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2002 DIGILAW 401 (JK)

Yog Raj v. Kewal Krishan

2002-12-20

T.S.DOABIA

body2002
1. Preliminary issue of resjudicata stands decided against the petitioner Yog Raj. He had filed a Civil Suit. Bearing No. 10/1991. This was decided on 29.05.1999. In this suit one of the question which was supposed to be determined is about the instance of the petitioner who figured as plaintiff was as to whether the suit, wall of the house of the defendants faces the compound of the plaintiffs house and the wall forms border between the two parties., this issue was determined. Findings were recorded So far as issue is concerned, this is issue No. 1. This is reproduced below:- "Whether the suit wall of the house of the defendants faces the compound of the plaintiff™s house and the wall forms border between the two parties. O.P.O? 2. Findings recorded on this behalf in so far as relevant for the purposes of disposal of this revision petition are also being noticed. These are as under;- "...The defendants in their written statements had taken the plea that land measuring 12 feet x 16 feet x 16 feet x 16 feet between this wall and the house of the plaintiffs is vacant and belongs to defendants and out of this land plaintiffs have illegally occupied some portion of the land adjoining to their house and constructed a gate and a wall over it. The defendant Kewal Krishan in his statement recorded in the court stated that his house situates at a distance of twelve feet from the house of the plaintiffs and out of this twelve feet of land, the plaintiffs had made encroachment of his seven feet of land forcibly without any title to the same, which in other words means that plaintiffs are in possession of same portion of the defendants land, it has been further submitted by the defendant Kewal Krishan that he had filed a suit for possession against the plaintiffs in respect of forcible occupation of his seven feet land, which is pending in this court. It is pertinent to mention here that during the cross-examination of the plaintiff Youg Raj, no a single word was put to him by the counsel for the defendant regarding the forcible occupation of seven feet of land of the defendants. Even it was not suggested to the plaintiff witnesses that plaintiff have forcibly occupied some portion of the land of the defendants. Even it was not suggested to the plaintiff witnesses that plaintiff have forcibly occupied some portion of the land of the defendants. The witnesses examined by the defendants namely Sh. Ram Lal, has no doubt, stated that there is a vacant land between the house of the parties measuring 15 feet which is owned by the defendants but his statement is silent as to who is in possession over that vacant land, rather this witness supports the case of the plaintiffs by stating that plaintiff had constructed a gate over the vacant land and this vacant land is used by the plaintiffs as passage to their house. Though at the fag end, of his statement he has tried to show that some material of the defendants is lying on that vacant land and by virtue of which It can be presumed that this vacant land is in possesson of the defendants but in the absence of any particulars as to what type of material has been kept by the defendants in that vacant land his statement cannot be relied on. Even defendants who are staking their claim over the vacant land which exists between the house of the parties have failed to place on record, any revenue record much less the copy of sale deed, by virtue of which they are claiming this vacant land belonging to them. The oral evidence on record, in my opinion, is sufficient to prove that plaintiffs are in possession over the vacant land which exists between the hoses of the parties. The defendants have failed to rebut the evidence brought on record by the plaintiffs. Therefore, this issue is decided in favour of the plaintiffs and against the defendants and it is held that the suit wall of the house of the defendants which faces the compound of the plaintiffs house forms border between the houses of the parties." 3. Net result was suit for permanent prohibitory injunction was dismissed. Thereafter, present suit was filed. In this writ the persons who figured as defendants in the above suit figures as plaintiffs. They claim ownership in the portion of the land on which boundary wall stands constructed. They pleads that this is owned by them, relief of possession has been sought. It is in this suit a plea was taken by the present petitioners that finding recorded in the earlier litigation would operate as resjudicata. They claim ownership in the portion of the land on which boundary wall stands constructed. They pleads that this is owned by them, relief of possession has been sought. It is in this suit a plea was taken by the present petitioners that finding recorded in the earlier litigation would operate as resjudicata. This plea has not been accepted. It is in these circumstances the present petition has been preferred. Trial court has come to the conclusion that findings recorded in earlier suit would not operate as resjudicata. It has been concluded; (i) That the nature of the earlier relief was entirely different. In the earlier suit prohibitory injunction was claimed. Question of ownership was not gone into to all. (ii) That no finding as to ownership could be recorded as such was not the issue; (iii) That any observation made in the earlier suit would not operate as resjudicata as no issue regarding ownership was ever claimed. 4. In my opinion that view expressed by the trial court is a view to which no exception can be taken. 5. The learned counsel for the petitioners had referred to Section 11 of the CPC, and more particularly Explanations III and VII, and submits that the earlier findings would stand in the way of the plaintiffs/respondents. For facility of reference, these provisions are being noticed below: "11, Res judicata. 5. The learned counsel for the petitioners had referred to Section 11 of the CPC, and more particularly Explanations III and VII, and submits that the earlier findings would stand in the way of the plaintiffs/respondents. For facility of reference, these provisions are being noticed below: "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, litigation 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." X X X X X "Explanation III:- The matter above referred to must in the former suit have been alleged by one party and either denied to admitted expressly or impliedly by the other." x x x x x "Explanation VII:- Where an party to a civil suit, sets up or relies on a pedigree, or on the legitimacy of the genuineness or validity of the adoption of any person, including himself and question of such pedigree, legitimacy or adoption is put directly and substantially in issue, and is, after a full and regular trial, decided against such party, then as regards such question or issue the party™s descendants, heirs, executors, administrators or assigns shall in any future litigation be deemed to claim under him." 6. The argument put across is that even if there is no specific issue framed vis-a-vis ownership or claim regarding possession, but once in the aforementioned suit a finding came to be recorded, then that would stand in the way of the plaintiff, It is submitted that not only the findings but the pleadings of the parties are to be taken note of. It is submitted that the plaintiff Yog Raj had claimed ownership and therefore, possession also. This was denied by the defendants who now figure as plaintiffs. It is, accordingly, submitted that it is the totality of circumstances which has to be taken note of, and if this is done, then the present suit would be barred by principles of res-judicata. 7. This was denied by the defendants who now figure as plaintiffs. It is, accordingly, submitted that it is the totality of circumstances which has to be taken note of, and if this is done, then the present suit would be barred by principles of res-judicata. 7. Section 11 read with the two explanations of the Code of Civil Procedure lays down that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties or between the parties under whom they or any of them claims o 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. After laying down this statutory principles, ten explanations so far as State Code is concerned, have been added. Reliance in this case is being placed on Explanations III & VII. 8. Section 11 contains a salutary principle which is to be effect that the conclusiveness should attach to a judgment. The principle behind this action is that ˜no man should be vexed twice over the same cause™. 9. The argument to the learned counsel for the petitioner i.e. in the earlier suit, the dispute was as to whether the wall is a common boundary wall and as plea of ownership was raised, and even though no specific issue was raised, then the observations made would be good and sufficient to conclude that the plea of res-judicata would be attracted. 10. I am of the opinion that this argument put across is not sustainable. 11. In P.M.C Kunchiranan Nair V. C.R. Naganatha Lyer and others, AIR 1993 Supreme Court 307, the earlier suit was in respect of all oil mill treating it as movable property. The later suit was of possession of the land and the building on which the oil mill are erected. It was held that the subject matter of two suits is different and plea of res-judicata would not be available. The later suit was of possession of the land and the building on which the oil mill are erected. It was held that the subject matter of two suits is different and plea of res-judicata would not be available. What has said is quoted below:- "...Since the question with regard to possession of the land and building arises in the present suit only it was permissible for the appellant to raise the plea that the plaintiffs have no subsisting lease hold interest in the suit property and that the appellant is in possession of the same as a tenant of the owner of the said property." 12. Again where no issue is raised about a question, the mere fact that a decree was passed on allegation in the plaint is not sufficient to attact plea of res-judicata. See AIR 1995 madras 560, Bhujanga-Ballal v. Antony Juje Louis. It was concluded that where, "in the previous suit the parties did not go to trial and no issue was raised about the existence of a charge and there was no adjudication by court upon that matter, the mere fact that a decree was passed on allegations made in the plaint claiming a charge in respect of rent due for a previous year is not sufficient to constitute res judicata in respect of charge for rent due for a subsequent year when the point is raised for consideration." 13. It is settled law that in order that plea of res-judicata, should operate the first finding must be on an issue which has been directly and substantially in issue in the former suit. If the finding is given incidentally while determining another issue which was directly and substantially in issue, such a finding cannot be said to be on issue which was directly and substantially in issue in the former suit. 14. In Smt. Gangabal Versus Smt. Chhabubai, AIR 1982 Supreme Court 20, it was observed that "finding as to title" by a small cause court being incidental only to the substantial issue in the suit cannot operate as res-judicata in a subsequent suit in which question of title is directly raised. 14. In Smt. Gangabal Versus Smt. Chhabubai, AIR 1982 Supreme Court 20, it was observed that "finding as to title" by a small cause court being incidental only to the substantial issue in the suit cannot operate as res-judicata in a subsequent suit in which question of title is directly raised. What is said in Para "9" is quoted below:- "It seems to us that when a finding as to title to immovable property is rendered by a court of small causes res-judicata cannot be pleaded as a bar in a subsequent regular Civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res-judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purpose of deciding the matter which is directly in issue in the case cannot be made the basis of a plea or res judicata. It has long been held that a question of title in a Small cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised. Poholi MullicK V. Fukeer Chunder Patnaik, (1874) 22 Suth WR, Chet Ram V Ganga, 1886 All WN 44, Anwar Ali v. Nur-UI-Haq, (1907) All 517, Khandu Valad Keru V Tatia Valad Vithobia (1871) 8 Bom. HC AC 23(24). See also Mohd. Yusuf V. Abdul Wahid AIR 1948 All 296 and S.A A Annamali Chettiar V. Molaiyan, AIR 1970 Mad 396. Our attention has been drawn to Explanation VIII to S.11 in the Code of Civil Procedure recently inserted by the Code of Civil procedure (Amendment) Act, 1976. Section 97(3) of the Amendment Act declares that the new provision applies to pending suits, proceedings, appeals and applications. In our opinion the explanation can be of no assistance, because it operates only where an issue has been heard and finally decided in the earlier suit." 15. In view of the above, it is difficult to sustain the argument put across by the learned counsel for the petitioners. 16. This revision petition as such is dismissed.