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

2. Brief facts leading to the present appeals are that the respondent Nos. 1 to 6(Hereinafter referred to as the applicants) being legal heirs of Late Sri S.V. Srinivasulu Naidu filed an application under Section 8 of the Act before the Tribunal alleging that the land measuring 7128.5 sq. yards in Survey No. 299/2 (old Survey No. 403/1), Ward No. 8, Block-3, Shaikpet Village, Hyderabad, is the land grabbed by the Union of India. It was pleaded that a notification is required under Section 8(6) of the Act, which was published in the extra ordinary Gazette of Andhra Pradesh on 22.1.2004 but no objections against the same were received. The applicants alleged that their father had purchased 2 acres 27 guntas of land in Survey No. 299/2 from one Shri Shaik Ahmed under two registered sale deeds dated 12.12.1959 (Exhs. A1 and A2). The purchaser, i.e., the father of the applicants was put in possession thereof. Out of the total land purchased by the father of the applicants, 7 guntas of land was taken over for the purpose of widening of road and remaining part i.e. 2 acres 20 guntas (12100 sq. yards) was held by him. It was further alleged by the applicants that their father sold the land measuring 4971.5 sq. yards out of 12100 sq. yards in Survey No. 299/2 with specific boundaries via registered sale deed dated 20.3.1964 (Ex.A3). The remaining part of the land i.e., 7128.5 sq. yards was however retained by their father.3. It was alleged that the Military Contract Committee started constructing sheds on the land sold by the father of the applicants. As a result, the purchasers filed original suit(Hereinafter referred to as the first suit) on or about 14.4.1965 against the Union of India, State of Andhra Pradesh and the father of the applicants, which was later assigned as suit OS No. 175 of 1970 (Old No. 72 of 1965). The Plaintiff claimed that his vendor Shaik Ahmed and then the father of the applicants was the owner in possession of the property since purchase of the property on 20.3.1964, but the contractors of the first defendant, the appellant herein, trespassed into the schedule property on 12.7.1964. The Plaintiff thus sought possession of the land purchased or in the alternative, recovery of sale consideration paid to the father of the applicants. It was inter-alia pleaded as under:-4. Under these circumstances, Sri Shaik Ahmed sold the entire Ac.2-27 guntas of the said property to Sri S.V. Srinivasulu Naidu, I.P.S., Superintendent of Police, Crime Branch (C.I.D.), Hyderabad, the 3rd defendant herein by means of two sale deeds dated 12-12-1959 and put the latter in possession of the same. While in possession and enjoyment of the same, and paying taxes thereon, the said Sri S.V. Srinivasulu Naidu (the third defendant herein) sold 4971 ½ square yards of site out of the said S.No.299/2, of Shaikpet village more fully described in the schedule given below and herein after called the schedule property to the plaintiffs herein by means of a sale deed dated 20-3-1964 for a consideration of Rs. 28,000/-. Ever since the date of sale, the plaintiffs herein have been in undisputed possession and enjoyment of the schedule property. Thus the plaintiffs are the absolute owners of the schedule property enjoying the same with absolute rights.4. The schedule property was the property purchased by the plaintiff. In the written statement filed by the father of the applicants, it was stated that the said defendant had perfect right and legal title to the land when he effected sale in favour of the Plaintiffs. The said defendant asserted that he had no objection to the Plaintiff suit being decreed. It is pertinent to mention that the said defendant had not filed any counter claim of possession of the remaining land after selling the land to the Plaintiff. The parties went to trial on the following issues:1. Whether the plaintiffs and their predecessor in interest had title to and possession over the suit land within 12 years prior to the suit?2. Whether the suit land belonged to Ex-Hyderabad State Army and whether it was subsequently handed over to defendant No.1 in 1958?3. Whether the patta and the settlement relied upon by the plaintiff were cancelled and if so, whether the cancellation is legal and valid?4. Whether the suit land was auctioned by defendant No.1 for grazing and grass cutting?5. To what damage if any, are the plaintiffs entitled against the 3rd defendant alternatively?6. To what relief, if any are the plaintiffs entitle?5. The Learned Trial Court decided Issue No. 1, whereby the following findings were recorded: -19. Another piece of evidence available from the material on record is Ex.B.22. It is a letter from the Tahsildar (West) to the commissioner of the Municipality wherein it is clearly mentioned that No.299/2 is the patta land of Shaik Ahmed and that Abdul Gani named mentioned has no concern with it. Third one is the order of the land record officer B.21 wherein it is clearly mentioned that S.No.129/(ld) and 403 (new) measuring (7) acres was granted as patta to Shaik Ahmed this material is quite sufficient to conclude that Shaik Ahmed has his possession over the suit land since 1339 Fasli.20. Next point to be considered is whether Shaik Ahmed sold the suit land to the third defendant. His totally manifest by the two agreement of sale B.2 and B.3 and the two subsequent register sale deeds Ex.B.4 and B.5. In this matter B.7 entered witness box. Shaik Ahmed is stated to have died few years ago. DW-2 has testified this matter. Third defendant as DW.1 stated that he purchased the land in 1959 and shortly after one Heeralal filed a suit against him claiming the suit land. That suit ultimately ended in a compromise. Ex.B.26 and B.27 are the two receipts of Heeralal in acknowledgement of the receipt of money and also about compromising the matter.21. Ex.B.28 to show that Chintal Basti Samshan Committee member objected and alleged that a portion of the suit land was the grade land and therefore, the third defendant cannot occupy it. In that connection, the third defendant made a compromise by giving some land as well as some cash amount to the said committee members and ended that matter. According to D.3 he did not find time to construct his proposed house on account of the above mentioned dispute. Meanwhile the plaintiffs approached him and he sold the suit land to them. The Sale Deed executed by him i.e. within four months the alleged encroachments was made. In this brief period the plaintiffs were not expected to do any thing in exercising of their rights as purchasers. These facts coupled with the documents stated above, are quite sufficient to conclude that the plaintif f and their predecessors in title and undoubted by their possession over the suit land within twelve years prior to the alleged trespass. In other words, the plaintiffs have successfully, discharged the onus placed on them under issue No.1, therefore find this issue in the affirmative. (Emphasis Supplied)27………………………Thus viewed from any perspective there is no material to believe that the suit belonged to the Ex Hyderabad State Army and that is was subsequently handed over by the Second defendant to the first defendant. I therefore, find this issue in the negative.6. The suit was thus decreed on 13.8.1970 declaring the plaintiffs as title holders of the suit property. An appeal was filed by the Union of India before the High Court of Andhra Pradesh but the said appeal was dismissed on 31.3.1975. Thereafter, the plaintiffs in the suit filed execution petition in which the applicants had chosen not to participate. The father of the applicants died on 17.6.1993. Thereafter, the applicants invoked the jurisdiction of the Tribunal.7. The applicants asserted before the Tribunal that they are original owners of the land in question and the Government had no right or title over the property. While relying upon proceedings initiated by the Plaintiffs, the applicants asserted as follows:-………………..The said suit as contested and the Honble 4th Addl. Judge, City Civil Court, Hyderabad had decided the issues of title and possession along with other issues vide judgment and decree dated 13.08.1970. It is submitted that the Honble IV Additional Judge had held that our father is the owner and was in possession of the property since more than twelve years.8. The appellant herein filed a written statement, inter alia, pleading that the application is not maintainable as it does not disclose the facts relating to the alleged land grabbing. It was also pleaded that the facts narrated by the applicants themselves show that they have lost their possession long ago and after being dispossessed, the applicants had failed to take any steps to get the land restored to them. The filing of the suit and dismissal of appeal was accepted. It was also pleaded that in execution of the previous decree, the decree holder and the applicants had entered into a written compromise which was filed in execution application No. 220/95 seeking recording of satisfaction of the decree. In such proceedings, the Union proposed for exchange of the defence land with the decretal land in response to a letter dated 19.8.1995. In terms of such compromise, possession of the land measuring 4971.5 sq. yards was delivered to the decree holder on 14.12.1995. It was stated that the schedule land is a defence land and appellant is not a land grabber. It was further asserted that the Tribunal was not competent to decide the title of the appellant for it being defence land. Still further, it was stated that the land measuring 2 acres 20 guntas was in possession of the applicants since 1.4.1958 when it was handed over to the Government of India, Ministry of Defence by the Collector, Hyderabad. The stand of the appellant in the written statement inter-alia is as under:-7………………………. Therefore, the Statement of the applicant that since the construction was started in the land belonging to the subsequent purchasers, they filed the suit is appears to be absolutely ridiculous because the whole extent of the land measuring 2 acres 20 guntas was under the possession of the defence and the applicant had not claimed the suit schedule land at any point of time before 16.01.1996. So it could be clearly seen that the suit schedule land was under the possession of the defence more than 30 years before claiming by the applicant. The contention of the applicant that IV Additional Judge, City Civil Court, Hyderabad held that his father is the owner and was in possession of the property since more than 12 years is wrong. The Honble Judge in issue No. 6 had stated that the Vendor, the third defendant has satisfactorily proved by adducing oral as well as documentary evidence that he as well as his predecessors-in-title, Shaik Ahmed were in possession of the suit land i.e. only 4971 sq. yards whereas the applicant is claiming the remaining extent of land msg 7128.5 sq. yards.8……………………. To settle the matter, the Government of India, Ministry of Defence vide post copy of telegram No. 31/27/L/L&C/64 dated 11.08.1995 conveyed approval for exchange of the defence land with that of decretal land within Pension Paymasters Office. Accordingly the Counsel for the decree holders have accepted the said exchange proposal on 19.08.1995. On receipt of the acceptance, joint survey was conducted to mark the decretal land measuring 4971.5 sq. yards. Accordingly a plan showing the total extent of the defence land, the land already decreed by the lower court in OS No. 175/1970. Accordingly an extent of land admeasuring 4971.5 sq. yards handed over the decree holders by a proceedings dated 14.12.1995 of the Advocate Commissioner and the Contempt Case No. 411/1995 was finally closed on 15.12.1995, since land was handed over to the parties as per the compromise Memo.10 ………………………………The above land is under the possession of the Union of India for the last several years which is more than 30 years. Shri S.V. Srinivasulu Naidu so called owner of the subject land did not filed any suit of claiming the property which is under the occupation of the Union of India for the last more than 30 years. The said S.V. Srinivasulu Naidu was only Defendant No.3 in the above suit and appeal and as such by virtue of the decree passed in the said cases do not create a right in favour of Sri S.V. Narsimhulu Naidu to claim any land which is under the occupation of Union of India on the basis of below grounds:-13. With regard to unnumbered para 14 to 16 of the petition, it is submitted that the contention of the applicant in this para is that they are the owners of the schedules land is hereby denied. Land admeasuring 2 acres 20 guntas situated at Shaikpet Village, Golconda Mandal Hyderabad which was the property of Nizam forces and used as Minature Rifle Range was handed over to the Government of India, Ministry of Defence on 01.04.1958 vide Board proceedings dated 19.03.1958 by the Collector and the same is vested with the Government of India under Article 295 (i) of the Constitution of India. Being a defence land, the department is not the land grabber. For the defence land enactment of the Parliament is applicable whereas Land Grabbing Court is having jurisdiction only on the State Land.It is submitted that on the basis of uninterrupted possession of the defence over the schedule property from more than last 30 years and as the Land Grabbing Court is having the jurisdiction only on the State Land the above case is not maintainable before this Honble Court…..9. The learned Tribunal framed the following issues on the basis of pleadings of the parties:(1) Whether the applicants are the owners of the application schedule property?(2) Whether the rival title set up by the respondents is true, valid and binding on the applicants?(3) Whether the respondents are land grabbers within the meaning of the Act XII of 1982?(4) Whether the respondents prescribed title by adverse possession?(5) To what relief?10. The appellants had never asserted their possession as adverse or hostile to the knowledge of true owner. The plea of the appellant was that they are in possession of the said property as owners for the last 30 years. Therefore, issues were not correctly framed. Accordingly, Issue Nos. 1 and 2 were decided together.11. In evidence, the applicants examined PW 1 - S. Janardhan who had produced sale deeds by which their father had purchased the land but the patta said to be executed in favour of Shaik Ahmed was not produced. A perusal of the two sale deeds Ex A1 and A2 executed by the said Shaik Ahmed also does not disclose the date of any patta. Thus, in the present proceedings, neither the sale deeds have mentioned about the patta nor such patta had been produced or proved on record. In fact, the entire claim is based upon the judgment in the first suit, which is evident from the statement of PW 1, when he said that a Division Bench of the Honble High Court reported in 1990 has categorically held that once the Honble Court upheld the title and possession in earlier proceedings, it is not open for any one of the authorities to deny the same taking untenable pleases. Once the source of title is common, any party taking a different plea in subsequent proceedings is barred by res judicata.12. The Tribunal inter-alia returned the following findings:52. Srinivasulu Naidu purchased the land under Exs.A- 1 and A-2 in the year 1959. There is a finding in that suit that 12 years prior to filing of the suit, Shaik Ahmed and Srinivasulu Naidu had been in possession of the land. So the land has been in their continuous possession since 1949-50. Delivery of Acs.2.27 guntas of land to the Defence by the State Government is only a paper delivery as per Ex.B14 proceedings. So it can be inferred that actual delivery of land of Acs. 2.27 guntas was not made and it is only a paper delivery. This land alone was not alleged to have been delivered as per Ex.B14 proceedings dt. 19-3-58. About Acs.1500-24 guntas of land in four different plots in different areas was ordered to be delivered by the State Government to the Union of India. According to the Union of India, Acs.2.27 guntas is part of Asfanagar lines which is shown as item No. V in Ex.B-14 at page No.2.xx xx xx57. The contention of the Advocate for the respondents is that when the Union of India claimed that it is in possession since 1958 in the suit OS 175/70, title to the balance land is to be decided elsewhere. It is further contended that Exs. A1 and A2 sale deeds are valid and title passed to the applicants but to show whether Shaik Ahmed had title or not for the remaining land, suit is not filed by the applicants. Therefore, the applicants waived their right and their claim is time barred. When a finding is given in the suit that State Government which gave land to Union of India has no title and that Srinivasulu Naidu and his vendor had title, there is no need for Srinivasulu Naidu to file another suit for declaration of his title.xx xx xx59. If the land which was delivered to R-1 herein and to the other decree holders in execution proceedings, in exchange of suit schedule land owned by Srinivasulu Naidu, the exchange itself is illegal. Without establishing title to the remaining land by the Union of India the Union of India has entered into the compromise for exchange of the Application schedule land. A Compromise can be made between the decree holders and judgment debtors with regard to the decree schedule land only but it should not be in respect of some other land not covered by the decree. For retaining the decreetal schedule property by Judgment Debtors, some other land which is not subject matter of the suit was given to the decree holders. Union of India was aware that this land which was delivered to decree holders in exchange was mentioned as boundary to the decreetal schedule property belonged to Srinivasulu Naidu. Srinivasulu Naidu was a party to the suit. Even though no relief is granted against Srinivasulu Naidu in the said suit, at-least notice should be given to Srinivasulu Naidu or Srinivasulu Naidu should be made party to the compromise, when he claimed title and possession to that land which was given to the decree holders in exchange.xx xx xx90. In the case on hand the title to the application schedule land is not in issue in the earlier suit. The issue was with regard to the title for the suit schedule land which was purchased by the plaintiffs from Srinivasulu Naidu. Exs.A1 and A2 are the sale deeds which were relied on by the plaintiffs to establish their title for 4971 sq. yards. For the remaining land there was no issue. No finding is given with regard to the title for the remaining land of Srinivasulu Naidu. The remaining land of Srinivasulu Naidus is shown as boundary on three sides of the suit land purchased by the plaintiffs from Srinivasulu Naidu. A finding is given in the suit that the land purchased by Srinivasulu Naidu under Ex.A1 and A2 is patta land of Shaik Ahmed. To decide the title of the plaintiffs in 4971 sq. yards title of Srinivasulu Naidu covered by Exs.A1 and A2 was also considered. Therefore, there is identity of title in OS 175/70 and in this land grabbing case. Hence, the finding in the suit binds the respondents.91. The findings in the suit binds the Union of India as the title in the two litigations is one and the same. The State Government did not prefer the appeal against the Judgment and decree in OS 175/70. The Union of India claims title through the State Government. In the suit, a finding is given that the land is a patta land of Shaik Ahmed and not the State Government land. Therefore, that finding became final and binds both the Governments and other parties to the suit. The appeal CCCA No-30/1972 preferred by the Union of India against the judgment and decree passed in suit OS 175/70 was dismissed by the Honble High Court. A finding was given by the High Court that the land covered by Exs.B-38 marked in the i.e. the land covered by Ex.B25 herein was not correlated to the suit land. The suit land is part of the land covered by Exs.A1 and A2 sale deeds herein. The Union of India contends that the entire land of Acs.2.20 guntas was delivered as per Ex.B38 proceedings. In the letter dt. 25-4-1960 which was addressed by the Tahsildar, Hyderabad to the Collector Hyderabad District it is mentioned that the tounch map available in this office shows that Sy.No. 299/2 is the same place where the rifle range is shown in the map of I.S.F lands, Mallepally. Neither the tounch map nor the map of ISF lands has been produced. The letter therefore loses all its importance. The letter however, shows that patta was sanctioned to Shaik Ahmed prior to the preparation of the maps. (Emphasis supplied)13. The High Court in a petition under Article 226 of the Constitution affirmed the order of the Tribunal and held as under:17. Originally, the land to an extent of Acs.2.27 gts in Sy.No. 299/2 was purchased by S.V. Srinivasulu Naidu, the father of the applicants under Exs.A1 and A2 sale deeds. After Ac.0.07 gts of land was affected in road widening, the remaining extent of land is Acs.2.20 gts equivalent to 12,100 sq. yards, out of which, 4,971 sq. yards was sold by the father of the applicants to one V. Krishna Murthy and others under Ex.A3. Now, the disputed land is 7,128.5 sq. yards. The possession of land to an extent of Acs.2.20 gts by Srinivasulu Naidu from 1959 to 1964 was established in O.S. No. 175 of 1970 wherein the dispute with regard to the land to an extent of 4,971.5 sq. yards out of Acs.2.27 gts between V. Krishna Murthy and others/plaintiffs with the Union of India/respondent has been decided through the judgment and decree dated 13.08.1970. The delivery of the land to an extent of Acs.2.27 gts to the Union of India by the State Government was negatived in that suit. The possession of Srinivasulu Naidu in the land on three sides of the decretal land is admitted by R.W.2 as per the contents of Ex.B21. Since the said judgment and decree in O.S. No. 175 of 1990 had attained finality in view of the dismissal of appeal being CCCA No. 30 of 1972 filed by the Union of India, the plaintiffs have proceeded for its execution. Therefore, the father of the applicants had got title and possession over the part of the land sold by him.18. The contention of the Union of India that the entire land to an extent of Acs.2.20 gts was delivered to the Central Government as per Ex.B28 proceedings cannot be accepted as the land to an extent of Acs.2.20 gts was shown as Minature Rifle Range at Mallepally village area as per Ex.B14 and not in Shaikpet village and as such, the Special Court held that the land to an extent of Acs.2.20 gts covered by Exs.A1 and A2 belongs to Srinivasulu Naidu and they are valid documents.19. When the execution proceedings are pending, respondent No.1 claimed 1/3rd share in the entire land covered by the decree in O.S. No.175 of 1990 as assignee from one of the decree holders i.e., V. Krishna Murthy under assignment deed dated 18.03.1992, which admittedly has not been produced before the Court. To avoid demolition of the Pension Payment Office and to avoid the contempt proceedings, the Union of India made exchange offer to five equal extent of vacant land lying adjacent to the decree schedule property though it is not its property. The Special Court observed that after exchange, an extent of 2627.87 sq. yards covered by decree shown as B portion is delivered to R1 and also observed that respondent No.1 got possession of the land of Srinivasulu Naidu after exchange, his possession is illegal and unlawful.14. The order passed by the Tribunal and that of the High Court was based on the decree in OS No. 175/1970 though the said suit was only in respect of 4971.5 sq. yards comprising in Survey No. 299/2. The plaintiffs in the aforesaid suit had pleaded that the applicants had purchased 2 acres 27 guntas of land vide two sale deeds and that the plaintiffs are purchasers of 4971.5 sq. yards.

Reasoning:
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.