Case: GOVINDAMMAL (DEAD) BY LRS. AND ORS Vs. VAIDIYANATHAN AND ORS

not fulfilled and hence it was held that the principles of res judicata will not apply, meaning thereby that all the three conditions should be fulfilled in order to apply the principles of res judicata. 12. It is true that under Section 11 of the 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 claim, litigating under the same title, the decree in the former suit would operate as res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is plaintiff or defendant. In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co- defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other. This Court in the case of Mahboob Sahab vs. Syed Ismail and others, (1995) 3 SCC 693 , considering the applicability of the doctrine of res judicata between co-defendants held that the following four conditions must be satisfied, namely, (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. To reach the conclusion mentioned above this Court relied upon the judgments in the cases of Syed. Mohd. Saadat Ali Khan vs. Mirza Wiquar Ali Beg, AIR 1943 PC 115 ; Shashibushan Prasad Mishra vs. Babuji Rai, AIR 1970 SC 809 and Iftikhar Ahmed vs. Syed Meharban Ali, (1974) 2 SCC 151. 13. Coming to the question of estoppel as argued by the defendants counsel based on the admission of the father of the plaintiffs in the pleadings and in his deposition regarding the title of the father of the defendant in the aforementioned earlier litigations, it is no doubt true that an admission is the best piece of evidence. However, an admission can always be explained, unless such an admission gives rise to the principle of estoppel. The principle of estoppel could have arisen if the father of the defendant had acted to his detriment on the basis of the representation made by the plaintiffs father as the basic requirement for attracting the principle of estoppel, is that the person to whom the representation has been made must have acted on the basis of such representation, and particularly to his own detriment. In the matter on hand, the father of the defendant knew about the correct position on facts and he very well knew that he was the owner to the extent of 50% of the property only, and as he did not act to his detriment, the question of estoppel does not arise. As mentioned supra, it is well settled that in an auction purchase, the auction purchaser does not acquire any right over the property higher than that of the judgment debtor. Since the principles of res judicata between co-defendants are not applicable in this case, and since a mere admission does not operate as an estoppel, such admission does not create or pass any title in favour of the defendants father and consequently to the defendant. On the other hand, it is apparent that the defendants father had right over only half of the property in question, which he had purchased. 14. The Division Bench has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial Court and the Division Bench of the High Court have come to the conclusion that the defendant has failed to prove that he and his predecessor-in-interest had possession over the entire property to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs father and the plaintiffs. In the absence of such material, the Trial Court and the Division Bench have rightly concluded that there was symbolic delivery of possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. Exhibits A-7, A-8 and A-9 are the pattas which disclose the names of both the parties in the revenue records. Even the house tax receipts are in the name of the plaintiffs predecessor. A schedule property has already been subjected to partition inter se among the plaintiffs after the death of Narayanswamy Mudaliar and the allotment of property in question, i.e. A Schedule has been made in favour of the second plaintiff as per Exhibit A-40. The aforementioned records and certain other material on record would negative the contention of the defendant relating to adverse possession. The plaintiffs have proved satisfactorily that they are the owners of A Schedule property, i.e., 50% of the property partitioned in 1912, which had ultimately fallen in the share of Mr. Narayanaswamy (grandfather of plaintiffs) as mentioned supra.

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

Explanation:
0[ds]6. The suit out of which this appeal arises is not a mere suit for partition. On the other hand, primarily it is a suit for declaration of the plaintiffs title to the suit property, i.e., A schedule property andfor permanent injunction restraining the defendants from entering the possession of A schedule property, which is nothing but 50% of the entire B Schedule property which fell to the share of Narayanaswamy Mudaliar. Alternatively, it was prayed by the plaintiffs that if the plaintiffs and defendant are found to be in joint possession theybe granted the relief of partition and separate possession to the plaintiffs half share in B schedule property. It is relevant to note here itself that B schedule property measures 2.72 acres in its entirety, whereas A schedule property is 50% of B schedule property, measuring 1.36 acres which fell to the share of Narayanaswamy Mudaliar in the partition of 1912. Since the partition had taken place in 1912 between Chokalingam and Narayanswamy Mudaliar (being the son of Pazanivelu), and as the plaintiffs inherited the property from Narayanaswamy Mudaliar, they are entitled to 50% of the share in B schedule property. The Division Bench has rightly held that the plaintiffs are entitled to A Schedule property, which is the half share allotted to their branch in the partition of 1912, out of B Schedule property. Thus, the question of maintainability raised by the defendant fails7. The plaintiffs need not question the auction sale which was conducted in 1933 inasmuch as, firstly, they are not parties to those proceedings including the execution proceedings and court auction. Secondly, by virtue of auction sale, the purchaser would get only the share vested with Chokalingam inasmuch as Chokalingam alone was the judgment debtor. The property which is not owned by the judgment debtor could not be sold at all and therefore, even assuming that the sale certificate is wrongly issued inrespect of the entire property, the same does not bind the plaintiffs inasmuch they continued to be the owner of 50% of the whole of the property8. It is no doubt true that in the suit filed by the temple against the father of the defendant, the father of the plaintiffs was also arrayed as Defendant No. 2. It is also not in dispute that the father of the plaintiffs and the father of the defendant by engaging a common advocate filed a common written statement pleading that the temple was not the owner of the property and that Defendant No.1 was the owner of the property. It is also not in dispute that the father of the plaintiffs admitted in the said suit that Defendant No.1 in the said suit, namely, the father of the defendant herein, was the owner of the property. So also, in the suit filed by the school, the father of the plaintiffs was also arrayed as one of the defendants along with the father of the defendant. In the said suit also, a common written statement was filed. Even in the suit filed by the school,the defendants therein, i.e., the father of the plaintiffs herein and father of the defendant herein jointly pleaded that the school was not the owner of the property and that the defendants were the owners. Both the suits filed by the temple and the school came to be dismissed, holding that the temple as well as the school were not the owners of the property. From the aforementioned facts and the pleadings as well as the evidence recorded in the said suits, it is amply clear that there was no dispute inter se between the defendants. In other words, there was no dispute whatsoever regarding title between the father of the plaintiffs and the father of the defendant in those two suits. The main question to be decided in those suits was whether the third parties who had claimed rights were entitled the property. Since the question of inter se title between the defendants father and the plaintiffs father was not in issue and was also not required to be decided in the disputes then raised, obviously, the doctrine of res judicata cannot be applied between such co-defendants9. However, there exist certain situations in which principles of res judicatamay apply as between co-defendants. This has been recognized by the English Courts as well as our Courts for more than a century. The requisite conditions to apply the principle of resjudicata as between co-defendants are that (a) there must be conflict of interest between the defendants concerned, (b) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (c) the question between the defendants must have been finally decided. All the three requisite conditions are absent in the matter on hand. Firstly, there was no conflict of interest between the defendants in the suits filed by the temple and theschool. Secondly, since there was no conflict, it was not necessary to decide any conflict between the defendants in those suits in order to give relief to the temple or the school, which were the plaintiffs. On the other hand, the father of the plaintiffs and the father of the defendant were colluding in those suits filed by Temple and School. Both of them unitedly opposed those suits. In view of the same, the principles of res judicata would not apply.In the case of Md. Saadat Ali (supra), though the first and third conditions were fulfilled, the second condition was not fulfilled and hence it was held that the principles of res judicata will not apply, meaning thereby that all the three conditions should be fulfilled in order to apply the principles of res judicata12. It is true that under Section 11 of the 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 claim, litigating under the same title, the decree in the former suit would operate asres judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is plaintiff or defendant.In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co- defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not bebound as between each other.13. Coming to the questionof estoppel as arguedby the defendants counsel based on the admission of the father of the plaintiffs in the pleadings and in his deposition regarding the title of the father of the defendant in the aforementioned earlier litigations, it is no doubt true that an admission is the best piece of evidence. However, an admission can always be explained, unless such an admission gives rise to the principle of estoppel. The principle of estoppel could have arisen if the father of the defendant had acted to his detriment on the basis of the representation made by the plaintiffs father as the basic requirement for attracting the principle of estoppel, is that the person to whom the representation has been made must have acted on the basis of such representation, and particularly to his own detriment. In the matter on hand, the father of the defendant knew about the correct position on facts and he very well knew that he was the owner to the extent of 50% of the property only, and as he did not act to his detriment, the question of estoppel does not arise. As mentioned supra, it is well settled that in an auction purchase, the auction purchaser does not acquire any right over the property higher than that of the judgment debtor. Since the principles of res judicata between co-defendants are not applicable in this case, and since a mere admission does not operate as an estoppel, such admission does not create or pass any title in favour of the defendants father and consequently to the defendant. On the other hand, it is apparent that the defendants father had right over only half of the property in question, which he had purchased14. The Division Bench has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial Court and the Division Bench of the High Court have come to the conclusion that the defendant has failed to prove that he and his predecessor-in-interest had possession over the entireproperty to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs father and the plaintiffs. In the absence of such material, the Trial Court and the Division Bench have rightly concluded that there was symbolic delivery of possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. Exhibits A-7, A-8 and A-9 are the pattas which disclose the names of both the parties in the revenue records. Even the house tax receipts are in the name of the plaintiffs predecessor. A schedule property has already been subjected to partition inter se among the plaintiffs after the death of Narayanswamy Mudaliar and the allotment of property in question, i.e. A Schedule has been made in favour of the second plaintiff as perExhibit A-40. The aforementioned records and certain other material on record would negative the contention of the defendant relating to adverse possession. The plaintiffs have proved satisfactorily that they are the owners of A Schedule property, i.e., 50% of the property partitioned in 1912, which had ultimately fallen in the share of Mr. Narayanaswamy (grandfather of plaintiffs) as mentioned supra.