Case: Koshal Pal and Others Vs. Mohan Lal and Others

GOSWAMI, J.1. In this appeal by special leave from the judgment and decree of the Allahabad High Court the only question that is raised relates to the plea of res judicata.2. The facts so far as material for the purpose of this appeal are as follows:-The plaintiff (respondent No. 1 herein) claims to be the adopted son of one Param Lal who is the original owner of the premises in suit. Ram Sahai is the father of defendants 1 to 3 and husband of defendant 4. Both Param Lal and Ram Sahai died some time in 1946. The plaintiff brought a suit being O. S. No. 114 of 1952 in the court of the Munsif of Etah, Uttar Pradesh, against defendants 1 to 6. The allegations in the plaint were that defendant No. 5, who is the maternal uncle of defendants 1 to 3 and brother of defendant 4 execute d a rent note on November 13, 1946, on behalf of defendants 1 to 4 in favour of the plaintiff. Since they were in arrears of rent for nearly 21/2 years the suit was instituted for rent and possession by eviction of the defendants. Defendant No. 5 did not enter appearance to contest the suit. The defence of defendants 1 to 4 was that defendant No. 5 never executed any rent note on their behalf in favour of the plaintiff. They disclaimed tenancy and asserted their own title to the premises in suit by adverse possession.3. The trial court, inter alia, framed the following issues in suit No. 114 of 1952:-"Issue No. 3: Is the suit barred under articles 142 and 144 of the Limitation Act ?Issue No. 8: Whether the suit against defendants 1 to 4 is barred by time ?"4. Apart from depending on the rent note, evidence was led by the plaintiff in the trial court in that suit to establish that Ram Sahai was a tenant under Param Lal and the former executed rent notes, Exts. 29, 30 and 31, in favour of the latter. The trial court refused to rely upon these rent notes and even characterised these as suspicious documents. The trial court held that defendant 5 did not execute the rent note on behalf of defendants 1 to 4 and also found that-"the plaintiff has failed to prove that Param Lal and after him the plaintiff has been in possession of the kothi in dispute within twelve years of the suit....In vie w of these reasons I hold that it has not been proved that Ram Sahai and after him the defendants 1 to 4 are in occupation of the house in dispute as tenants of the plaintiff and so they are clearly in adverse possession of the house in dispute".5. The trial court dismissed the suit No. 114 of 1952 against all the defendants.6. The lower appellate court dismissed the plaintiffs appeal arising out of O.S. No. 114 of 1952 (C. A. No. 152 of 1956) against defendants 2 and 3 on the ground that the appeal was barred by limitation.7. We are not concerned here with the correctness of the reasons for dismissing the appeal against defendants 2 and 3 (appellants 2 and 3 herein) on the ground of limitation. Indeed in considering the plea of res judicata correctness of the finding is not in issue. The findings arrived at in the adjudication have to be taken at their face value between the parties.8. The appeal was also dismissed by the lower appellate court against defendants 1 and 4 on merits after making certain observations which will be dealt with later.9. The lower appellate court, however, allowed the appeal against the non-contesting defendant No. 5 and decreed that the defendant No. 5 "shall vacate the house in suit on his own account and pay a sum of Rs. 714/- as the arrears of rent in respect thereof for the period in suit to the plaintiff". The appeal was also dismissed against defendant No. 6, Kalawati, since dead, and we are not concerned with her and her heirs in this appeal at all although the latter have been impleaded as parties, the particular portion of the premises having been admittedly sold away by the plaintiff to one Mathura Prasad.The judgment of the lower appellate court in C.A. No. 152 of 1956 was delivered on September 17, 1958.10. Later on the plaintiff filed a second suit (No. 6 of 1959) in the same court of the Munsif of Etah claiming declaration of right and title to and possession of the identical premises. The plaintiff and the defendants are identical in the second suit. The suit was decreed by the trial court and affirmed by the lower appellate court. Both the courts concurrently held-(1) that Param Lal was the owner of the house.(2) that Mohan Lal was the adopted son of Param Lal.(3) that Ram Sahai was the tenant of Param Lal and therefore, defendant Nos. 1 to 4 were also tenants of the premises in dispute.The High Court dismissed the second appeal of the defendants (No. 1795 of 1965) arising out of this suit. Hence this appeal by special leave.11. The High Court in Second Appeal No. 4658 of 1958 arising out of O.S. No. 114 of 1952 at the instance of the plaintiff substantially dismissed the same except that it slightly modified the decree of the lower appellate court only with regard to the quantum of future damages against defendant No. 5. There is no further appeal by the plaintiff from the judgment and decree in the second appeal 4658 of 1958 to this Court.12. As adverted to earlier, it is true that the High Court observed in S.A. No. 4658 of 1958 that "as regards the question of ad verse possession the lower appellate court held that it did not arise and, therefore, no finding was given on that point". We will assume that the observation is correct. Basing upon the aforesaid observation of the High Court and such of those a s are relevant on the particular point in the judgment of the lower appellate court, Mr. Sarjoo Prasad, on behalf of the first respondent, in answer to the plea of the appellants, submits that no question of res judicata would arise as there was no finding of the lower appellate court in the earlier suit regarding the plaintiffs title to the premises or with regard to the adverse possession of the defendants. The learned counsel submits that the finding of the trial court with regard to adverse possession of the defendants became non est in view of the finding of the lower appellate court which was even noticed by the High Court, as mentioned above. Both questions, says counsel, are open.It will be ordinarily t rue that once there is an appeal against a judgment, the appellate order alone will be operative. Mr. Sarjoo Prasad is, however, faced with a peculiar difficulty here, in that, on dismissal of the plaintiffs appeal by the lower appellate court, as timebarred against defendants 2 and 3, so far as these two defendants were concerned, the trial courts judgment became final between them and the plaintiff. The lower appellate court having dismissed the plaintiffs appeal against them has affirmed this position. The High Court in the second appeal did not do anything to the contrary with regard to the appeal against defendants 2 and 3. It is, therefore, clear that so far as the appellants 2 and 3 in this appeal are concerned the finding of the trial court that they had acquired title to the premises by adverse possession stands concluded and these two appellants can legitimately raise the plea of res judicata in the subsequent suit which is the subject matter of appeal before us.13. So far as defendants 2 and 3 of the earlier suit were concerned the finding of the trial court that they had acquired title to the premises by adverse possession had become conclusive between the parties at the time when the matters came to the High Court in second appeal. At any rate the appellants 2 and 3 (who were defendants 2 and 3 in the earlier suit) can definitely claim in this Court that so far as they are concerned with regard to their title to the premises by adverse possession there is a clear finding in their favour by the trial court which was never disturbed by any court in appeal and the same is binding on the plaintiff.14. Besides, we find that in the Memorandum of appeal before the High Court in S.A. No. 4658 of 1958 the plaintiff had taken a ground that "the lower appellate court erred in law in dismissing the appeal against defendants 2 and 3 on the ground of limitation" (ground No. 5 at page 324 of the paper book, volume II). The High Court, however, did not record any decision on this point. It is, therefore, open to the appellants 2 and 3 before us to call in aid the finding of the trial court in their favour that they had acquired title to the premises by adverse possession since that finding remains operative between the plaintiff and the said two defendants.The position might have been different if the plaintiff in O.S. No. 114 of 1952 had merely relied upon the rent note dated November 13, 1946 , said to be executed in his favour by defendant No. 5 on behalf of defendants 1 to 4 in the earlier suit. The plaintiff would then have a different character from that of his deriving title from his adoptive father, Param Lal. Tenancy of the defendants also would have been de hors the earlier tenancy of Ram Sahai under Param Lal. It could, then, be said that in the first suit the question of his title to the property was absolutely irrelevant and that he would succeed or fail on the rent note from which he would establish a relationship of landlord and tenant between him and the defendants without any reference to title to the property or to his relationship with Param Lal and consequently to Ram Sahais relationship with Param Lal. That is exactly what Mr. Sarjoo Prasad strenously urges us to assume. We are afraid we cannot.15. On the other hand, we find the plaintiff himself did not adopt that course in the first suit. The plaintiff joined issue with the defendants, without protest, with regard to the alternative case of tenancy of the father of defendants 1 to 4 under his adoptive father and produced earlier rent notes executed by Ram Sahai in favour of Param Lal. This evidence was admissible and necessary in view of issues 3 and 8 earlier quoted. The findings of the trial court, as referred to above, were in favour of defendants 1 to 4 and against the plaintiff on the point.16. Now, in the subsequent suit, out of which the pre sent appeal has arisen, he has based his right to evict on the ground that he is the adopted son of the original owner and on his death he became the owner of the premises and similarly Ram Sahai, the father of the defendants, was also a tenant under Param Lal and on Ram Sahais death, the defendants 1 to 4 became tenants under Param Lal and after his death, of the plaintiff. The difficulty has arisen because the very matter about Ram Sahais tenancy under Param Lal had been gone into in the earlier trial and the finding was reached by the trial court in favour of defendants 1 to 4 that Ram Sahai was not tenant under Param Lal and hence they were also not tenants under the plaintiff. The lower appellate court did not expressly disturb this finding but observed that the trial court "probed into unnecessary matters". Even so, the suit stood dismissed against defendants 1 to 4. The lower appellate court decreed the suit for rent and ejectment against defendant No. 5 only who "shall vacate the house in suit on his own account".We may observe, in passing, that admittedly defendant No. 5 was never in occupation of the premises in suit. Hence this decree for eviction of defendant 5 from the premises in O.S. No. 114 of 1952 is in effect a paper decree.17. It is true, as the High Court observed in second appeal No. 4658 of 1958 that "as regards the question of adverse possession the lower appellate court held that it did no t arise and, therefore, no finding was given on that point". If this observation is held, as we have, as displacing the finding with regard to the adverse possession of the defendants, this will be only true relating to adverse possession by defendants 1 and 4 and will not bind defendants 2 and 3 in whose favour there had already been a conclusive finding of the trial court and which was not disturbed by the lower appellate court or in the second appeal No. 4658 of 1968. The second suit so far as appellants 2 and 3 are concerned must, therefore, be held to be barred by res judicata. We are prepared to give effect to the High Courts aforesaid observation about the lower appellate courts judgment in favour of defendants 1 and 4 against whom alone plaintiffs appeals were disposed of on merits. The case of defendants 2 and 3 stands on a different footing.18. It was contended on behalf of the respondent that the scope or the subject matter of the earlier suit is different from that in the second suit. It is, however, difficult to accept this submission. In the earlier suit the plaintiff prayed for possession of the premises in suit by evicting the defendants who held the premises as tenants under t he plaintiff on a rent note executed in his favour. Alternatively the plaintiff sought the same relief for possession of the premises relying on the status of the defendants 1 to 4 as tenants derived from the position of their fat her being a tenant under the plaintiffs adoptive father. In either case the relief was claimed on the plea of tenancy of the defendants. Both these pleas were rejected by the trial court and the defendants 1 to 4 were held to mature their title by adverse possession. In the second suit out of which the present appeal has arisen, although the suit is one for declaration of title to the premises and for possession, the alternative plea set up in the earlier suit has again been reagitated to de feat the plea of adverse possession set up by the defendants and this time the court found in favour of the plaintiff.It is well established that if a matter directly and substantially in issue in an earlier suit of competent jurisdiction had been finally adjudicated upon the matter becomes res judicata between the same parties with regard to the identical subject matter in a subsequent suit. As the Privy Council observed in Krishna Behari Roy v. Banwari Lall Roy and Another (1) " where a material issue has been tried and determined between the same parties in a proper suit, and in 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".19. Here the parties are the same and the property for possession of which the suit was filed is also identical. The only difference is that in the second suit title to the property is brought in issue which was not an adjudicated issue in the first suit. T hat, however, is not material for the present purpose since the plaintiffs adoptive father has been admittedly out of possession of the premises since about 1938. It is not the plaintiffs case that he or his father was in physical possession of the premises within the requisite period prior to the institution of the suit. The plaintiff, on the other hand, seeks to rely upon constructive possession through the defendants as tenants in the second trial. The matter relating to the stat us of the defandants as tenants is, therefore, directly and substantially in issue between the parties in both the suits for the reliefs claimed in them It is, therefore, not possible to hold that the question of even derivative tenancy of the defendants was not directly and substantially in issue in both the suits.20. It cannot be said that the adverse decision against the plaintiff with regard to the status of the defendants as derivative tenants, which was necessary in order to hold that the defendants had acquired title by adverse possession, was only collaterally or incidentally made in the earlier suit. For the only relief in the manner claimed in the earlier suit the decision with regard to the issue of adverse possession was directly material and relevant in that suit. The submission that the scope of the two suits is different is, therefore, devoid of substance.We are unable to subscribe to the view that defendants 2 and 3 could raise the plea of res judicata before the High Court. The decision of the lower appellate court regarding the plaintiffs appeal being barred by limitation was again res sub-judice in the High Court in S.A. No. 4658 of 1958. S. A. No. 4658 of 1958 was heard together with S.A. No. 1795 of 1965 resulting in a common judgment.21. When second appeals arising out of two suits filed by the plaintiff are treated as connected appeals and disposed of by the High Court by a common judgment there is, ordinarily, no question of invoking the plea of res judicata before the High Court as the findings in the earlier suit are not till then final for the purpose of the second suit. That is the exact position here.22. The plaintiff having not appealed against the decision in S.A. No. 4658 of 1958, defendants 2 and 3 could for the first time raise the plea of res judicata only in this court in this appeal after the issue of adverse possession in respect of defendants 2 and 3 (appellants 2 and 3 herein) vis-a-v is the plaintiff (first respondent) had been finally decided and set at rest in the High Court in S. A. No. 4658 of 1958.23. The Privy Councils decisions in Sheosagar Singh and others v. Sitaram Singh and others(1) and Ashgar Ali Khan v. Ganesh Das s(2) do not support the first respondent in the peculiar history of the litigation in the present case.24. Even in Sheosagar Singhs case (supra) while dealing with the expression "heard and finally decided", the Privy Council observed at page 58 as follows:"If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea (of res judicata)".25. This is exactly the position in the case at hand.When there was no appeal in the eye of law by the first respondent against the appellants 2 and 3 to the lower appellate court from the trial courts decree in O.S. No. 114 of 1952, the appeal by the first respondent against other parties to the lower appellate court could not destroy the finality of the trial courts decision so far as the appellants 2 and 3 were concerned.26. The plaintiff took another opportunity in the High Court by raising the question there in S.A. No. 4658 of 1958 but did not succeed. Therefore the finality of the decision with regard to adverse possession so far as the appellants 2 and 3 were concerned was not disturbed even in the High Court.27. Even in Ashgar Ali Khans case (supra) which followed Sheosagar Singhs case (supra), the Privy Council at page 216 observed:"It is clear, however, that although the two first courts had found against his allegation, the final Court of Appeal refused to determine the issue."28. We are not required to consider here what would happen if there were also a competent appeal against defendants 2 and 3 before the lower appellate court and that court had refused to decide the question in their presence. As a matter of fact we are holding in favour of defendants 1 and 4 since so far as they are concerned the finality of trial courts decision has been held to be destroyed.29. It is submitted by the first respondent that adverse possession of defendants 2 and 3, who were minors, is not independent of the mother or eldest brother (defendant 1 and 4 respectively) and on failure of the latters plea of adverse possession the said plea will not be available in favour of the former. We are unable to accept this submission for three reason:30. First, the minors interest even lawfully represented by a party is separate and distinguishable from that partys individual interest, if any, in a particular action. Second, even in the first suit upto the High Court the plaintiff succeeded in the eviction suit only against defendant 5 and "on his account" alone. Third, the second suit of eviction against defendant No. 6 or her assignees from a particular portion of the premises in suit was abandoned. There is, therefore, no difficulty to grant a decree for a partial possession.From the above it also follows that the principle applicable in abatement of appeals resulting in possibility of inconsistent decrees, as sought to be relied upon by the appellants, is not at all attracted in the present case.31. Our attention was drawn to several decisions relating to the application of the principles of res judicata, but we do not find any of the decisions in support of the contention advanced by the first respondent in the peculiar facts and circumstances revealed in this appeal.32. For example. in Girdhar Manordas and other v. Dayabhai Kalabhai and others(1) which is a Full Bench decision it was held by the majority in that case that the plaintiffs were not barred by the judgment in the former suit. A perusal of the facts of that suit will clearly show that in the first suit the plaintiffs lost the suit for eviction of the defendants on the ground that the alleged leases were not proved. The plaintiffs gave up the battle on that plea and later on brought another suit to evict the defendants on the basis of title. The decision is clearly distinguishable from the peculiar facts of litigation with which we are concerned in the present appeal.33. Similarly the decision in Dwarkanath Roy v. Ram Chand Aich and others(1) is not of any assistance to the first respondent. In that case a decision in a suit for rent brought by a plaintiff against a person who is alleged to have been his tenant in respect of certain land was held not to operate as res judicata in a subsequent suit brought by the same plaintiff for establishment of his title to the land not only against the person whose title as landlord the tenant-defendant had set up in the earlier rent suit.34. The same observation would apply to the decision in Dalip Narain Singh v. Deokinandan Prasad Singh(2) relied upon by the first respondent.The first respondent also drew our attention to the decision in Ramagya Prasad Gupta and others v. Murli Prasad and others(3) in which one of us was a party. We, however, find that the ratio of the decision is not at all of any aid to the respondent. This Court held in that appeal that certain appeals which arose out of a subsequent suit were not barred by res judicata since the subject matter of the earlier suit and that of the subsequent suit were entirely different.

Decision:
1[ds]12. As adverted to earlier, it is true that the High Court observed in S.A. No. 4658 of 1958 that "as regards the question of ad verse possession the lower appellate court held that it did not arise and, therefore, no finding was given on that point". We will assume that the observation iswill be ordinarily t rue that once there is an appeal against a judgment, the appellate order alone will be operative. Mr. Sarjoo Prasad is, however, faced with a peculiar difficulty here, in that, on dismissal of the plaintiffs appeal by the lower appellate court, as timebarred against defendants 2 and 3, so far as these two defendants were concerned, the trial courts judgment became final between them and the plaintiff. The lower appellate court having dismissed the plaintiffs appeal against them has affirmed this position. The High Court in the second appeal did not do anything to the contrary with regard to the appeal against defendants 2 and 3. It is, therefore, clear that so far as the appellants 2 and 3 in this appeal are concerned the finding of the trial court that they had acquired title to the premises by adverse possession stands concluded and these two appellants can legitimately raise the plea of res judicata in the subsequent suit which is the subject matter of appeal before us.Besides, we find that in the Memorandum of appeal before the High Court in S.A. No. 4658 of 1958 the plaintiff had taken a ground that "the lower appellate court erred in law in dismissing the appeal against defendants 2 and 3 on the ground of limitation" (ground No. 5 at page 324 of the paper book, volume II). The High Court, however, did not record any decision on this point. It is, therefore, open to the appellants 2 and 3 before us to call in aid the finding of the trial court in their favour that they had acquired title to the premises by adverse possession since that finding remains operative between the plaintiff and the said two defendants.The position might have been different if the plaintiff in O.S. No. 114 of 1952 had merely relied upon the rent note dated November 13, 1946 , said to be executed in his favour by defendant No. 5 on behalf of defendants 1 to 4 in the earlier suit. The plaintiff would then have a different character from that of his deriving title from his adoptive father, Param Lal. Tenancy of the defendants also would have been de hors the earlier tenancy of Ram Sahai under Param Lal. It could, then, be said that in the first suit the question of his title to the property was absolutely irrelevant and that he would succeed or fail on the rent note from which he would establish a relationship of landlord and tenant between him and the defendants without any reference to title to the property or to his relationship with Param Lal and consequently to Ram Sahais relationship with Param Lal. That is exactly what Mr. Sarjoo Prasad strenously urges us to assume. We are afraid we cannot.15. On the other hand, we find the plaintiff himself did not adopt that course in the first suit. The plaintiff joined issue with the defendants, without protest, with regard to the alternative case of tenancy of the father of defendants 1 to 4 under his adoptive father and produced earlier rent notes executed by Ram Sahai in favour of Param Lal. This evidence was admissible and necessary in view of issues 3 and 8 earlier quoted. The findings of the trial court, as referred to above, were in favour of defendants 1 to 4 and against the plaintiff on the point.Here the parties are the same and the property for possession of which the suit was filed is also identical. The only difference is that in the second suit title to the property is brought in issue which was not an adjudicated issue in the first suit. T hat, however, is not material for the present purpose since the plaintiffs adoptive father has been admittedly out of possession of the premises since about 1938. It is not the plaintiffs case that he or his father was in physical possession of the premises within the requisite period prior to the institution of the suit. The plaintiff, on the other hand, seeks to rely upon constructive possession through the defendants as tenants in the second trial. The matter relating to the stat us of the defandants as tenants is, therefore, directly and substantially in issue between the parties in both the suits for the reliefs claimed in them It is, therefore, not possible to hold that the question of even derivative tenancy of the defendants was not directly and substantially in issue in both the suits.20. It cannot be said that the adverse decision against the plaintiff with regard to the status of the defendants as derivative tenants, which was necessary in order to hold that the defendants had acquired title by adverse possession, was only collaterally or incidentally made in the earlier suit. For the only relief in the manner claimed in the earlier suit the decision with regard to the issue of adverse possession was directly material and relevant in that suit. The submission that the scope of the two suits is different is, therefore, devoid of substance.We are unable to subscribe to the view that defendants 2 and 3 could raise the plea of res judicata before the High Court. The decision of the lower appellate court regarding the plaintiffs appeal being barred by limitation was again resin the High Court in S.A. No. 4658 of 1958. S. A. No. 4658 of 1958 was heard together with S.A. No. 1795 of 1965 resulting in a common judgment.21. When second appeals arising out of two suits filed by the plaintiff are treated as connected appeals and disposed of by the High Court by a common judgment there is, ordinarily, no question of invoking the plea of res judicata before the High Court as the findings in the earlier suit are not till then final for the purpose of the second suit. That is the exact position here.The Privy Councils decisions in Sheosagar Singh and others v. Sitaram Singh and others(1) and Ashgar Ali Khan v. Ganesh Das s(2) do not support the first respondent in the peculiar history of the litigation in the presentare unable to accept this submission for three reason:30. First, the minors interest even lawfully represented by a party is separate and distinguishable from that partys individual interest, if any, in a particular action. Second, even in the first suit upto the High Court the plaintiff succeeded in the eviction suit only against defendant 5 and "on his account" alone. Third, the second suit of eviction against defendant No. 6 or her assignees from a particular portion of the premises in suit was abandoned. There is, therefore, no difficulty to grant a decree for a partial possession.From the above it also follows that the principle applicable in abatement of appeals resulting in possibility of inconsistent decrees, as sought to be relied upon by the appellants, is not at all attracted in the present case.31. Our attention was drawn to several decisions relating to the application of the principles of res judicata, but we do not find any of the decisions in support of the contention advanced by the first respondent in the peculiar facts and circumstances revealed in this appeal.appeal.33. Similarly the decision in Dwarkanath Roy v. Ram Chand Aich and others(1) is not of any assistance to the first respondent. In that case a decision in a suit for rent brought by a plaintiff against a person who is alleged to have been his tenant in respect of certain land was held not to operate as res judicata in a subsequent suit brought by the same plaintiff for establishment of his title to the land not only against the person whose title as landlord thehad set up in the earlier rentwill be ordinarily t rue that once there is an appeal against a judgment, the appellate order alone will be operative. Mr. Sarjoo Prasad is, however, faced with a peculiar difficulty here, in that, on dismissal of the plaintiffs appeal by the lower appellate court, as timebarred against defendants 2 and 3, so far as these two defendants were concerned, the trial courts judgment became final between them and the plaintiff. The lower appellate court having dismissed the plaintiffs appeal against them has affirmed this position. The High Court in the second appeal did not do anything to the contrary with regard to the appeal against defendants 2 and 3. It is, therefore, clear that so far as the appellants 2 and 3 in this appeal are concerned the finding of the trial court that they had acquired title to the premises by adverse possession stands concluded and these two appellants can legitimately raise the plea of res judicata in the subsequent suit which is the subject matter of appeal before us.