THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY Second Appeal No.639 of 2010 JUDGMENT: This Second Appeal raises few substantial questions of law. 2. The facts that have given rise to the filing of the Second Appeal are as under: Respondents 1 and 2 (for short ‘the respondents’) filed O.S.No.171 of 1999 in the Court of Junior Civil Judge, Giddalur, for the relief of partition and separate possession of an extent of Acs.3.18 cents of land in survey No.1168 of Komarole Village or Prakasam District. They pleaded that the land was purchased from Penugonda Chinna Ramanna and his wife Lakshamma, through a sale deed dated 16.08.1986, marked as Ex.A.1. Penugonda Ramanna was impleaded as defendant No.1 and his son, the appellant herein, as defendant No.2. During the pendency of the suit, Ramanna died and his legal representatives, respondents 4 and 5 were brought on record. 3. The respondents pleaded that when they were in possession and enjoyment of the property purchased under Ex.A.1, the appellant and his father, Ramanna, filed O.S.No.56 of 1992 in the Court of Junior Civil Judge, Giddalur, for perpetual injunction, in respect of Ac.1.59 cents of the said land and that they opposed the suit by pleading purchase under Ex.A.1. It was also pleaded that though, it emerged that Chinna Ramanna, who figured as vendor in Ex.A.1, was different from Ramanna, the first plaintiff in that suit, who is the husband of Lakshamma, and the said suit was decreed, it was held that Lakshamma, being the co-owner of Acs.3.18 cents, is entitled to half share, that Ex.A.1 is valid to the extent of the share of Lakshamma, and that it shall be open to them to seek the relief of partition. Accordingly, they prayed for a decree for partition, claiming half share in Acs.3.18 cents of land. 4. The suit was opposed by the appellant. He pleaded that the so-called sale through Ex.A.1 is fictitious and once, it was found that one of the vendors therein was a non-existent person, the transaction, as a whole, is null and void. He has also pleaded that it was not at all competent for the Court, which decided O.S.No.56 of 1992 in favour of a defendant, in a suit for injunction to determine the title, that too, when the vendors of the property, were not parties to the suit. 5. The trial Court dismissed O.S.No.171 of 1999, through its judgment dated 18.06.2007. The respondents filed A.S.No.198 of 2009 in the Court of VI Additional District Judge, Markapur. The appeal was allowed, through judgment dated 01.04.2010 and preliminary decree for partition was passed. 6. Sri B.Bhaskara Rao, learned counsel for the appellant, submits that Ex.A.1 is void ab initio, since it was found that one of the vendors therein was a fictitious person. He contends that O.S.No.56 of 1992, filed by the appellant and his father, against the respondents, was the one for injunction simplicitor, in respect of Ac.1.59 cents of land and there was neither any occasion, nor basis for the Court, which decided that suit to declare the title of the respondents over a property, which, in fact, was not the subject-matter of that suit at all. Learned counsel further submits that the application of principle of res judicata to the facts of the present case, by the lower Appellate Court, is contrary to law. 7. Learned counsel, Sri Nimmagadda Satyanarana (for the 1st respondent) and Sri V.Mallik (for the 2nd respondent), on the other hand, submit that a clear finding was recorded in O.S.No.56 of 1992, recognizing and upholding the title of the respondents over half of the suit schedule property, and being a party to the said suit, the appellant cannot object to the consequences flowing there from. They contend that the finding recorded by the Court, in that suit, become final, and the same operates as res judicata in the present suit. Learned counsel further submit that one of the vendors, Lakshamma, though party to the present suit, may be as L.R. of the deceased-1st defendant, did not dispute the execution of Ex.A.1. 8. The suit filed by the respondents was the one for partition and separate possession of the suit schedule property. Taking into account, the purport of the pleadings, the trial Court framed the following issues for its consideration: i) “Whether the plaintiffs are entitled for partition and for delivery of possession as prayed for? ii) Whether the suit is barred by limitation? iii) Whether the plaintiffs are not co-owners and thereby the Court fee is incorrect?” Two additional issues were also framed. They are: i) “Whether the Will dated 20.03.1999 is true, void and binding on plaintiff? ii) Whether D.3 to D.5 are not necessary parties to the suit?” 9. On behalf of respondents, PWs.1 to 4 were examined and Exs.A.1 to A.3 were filed. On behalf of the appellant, DWs.1 to6 were3 examined and Exs.B.1 to B.5 were filed. The suit was dismissed. In A.S.No.198 of 2009, the lower Appellate Court framed only point for its consideration, viz. , “Whether the appellants have established substantial grounds to set aside the decree and judgment and to decree the suit or not?” 10. The finding in O.S.No.56 of 1992 in favour of the respondents, as to their right, under Ex.A.1, would operate as res judicata, and that the suit is filed within limitation, and passed a preliminary decree. 11. After hearing learned counsel for the appellant and learned counsel for the respondents, this Court finds that the following substantial questions of law arise for consideration: a) What is the legal impact of an observation, pertaining to the title, in favour of the defendant, in a suit for injunction, in respect of an item of property, which is not the subject-matter of that suit; and whether it would operate as res judicata in a subsequent suit for partition? b) Whether a sale deed executed by two individuals can be sustained to the extent half of the property conveyed under it. c) Whether a person who becomes party to a suit in his capacity as legal representative of a deceased party can take a plea which is available to him in his individual capacity? 12. The sole appellant herein, is the son of Penugonda Ramanna and Lakshamma. His parents purchased an extent of about Acs.5.00 of land. The respondents pleaded that through Ex.A.1, the parents of the appellant, sold an extent of Acs.3.19 cents of land, in the year 1986, and that they are in possession and enjoyment of the same. The appellant and his father filed O.S.No.56 of 1992 for the relief of perpetual injunction, against the respondents, in respect of Ac.1.59 cents of land in the same survey number. It was pleaded that the suit schedule property therein was gifted in favour of the respondents by his father. The defence of the respondents was that they purchased Acs.3.19 cents of land through Ex.A.1. 13. In the course of trial of that suit, it emerged that one of the vendors in Ex.A.1 was Penugonda Chinna Ramanna and the other was Lakshamma. The only question before the trial Court was as to whether the plaintiffs before it, were in possession and enjoyment of the suit schedule property. A finding was recorded that they are in possession and the suit was decreed. The matter ought to have ended there. 14. The Court, however, proceeded to discuss, the plea of purchase of land in Ex.A.1 by the respondents. The discrepancy as to the names, i.e. the husband of Lakshmamma is Ramanna and not Chinna Ramanna, was pointed out. The trial Court recorded a finding to the effect that the person, by name, Chinna Ramanna, who figured as one of the vendors in the document, is not the 1st plaintiff in that suit i.e. father of the appellant herein. That finding was sufficient for the Court to not to proceed further on that aspect, even if the validity of the sale through Ex.A.1 was at issue. However, it recorded certain curious and strange findings, viz., 1. “First plaintiff and Penugonda Lakshmamma are only can be treated as either joint owner or as co- owners. Therefore, neither of them have any right to dispose of more than the interest what they had in the property. 2. Since the first plaintiff has interest only to the extent of Ac.1.59 cents as joint owner he can not transfer more than the said extent. Therefore, the transfer by way of Gift Deed under Ex.A.2 for more than the extent of Ac.1.59 cents is void to the extent of the more extent. 3. Therefore, the defendants cannot acquire any right for more than Ac.1.59 cents which one of their vendor has. 4. Therefore, it appears that the first plaintiff being the husband of Penugonda Lakshamma has been in possession of the entire extent of Acs.3.18 cents. 5. I am of the considered opinion that the first plaintiff being the male member of the family as co-owner or joint owner has been in exclusive and peaceful possession of the property in excess of his legitimate share. 6. If at all the defendants had any grievance as to the good and bad quality of the land claimed by the defendants on south, they are at liberty to seek the allotment of shares considering good and bad qualities by way of filing a suit for partition.” 15. It is these findings that constitute the cause of action for the respondents to file the suit for partition and those very findings held by the lower Appellate Court, in the instant case, to be operating as res judicata. 16. The Code of Civil Procedure, 1908 provides for framing of issues with the object of identifying the exact area of controversy. The pleadings are taken into account and sometimes, preliminary arguments are heard, while framing the issues. The parties are supposed to lead evidence and advance arguments with reference to the issues so framed. The trial Court cannot travel beyond the scope of the suit as reflected in the issues. Further, even if an occasion arises to identify a particular area of controversy, which does not find place in the pleadings, the question of court fee, would come in the way of the trial Court, in dealing with such questions. If at any stage of the proceedings, the parties or the Court feel that some more facts or further prayer is necessary, attempt can certainly be made to amend the pleadings, and to take other consequential steps. 17. When such are the basic tenets of trial of a civil suit, it is not at all competent for a Court to travel beyond the scope of the pleadings as reflected in the issues. There may be rare instances of the parties, proceeding in the course of trial, with reference to a controversy, which is not reflected in the issues, seeking adjudication on an interrelated area of dispute. The Court can deal with it provided that the controversy is not outside the scope of the suit, nor it involves the questions of jurisdiction, limitation and Court fee, and the parties lead evidence and advance arguments with specific reference to it and without any restrictions. 18. Hardly any emphasis is needed to suggest that the issues in a suit for injunction can be as to (a) whether the plaintiff in the suit is in possession and enjoyment of the suit schedule property as on the date of filing of the suit, and (b) whether he is entitled for the relief of injunction. Any reference made to the source of title to the property, in the pleadings or in the evidence adduced or the arguments advanced, are purely incidental or ancillary to the principal issues. The examination of the question of title in a suit of this nature, would be only to the limited extent of satisfying the Court that the possession claimed by the plaintiff is not bereft of any legal basis. In case it becomes necessary to pronounce upon the title, in respect of the property, as regards which, the relief of injunction claimed, it has to be left open to the parties, to seek such relief declaration of title, in a properly constituted proceedings. 19. Sometimes, the Court may tend to express its satisfaction about the title as well as possession of the plaintiff, while decreeing the suit for perpetual injunction. Even if the expression of view on title, in suits is absolute, it cannot be treated as absolute or binding in other set of proceedings. Further, the possibility to express the view on title does not exist, in respect of the plea raised by the defendant that too, while passing a decree against him. Still less is the possibility to express any view vis-à-vis the property, which is not the subject-matter of the suit. These principles are so well-settled that hardly the assistance of any precedent is needed to support or sustain them. 20. If one tests the observations made by the trial Court in O.S.No.56 of 1992, which are extracted above, it becomes clear that they are totally outside the scope of the suit and there did not exist any occasion, or justification or possibility for the Court to express. 21. Res judicata is one of the effective defences for the defendant in a suit. The purport thereof is that, the issue, which arises in a particular suit, has fallen for consideration, as between the same parties, in an earlier round of litigation, and that the adjudication thereon, which became final, would preclude a plaintiff in the subsequent suit, to raise that very issue. It is one of the facets of principle of ‘estoppel’. The fundamental requirement for application of principle of res judicata is that a clear and definite issue, which can be discerned from the subsequent proceedings was in issue in the earlier set of proceedings between the same parties. The safest way to call out the purport of such issue is to make reference to the issues that are framed in both the suits. If slight discrepancy exists, the principle of “constructive” res judicata can also be pressed into service. 22. A judgment can be Authority, only for the issue it decides. That part of it is in the ordinary parlance shown as ratio decidendi. Any observations made in the course of judgment, do not have any binding nature and they are called as ‘obiter dicta’. It is only ratio decidendi that can constitute the basis for the plea of res judicata and not obiter. In the instant case, one of the issues is as to whether the respondents derived title of the suit schedule property under Ex.A.1. No such issue has arisen, much less was framed in O.S.No.56 of 1992. It was totally impermissible for the Court to pronounce upon title, in that suit. Further, the person from whom title was claimed was not a party. Therefore, the first question is answered against the appellant. 23. The second question is in the realm of contracts and specific relief. The appellant claimed title to the property under Ex.A.1, said to have been executed by Lakshmamma and her husband. A finding was recorded in O.S.No.56 of 1992 to the effect that Chinna Ramanna who is one of the co-executants of the sale is not the husband of Lakshmamma. There, it was a case of impersonation. In such cases, the question of sustaining part of the document to the extent of a part of it, by invoking Section 32 of the Specific Relief Act does not arise. The reason is that impersonation is nothing but a category of fraud and it is too well settled that fraud would vitiate everything. Secondly, Lakshmanna was not a party to that suit. Hence, the answer to the second question also goes against the appellant. 24. The last question arises in a limited context. It has already been mentioned that Ex.A.1 cannot be sustained. It is argued on behalf of the appellant that though Lakshmamma figured as a party to the present suit, she didn ot assail the sale deed Ex.A.1. Two reasons operate against the appellant. The first is that the appellant did not choose to implead Lakshmamma in O.S.No.56 of 1992 and any observations or findings in that suit do not bind her. The second is that though she figured as party to O.S.No.171 of 1999, it was as one of the legal representatives of her husband Ramanna. Not only she can desist from revealing her stand vis-à-vis Ex.A.1, but also she is not entitled to plead any defence which is available to her in her individual capacity. A legal representative of a deceased party, cannot take a stand, different from what the said party had or could have taken. Therefore, the presence of the said lady as a party as legal representative was in no way helpful to the appellant. 25. In view of the discussion undertaken above, the Second Appeal is dismissed. There shall be no order as to costs. ____________________ L.NARASIMHA REDDY, J. Dated: 07.07.2011 GJ