Case: UNION OF INDIA &amp; ANR Vs. S. NARASIMHULU NAIDU (DEAD) THROUGH LRS. AND ORS

suit property by claiming exclusive title. The trial court in the said suit held that the deceased-K. Ethirajan cannot be held to be in possession of the suit property as a mere licensee of the deceased-M. Gurunathan. He was held to be in possession of the suit property as owner since 1940 as evidenced by various documents of possession filed by him and the joint patta granted by the authorities under the Act of 1948. The trial court also held that deceased-K. Ethirajan having remained in continuous possession of the suit property as owner had perfected his title by remaining in adverse possession for more than the statutory period of 12 years. 40. K. Ethirajan (plaintiff in the second suit), claimed partition of the land based on joint patta granted to the Plaintiff and the deceased-defendant M. Gurunathan. It is on the basis of this joint patta, the suit for partition filed by the plaintiff was decreed by the trial court as well as by the First Appellate Court. This Court found that the issue directly and substantially involved in the first suit was to claim exclusive ownership of deceased-M. Gurunathan to the whole property left behind by deceased-Gangammal, although eviction was sought of the defendant from a particular portion of the land on which he had built a hut for residence. The claim of ownership over the entire property was specially raised in the first suit. The findings in para 20 were returned in these circumstances. It was thus in this background, this Court held that the principle of res judicata would apply as in the previous suit, the assertion was in respect of whole property but possession was sought from a smaller area. The judgment is clearly not applicable in the present case as the title over the land in question before the Tribunal is distinct from the land which was the subject matter in the first suit. The first suit was only in respect of the land purchased by the Plaintiff and not the entire land, though his claim was based on sale by the father of the applicants. 41. Now, the second question as to whether the appellants have proved their title over the land in question is examined. The appellants claim title over the land in question. Since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895. The area of Asafnagar lines is 378 acres 16 guntas. In the appendix to the letter dated 10.10.1956, the details of the land comprising in the area measuring 378 acres 16 guntas is mentioned, which includes 2 acres 20 guntas of Miniature Rifle Range. Such land is reflected as in a Mallapally Area. The total area of Mallapally area and Asafnagar Lines is 378 acres and 16 guntas. The Mallapalli Lines is non-ISF Lines measuring 450 acres and 12 guntas which is distinct from Asafnagar Lines falling in ISF area measuring 378 acres and 16 guntas. Thus, Mallapally area and Mallapalli Lines are two different parcels of the land. The land in question herein is part of Asafnagar Lines handed over to the appellants as ISF Lines. The letter dated 19.3.1958 completes the transfer when the possession of land measuring 1500 acres and 24 guntas was handed over to the Union. 42. The appellants claim to be in possession over the land measuring 1500 acres and 24 guntas from the year 1958. Although, the appellants have lost claim in respect of land measuring 4971.5 sq. yards which is falling as part of 2 acres and 20 guntas of land, but that would not lead to losing of the title of the appellants over the entire land measuring 2 acres and 20 guntas. 43. Therefore, by virtue of the provisions of Government Grants Act, 1895 read with Section 17(2)(vii) of the Registration Act, 1908, transfer of land to the appellant is complete. The appellant is the owner of the aforesaid land. The applicants have not produced any document regarding the patta in favour of Shaik Ahmed. They have not proved the title of their vendor so as to claim a rightful title over the land in question. Further, no patta could be granted to the applicants as the land was transferred by the State in their favour on 19.3.1958 and possession was claimed on the strength of sale deeds executed on 12.12.1959. 44. Apart from the fact that the transfer of title in favour of the Union is complete when the possession was delivered, but even thereafter, the military land register and general land register produced by the appellants show the possession of the appellants over such land. The military land register and general land register are public documents within the meaning of Section 74 of the Indian Evidence Act, 1872 (Evidence Act) containing the records of the acts of the sovereign authority i.e., the Union as well as official body. Still further, Section 114 of the Evidence Act grants presumption of correctness being an official act having been regularly performed. Therefore, in the absence of any evidence to show that such records were not maintained properly, the official record containing entries of ownership and possession would carry the presumption of correctness. In view of the transfer of land on 10.10.1956 followed by delivery of possession on 19.3.1958 and continuous assertion of possession thereof, it leads to the unequivocal finding that appellants are owners and in possession of the suit land. 45. The third question is to examine whether the appellants are land grabbers and the Tribunal has jurisdiction to entertain a petition under the Act. The objection of the appellants that they are not land grabbers and that the State Legislature will have no jurisdiction over the property of the Union need not to be examined in view of the finding that the appellants are in fact owners of the land in question.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]25. The applicants have claimed possession from the appellants primarily on the ground that in the suit filed by the plaintiffs on 14.4.1965, the basis of the suit was purchase of land by the plaintiffs from the father of the applicants. Since the plaintiffs have been found to be the owners on the basis of purchase of land from the father of the applicants, therefore, the issue of title decided in the said suit would operate as res judicata. Therefore, the appellants herein are land grabbers having no title over the land in question. It may be reiterated that the plaintiffs had purchased land measuring 4971.5 sq. yards from the father of the applicants whereas the remaining land measuring 7128.5 sq. yards was retained by the applicants. Therefore, the decree in the first suit was only in respect of the schedule property in the first suit i.e. 4971.5 sq. yards. The patta, the basis of title of the applicants had not been produced in evidence before the Tribunal. Thus, the basic document of title had not been produced.26. In the first suit, the father of the applicants had not filed any counter claim to assert title or possession over the land in question. The land admeasuring 4971.5 sq. yards was a schedule property and the subject matter of the first suit. The issue no. 1 in the first suit was in respect of the possession of the plaintiffs and their predecessor-in-interest over the suit land within 12 years prior to the suit. Therefore, the rights of the plaintiffs were examined in respect of such suit land measuring 4971.5 sq. yards alone, although, to return the finding on possession and title, possession of the father of the applicants over the land purchased by the Plaintiff was clubbed together on the basis of patta claimed to be granted to Shaik Ahmed, though not produced or proved on record.27. In the second suit filed by the applicants, the entire basis of suit was the findings returned in the first suit. There is no independent evidence produced in respect of purchase of land by Shaik Ahmed and the legality or validity of Patta issued to him. Although, applicants have asserted that they have been visiting the land in question to verify their possession but apart from such plea, there is no evidence that there was any covert and overt act on the part of the plaintiffs to assert possession over the land in question.28. In fact, the appellants had entered into a settlement with the plaintiffs by which some of the land in possession was given to the decree holder in execution with the leave of the Court on 19.8.1995. Such action would show the assertion of title by the appellants so as to enter into exchange of land in satisfaction of the decree. The father of the applicants was party in the execution proceedings but has not objected to the exchange. It necessarily leads to an inference that the father of the applicants was not in possession and has not asserted the title or possession over the remaining land measuring 7128.5 sq. yards. On the other hand, the appellants have categorically asserted that they are in possession of the land from the date of transfer in the year 1958 when the Collector of Hyderabad handed over the possession to them. The appellants continued to be in unhanded possession over the last 30 years.30. The plea of res judicata is generally raised against the plaintiffs who would be the applicants before the Tribunal. This Court in a judgment reported as Alka Gupta v. Narender Kumar Gupta (2010) 10 SCC 141  held that the plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. This Court has culled down the essential requirements to be fulfilled to apply the bar of res judicata to any suit or issue. It has been observed as under:20. Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant-plaintiff an opportunity to meet the case based on such plea.21. Res judicata means a thing adjudicated, that is, an issue that is finally settled by judicial decision. The Code deals with res judicata in Section 11, relevant portion of which is extracted below (excluding Explanations I to VIII):11. Res judicata.— xxxx xxxx22. Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or issue:(i) The matter must be directly and substantially in issue in the former suit and in the later suit.(ii) The prior suit should be between the same parties or persons claiming under them.(iii) Parties should have litigated under the same title in the earlier suit.(iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit.(v) The court trying the former suit must have been competent to try the particular issue in question.In the first suit, the defendant had the opportunity to raise a claim in respect of land measuring 7128.5 sq. yards. However, no such claim was raised. In view of Section 11, Explanation IV CPC, the applicants might and ought to have made grounds of defence in the former suit to claim possession of the land measuring 7128.5 sq. yards. The consequence would be that failure to raise such defence or counter claim would be deemed to be constructive res judicata in terms of Explanation IV of Section 11 CPC. Reference may be made to judgment of this Court reported as Ramadhar Shrivas v. Bhagwandas (2005) 13 SCC 1 . This court was examining a situation where in a suit for possession, the defendant Bhagwandas was found to be the tenant of the original owner Hiralal and after a subsequent purchase, he had become tenant of Ramadhar. The first suit was dismissed on the ground that suit for possession was not maintainable against Bhagwandas being tenant. In another suit filed by the purchaser, the defendant denied the title of plaintiff, though such was not the plea in the first suit. In these circumstances, the Court held as under:23. In the case on hand, it is clear that in the earlier suit, the court had recorded a clear finding that the defendant Bhagwandas was neither the owner of the property nor could he show any right as to how he was occupying such property except as a tenant of Hiralal. If Bhagwandas was claiming to be in lawful possession in any capacity other than a tenant, he ought to have put forward such claim as a ground of defence in those proceedings. He ought to have put forward such claim under Explanation IV to Section 11 of the Code but he had failed to do so. The doctrine of constructive res judicata engrafted in Explanation IV to Section 11 of the Code thus applies to the facts of the case and the defendant in the present suit cannot take a contention which ought to have been taken by him in the previous suit and was not taken by him. Explanation IV to Section 11 of the Code is clearly attracted and the defendant Bhagwandas can be prevented from taking such contention in the present proceedings.34. The issue as to whether there can be res judicata between co- defendants was first examined by the Privy Council in a judgment reported as Munni Bibi (since deceased) & Anr. v. Tirloki Nath & Ors. AIR 1931 PC 114 . The three principles of res judicata as between co-defendants were delineated as: (1) There must be a conflict of interest between the defendants; (2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; (3) the question between the defendants must have been finally decided. This test too is not satisfied as in order to grant relief of possession to the plaintiffs in the first suit, it was not necessary to decide the issue of the remaining land between the father of the applicants and the appellants. The said principle was reiterated by this Court in a judgment reported as Mahboob Sahab v. Syed Ismail and Others (1995) 3 SCC 693  wherein it has been held as under:8. Under these circumstances the question emerges whether the High Court was right in reversing the appellate decree on the doctrine of res judicata. At this juncture it may be relevant to mention that the trial court negatived the plea of res judicata as a preliminary issue. Though it was open to sustain the trial court decree on the basis of the doctrine of res judicata, it was not argued before the appellate court on its basis. Thereby the findings of the trial court that the decree in OS No. 3/1/1951 does not operate as res judicata became final. The question then is whether the doctrine of res judicata stands attracted to the facts in this case. It is true that under Section 11 CPC when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claimed, litigating under the same title, the decree in the former suit would be res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants…36. The applicants have not claimed any title to the land which is claimed to be in their possession and the subject matter of the first suit was only 4971.5 sq. yards. Hence, the decree in the said suit is binding qua the land in suit only.37. Though the first suit is between the same parties, but the subject matter is not the same. For res judicata to apply, the matter in the former suit must have been alleged by one party and either denied or admitted, expressly or impliedly by the other. Since the issue in the suit was restricted to 4971.5 sq. yards, the decree would be binding qua to that extent only. The issue cannot be said to be barred by constructive res judicata as per Explanation IV as it applies to the plaintiff in a later suit. The appellants have denied the claim of the plaintiffs in the first suit to the extent that it was the subject matter of that suit alone. Therefore, the decree in the first suit will not operate as res judicata in the subsequent matters.38. The reliance of Mr. Rao on the judgment of this Court in K. Ethirajan is not tenable. In fact, such judgment has been made the basis of the impugned orders as well. The reliance is on para 20 of the judgment, which reads as under:20. The argument that principle of res judicata cannot apply because in the previous suit only a part of the property was involved when in the subsequent suit the whole property is the subject-matter cannot be accepted. The principle of res judicata under Section 11 of the Civil Procedure Code is attracted where issues directly and substantially involved between the same parties in the previous and subsequent suit are the same - may be - in the previous suit only a part of the property was involved when in the subsequent suit, the whole property is the subject-matter.39. The said paragraph cannot be read in isolation. The facts on the basis of which judgment is given are required to be kept in view to have an understanding of the background in which such observation has been recorded. One line or paragraph cannot be picked up without going through the facts and the nature of suit. In the first suit, deceased- M. Gurunathan sought eviction of deceased-K. Ethirajan, (plaintiff in the second suit), from a portion of the suit property by claiming exclusive title. The trial court in the said suit held that the deceased-K. Ethirajan cannot be held to be in possession of the suit property as a mere licensee of the deceased-M. Gurunathan. He was held to be in possession of the suit property as owner since 1940 as evidenced by various documents of possession filed by him and the joint patta granted by the authorities under the Act of 1948. The trial court also held that deceased-K. Ethirajan having remained in continuous possession of the suit property as owner had perfected his title by remaining in adverse possession for more than the statutory period of 12 years.40. K. Ethirajan (plaintiff in the second suit), claimed partition of the land based on joint patta granted to the Plaintiff and the deceased-defendant M. Gurunathan. It is on the basis of this joint patta, the suit for partition filed by the plaintiff was decreed by the trial court as well as by the First Appellate Court. This Court found that the issue directly and substantially involved in the first suit was to claim exclusive ownership of deceased-M. Gurunathan to the whole property left behind by deceased-Gangammal, although eviction was sought of the defendant from a particular portion of the land on which he had built a hut for residence. The claim of ownership over the entire property was specially raised in the first suit. The findings in para 20 were returned in these circumstances. It was thus in this background, this Court held that the principle of res judicata would apply as in the previous suit, the assertion was in respect of whole property but possession was sought from a smaller area. The judgment is clearly not applicable in the present case as the title over the land in question before the Tribunal is distinct from the land which was the subject matter in the first suit. The first suit was only in respect of the land purchased by the Plaintiff and not the entire land, though his claim was based on sale by the father of the applicants.The appellants claim title over the land in question. Since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895. The area of Asafnagar lines is 378 acres 16 guntas. In the appendix to the letter dated 10.10.1956, the details of the land comprising in the area measuring 378 acres 16 guntas is mentioned, which includes 2 acres 20 guntas of. Such land is reflected as in a Mallapally Area. The total area of Mallapally area and Asafnagar Lines is 378 acres and 16 guntas. The Mallapalli Lines is non-ISF Lines measuring 450 acres and 12 guntas which is distinct from Asafnagar Lines falling in ISF area measuring 378 acres and 16 guntas. Thus, Mallapally area and Mallapalli Lines are two different parcels of the land. The land in question herein is part of Asafnagar Lines handed over to the appellants as ISF Lines. The letter dated 19.3.1958 completes the transfer when the possession of land measuring 1500 acres and 24 guntas was handed over to the Union.42. The appellants claim to be in possession over the land measuring 1500 acres and 24 guntas from the year 1958. Although, the appellants have lost claim in respect of land measuring 4971.5 sq. yards which is falling as part of 2 acres and 20 guntas of land, but that would not lead to losing of the title of the appellants over the entire land measuring 2 acres and 20 guntas.43. Therefore, by virtue of the provisions of Government Grants Act, 1895 read with Section 17(2)(vii) of the Registration Act, 1908, transfer of land to the appellant is complete. The appellant is the owner of the aforesaid land. The applicants have not produced any document regarding the patta in favour of Shaik Ahmed. They have not proved the title of their vendor so as to claim a rightful title over the land in question. Further, no patta could be granted to the applicants as the land was transferred by the State in their favour on 19.3.1958 and possession was claimed on the strength of sale deeds executed on 12.12.1959.44. Apart from the fact that the transfer of title in favour of the Union is complete when the possession was delivered, but even thereafter, the military land register and general land register produced by the appellants show the possession of the appellants over such land. The military land register and general land register are public documents within the meaning of Section 74 of the Indian Evidence Act, 1872 (Evidence Act) containing the records of the acts of the sovereign authority i.e., the Union as well as official body. Still further, Section 114 of the Evidence Act grants presumption of correctness being an official act having been regularly performed. Therefore, in the absence of any evidence to show that such records were not maintained properly, the official record containing entries of ownership and possession would carry the presumption of correctness. In view of the transfer of land on 10.10.1956 followed by delivery of possession on 19.3.1958 and continuous assertion of possession thereof, it leads to the unequivocal finding that appellants are owners and in possession of the suit land.The objection of the appellants that they are not land grabbers and that the State Legislature will have no jurisdiction over the property of the Union need not to be examined in view of the finding that the appellants are in fact owners of the land in question.