THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO CITY CIVIL COURT APPEAL No.225 OF 2001 AND SECOND APPEAL No.336 OF 1990 COMMON JUDGMENT: Both the appeals arise out of common property, which is a house property bearing No.22-3-908 situated at Vazir Ali lane, Darulshifa, Hyderabad, in an extent of 197 square yards. 2. City Civil Court Appeal No.225 of 2001 arises out of the judgment in O.S.No.756 of 1991 on the file of I Senior Civil Judge, City Civil Court, Hyderabad, whereas the Second Appeal arises out of the judgment in A.S.No.292 of 1988 on the file of Additional Chief Judge, City Civil Court, Hyderabad. The parties are referred as in O.S.No.756 of 1991. 3. The facts of the case are that the suit property originally belonged to one Khaja Fateh Ali and he sold the same to Smt. Kaneez Fiza @ Putli Bi, W/o. Syed Mohd.Thaqui Saheb on 18.01.1925 for a consideration of Rs.750/-. Smt.Kaneez Fiza and her husband were residents of Parbhani of Maharashtra State and they had only one daughter Kubra Begum, who is the 2nd plaintiff and who was married to one Mohd.Ishaq and they had a daughter by name Sajeeda Begum, who is wife of the 1st plaintiff. Syed Mohd. Thaqui Saheb died on 04.08.1930 leaving behind him his wife and daughter. The property was leased out to one Zaheer-ul-Hasan, S/o. Naqui in 1935 and on 05.12.1959 Khaneez Fiza leased out the plaint schedule property to the 2nd defendant on a monthly rent of Rs.20/-. The 2nd defendant was paying the rent. On 01.03.1969 in a sound disposing state of mind Kaneez Fiza executed a Will in favour of the 1st plaintiff conveying the schedule property and therefore, the 1st plaintiff became entitled to the property. His name was also mutated in the Municipal records as per the orders dated 24.10.1970. The tenant attorned the tenancy and in 1974 the 1st plaintiff requested the tenant to vacate the house. The father of the 2nd defendant by name Nazir Hussain was also living in the plaint schedule property along with 2nd defendant and he filed a suit in O.S.No.445 of 1974 on the file of IV Assistant Judge, City Civil Court, Hyderabad, questioning the mutation in favour of the 1st plaintiff and the said suit was dismissed on 07.12.1977 and thereafter A.S.No.10 of 1978 was preferred to the Chief Judge, City Civil Court, Hyderabad, which was also dismissed on 24.07.1978. Thereafter, Nazar Hussain instituted another suit O.S.No.345 of 1978 on the file of V Assistant Judge, City Civil Court, Hyderabad, for declaration of his title and for permanent injunction claiming title and perfecting right by adverse possession. The suit was contested by the 1st plaintiff and the said suit was dismissed holding that there was no title but it was partly decreed granting injunction. Thereafter, the 1st plaintiff filed R.C.No.173 of 1980 on the file of III Additional Rent Controller, Hyderabad, against the 2nd defendant for eviction, in which relationship of landlord and tenant was denied and claimed that the property was purchased by Md. Thaqui and that Syed Nazar Hussain, who is the son of Thaqui, became entitled to the schedule property. The said R.C., was dismissed and against that the appeal was filed and it was also dismissed. As against the judgment in O.S.No.345 of 1978 the plaintiff preferred appeal A.S.No.292 of 1988 on the file of Additional Chief Judge, City Civil Court, Hyderabad, and the said appeal was allowed on 07.12.1998 and as against that the Second Appeal No.336 of 1990 was preferred. Therefore, in view of the above circumstances, the suit was filed for declaration of title as the legatee under the Will and for recovery of the possession from the defendants along with damages. In case the 1st plaintiff is not entitled to the property as a legatee, in the alternative the 2nd plaintiff is entitled to the suit property as being the sole daughter of Kubra Begum. 4. The defendants filed a written statement denying several of the allegations in the plaint and contending that the suit property belonged to Kaneez Fiza. Sd.Mohammed Thaqui Saheb is the father-in-law of defendants Nos.1 and 10. The property was purchased in the name of his wife by Syed Mohammed Thaqui Saheb. The plaintiffs are not related to the said owners. The allegations that the property was in possession of the 2nd defendant or his father as tenants is denied. The alleged Will dated 01.03.1969 is denied and it has not seen the light of the day for a long time and it is a fabricated one. In the earlier litigation the said Will is found to be not true and since the issue has been already decided it cannot be agitated again. Municipal Corporation is not competent to decide the title to the property. The earlier suit O.S.No.445 of 1974 was dismissed as it was not a comprehensive one and in the earlier litigation the title of the plaintiffs was also rejected and the judgment in A.S.No.10 of 1978 operates as res judicata. In O.S.No.345 of 1978 on an erroneous reasoning the relief of title was not granted but however injunction was granted. The defendants are the absolute owners of the properties. The Will is not genuine and in view of the decisions in the earlier proceedings between the parties, the plaintiff cannot claim title to the property or any relief. 5. On the basis of the above pleadings, the following issues have been framed by the trial court, for trial: 1) Whether the Will dated 01.03.1969 is executed in a sound and disposing state of mind and it is binding on plaintiffs? 2) Whether second plaintiff is the daughter of late Kaniz Fiza @ Putli Bee? 3) Whether the decree and judgment in O.S.No.445 of 1974 on the file of IV Assistant Judge and O.S.No.345 of 1978 on the file of V Assistant Judge and R.C.No.173 of 1980 on the file of III Additional Rent Controller operates as res judicata? 4) Whether defendants have perfected their title by adverse possession? 5) Whether the suit claim is barred by time? 6) Whether plaintiffs are entitled to the relief of declaration and possession? 7) Whether the plaintiffs are entitled for damages if so to what amount? 8) To what relief? 6. On behalf of the plaintiffs, PWs.1 to 4 were examined and marked Exs.A.1 to A.17. On behalf of the defendants, DWs.1 and 2 were examined and marked Exs.B.1 to B.11. 7. After considering the evidence on record, the lower Court accepted the Will set up by the plaintiffs and accordingly decreed the suit and aggrieved by the said judgment and decree, the present appeal is filed by the defendants. 8. So far as the Second Appeal No.336 of 1990 is concerned, earlier the appellants have filed O.S.No.345 of 1978 claiming that the defendants are the absolute owners of the property and they sought for a declaration of title and injunction. The same contentions were raised in that suit and the Court found that the plaintiffs in O.S.No.756 of 1991 have no relationship with Kaneez Fiza and also failed to establish the execution of the Will, but however by applying the principles under Order II, Rule 2 of Code of Civil Procedure (for short, ‘CPC’) and on the principles of limitation, the relief of declaration was not granted but injunction was granted. As against that the appeal A.S.No.292 of 1988 was filed and the appeal was allowed dismissing the suit even with regard to the partial relief of injunction. As against that the Second Appeal is filed. Both the appeals were heard together. 9. The points that arise for consideration are: 1) Whether the Will dated 01.03.1969 in favour of 1st plaintiff by name Mohd Ayaz Khan in O.S.No.756 of 1991 is true, valid and confers rights on the plaintiffs? 2) Whether the plaintiffs are entitled for the relief of the declaration and for recovery of possession of the property as granted by the lower Court? 3) Whether on the principles of res judicata and in view of the earlier decisions in O.S.No.445 of 1974 and 345 of 1978 and R.C.C.No.173 of 1980 the plaintiffs are not entitled for any relief? 10. So far as the 2nd appeal is concerned, the legal questions that falls for consideration are: 1. Whether the application of the principles of Order.2, Rule 2 of CPC by the Courts is proper? 2. Whether the principles of res judicata are not applicable? 3. Whether the application of the law of limitation by the Courts is legal, when the possession of the property is found with the appellants herein, the denial of injunction, consequent on the denial of title of the other party is valid? 4. Whether the mere non-filing of the appeal against certain findings the appellants are estopped from showing and disputing the correctness or otherwise of the findings? 11. POINTS: In both the cases the litigation is old and it has started in the year, 1974 when on the basis of the Will, mutation is said to have been effected in the municipal records in favour of the 1st plaintiff and consequently the suit O.S.No.445 of 1974 was instituted. The fact that the property belonged to Kaneez Fiza is admitted by all sides and the fact that Nazar Hussain is the son of Mohad. Thaqui, who had two wives and he is the son through the 1st wife and Kaneez Fiza is the second wife is also undisputable. Therefore, Nazar Hussain becomes the heir of Kaneez Fiza. It is to be noted that the specific claim made by the plaintiffs that the 2nd plaintiff is the daughter of Kaneez Fiza and Mohd.Thaqui and as a successor to the property was not accepted by the lower Court and the relief based as a succession alternatively was dismissed by the lower Court, no appeal is filed by her. 12. The decision in both these matters depends on the findings as to whether the Will set up by the plaintiffs, which was marked as Ex.A.4 is true and valid. Apart from it, the further consideration will be as to whether the 2nd defendant and his father Syed Nazar Hussain succeeds to the property of Kaneez Fiza even if the benami nature of the sale is not believed. 13. Touching on the rights of the parties, in all the earlier litigation evidence was let in and determined by the Courts. Evidently, apart from O.S.No.445 of 1974 another suit, which has got relevancy is O.S.No.345 of 1978. The said suit was filed by Syed Nazar Hussain and others for declaration of title to the property and injunction against the plaintiffs in O.S.No.756 of 1991. The copy of the said judgment, which was marked as Ex.A.10, does not in dispute that in the said suit the present plaintiffs in O.S.No.756 of 1991 set up title in themselves relying on the Will-Ex.A.4 and the Court has not accepted the said Will and the said suit was partly decreed for injunction and the declaration in favour of the appellants was rejected on the application of the principles of Order II Rule 2 CPC. In fact, strenuous effort was made by the counsel for the respondents to support the judgment in O.S.No.756 of 1991 on the ground that in the earlier suits the determination of the validity or genuineness of the Will was not at all in issue and consequently even if the claim of the plaintiffs in O.S.No.345 of 1978 is not accepted the suit O.S.No.756 of 1991 is maintainable and the principles of res judicata have no application. In fact, the lower Court also was of the view that there was no issue for determination of the genuineness of the Will and consequently the principle of res judicata has no application. 14. It is unfortunate that the lower Court has taken the view that as there was no specific issue with regard to the genuineness of the Will, the decision rendered earlier will not operate as res judicata. It is to be mentioned that for the application of the principles of res judicata what is essential is the determination of the rights of the parties and the rival contentions based on the pleadings. It is the identity of the title in the litigations that has to be taken into consideration and some times the identity of the actual property may differ in the two cases. But, in this case, the identity of the property also does not differ as it relates to the same property. It is the decision on a particular aspect of the rights of the parties that has to be taken into consideration with regard to the title to the property. When a comprehensive issue was framed with regard to title of the property claimed by one party and opposed by the other party, then it is a determination of the rights of the parties in issue in both the suits. Merely because a separate issue with regard to the source of title claimed by the defendants is not framed it does not mean that the principles of res judicata are not applicable and that the decision in the earlier suit is not binding. It is to be noted that the decision of the Court on the rights of the parties is essential and not the particular framing of an issue. In fact, when a suit for declaration of title is filed and the title is denied by the defendants setting in himself a title under a particular document, then the issue in the suit will be as to whom is the owner of the property and any finding touching on that issue will be binding in the subsequent suit. Therefore, the contention of the counsel for the respondents that as no issue was framed specifically with regard to the validity of the Will in the earlier suits and the consequent finding of the failure to prove the Will will not operate as res judicata cannot be accepted. It is needless to say that in a suit for title the person who establishes better title will be entitled to the relief and if the title of the defendants who have set up an independent title is established the suit of the plaintiffs will be dismissed. But, if such title is not accepted and when such findings have become final the party is bound by it. The limited concept of framing of issue in order to plead for non-application of the principles of res judicata is untenable and the issue will be the rights of the parties, which was necessary for determination and when such determination is made Section 11 of the CPC will apply in all fours. In this connection, it is useful to refer to a decision reported in Ram Gobinda Daw and others, (In all the Appeals) Vs. Smt. H.Bhakta Bala Dassi etc.,[1], wherein it was held that – “The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases but the previous decision must be one on a title in respect of which a dispute has been raised and which dispute was heard and finally decided by the Court. Once the decision on question of title becomes final it operates as res judicata even if the value of the subject matter on which the former decision was pronounced was comparatively very trifling. When the decision was given by trial Court after contest it operates as res judicata even if appeal therefrom might have been dismissed on some preliminary grounds like limitation”. 15. Before adverting to the facts of the case several decisions were also relied on by the parties. The counsel for the respondents has relied on by a decision reported in Alka Gupta Vs. Narender Kumar Gupta[2], which dealt with the scope of Section 11 of CPC and Order II Rule 2 CPC. So far as Order II Rule 2 CPC is concerned, it was held that a plea has to be raised and an issue is to be framed thereon, without which the Court cannot dismiss the suit. It is also found that if the second suit is based on different cause of action, Order II Rule 2 CPC has no application. So also reliance was placed on the decision reported in Sulochana Amma Vs. Narayanan Nair[3], about the application of Section 11 CPC. The counsel for the respondents also relied on a decision reported in S.Saraswathi V. Y.Laxminarayana[4], wherein it was held that the judgment in Rent Control proceedings will not operate as res judicata in a suit for declaration of title. 16. The learned counsel for the appellants relied on a decision reported in Commissioner of Endowments and others Vs. Vittal Rao and others[5], wherein it was held that even if no issue was formally framed in the earlier suit when a point was material and essential for decision of a case in earlier proceeding, which has attained finality, it would operate as res judicata between the parties. He also relied on a decision reported in Swamy Atmananda and others Vs. Sri Ramakrishna Tapovanam and others[6], wherein the scope of Section 11 CPC and Order II Rule 2 were considered and it was held even in the absence of a formal issue when the parties have gone to trial on a necessary pleadings and filed the documents the principles of res judicata were held applicable. This being the legal position, it is necessary now to consider about the result of the earlier proceedings and the validity of them. 17. The suit O.S.No.345 of 1978 was decided on 29.01.1988. In that suit, the plaintiffs have set up the Will and pleaded absolute title. But however, a single issue was framed as to whether the plaintiffs are entitled for declaration and consequential relief of injunction. The Court has considered the entire evidence on record and in Para No.20 of Ex.A.10, the judgment, the Court held that – “In view of my above discussion the plaintiff is legal heir of Kaneez Fiza and owner of the suit house and the defendant is no way concerned with the suit house as he failed to establish his relationship with Smt. Kaneez Fiza or alleged attornment of tenancy of plaintiff’s son in his favour and also failed to establish the execution of Will said to be executed by Smt. Kaneez Fiza. Hence he has no right to challenge the title of the plaintiff being a stranger to the suit house”. 18. It was also incidentally found by the learned Judge in para No.14 as follows: “Even in this case also the defendant had not chosen to prove the same and the learned counsel for the defendant fairly conceded that the said Will is not valid because it is executed contrary to the Muslim Law as Smt.Kaneez Fiza had no right to bequeath her entire property. As such the contention of the defendant that the Will executed in his favour is a valid document is false. When Will is not proved and execution of the said document is rejected in the earlier litigation I don’t understand how the defendant is claiming his rights over the suit premises. Apart from this he also utterly failed to establish his relationship with Kaneez Fiza as he admitted in his cross examination on that he has no document to show that Kubra Begum is the daughter of Kaneez Fiza and also deposed Kubra Begum and her husband are also alive”. But however, in para No.19, the learned Judge held that – “Hence the present suit of the plaintiff is hit by Order 2 Rule 2 CPC as he omitted the present relief which ought to have asked in the earlier suit under the same causes of action. Though the plaintiff had better title than the defendant herein this legal impediment restraining him to entitle the relief. Hence the plaintiff is not entitled for the relief of declaration of ownership over the suit house as it is hit by Order 2 Rule 2 CPC. But the defendant has no right to interfere into the suit house taking advantage of this legal impediment as he has no better title that the plaintiff”. 19. These findings were also considered in the appeal A.S.No.292 of 1988 and the copy of the judgment is marked as Ex.A.13. The learned Judge in Para No.13 found that though the plaintiffs in O.S.No.756 of 1991 claimed title to the property under the Will, the Will is not proved by any evidence. The findings of the lower Court that the Will is not proved and valid is accepted. Therefore, it is quite clear in O.S.No.345 of 1978, which is comprehensive suit for a determination of the title to the property between the parties, the rights of the appellants were accepted but on technical ground by application of principle of Order 2 Rule 2 CPC, the relief was not granted, whereas there was a specific finding about the Will set up by the plaintiff in O.S.No.756 of 1991 and holding that does not proved. It was also found by the trial Court in that suit that empathetically as follows in Para No.16 of the judgment in O.S.No.345 of 1978-Ex.A.10: “As I already stated that the defendant failed to establish the will, he is not the owner of the house and not having better title than the plaintiff herein, when he is not derived any title from Kaneez Fiza he had no right to challenge the plaintiff’s title over the suit house by alleging that the plaintiff stayed in the suit house by virtue of his son’s tenancy, as it is proved that the plaintiff is the sole legal heir of Kaneez Fiza and entitled for the property being sole legal heir of Kaneez Fiza, as she had no other issues. The defendant has not concerned with the property as he failed to prove that he is entitled for the property, under a valid document as well as his relationship with the said Kaneez Fiza”. 20. Therefore, the above decision in the earlier suit clearly goes to show that the Will set up by the plaintiffs in O.S.No.756 of 1991 was not accepted as it was not proved, no effort was made to establish the title set up under the Will. A strange argument was developed by the counsel for the respondents stating that in the above suit, he was not called upon to prove the genuineness of the Will and it was only with regard to the declaration of the title claimed by the plaintiffs and consequently, the Will was not an issue directly and substantially. This is fallacious. The title of the plaintiff in that suit was resisted by setting up a rival title under the Will and in fact, the title of the plaintiffs was accepted but however on technical grounds the relief was not granted. Therefore, the contention that as there was no issue and as the plaintiffs were not called upon to prove the Will in that suit and consequently it was not a decision on the Will has to be discarded. Even in the appeal against the said suit in A.S.No.292 of 1988 the title of the plaintiffs was also not accepted. Therefore, in view of the above circumstances, I have no hesitation in holding that the title of the plaintiffs under the Will was not proved and the Will was not accepted in O.S.No.345 of 1988 and consequently any finding with regard to title to the property is binding in the subsequent suit and the judgment of the Court in O.S.No.756 of 1991 in not applying the principles of res judicata and taking the pains of a decision with regard to the Will is not warranted and it is erroneous. 21. Furthermore, the question arises as to whether the Will was proved by the plaintiffs in this suit. Evidently, the burden is on the propounder of