1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :JUDGMENT
: S.B. CIVIL FIRST APPEAL NO.309/2010 Shanker Lal vs. Madan Lal Date of Judgment ::
24. h February,2014 PRESENT HON'BLE MR. JUSTICE ARUN BHANSALI Mr. Manoj Bhandari, for the appellant. Mr. S.S. Ladrecha, for the respondent. ---- BY THE COURT: This appeal under Section 96 CPC is directed against judgment and decree dated 21.08.2010 passed by Additional District Judge No.1, Bikaner, whereby, the suit filed by the plaintiff-respondent Madan Lal seeking possession of the suit premises and mesne profit has been decreed. The facts in brief may be noticed thus : the respondent filed a suit on 13.12.1999 seeking possession of the suit property and mesne profit; it was averred that the suit premises were situated at Fad Bazar, which was let out by the adoptive father of the plaintiff Shri Ram Dev to Shri Amar Chand on 28.03.1969 and, on account of compromise, the premises were vacated and the same was handed over to the plaintiff on 04.11.1997; on 14.11.1997 Amar Chand's real brother Shanker Lal – defendant trespassed on the premises and before the plaintiff could take any action, the defendant -Shanker Lal filed a suit on 18.11.1997 for declaration that he be declared tenant 2 and injunction that without adopting due process, he be not evicted; the said suit was partially dismissed on 24.11.1999 holding that Shanker Lal was not entitled for being declared as tenant, he was in possession since 14.11.1997 and injunction was granted that without adopting due procedure, he be not evicted; it was alleged that the defendant was requested many times after 24.11.1999 to hand over the possession, however, he refused to hand over the possession; it was prayed that as by decree dated 24.11.1999 plaintiff has been directed not to take possession without adopting due procedure of law, the suit for possession and mesne profit was being filed and mesne profit @ Rs.1,000/- per month was claimed. A written statement was filed by Shanker Lal and it was claimed that the suit was not maintainable; he was in possession of the suit shop as tenant since 1978; earlier the rent was Rs.250/- per month, which was Rs.350/- now; on refusal to receive rent, the same was being deposited under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950; the execution of the rent note dated 28.03.1969 and the compromise dated 04.11.1997 were disputed and it was claimed that both the documents were forged. Ultimately, it was prayed that the suit be dismissed. The trial court framed four issues and after evidence was led by the parties by judgment and decree dated 19.11.2004, it came to the conclusion that as the judgment dated 24.11.1999 was pending appeal, the same would not operate as re judicata and came to the conclusion that the plaintiff failed to prove that 3 the defendant Shanker Lal had illegally trespassed on the suit premises on 14.11.1997 and consequently dismissed the suit. Feeling aggrieved, the appellant filed review petition, which was rejected by the trial court on 31.01.2005. The judgment and decree dated 19.11.2004 was challenged by way of filing S.B. Civil Regular First Appeal No.590/2005 by the plaintiff and this Court by judgment dated 13.12.2007 came to the conclusion that as the impugned judgment dated 19.11.2004 was mainly based only on the ground that the order of the trial court dated 24.11.1999 could not be said to be final in view of pendency of second appeal at that time and the said second appeal having been decided and special leave petition having been dismissed, the judgment and decree dated 19.11.2004 was set aside and the matter was remanded back to the trial court. After the present suit was remanded to the trial court, an application under Order VI, Rule 17 CPC was filed by the plaintiff and the plaint was amended and the allegations contained in para 3 of the original plaint, regarding the trespass by the defendant were deleted and it was claimed that in view of the judgment passed by the trial court on 24.11.1997, which was upheld in the first appeal, second appeal and the special leave petition, the defendant was a trespasser and the plaintiff was entitled for possession of the suit property and in pursuance to the decree dated 24.11.1997 the suit was being filed for possession. A fresh written statement was filed by the defendant and again the plea regarding his tenancy in the suit shop was raised. 4 It was denied that the finding recorded by the courts in the earlier litigation, which resulted in the judgment and decree dated 24.11.1997 operates as res judicata. Based on the amended suit and written statement, post remand, the trial court framed only one issue as to whether the plaintiff was entitled to possession of the suit property?. On behalf of the plaintiff three witnesses were examined and on behalf of the defendant also three witnesses were examined. After hearing the parties, the trial court came to the conclusion that the plea raised by the defendant regarding his status as a tenant was barred by principles of res judicata and he was trespasser on the suit premises and based on the evidence available on record the Court awarded mesne profit @ Rs.350/- w.e.f 14.11.1997 till the actual physical possession was handed over and ordered delivery of possession of the suit property to the plaintiff. Feeling aggrieved by the said judgment, the present appeal has been filed. It is submitted by learned counsel for the appellant that the finding recorded by the trial court that the judgment and decree dated 24.11.1997 would operate as res judicata against the appellant is wholly erroneous and the trial court was not justified in decreeing the suit on coming to the conclusion that the finding/decree operates as res judicata against the judgment in the present suit; the finding in the earlier suit was ancillary and the said finding was not open to challenge and, therefore, 5 the trial court was not justified in decreeing the suit; the trial court did not comprehend the scope of remand when the suit was dismissed on the earlier occasion and was remanded by this Court, the issues which were framed earlier did not go into oblivion and the trial court was bound to decide the said issues as well and the finding on rate of mesne profit was also questioned by the learned counsel. Per contra, learned counsel for the respondent submitted that the present is a case of gross abuse and high handedness on part of the defendant in seeking a decree of injunction from the trial court and thereafter claiming himself to be not bound by the said decree. It was submitted that a specific issue was framed by the trial court in the earlier litigation and a finding has been recorded against the appellant regarding claim of tenancy, which has been upheld right upto Hon'ble Supreme Court with the dismissal of special leave petition and, therefore, the said finding operates as res judicata. It was submitted that the judgment and decree passed by the trial court does not call for any interference and the same deserves to be upheld. I have considered the rival submissions. The entire controversy centers around the filing of the previous suit between the parties and findings recorded therein and as to whether the said finding would operate as res judicata or not. The suit No.625/95 was filed seeking permanent injunction and declaratory relief by Shanker Lal against the plaintiff Madan Lal, inter alia, with the averments that he was tenant in the suit 6 premises and he has been threatened that he should hand over the vacant possession of the suit shop or else he would be forcibly evicted and a declaratory decree was sought that the appellant herein was tenant of the premises and a permanent injunction that he be not evicted without adopting due process of law. A written statement was filed by the plaintiff and it was denied that he was tenant of the premises and it was alleged that he was a trespasser and it was prayed that the suit be dismissed. The trial court framed following issues :- “(1) आय व द व दगस पर स म ब क यद बबज ह ?. (2) आय व द व द पत म व छ स ई छ षध ज अप पक म पप अधध ह ?. (3) अ ) *ष ?.”. After evidence was led by the parties, the trial court after elaborately discussing the oral and documentary evidence recorded the following finding on issue No.1:- "इस प उप *क वववच आध प हम वव म य म व द क स1 भ1 रप म सवय * व दगस द ) क यद स बब म प) ह स असफल ह ह। अ : वह सवय * व दगस द ) क य-द घ*वष वय ज अधध ह ह, अ : ववव द सखय 1 व द ख;ल फ छ ख<= क य ज ह।" However, it went on to partially decree the suit filed by the appellant and ordered on 24.11.1999 as under:- "आ द श अ : वद उक व द ब ब ?. घ*वष वय ज क यद व दगस द ) जजस आस प स व द पत पद सखय 1 म अक ह, स ह ह* < असव1 क य ज ह, क न ) इस हद आशश रप स डDकF क य ज ह क पछ व द , व द * बग ववधध प< H = पककय अप य जब 7 बद;ल , ववधध पH<= पककय अप पछ व द व द * बद;ल शलय सव त हग। ;च = म) दम पक अप अप वह ग। छ यम )स पच = डDकF मछH ब = क य ज व।" Feeling aggrieved, Civil Appeal Decree No.4/2000 was preferred by Shanker Lal – appellant before Additional District Judge No.1, Bikaner, who by judgment and decree dated 29.08.2001 dismissed the appeal and, inter alia, on issue No.1 (supra) noted as under:- "इस प पत वल प उपलबध समस स कय व दस वज अवल* पश ?. अध1 स नय य लय ज* छ ष ष= छ ल ह उसस मM पH<= रप स सहम हNH उसम क स1 प पर व = नय य सग प 1 ह ह* ह। औ इस ह स व द अप आप * व दगस द ) क यद स बब म असफल ह ह औ इस ह स व द सवय * व दगस द) क यद घ*वष व अधध ह ह। व द / अप1ल P द ज* नय छय दष न इस अप1ल म पस ) क ए गए ह उ म पछ प दद शसद न W स मM सहम हNH लक थयW F शभन < उक नय छय दष न इस अप1ल म अप1ल P F *ई मदद ह प ह। अ : ऐस1 जस छ म F स. 1 अध1 स नय य लय द वद ख;ल फ औ पछ व द पक म नय य सग रप स छ
. Where after, the special leave petition being Special Leave Petition (Civil) No.4531/2006 was dismissed by Hon'ble Supreme Court on 20.03.2006. A bare chronological reading of the judgments passed by the trial court in the suit, first appellate court in the first appeal, this Court in the second appeal and the dismissal of SLP clearly reveals that the plea raised by the appellant in the earlier suit that a declaration be given in his favour that he was tenant of the suit premises was specifically dealt with and decided against him based on the evidence on record. The trial court though came to the conclusion that the appellant was not tenant in the suit shop, but passed a order that he be not evicted, otherwise then, by due process of law, which was not questioned by the plaintiff herein, therefore, the finding as to whether the appellant was tenant in the suit shop was expressly and conclusively decided against him by the trial court and the said finding was upheld right upto Hon'ble Supreme Court. The principles of res judicata under CPC have elaborately been discussed by Hon'ble Supreme Court in Ramchandra Dagdu 9 Sonavane v. Vithu Hira Mahar & Ors. : (2009) 10 SCC273 it was held and observed as under:- “Res judicata and Code of Civil Procedure:
42. It is well known that the doctrine of res judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits. But apart from the codified law, the doctrine of res judicata or the principle of the res judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also Principles not only of direct res judicata but of constructive res judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties.
43. The Principle of res judicata comes into play when by judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications even then the Principle of res judicata on that issue is directly applicable. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but was not so made, then such a matter in the eye of the law, to avoid multiplicity of litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided. (See Workmen v. Cochin Port Trust.) 44. In Swamy Atmananda v. Sri Ramakrishna, Tapovanam it was held by this Court: (SCC p. 61, paras 26- 27)
“26. The object and purport of the principle of res judicata as contended in Section 11 of the Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject-matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation. Such a rule was brought into the statute book with a view to bring the litigation to an end so that the other side may not be put to harassment.
27. The principle of res judicata envisages that a judgment of a court of concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the same parties in some other matter in another court, where the said plea seeks to raise afresh the very point that was determined in the earlier judgment.”. 45. When the material issue has been tried and 10 determined between the same parties in a proper suit by a competent court as to the status of one of them in relation to the other, it cannot be again tried in another suit between them as laid down in Krishna Behari Roy v. Brojeswari Chowdranee which is followed by this Court in Ishwar Dutt v. Collector (LA) wherein the doctrine of “cause of action estoppel”. and “issue estoppel”. has been discussed. It is laid down by this Court, that if there is an issue between the parties that is decided, the same would operate as a res judicata between the same parties in the subsequent proceedings. This Court in Isher Singh v. Sarwan Singh has observed: (AIR p. 951, para 11)
“11. We thus reach the position that in the former suit the heirship of the respondents to Jati deceased (a) was in terms raised by the pleadings, (b) that an issue was framed in regard to it by the trial Judge, (c) that evidence was led by the parties on that point directed towards this issue, (d) a finding was recorded on it by the appellate court, and (e) that on the proper construction of the pleadings it would have been necessary to decide the issue in order to properly and completely decide all the points arising in the case to grant relief to the plaintiff. We thus find that every one of the conditions necessary to satisfy the test as to the applicability of Section 11 of the Civil Procedure Code is satisfied.”. 46. So far as the finding drawn in the suit for injunction in OS No.104 of 1953, regarding adoption would also operate as a res judicata in view of the judgment of this Court in Sulochana Amma v. Narayanan Nair. It is observed: The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res judicata.
“9. .....It is settled law that in a Suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res judicata.”
. (SCC p. 20, para
9) 47. The same view is reiterated in Gram Panchayat v. Ujagar Singh. This Court has stated, that, even in an earlier suit for injunction, if there is an incidental finding on title, the same will not be binding in the later suit or proceedings where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was found or based on the findings of title. Even the mere framing of an issue may not be sufficient as pointed out in that case. 11 48. The appellants had filed OS No.104 of 1953 before the civil court inter-alia seeking an order of permanent injunction against respondent - Vithu and others on the ground that they are Watandars of suit lands and they are in peaceful possession and enjoyment of the suit lands. Respondent - Vithu had set up a defence that since he is the adopted son of the deceased Watandar, he has the right, title and interest in the watanlands. Therefore, the trial court had framed an issue, whether the defendants prove that Defendant 1 was the adopted son of his grandmother and as such was in possession of the suit property. The trial court after elaborate discussion had answered the issue against Vithu and had concluded that Vithu failed to prove that he was the adopted son of deceased Watandar and, therefore, he cannot have any right, title or interest in the suit lands as Watandar. In this case, though the suit was for bare injunction, title to the properties was put on issue by the defendant-Vithu claiming that he is the adopted son of deceased Watandar and, therefore, he has Watandari rights in the suit lands. In order to decide the prayers made in the suit, the issue of adoption had to be decided. The issue falls within the exclusive jurisdiction of the civil court.
49. In the subsequent proceedings before the Sub- Divisional Officer, the issue was whether Vithu was the adopted son of deceased Watandar and, therefore, having hereditary interest in any inferior village watan under Watans Abolition Act, 1958. To decide this issue, the Sub- Divisional Officer firstly has to decide the issue, whether Vithu is the adopted son of deceased Watandar. This issue is one which does not fall within the jurisdiction of the Revenue Court but falls within the exclusive jurisdiction of the civil court. Since the issue of adoption was already decided between the same parties by a competent civil court, the Sub-Divisional Officer cannot decide that issue and without giving any decision on that issue could not have allowed the claim of the respondent Vithu. Therefore, in our opinion, the principles of res judicata would apply to the proceedings before the Sub-Divisional Officer.
50. In a suit for injunction, the issues and the decision would be confined to possessory aspect. If the right to possession of property cannot be decided without deciding the title to the property and a person who approaches the Court, his status itself is to be adjudicated then without declaring his status, the relief could not be granted. In earlier suit Vithu claimed his right as an adopted son. Therefore, since he did not prove the adoption, there was no subsisting right or interest over the immovable property and as such the issue on adoption was a relevant issue in 1953 suit and, therefore, the said issue which has been decided in earlier suit and which has been confirmed in the regular second appeal and the issue decided therein was whether he was an adopted heir of a deceased Watandar was binding on the parties. A similar question has to be decided by the S.D.O. to decide the claim, right or interest in respect of the hereditary office. Therefore, the issue was raised and it was decided and it is binding on the parties. 12 51. Reference may be made to the decision of this Court in Sulochana Amma v. Narayanan Nair (SCC para
9) on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res judicata. A plea decided even in a suit for injunction touching the title between the same parties would operate as res judicata: (SCC p. 20, para 9)
“9. ...It is a settled law that in a suit for injunction when title is in issue, for the purpose of granting injunction the issue directly and substantially arises in that suit between the parties. When the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in injunction suit equally operates as res judicata.”. 52. To the same effect is the judgment of this Court in Sulochana Amma v. Narayanan Nair (SCC para
9) in which it has been held that the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res judicata. A plea decided even in suit for injunction touching the title between the same parties would operate as res judicata.”
. (emphasis supplied) In the above judgment besides scanning the entire law on the subject, the principles laid down in the case of Sulochana Amma v. Narayanan Nair : (1994) 2 SCC14that a plea decided even in suit for injunction touching the title/status between the same parties would operate as res judicata have been reiterated. As such, the fact that the status of tenant claimed by appellant in the previous suit for injunction having been negated by the Court, the same would operate as res judicata in the present suit. In the present suit, which was filed subsequent to passing of the judgment and decree dated 24.11.1997, leaving it open for the plaintiff to recover possession by adopting due process of law, the only defence, which was disclosed by the appellant, was by way of additional plea and plea exactly identical to the plea raised in earlier suit that the appellant was tenant in the suit 13 shop was reiterated. Once the said defence was the only defence to the claim made by the plaintiff, in view of the finding recorded inter se between the same parties regarding the same subject matter, the trial court was not required to again decide the issue as to whether the appellant was tenant in the suit shop and it was rightly held that the finding recorded in the earlier suit on the said aspect operates as res judicata. Admittedly, no other plea in defence explaining the possession of the appellant was taken and once the plea of appellant being tenant in the suit shop was held barred by the trial court, the suit filed by the plaintiff was rightly decreed. The plea raised by the learned counsel for the appellant that the finding of tenancy recorded earlier was merely a ancillary finding and was not open to challenge by the plaintiff and, therefore, the same cannot operate as res judicata, has been noticed to be rejected only. As has already been noticed hereinbefore, the trial court in the earlier suit had after elaborately discussing the evidence led by the parties on the specific issue regarding the alleged tenancy of the appellant of the suit shop has recorded a categorical finding, which having been questioned by the appellant, has been upheld right upto Hon'ble Supreme Court, the plea raised is absolutely baseless. So far as the argument of learned counsel for the appellant that subsequent to the remand the trial court should not have framed a new issue and the trial court should have recorded finding on the earlier issues also, as noticed hereinbefore, subsequent to the remand made by this Court, the plaint was 14 amended by the plaintiff and a fresh written statement was filed by the appellant and in view of the amendment the issues struck earlier were rendered meaningless and, therefore, the trial court was justified in framing a fresh issue based on the amended pleadings between the parties and no exception can be taken to the procedure adopted by the trial court. So far as the award of mesne profit @ Rs.350/- per month is concerned, according to appellant's own assertion in the written statement, he was allegedly paying rent @ Rs.350/- in the year 1997 and, as such, no exception can be taken to award of meager mesne profit @ Rs.350/- per month. In view of the above discussion, there is no substance in the appeal and the same is, therefore, dismissed with costs. (ARUN BHANSALI), J.
A.K. Chouhan/