Case: Pawan Kumar Vs. Rochiram

3. Facts which led to the aforesaid position can be summarised thus : Respondent was the tenant of the suit building (consisting of a shop room and godown premises) which belonged to one Narain Prasad. As per a sale deed executed on 23.1.1989 (Ext.P.11) Narain Prasad transferred his rights in the suit building to the appellant. On its footing appellant filed Civil Suit No.of 1990 for eviction of the respondent under Section 12(1)(a) of the M.P. Accommodation Act, 1961 (for short "the Act") on the ground that respondent has not paid rent to the appellant. That suit was contested by the respondent raising the contention that the building was actually purchased by Pyarelal (father of the appellant) as per Ext.deed and appellant is only atherein, and hence appellant is not entitled to get the eviction order or the rent of the building. In that suit the court found that appellant is the real owner of the building pursuant to Ext.deed and that he was entitled to receive rent of the building. However, the suit was dismissed as the respondent deposited the arrears of rent in court during pendency of that suit but appellant was permitted to withdraw the arrears of rent so deposited by the respondent as per the judgment rendered in that suit.4. Appellant filed the present suit (No.of 1994) under Section 12(1)(f) of the Act for eviction of the respondent on the ground that appellant requires the building bona fide for the purpose of starting a business of his own. Respondent contested the suit and in the written statement he contended, inter alia that appellant is only benami to his father Pyarelal in Ext. P.11 sale deed and the real transferee was Pyarelal. Respondent further contended that the sale in favour of the appellant is void as it is forbidden under Section 3 of the Benami Transactions (Prohibition) Act, 1988 (for short the "the Benami Act").5. One of the issues raised by the trial court in the present suit is whether respondent is precluded from raising the issue regarding benami nature of Ext. P.11sale deed, due to the bar of res judicata. The trial court held that the finding in the previous suit (No.of 1990) against the respondent would not operate as res judicata as the said suit was ultimately dismissed. The trial court then proceeded to consider whether appellant is only a benamidar under the aforesaid sale deed. The Court concluded that appellant is the real transferee under the sale deed and is entitled to institute the suit. It was further found that appellant bona fide requires the building for his own business purpose. On the strength of such findings a decree was granted by the trial Court for eviction of the respondent.6. The District Court in the first appeal filed by the respondent upheld all the findings arrived at by the trial court and dismissed the appeal. A second appeal was preferred by the respondent before the High Court of Madhya Pradesh. During arguments learned single judge permitted the appellant to raise the plea of res judicata while supporting the decree for eviction.7. However, learned Single Judge of the High Court held that there is no bar of res judicata for the respondent in raising the contention regarding the title of the appellant over the building. Learned single judge reversed the findings of the two courts regarding benami transaction and held that Ext. P.11 was executed in favour of Pyarelal and that transaction is hit by Section 3 of the Benami Act and consequently the transaction is void. Learned single Judge dismissed the suit filed by the appellant.

Reasoning: 14. Though the word "dismissed" has been employed in the last paragraph of the judgment a reading of it, as a whole, would show that the plaintiff had won the suit. The court found against the plea of the defendant that plaintiff was not the rightful owner of the building. Dismissal of the suit was not on account of any defect in the plaintiffs claim nor in the frame of the suit nor even on any technical reason, but solely because the amount claimed by the plaintiff from the defendant has been deposited by the defendant in the court during pendency of the suit. As the plaintiff was permitted to withdraw that amount his grievance in the suit would necessarily have been redressed fully.15. The rule of res judicata incorporated in Section 11 of the Code of Civil Procedure (CPC) prohibit the court from trying an issue which "has been directly and substantially in issue in a former suit between the same parties", and has been heard and finally decided by that court. It is the decision on an issue, and not a mere finding on any incidental question to reach such decision, which operates as res judicata. It is not correct to say that the party has no right of appeal against such a decision on the issue though the suit was ultimately recorded as dismissed. The decree was not in fact against the plaintiff in that first suit, but was in his favour as shown above. There was no hurdle in law for the defendant to file an appeal against the judgment and decree in that first suit as he still disputed those decisions on such contestedclear pleading of the plaintiff is that he purchased the suit property as per Ext. P.11 sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad theIt is true that respondent adduced evidence to show that Ext. P.11 was preceded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ext. P.11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying thecorrect interpretation would be to read it as "consideration paid or consideration provided". If consideration was paid to the transferor then the word "provided" has no application as for the said sale. Only if the consideration was not paid in regard to a sale transaction the question of providing the consideration would arise. In some cases of sale transation ready payment of consideration might not have been effected and then provision would be made for such consideration. The word "provided" in Section 2(a) of Benami Act cannot be understood in a different sense. Any other interpretation is likely to harm the interest of persons involved in genuine transactions, e.g., a purchaser of land might have availed himself of loan facilities from banks to make up purchase money.We are, therefore, not inclined to accept the narrow construction of the word "provided" in Section 2(a) of the Benami Act. So even if appellant had availed himself of the help rendered by his father Pyarelal for making up the sale consideration that would not make the sale deed a benami transaction so as to push it into the forbidden area envisaged in Section 3(1) of the Benami Act.30. Thus, looking from either angle the contention of the respondent that appellant had no title to the suit property could not stand legal scrutiny. The High Court erred grossly in adopting such a view which is in conflict with law and is in reversal of the concurrent findings of the two fact finding courts.We have noticed that the High Court which admitted the second appeal had formulated certain questions of law, and none of such questions pertained to the finding regarding the bona fides of appellants claim for eviction. Hence no purpose would be served by remanding the case to High Court.Thus the second legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishment of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit.19. In this case the position is still stronger for the appellant. Dismissal of the first suit was only on account of what the respondent did during the pendency of the suit i.e. depositing the arrears of rent claimed by the appellant. The court permitted the plaintiff to withdraw that amount under deposit for satisfying his claim. Such a decree cannot be equated with a case where the suit was dismissed as not maintainable because any adverse finding in such a suit would only be obiter dicta. The finding made in OSthat appellant was the real owner of the building as per Ext. P.11 sale deed became final. If the respondent disputed that finding he should have filed an appeal in challenge of it.20. We, therefore, agree with the plea of the appellant that there is bar of res judicata inon the issue regarding appellants title to the building.All the above three premise adverted to be the High Court are unsupportable. Theclear pleading of the plaintiff is that he purchased the suit property as per Ext. P.11 sale deed. Burden of proof cannot be cast on the plaintiff to prove that the transaction was consistent with the apparent tenor of the document. Ext. P.11 sale deed contains the recital that sale consideration was paid by the plaintiff to Narain Prasad thetransferor. Why should there be a further burden of proof to substantiate that recitals in the document are true ? The party who wants to prove that the recitals are untrue must bear the burden to prove it.