. The principle of substantial representation can apply only in a case where a plaintiff made diligent and bona fide enquiry and impleaded only some heirs as parties to his suit in the actual belief that they are the only persons interested in the estate. In view of the evidence of D.W. 1 that he was aware of the fact that Raman had other children, the principle of substantial representation cannot obviously be applied so that the decision in O.S. 86/1958 could be held to bind the other heirs of Raman who were not parties in the above suit. 12. Counsel for the defendants relied on the decision reported in Daya Ram v. Shyam Sundari AIR 1965 SC 1049 for his contention that though all the legal heirs of Raman were not impleaded in O.S. 86/1958, it would not adversely affect the decree in that suit as the legal representatives of Raman who were defendants in that suit substantially represented the estate. In AIR 1965 SC 1049 , at page 1054, it has been held as follows: "The almost universal consensus of opinion of all the High Courts is that where a plaintiff or an appellant after diligent and bona fide enquiry ascertains who the legal representatives of a deceased defendant or respondent are and brings them on record within the time limited by law, there is no abatement of the suit or appeal, that the impleaded legal representatives sufficiently represent (he estate of the deceased and that a decision obtained with them on record will bind not merely those impleaded but the estate including those not brought on record." The above decision cannot have any application to the facts of the present case. The above Supreme Court decision applies only to cases where legal representatives of a deceased defendant or respondent are brought on record. It may not be possible for the plaintiff to know all the names and details of the legal representatives of a deceased defendant, and if after diligent and bona fide enquiry, he ascertains the names of the legal representatives and impleads them and if they do not disclose the names of others who are also to be impleaded, it cannot be said that the plaintiff will fully or intentionally failed to implead all the legal representatives. As already pointed out, in the present case the defendants 1 to 4 (plaintiffs in O.S. 86/1958) do not have a case in the written statement that they made bona fide enquires and were genuinely satisfied that all the legal heirs of deceased Raman were made defendants that there was substantial representation and that the decree would bind the presents plaintiffs as well. The principles of substantial representation cannot apply to a case where the absent heir has a defence of his own. It is the case of the plaintiffs that there was no valid surrender of lease and at any rate, even assuming that there was any surrender, it would not be binding upon them. As the leasehold right after Raman's death devolved on all his legal heirs as tenants-in-common, one of the heirs alone could not have surrendered it to the landlords and even if such surrender has been found to be true, it cannot bind on the other heirs. As the leasehold right after Raman's death devolved on all his legal heirs as tenants-in-common, one of the heirs alone could not have surrendered it to the landlords and even if such surrender has been found to be true, it cannot bind on the other heirs. The surrender of leasehold right by Raghavan cannot bind the plaintiffs as even according to the defendants (plaintiffs in O.S. 86/1958) they were not parties to the alleged surrender of the leasehold right of their father. The doctrine of substantial representation cannot apply to a case where the absent heir had a special defence which could not be tried in the earlier proceedings. The decision in O.S. 86/1958 is undoubtedly binding on the parties in that suit. After the death of Raman, plaintiffs obtained valuable rights with respect to the property in question and so long as they were not made parties in O.S. 86/1958 they could not have raised any plea in support of their case. In view of the above circumstance, it is really difficult to hold that by applying the principle of substantial representation the decree in O.S. 86/1958 would be binding on plaintiffs 1 to 3 and 5th defendant who were not parties in that suit. 13. Contention of the defendants that Raghavan surrendered property on behalf of all legal heirs cannot be accepted as there is total lack of evidence for the same. D.W. 1 has no such case in his chief examination. D.W. 1's evidence would only show that Raghavan alone surrendered the property. Merely because Raghavan was the eldest son of Raman it is not possible to hold that the alleged surrender of the property by him would be binding on all the other legal heirs. 14. Counsel for the appellants submitted that even assuming that there was surrender of the property by Raghavan and that the decision in O.S. 86/1958 would be binding on the defendants in that suit it can never be construed that it would be binding on the plaintiffs and 5th defendant who were not parties to that suit. Merely because 1st plaintiff was aged 16 years during the alleged date of surrender of the property by Raghavan and 2nd plaintiff, an incapacitated person and 3rd plaintiff not being in the station we cannot obviously conclude that the right that devolved upon them after their father's death could be ignored. Merely because 1st plaintiff was aged 16 years during the alleged date of surrender of the property by Raghavan and 2nd plaintiff, an incapacitated person and 3rd plaintiff not being in the station we cannot obviously conclude that the right that devolved upon them after their father's death could be ignored. In the decision Murugayya Angurar and another v. Nataraja Iyer and others 1969 (1) MLJ 503 it is held as follows: "It would not be said that if one or more heirs find it inconvenient to cultivate the land and seek avocation elsewhere, the tenancy would come to an end even as regards the other cultivating tenants in actual possession of the land. Held, the alleged surrender of the lease by the 1st plaintiff cannot obviously bind the 2nd plaintiff. The 2nd plaintiff is not a party to the surrender and it cannot bind him." There cannot be any doubt that the surrender of lease hold right of the property by Raghavan cannot bind the plaintiffs and 5th defendant as admittedly they were not aware of it or were parties to it. 15. Learned counsel for the appellants next contended that as the lease hold right was surrendered by some of the heirs of Raghavan, surrender itself is not valid and cannot have any binding force. Counsel relied on the decision reported in Gopaldoss Dwarakadoss family Trust Estate v. Michaelswami Pillai 1964 (2) MLJ 242 wherein it. has been held as follows: "If there is a plurality of lessees, the surrender must be by all the lessees in favour of the lessor. Under the lease, which is indivisible joint one, a right to enjoy immovable property has been created in favour of the lessees jointly and surrender by only one of such lessees, cannot prejudice or affect the rights of other lessees." Learned counsel for the defendants submitted that as the decision in O.S. 86/1958 has become final so far as deceased Raghavan and other defendants in that suit is concerned it would be at any rate binding upon them. The contention of the appellants that the surrender of the property which found acceptance in that suit would have no binding force is not tenable. The contention of the appellants that the surrender of the property which found acceptance in that suit would have no binding force is not tenable. As the decision in O.S. 86/1958 would not be binding upon the plaintiffs, it has to be held that the surrender of the lease which has been recognised in the above suit will not affect the interest of the plaintiffs and the 5th defendant who were not parties to that suit. 16. Advocate Sri P. Sukumaran Nair argued that in a suit under O.21, R.103 of the C.P.C., present possession has to be established and unless that has been done, a person who seeks the remedy cannot succeed. O.S. 86/1958 was initially filed as a suit for injunction and thereafter it was amended on the basis of title and for recovery of possession. Plaintiffs asserted possession over the property and filed obstruction petition. It is difficult to hold that they have no case of present possession over the property as admittedly, their father was having tenancy rights over it and as the surrender . of lease even according to defendants 1 to 4 (plaintiffs in O.S. 86/1958) was only by one of the sons of Raman. Moreover, it has to be noted that O.S. 86/1958 was converted as a suit for recovery of possession of the property. As plaintiffs have asserted possession over the property claiming to be the legal heirs of the original lessee, it cannot be said that they have not established their claim of present possession over the property as enjoined under O.21, R.103 as it stood prior to the amendment. Counsel contended that Exts. A-1 and B-3 would show that plaintiffs do not have possession over the property and therefore, they cannot succeed in the suit. There is no force in the above argument as plaintiffs challenge Ext. A-1 order itself and as they were not parties to Ext. B-3 judgment. 17. It is next contended that Ext. B-4 order would show that the plaintiffs have no possession over the property. Plaintiffs applied for preparation record of rights under the Kerala Land Reforms Act. Their application was dismissed as could be seen from Ext. B-4. Ext. B-4 order is pending the suit and therefore no reliance can be placed. Apart from that, Ext. B-4 order cannot in any manner obliterate the case of the plaintiffs. 18. Plaintiffs applied for preparation record of rights under the Kerala Land Reforms Act. Their application was dismissed as could be seen from Ext. B-4. Ext. B-4 order is pending the suit and therefore no reliance can be placed. Apart from that, Ext. B-4 order cannot in any manner obliterate the case of the plaintiffs. 18. Learned counsel for the appellants pointed out that the lower appellate court went wrong in holding that the findings in O.S. 86/1958 would operate as res judicata against the appellants. Counsel pointed out that the defendants gave up the plea of res judicata in the Trial Court and as they did not raise the same before the first appellate court, that court went wrong in holding so. Advocate Sri P. Sukumaran Nair conceded that plea of res judicata may not be available in the case as the appellants were not parties in O.S. 86/1958. He argued that though principles of res judicata may not ' be applicable in the case, the judgment in O.S. 86/1958 will be relevant under S.13 of the Evidence Act. It is submitted that the judgment in O.S. 86/1958, though not inter parties is admissible under S.13 of the Evidence Act in proof of the fact that a right was asserted on a previous occasion. The contention is that the judgment in O.S. 86/1958 would show that plaintiffs in that suit obtained possession over the property as per surrender of the lease by Raghavan and to that effect the judgment is relevant. In the decision reported in Kesavan v. Narayana Pillay 1969 KLT 110 at page 113, it has been held as follows: "These decisions have, no doubt, laid down that judgment in a previous suit, though not inter parties, is admissible under S.13 of the Evidence Act, only in proof of the fact that the right was asserted on a previous occasion, but the reasons upon which the judgment is founded cannot be treated as part of the transaction nor can any finding of fact there came to, other than the transaction itself, be relevant in the subsequent case. A finding in the previous suit cannot be made basis on which a decree in the later suit can be granted." It is true that a previous judgment can lend corroboration to the point raised in a later suit. To that extent, the previous judgment could be used. A finding in the previous suit cannot be made basis on which a decree in the later suit can be granted." It is true that a previous judgment can lend corroboration to the point raised in a later suit. To that extent, the previous judgment could be used. But, the decision in O.S. 86/1958 cannot in any way be used to lend support of the case of the defendants 1 to 4 (plaintiffs in O.S. 86/1958) to establish that that decision would be binding upon the present plaintiffs. A judgment inter parties though admissible under S.13 of the Evidence Act in proof of the fact that a right was asserted on a previous occasion cannot be used, as in the present case, against the plaintiffs who were not parties to the earlier suit as the issues to be considered are not the same. There was no issue for consideration as to whether the surrender of lease by Raghavan is binding on the other legal heirs. The issue in O.S. 86/1958 is whether the suit property was surrendered to plaintiffs by the defendants on 5th January 1958 as alleged in the plaint. The allegation in the plaint of O.S. 86/1958 is that after the death of Raman, defendants surrendered possession of the property to the plaintiffs on 5th January 1958. Though the 2nd defendant in that suit disputed the alleged surrender, Trial Court did not accept the case of the plaintiffs and dismissed the suit. In A.S. 152/1961, the judgment of the Trial Court was set aside and the case of the plaintiffs that the defendants surrendered the property to them was accepted. In C.M.A. 138/1964 this court upheld the judgment in A.S. 152/1961 (vide Ext. B-3). Though the judgment in a previous suit, though not inter parties is admissible under S.13 of the Evidence Act, it can only be used in proof of the fact that a right was asserted on a previous occasion. In the present case, the question is entirely different as the plaintiffs challenge the validity of the surrender of the lease by the defendants in O.S. 86/1958. O.S. 86/1958 was decided on the basis of the evidence adduced and issues framed in that case and therefore a finding in that suit cannot at all be made the basis on which a decree in the present suit can be granted. O.S. 86/1958 was decided on the basis of the evidence adduced and issues framed in that case and therefore a finding in that suit cannot at all be made the basis on which a decree in the present suit can be granted. A judgment not inter parties and which is not a judgment in rem or one relating to matters of a public nature is not admissible in evidence in a subsequent suit either as res judicata or as proof on a particular point decided. Of course, it is admissible under S.13 of the Evidence Act and can be used as corroboration of other evidence in the case. So far as the facts and circumstances of the case is concerned, judgment in O.S. 86/1958 is hardly sufficient to lend support or of corroboration to the case of defendants 1 to 4. 19. Advocate Sri P. Sukumaran Nair argued that at any rate, the factual findings of the lower appellate court cannot be interfered with by this court. He relied on the decision reported in R. Ramachandran Iyer v. Ramalingam Chettiar 1963 (3) SCR 604 wherein it has been held that the High Court is not justified in interfering with the finding of fact recorded by the first appellate court and that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross of inexcusable the error may seem to be. It has been held in Sinha Ramanuja v. Ranga Ramanuja AIR 1961 SC 1720 at page 1730 that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact however gross it may be. Counsel for the appellants pointed out that the decision of the lower appellate court is not solely based on facts and as important questions of law are involved this court has necessarily to consider the same. If the High Court is satisfied that the decision of the lower appellate court is contrary to law or that the decision has failed to determine the material issue in the case or if there is substantial error or defect in the procedure followed it can interfere with the judgment. In the present case, the lower appellate court has wrongly held that the principles of res judicata would apply in the case and that decision in O.S. 86/1958 would be binding on the appellants. In the present case, the lower appellate court has wrongly held that the principles of res judicata would apply in the case and that decision in O.S. 86/1958 would be binding on the appellants. As such a conclusion cannot be reached legally this court has to necessarily interfere with the judgment and decree of the lower appellate court. 20. Learned Additional District Judge went wrong in holding that the suit is not maintainable as the plaintiffs are estopped by the principle of res judicata. As plaintiffs were not parties in O.S. 86/1958, the decree in that suit cannot bind them and there cannot be any res judicata so far as they are concerned. 21. It is needless to say that it is open to defendants 1 to 4 to take recourse to appropriate proceedings to claim partition of their rights in the property which they obtained from Raman's legal heirs who were parties in O.S. 86/1958. 22. For the reasons stated above we hold that the plaintiffs are entitled to succeed in the suit. In the result, the order in E.A. 2543/1967 in O.S. 86/1958 is set aside and plaintiff's leasehold right and possession over the property is declared subject to the rights of defendants 1 to 4 who obtained it from the legal heirs of Raman who were parties in that suit. 23. The judgment and decree of the lower appellate court are set aside and the appeal is allowed as stated above. In the circumstances of the case, the parties are directed to bear their respective costs throughout.