Sulochana Amma v. Narayanan Nair — 1992 DIGILAW 450 (KER)

JUDGMENT P. K. Balasubramanyan, J. 1. The first defendant is the appellant. The suit filed by the respondent was one for declaration of title and for recovery of possession of the plaint schedule property. The suit has been decreed by the courts below. Hence this Second Appeal by the first defendant. 2. The plaint schedule property belonged to one Kutti Amma the maternal aunt of the plaintiff. The husband of Kutti Amma was one Krishnan Nair. On 19-5-1961 Kutti Amma executed Ext. A1 udambadi. According to the plaintiff under the said udambadi the plaint schedule property was settled on him subject to the retention of a life estate in favour of Kutti Amma and her husband Krishnan Nair. According to the plaintiff the document only provided that Krishnan Nair was to be in possession of the property entitled to take the income even during the life time of Kutti Amma. There was a further provision its the document that any document in respect of the property was to be executed only jointly by Kutti Amma and Krishnan Nair. It was further provided that in case Kutti Amma and Krishnan Nair did not dispose of the property it will devolve on the plaintiff. So according to the plaintiff reading the document harmoniously it must be construed that the property was settled to him in prenti and that he had derived title thereto, Kutty Amma died in the year 1971. It appears that Krishnan Nair attempted to cut down the improvements in the property which resulted in the present plaintiff filing a suit O.S. 151 of 1972 for a permanent injunction restraining Krishnan Nair from cutting or removing any trees standing in the property. Krishnan Nair has joined Issue with the plaintiff regarding the title to the property. An issue was framed in that suit as to whether the present plaintiff had derived title as per the document executed by Kutti Amma which is marked in the present proceedings as Ext. A1. By Ext. A2 judgment the Trial Court found that under the document executed by Kutti Amma the present plaintiff has acquired title to the property and that Krishnan Nair had only a life Interest over the property and had no authority to commit waste in the property. A decree for injunction was passed against Krishnan Nair. A1. By Ext. A2 judgment the Trial Court found that under the document executed by Kutti Amma the present plaintiff has acquired title to the property and that Krishnan Nair had only a life Interest over the property and had no authority to commit waste in the property. A decree for injunction was passed against Krishnan Nair. Krishnan Nair filed an appeal A.S. 38 of 1966 against "the said decree of the Trial Court. By Ext. A4 Judgement dt. 9-6-1978 the decree of the Trial Court was confirmed with the result that the finding that the plaintiff herein had acquired title to the said property subject to a life interest in favour of Krishnan Nair became final. 3. While that suit was pending Krishnan Nair executed Ext. B2 sale deed dt. 6-5-1972 purporting to convey the plaint schedule property to one Narayanan Nair and one Cherian. The rights of Narayanan Nair and Cherian were acquired by the first defendant - appellant under Ext. B1 dt. 5-11-1975. According to the appellant she cams into possession of the property pursuant to Ext. B1. Immediately after the assignment Ext. B1 was made in favour of the present appellant, the plaintiff filed another suit O. S.237 of 1975 for a permanent injunction restraining the appellant herein from committing waste in the property. As issue on title was again joined In that suit. By Ext. A5 judgment the title of the present plaintiff was upheld and an injunction restraining the present appellant from committing any waste in the property was granted. The present appellant went up in appeal. By the judgment Ext. B6 decree for injunction was confirmed. But the question as to whether the earlier adjudications Exts. A2 to A4 would operate as res judicata on the question of title and as to whether the plaintiff had title over the property were left open by the lower appellate court. 4. Meanwhile Krishnan Nair had died in the year 1981 and the life estate in his favour came to as end. The present suit was therefore filed by the plaintiff as mentioned for declaration of title and recovery of possession. The present appellant who bad taken Ext. B1 from the assignees of Krishnan Nair and her husband who died pending suit were impleaded as defendants. According to the plaintiff under the settlement deed Ext. The present suit was therefore filed by the plaintiff as mentioned for declaration of title and recovery of possession. The present appellant who bad taken Ext. B1 from the assignees of Krishnan Nair and her husband who died pending suit were impleaded as defendants. According to the plaintiff under the settlement deed Ext. A1 he had title to the property and his title to the property stands confirmed by the adjudication Exts. A2 to A4 and the appellant who claims to be only an assignee from Krishnan Nair is bound by the decision and on the expiry of the life estate of Krishnan Nair the plaintiff is entitled to recover the property. The appellant resisted the suit by contending that Krishnan Nair had absolute title over the property and that under Ext. A1 the plaintiff did not get title to the property. It was also pleaded that Exts. A2 to A4 do not create any bar of res judicata in view of the finding that that suit was only for an injunction. 5. The Trial Court found that Exts. A2 to A4 operated as res judicata on the question of title and that under Ext. A1 the clear intention of Kutti Amma was to confer title on the plaintiff and to restrict the right of her husband Krishnan Nair only to one for enjoyment. It was therefore held by the Trial Court that the plaintiff had title to the property and the plaintiff was entitled to recover the plaint schedule property with profits. The appellant took up the matter in appeal before the District Court. The District Court concurred with the Trial Court in holding that the question of title of the plaintiff was concluded by the earlier adjudication and that the appellant is bound by that adjudication. The lower appellate court therefore confirmed the decree for recovery of possession. It is challenging this decree that the first defendant has come up with this Second Appeal. 6. The learned counsel for the appellant submits that the adjudication contained in Exts. A2 to A4 would not operate as res judicata for two reasons. Firstly he contended that both the litigations being in the civil court. S.11 of the Code of Civil Procedure has to be applied strictly and we cannot import the general principles of res judicata in determining that question. A2 to A4 would not operate as res judicata for two reasons. Firstly he contended that both the litigations being in the civil court. S.11 of the Code of Civil Procedure has to be applied strictly and we cannot import the general principles of res judicata in determining that question. He submits that the earlier suit O.S. 151 of 1972 was tried and decided by the Munsiff's Court and that the Munsiff's Court is not competent to try and decide the present suit in view of the pecuniary limits of its jurisdiction. According to the learned counsel a reading of S.11 of the Code of Civil Procedure makes it clear that an earlier decree would operate as res judicata only if that court was competent to try and decide the subsequent suit instituted. He therefore submits that the finding of the courts below that the plea of absence of title in the plaintiff is barred by res judicata is not correct. On this aspect, alternatively, he also submits that dace the earlier suit was only one for an injunction the only issue involved therein was an issue regarding the possession and that therefore the finding on title therein could not operate as res judicata in the present suit. 7. On the merits the learned counsel for the appellant contends that on a proper construction of Ext. A1 it can be seen that at best the bequest in favour of the plaintiff is only testamentary and since Krishnan Nair had validly disposed of the property even during his life time no title enures to the plaintiff. He points out that Kutti Amma having died in the year 1971 her heir under law was the husband Krishnan Nair and that Krishnan, Nair could dispose of the property as he pleased and in that view the plaintiff acquires no title over the suit property. 8. It is settled (see for example Kelappan v. Anandan 1970 KLT 510 ) that in applying the rule of res judicata to two suits in the civil court the court is confined to S.11 of the Code of Civil Procedure and cannot pierce the frontiers of that Section. If we look at S.11, one of the requirements of the Section is that the court which decided the former suit should have the competence to decide the subsequent suit. If we look at S.11, one of the requirements of the Section is that the court which decided the former suit should have the competence to decide the subsequent suit. The learned counsel for the appellant relies on the decision reported in Gulab Bai v. Manphool Bai ( AIR 1962 SC 214 ) in support of this proposition and points out that this has always been understood to be the scope of S.11. In Gulab Bai's case, the Supreme Court has noticed the consistent view taken by the Privy Council on this question and have laid down that the earlier adjudication would operate as res judicata only in a case where that court has the jurisdiction to entertain the subsequent suit. Their lordships have also clarified that having regard to the legislative background of S.11 of the Code they had no hesitation in holding that the word 'suit' in the context must be construed literally and it denoted the whole of she suit and not a part of it or a material issue arising in it. The learned counsel therefore submits that unless it is shown that the Munsiff's Court which tried O. S.151/72 had jurisdiction to try and dispose of the present suit O. S.61 of 1982, it cannot be held that the earlier decision evidenced by Exts. A2 to A4 would operate as res judicata. He submits that it is clear from the valuation in the plaint which has cot been disputed that the present suit could not have been tried and decided by the Munsiff's Court which heard and finally decided O. S.151 of 1972. 9. In the light of the clear provision contained in S.11 of the Code of Civil Procedure as it stood there would have been absolutely no difficulty in accepting the submission made on behalf of the appellant on this score. But it is necessary at this stage to notice the amendment brought about to S.11 by the Code of Civil Procedure (Amendment) Act, 1976. By the said amendment in so far as it is material for our purpose. Explanation VIII was added. But it is necessary at this stage to notice the amendment brought about to S.11 by the Code of Civil Procedure (Amendment) Act, 1976. By the said amendment in so far as it is material for our purpose. Explanation VIII was added. Explanation VIII to S.11 of the Code reads thus: - "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 act competent to try such subsequent suit or the suit its which such issue has been subsequently raised". It is the submission of the learned counsel for the appellant that this Explanation is not attracted to the civil court and in this case to the Munsiff's Court which heard and finally decided OS. 151 of 1972. According to him Explanation VIII of the Code introduced by the Amending Act of 1976 is intended to cover only adjudications made by Tribunals of exclusive jurisdiction who by their very nature were incompetent to decide a suit on title. He seeks to support this submission with reference to the decision of the Calcutta High Court reported in Nabin Majhi v. Tela Majhi ( AIR 1978 Cal. 440 ). After referring to the decision in Gulab Bai ( AIR 1962 SC 214 ) and referring to Explanation VIII to S.11 introduced by the 1976 Amendment Act, the Division Bench of the Calcutta High Court held that the Explanation cannot control the main part of the section which insists on the competence of the court which tried the first suit to try the second suit as well and that so long as S.11 stands unaltered the Explanation cannot apply to two suits instituted in the civil court one after another. Their Lordships pointed out: "An explanation to a section is primarily meant for explaining the section itself. In our view, in order to ascertain the true meaning of the Explanation VIII, it has to be read alongwith the provision of the Section and not dehors it. It has been already stated that one of the conditions for the applicability of S.11 is that the Court In which the former suit was instituted must be competent to try the subsequent suit. It has been already stated that one of the conditions for the applicability of S.11 is that the Court In which the former suit was instituted must be competent to try the subsequent suit. If the former Court is unable to try the subsequent suit as it is beyond its pecuniary jurisdiction, the decision of the former court will not be res judicata in the subsequent suit. If the legislature had really intended to remove the condition relating to the competency of the former Court, in that case, it would have removed the same from the section itself. In the face of the provision of S.11 retaining the said condition for the applicability of res judicata, that the former Court must be competent to try the subsequent suit, it is difficult for us to accept the interpretation of Explanation VIII as suggested on behalf of the appellant." Proceeding further their Lordships held that a court of limited jurisdiction referred to in Explanation VIII to S.11 of the Code are courts other than the ordinary civil courts. Those courts are Revenue Courts, Land Acquisition Courts, Administrative Courts, Insolvency Courts, Guardianship Courts etc. This decision clearly supports the submission of the learned counsel for the appellant that in so far as it relates to ordinary civil courts the main part of S.11 has to be satisfied before the rule of res judicata could be invoked. The learned counsel also refers to the decision of the Calcutta High Court reported is Promote Ranjan v. Nirapada Mondal ( AIR 1980 Cal. 181 ) wherein the decision reported in Nabin Majhi ( AIR 1978 Cal. 440 ) was relied upon for taking the view that Explanation VIII is not attracted la the case of two suits filed in the ordinary civil courts. The learned counsel for the appellant seeks further support from the decision of the Supreme Court reported la Sundaram Pillai v. Pattabiraman AIR 1985 SC 582 ) for the proposition that an Explanation cannot in any way interfere with or change the enactment or any part thereof. The learned counsel for the appellant seeks further support from the decision of the Supreme Court reported la Sundaram Pillai v. Pattabiraman AIR 1985 SC 582 ) for the proposition that an Explanation cannot in any way interfere with or change the enactment or any part thereof. He refers particularly to clause (d) of the propositions enunciated by their Lordships in Para.52 of the said judgment regarding the object of an Explanation reading: "(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment....................." According to him therefore the reasoning of the Calcutta High Court is perfectly justified in the light of the Supreme Court decision referred to above and if considered from that point of view if cannot be held that the decision in O.S. 151/72 bars the appellant from contending that the plaintiff has no title to the suit property. 10. This contention of the learned counsel for the appellant though attractive has not been accepted by a Division Bench of this court in the decision reported in P. V. N. Devaki Amma v. P. F. N. Kunhi Raman ( AIR 1980 Ker. 230 ). There speaking for the Division Bench, V. Balakrishna Eradi, C. J. (as he then was) after referring to the decision of the Calcutta High Court in Nabin Majhi ( AIR 1975 Cal. 440 ) held that the said view cannot be taken as correct as in the view of their Lordships a court of limited jurisdiction referred to in Explanation VIII is wide enough to include a court whose jurisdiction is subject to a pecuniary limitation and it will not be right to interpret the expression occurring in Explanation VIII as connoting only courts other than ordinary civil courts. Referring to the retention of the words 'in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised' their Lordships observed : "The retention of those words in the main body of the section does provide room for the argument that only a restricted Interpretation should be given to Explanation VIII. Referring to the retention of the words 'in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised' their Lordships observed : "The retention of those words in the main body of the section does provide room for the argument that only a restricted Interpretation should be given to Explanation VIII. We are, however, of opinion that the correct mode of interpretation is to read the section in combination and harmony with Explanation VIII. The result that flows from such an interpretation is that a decision on an issue heard and finally decided by a Court of limited jurisdiction (which expression will include a Court of limited pecuniary jurisdiction) will operate as res judicata in a subsequent suit notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit........" It has also to be observed that confronted with the decision of the Calcutta High Court referred to above and the Division Bench decision of this court referred to earlier, the Orissa High Court in the decision in reported in Kumarmoni Sa v. Himachal Sahu (AIR 1981 Orissa 177) preferred to follow the decision of this court. Referring to the decision reported in Dalmia Dadri Cement Co. Ltd. v. Commr. of Income tax (AIR 1955 Papsu 3) their Lordships observed that jurisdiction of a Court may be limited either locally, or personally, or as to amount, or as to the character of the questions to be determined. Thereafter their Lordships observed: "......The amendment is purported to avoid multiplicity of suits and if one person goes on adding some property and Increasing the value of the property from time to time by instituting suits one after the other, he can deliberately avoid the decision which was against him to operate as res judicata. There should be an end to the matter and multiplicity of litigations should be avoided. We are impressed with the reasons given by the Kerala High Court." 11. There should be an end to the matter and multiplicity of litigations should be avoided. We are impressed with the reasons given by the Kerala High Court." 11. The learned counsel for the appellant who fairly brought the decision of the Orissa High Court also to the notice of this court submits that notwithstanding the Explanation, in construing S.11 of the Code of Civil Procedure, the Supreme Court in the decision reported in Pandurang v. Shantabai (AIR 2989 SC 2240) had held, after referring to the decision reported in Pandurang Mahadeo Kavade v. Annaji Balwant Bokil ( AIR 1971 SC 2228 ) that "in order to operate as res judicata it mast be established that the previous decision was given by a court which had jurisdiction to try the present suit, and there would be no res judicata if the previous decision was by a court having no jurisdiction. Of course that was a case of pecuniary jurisdiction, but there is no reason why the same principle should not apply in other cases of courts without jurisdiction". According to the learned counsel for the appellant therefore notwithstanding the explanation, the Supreme Court has clearly laid down that the principle of the decision reported in AIR 1971 SC 2228 continued to apply and that the requirement of the competence of the court which entertained the earlier suit to entertain the subsequent suit still remains a condition precedent for the decision in the former suit to operate as res judicata. 12. The submission of the learned counsel for the appellant has considerable force. But it is not seen that Explanation VIII was in any way subject matter of decision in the decision in Pandurang's case. In fact there is no reference to Section VIII in the said decision rendered by the Supreme Court. Their Lordships have only considered S.11 to the Code as it stood. in the light of the clear pronouncement of the Division Beach of this court which had also considered the effect of Explanation VIII I am not persuaded to agree with the submission of the learned counsel for the appellant that in the light of the decision in Pandurang's case, the decision of our court can be considered no longer to be good law. 13. The rule of res judicata, as is known, is a rule of public policy. 13. The rule of res judicata, as is known, is a rule of public policy. It la intended to confer finality on adjudications once made and to shut the door on the litigant to agitate his cause of action over and over again. By an adjudication a cause of action merges into the decision and no more survives. Transit in rem judicatum. Earlier an adjudication by a Tribunal or a court of limited jurisdiction could be brought within the rule of res judicata only by invoking the general principles of res judicata and not with reference to S.11 of the Code. Obviously the intention in introducing Explanation VIII was to incorporate that general principle into the section itself. This is further clear from the addition of Explanation VII to S.11 of the Code. Though S.11 as such may or may not be applied to proceedings in execution, the courts had applied the principle of res judicata even in matters relating to execution and had held that prior orders in execution would operate as res judicata. It can be seen that by enacting Explanation VII this rule was made a part of the Section itself. According to me the addition of this Explanation clearly manifests an intention to being within the purview of S.11 those recognised general principle of res judicata so as to effectively implement the public policy behind the rule of res judicata. If that be so as observed by His Lordship Balakrishna Eradi C.J in Devaki Amma's case the operation of Explanation VIII should not be whittled down so as to exclude from its purview an adjudication by a full fledged civil court in a properly instituted former suit before it. I am therefore in respectful agreement wish the view expressed by the Division Bench in Devaki Amma's case. I am not in a position to accede to the submission of the learned counsel for the appellant that the decision in Devaki Ammas' case requires reconsideration. 14. In the view I have taken there cannot be any doubt that the adjudication in the present case evidenced by Exts. A2 to A4 would clearly operate as res judicata on the question of title barring the appellant from challenging the title of the plaintiff respondent. 15. 14. In the view I have taken there cannot be any doubt that the adjudication in the present case evidenced by Exts. A2 to A4 would clearly operate as res judicata on the question of title barring the appellant from challenging the title of the plaintiff respondent. 15. The argument of the learned counsel for the appellant that a finding on title was unnecessary in O. S.151 of 1972 cannot also be accepted. Though the suit was one for injunction, it was not a claim for injunction on the basis of possession alone. The claim for injunction was to restrain the predecessor of the appellant herein from cutting and removing the trees standing in the property on the strength of the title claimed by the plaintiff on the strength of Ext.A1. The predecessor of the appellant joined issue on the question of title. The only issue that arose for decision in O. S.151 of 1972 was the issue as to whether under the deed of settlement Ext. A1 the plaintiff - respondent acquired a title to the suit property. That issue was the pivot on which the right to relief in the earlier suit revolved. That issue was heard and finally decided by the Trial Court and the same was confirmed in appeal by the lower appellate court. The said decision became final, I have therefore no hesitation in holding that Exts. A2 to A4 operate as res judicata to bar the appellant from contending that that the plaintiff respondent has no title to the suit property. 16. Once it is held that the challenge to the title of the plaintiff respondent is barred by res judicata, the decree of the court below has only to be confirmed and the argument of the Learned counsel for the appellant that under Ext. A1 the plaintiff acquires no title cannot be countenanced. It is not therefore necessary to consider that question in the light of the interpretation of Ext. A1 attempted by the learned counsel for the appellant. In the result I dismiss the Second Appeal. But in the circumstances of the case I direct the parties to suffer their respective costs in this court.