DEVA RAM AND ANR. v.

ISHWAR CHAND AND ANR.

OCTOBER 16, 1995

[KULDIP SINGH AND S. SAGHIR AHMAD, JJ.]

Civil Procedure Code, 1908-0rder 2, Rule 2--Suit to include the whole claim--Unity of all claims based on same cause of action in one suiHf subsequent suit based on a different cause of action-Rule will not operate

as a bar.

Explanation I to

VIII, Section 11----Res judicata-Rule of-.

Applicability-Basic requirement for.

Sections 96 and JOO-Appeal-Adverse finding recorded against a party in whose favour suit or appeal is ultimately decided-He has no right of D appeal against decree to contest any adverse finding against him-Such adverse finding ca11not operate as res judicata in subsequent suit.

The respondent-Plaintiff filed a snit for recovery of a snm of Rs. 6,300 as sale price for land, against the appellant on the ground that by a E document the land in question of which he was the owner was transferred to the appellant which the appellant had promised to pay but they did not pay the amount and continued to remain in possession which they should have surrendered for having not paid the stipulated amount. The appellant contested the suit on the ground inter alia that they were tenants under the plaintiff and were already in possession; that the document was obtained F by fraud and undue influence and was, in any case, void being against the provisions of Himachal Pradesh Tenancy and Land Reforms Act under which they had become owner of the land.

The suit was dismissed by the Trial Court with the findings, inter G alia, that the agreement was without consideration and was hit by the provisions of section 91 of the Himachal Pradesh Tenancy and Land Reforms Act and that the defendants were tenants of the land in suit under the plaintiff. Appeal filed by the plaintiff was dismissed with the findings that the land in question was at no stage sold by the plaintiff - respondents to the appellants and consequently they were not entitled to recover H 369

A Rs. 6,300 from the appellants as sale price as the document in question was only an agreement for sale and not a sale deed and that the defendant had failed to prove themselves to be tenants of the disputed land under the plaintiff.

The plaintiff, however tiled a new suit for possession against the appellants on the basis of the title, pleading inter alia that they were the owner of the land in question and the defendants, appellants who had already been held in the earlier suit that they were not the tenants of the land in suit, were not entitled to retain possession. The Trial Court dismissed the suit with the finding that the suit was barred by the prin ciples of Order 2 Rule 2 of the Code of the Civil Procedure and was beyond time. In appeal, the findings recorded by the Trial Court were reversed and the suit was decreed with the findings that it was not barred by Order 2 Rule 2 nor was it beyond time. The second appeal filed in the High Court was also dismissed. Hence this appeal.

D The appellants contended that the findings recorded by the District Judge that the suit of the respondents was not barred by Order 2 Rule 2 was erroneous and the appellants hving already been held to be tenants under the respondents by the Trial Court in the earlier suit, the suit for possession was not maintainable and ought to have been dismissed by the E District Judge also by the High Court as was done by the Trial Court; that the findings recorded by the Trial Court on the status of the appellants in the previous suit that they were tenants of the land in suit should still be treated to hold the field notwithstanding its reversal by the lower Appellate Court as the lower Appellate Court, bad ultimately decided the appeal in their favour with the result that they being the successfnl party had no F occasion to tile the appeal and challenge the findings and therefore, the findings of the Trial Court could not be treated to have been reversed; that the original findings recorded by the Trial Court on the status of the appellants that they were the tenants of the land under the respondents would operate as res judicata against the respondents who could not be G granted the relief of possession.

Partly allowing the appeal, this Court

HELD : 1.1. Provisions of Order 2 Rule2 of the Civil Procedure Code indicate that if a plaintiff is entitled to several reliefs against the defendant H in respect of the same cause of actions, he cannot split up the claim so as

DEVA RAM v. ISHWARCHAND 371

to omit one part or the claim and sue for the other. Ir the cause or actions A is the same, the plaintiff has to place all his claims before the Court in one suit as Order 2 Rule 2 is based <in the cardinal principle that the defendant should not be vexed twice for the same cause. What the rule, therefore, requires is the unity of all claims based on the same cause of action in one suit. It does not contemplate unity or distinct and separate causes of B action. Ir, therefore, the subsequent suit is based on a different cause of action, the rule will not operate as a bar. (379-01 376-G, 377-B]

Naba Kumar Hazara & Anr. v. Radhashyam Manish & Ors., AIR

(1931) P.C. 229; Amn Lal Gupta & Ors. v. M1iganka Mohan Sur& Ors., AIR

(1975) SC 207; State of Madhya Pradesh v. State of Maharashtra and Oi:i,, C AIR (1977) SC 1466; Kewal Singh v. Mt. Lajwanti, AIR (1980) SC 161; Sidramappa v. Rajashetly and Ors., AIR (1970) SC 1059 and Gurb1Lt Singh

v. Bhura Lal, AIR (1964) SC 1810, relied on.

1.2. In the instant case, the previous suit was filed for recovery or a D sum of Rs. 6,300 as sale price or the land in suit which was dismissed with the findings that the document on which the suit was filed was not a sale deed but was mere agreement for sale and, therefore, the amount in question could not be recovered as sale price. That document, thus, constituted the basis of the suit. The subsequent suit was brought by the respondents for recovery or possession on the ground that they were the E owner .of the land in suit and were consequently entitled to recover its possession. The cause of action in the subset1uent suit was, therefore, entirely different. Since the previous suit was for recovery of sale-price, the respondents could not possibly have claimed the relief of possession on the basis of title as title in that suit had been pleaded by them to have been F transferred to the defendants-appellants. The essential re<1uirement for the applicability or Order 2 Rule 2, namely, the identity of causes of action in the previous suit and the subsequent suit was not established. Conse quently, the District Judge as also the High Court were correct in rejecting the plea raised by the appellants with regard to Order 2 Rule 2 of the Civil Procedure Code. [378-C-E] G

2. In the subsequent suit, the appellants in their capacity as defendants did not plead the rule of res judicata. As a matter of fact, they did not in their written statement even refer to the tindings recorded by the Trial Court in the previous suit nor did they claim that they were tenants H

of the land in suit under the respondents. Their main defence was that they \l'ere in possession oYer the land in suit since Samvat 2005 and had, therefore, acquire.d title by adverse possession. They also pleaded that the suit was barred by time and ll'as, in any case, not maintainable in Yiew :..1 the provisions contained in Order 2 Rule 2 of the Civil Procedu.re Code.

The appellants, thus raised an altogether.new defence and did not plead that they were tenant~ u_nder the respondents. Consequently, an issue. whether the appellants were tenants of the land in dispute was not framed and, therefore, there was no occasion to refer to the findings in the previous suit. [379C-D]

In the previous suit, which was instituted by the respondents, an issue, namely, issued No. 5 was framed on the status or th'e appellants as to whether they were the tenants of the land in suit under the respondents but in _the subsequent suit this issue was not raised as. the appellants who were the defendants in the subsequent suit .did not plead that they were D the tenants under the respondents. What they pleaded was that they were ·

in possession since a long time namely from Samvat 2005 and had, . therefore, acquired title by adverse possession. Consequently in the subsequent suit, the issue which was raised and tried in the previous suit \\'3S not raised, framed or tried and no finding, therefore," came to be recorded as to whether the defendants were tenants of the land in suit. The instant E 'suit which was the subsequent suit, was between the same parties w110 had litigated in the previous suit and the subject matter of this suit, namely the disputed land, was the same as was involved in the previous suit but the issues and causes of action were different. Consequ.ently; the basic requirement for the applicability of rule of res judicata was wanting and, F . therefore, the absence of 11Ieading.s, in the absence of issues and in the

absence of any finding, it was nut open. to the appellant• to invoke the rule Of res judicata on the ground that in the earlier suit it was found by Trial Court that the appellants were the tenants of the land, in dispute under the respondents. (380-C-F]

3. An appeal does not lie against mere 'findings" recorded by a Court unless the findings amount to a decree" or "order". \\11ere a suit is dismissed, the defendant against ll'hom an adverse finding have come to be recorded on some issue, has no right of appeal and lie cannot question H those findings before the Appellate Court. (381-C]

DEVA RAM v. ISHWAR CHAND [S. SAGHIRAHMAD, J.J 373

Ganga Bai v. Vinay Kumar & Ors., [1974) 3 SCR 882; Mid11apur A Zami11dmi Co. ltd. v. Naresh Naraya11 Roy, AIR (1922) PC 24 and Ru11 Bhadur Si11gh v. L11clzokoe1; ILR 11 Cal 301 (PC), relied on.

Patcshwar Din & A11r. v. Maha11t Smj11das, AIR (1938) Oudh 18, aflirmed.

Bansi Lal Ratwa v. Laxmi11araya11, (1969) 2 A.W.R. 246 and A1j1111 Singh & Am: v. Tara Das Ghosh & Anr., AIR (1974) Pat 1, distinguished.

4. The appellants were in possession over the land in suit for a considerably long time and the respondents themselves at one stage had C pleaded (in the previous suit filed by them) that the land had already been sold to the appellants and that the appellants were liable to pay the sale consideration of Rs. 6,300 to them. It was strange that inspite of the findings having been recorded by the Trial Court in their favour that they were the tenants of the land in suit under the respondents, the appellants did not raise that plea in the subsequent suit filed by the respondents for D recovery of possession. May be, because the finding \\'as set aside by appellate Court. The area of the land of suit was 34.9 bighas and the interest of justice would be met if a compact area of 10 bighas was left with the appellants and the decree for possession is made executable only in respect of the remaining area namely an area of 24.9 bighas. The appel- E !ants shall be treated as Protected Tenants in respect of ten bighas of land.

The Tehsildar concerned shall partition the land between the parties as directed. The appellants shall surrender the area falling to the share of the respondents within one month of the order of Tehsildar. The order of the Tehsildar shall be final. [382-C-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3112 of 1995.

Frua. he Judgment and Order dated 8.7.94 of the Himachal Pradesh

High Court in R.S.A. No. 210 of 1986.

V.C. Mahajan, Gaurav Jain and Mrs. Abha Jain for the Appellants.

P.N. Nag and R.K. Singh for the Respondents.

 The .I udgment of the Courl was delivered by H

S. SAGHIR AHMAD, J. The. legal proceedings for land comprising khata khatauni No. 45/63. Khasra No. 348 (Area 34.9 bighas} situate in Village Chuting, Distt. Kinnaur in the Slate of Himachal Pradesh was initiated by the appellants (defendants) before the Compensation Officer, Pooh, for certain relief but when their application seems to have been contested by respondents (plaintiffs), it was withdrawn on August 24, 1971.

Thereafter, the present respondent's father Shri Padam Ram, who is since dead and is represented by the respondent, came forward with a suit for recovery of a sum of Rs. 6,300 as sale price for the aforesaid land against the present appellants on the ground that by document dated September 1, 1976 (referred to as 2nd September, 1976 at some places in the record), the land in question of which he was the owner was transferred to the appellant which the appellants had promised to pay on November 11, 1976 but they did not pay the amount and continued to remain in possession which they should have surrendered for having not paid the above stipulated amount.

The suit Wds contested by the appellants on the grounds inter a/ia that they were tenants under the plaintiffs, namely Padam Ram, and were already in possession. They also pleaded that the document dated September 1, 1976 was obtained by fraud and undue influence and was, in any case, void being against the provisions of Himachal Pradesh Tenancy and Land Reforms Act under which they have become owners of the land.

A number of issues were framed in this suit, one of which namely, issue No. 5, read as under :

"5. Whether the defendant is in possession of the suit land as tenant under the plaintiff since samval 2005 as alleged'!"

The suit was dismissed by the Trial Court (Senior Sub-Judge, Kinnaur} by judgment and order dated January 15, 1981 with the findings, i/lter a/ia, that the agreement was without consideration and was hit by the G provisions of section 91 of the Himachal Pradesh Tenancy and Land Reforms Act. It also recorded a finding on Issue No. 5 that the defendants were tenants of the land in suit under the plaintiff since Samvat 2005.

The Judgment of the Trial Court was upheld by the learned Additional District Judge, Shimla in an appeal filed by the plaintiff which was H dismissed with the findings that the land in question was at no stage sold

DEVA RAM v. ISHWAR CHAND [S. SAGHIR AHMAD, J.) 375

hy the plaintiffs-respondents to the present appellants and consequently A the plaintiffs were not entitled to recover Rs. 6,300 from the "appellants as sale price as the document in quetion was only an agreement for sale and not a sale deed. The lower appellate court also specifically reversed the finding of the Trial Court on Issue No. 5 and held that the defendants had failed to prove themselves to be tenants of the disputed land under the plaintiff. Those legal proceedings terminated at that stage.

The plaintiff, however, initiated new proceedings by filing Suit No. 91/1/1982 for possession against the present appellants on the basis of the title, pleading inter alia that they were the owners of the land in question

and the defendants, namely, the present appellants who had already been C held in the earlier suit that they were not the tenants of the land in suit, were not entitled to retain possession.

This suit was resisted by the appellants on the ground that the Suit was barred by Order II Rule 2 of the Code of Civil Procedure and that it was barred by time as they were in possessing over the land in question D since samvat 2005 and had become owners of the land in suit by adverse possession.

The Trial Court, namely, Senior Sub-Judge, Kinnaur at Kalpa, dismissed the suit by judgment and order dated April 21, 1984 with the finding E that the suit was barred by the principles of Order II rule 2 and was beyond time. In appeal, decided by the Dist!. Judge, Shimla, on March 31, 1986, the findings recorded by the Trial Court were reversed and the suit was decreed with the findings that it was not barred by Order 2 Rule 2 of the Civil Procedure Code nor was it beyond time.

The appellants then filed a second appeal in the High Court of Himachal Pradesh which by its judgment dated July 8, 1994 dismissed the appeal and that is how the matter is before us now.

Learned counsel for the appellants has contended that the findings G recorded by the District Judge that the suit of the respondents was not barred by Order 2 Rule 2 of the Civil Procedure Code was erroneous and the appellants having already been held to be tenants under the respondents by the Trial Court in the earlier suit, the suit for possession was not maintainable and ought to have been dismissed by the District Judge as also by the High. Court as was done by the Trial Court. It was also H

SUPREME COURT REPORTS [1995) SUPP.45.C.R.

contended that the findings recorded by the Trial Court on the status of the appellanls in the previous suit that they \Vere tenants of the land in suit should still be treated lo hold the field notwithstanding its reversal hy the lower appellate court as the lower appellate court, had ultimately decided the appeal in their favour with the result that they being the successful party had no occasion lo file the appeal and challenge the findings. In this situation, it is contended the findings of the Trial Court cannot be treated to have been reversed.

We will deal with Order 2 Rule 2 of the Civil Procedure Code First.

It provides as under :

"R.2. Suit to include the whole claim.

(i) Every suit shall include the whole of the claim which the plaintiff be entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

Relinquishment of part of claim.

(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

Omission to sue for one of several reliefs.

(3) a person entitled to more than one relief in respect of the

same cau:-.e of act ion n1ay sue for al1 or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted."

A bare perusal of the above provisions would indicate that if a plaintiff is entitled to several reliefs against the defendant.in respect of the G same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the court in one suit as Order 2 Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause.

H In Naba Kumar Hazara andAnr. v. Radhashyam Manish & 01s., AIR.

DEVA RAl\1 v. ISHWARCHAND [S. SAGHIR AHMAD,.I.) 377 ·

( l931) P.C. 229, il was laid down that the plaintiff cannot be permitted to <lraw the <lefen<lant to Cl)urt t\vice for the sa111e cause by splitting up the clain1 and suing, in the first inst£111ce, in respect of a part of clain1 only.

Whal the rule, therefore, requires is the unity of all claims based on the same cause of action in one suit. It does not conte1nplate unity of distinct and separate causes of action. If, therefore, the subsequent suit is based on a different cause of action, the rule will not operate as a bar. (See Ant11 Lal Gupta v. !vbiganka Mohan Sur & 01s., AIR 1975 SC 207; State of Madhya Pradesh v. State of Maharashtra & 01s., AIR (1977) S.C. 1466; Kewal Singh v. Mt. Lajwanti, AIR (1980) SC 161).

In Sidramappa v. Rajashetty & 01,·., AIR (1970) S.C. 1059, it was laid down lhat if the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought

in the subsequent suit, the latter namely, the subsequent suit, will not be barred by the rule contained in Order II Rule 2, CPC. In Gurbux Singh v. D Bhura Lal, A.LR. (1964) S.C. 1810, it was observed :

"In order that a pica of a bar under 0.2 R.2(3), Civil Procedure Code should succeed the defendant who raises the pica must make out (l) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis, it would be seen that the defendant would have lo establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar."

In view of the above, \VhC1t is to be seen in the instant case is \Vhether the cause of action on the basis of \vhich the previous suit was filed, is identical to the cause of action on \vhich the subsequent suit giving rise to

the present appeal, was filed. If lhe identity of causes of action is established, the rule would immediately become applicable and it will have to H

A be held that since the relief claimed in the subsequent suit was omitted to be claimed iri the earlier suit, without the leave of the court in which the previous suit was originally liled, the subsequent suit for possession is liable to be dismissed as the appellants, being the defendants in both the suits, cannot be vexed twice by two separate suits in respect of the same cause

B of action.

We have already noticed in the earlier part of the judgment that the previous suit was filed for recovery of a sum of Rs. 6300 as sale-price of the land in suit which was dismissed with the finding that the document on which the suit was filed was not a sale deed but was a mere agreement for C sale and, therefore, the amount in question could not be recovered as sale-price. That document, thus, constituted the basis of the suit.

The subsequent suit was brought by the respondents for recovery of possession on the ground that they were the owners of the land in suit and D were consequently entitled to recover its possession. The cause of action in the subsequent suit was, therefore, entirely different. Since the previous suit was for recovery of sale-price, the respondents could not possibly have claimed the relief of possession on the basis of title as title in that suit had been pleaded by them to have been transferred to the defendants (appellants). The essential requirement for the applicability of Order 2 Rule 2, E namely, the identity of causes of action in the previous suit and the subsequent suit was not established. Consequently, the District Judge as also the High Court were correct in rejecting the plea raised by the appellants with regard to Order 2 Rule 2 of the Civil Procedure Code.

F Learned counsel for the appellants next contended that the finding recorded by the Trial Court in the previous suit on issue No. 5 that the appellants were the tenants of the land in suit under the respondents since Samvat 2005 should be treated to be still available to them and on that basis they can legally plead that the suit of the respondents for possession of the land in suit was liable to be dismissed. It is contended that the finding G on issue No. 5 was reversed by the lower appellate court in an appeal which was ultimately decided in their favour and, therefore, it was not possible for them to challenge the findings of the lower appellate court in any higher forum for the simple reason that an appeal under Section 96, or, for t_hat matter, under section 100 of the Civil Procedure Code, lies only against a H decree and not against a finding. In this situation, it is contended, the

DEV A RAM v. ISHW AR CHAND [S. SAGHIR AHMAD, J.] 379

appellate judgment insofar as it relates to the finding on Issue No. 5, is A liable to be ignored. It is pointed out that if this is done, the original findings recorded by the Trial Court on the status of the appellants that they are the tenants of the land under the respondents, would revive and operate as res judicata against the respondents who cannot be granted the relief of possession.

We may, at the very outset, point out that in the subsequent suit, the appellants in their capacity as defendants did not plead the rule of res judicata. As a matter of fact, they did not in their written statement even refer to the findings recorded by the Trial Court in the previous suit nor

did they claim that they were tenants of the land in suit under the respon- C dents. Their main defence was that they were in possession over the land in suit since Samvat 2005 and had, therefore, acquired title by adverse possession. They also pleaded that the suit was barred by time and was, in any case, not maintainable in view of the provisions contained in Order 2 Rule 2 of the Civil Procedure Code. The appellants, thus, raised an altogether new defence and did not plead that they were tenants under the D respondents. Consequently, an issue whether the appellants were tenant of the land in dispute was not framed and, therefore, there was no occasion to refer to the findings recorded in the previous suit.

Rule of res judicata is contained in section 11 of the Civil Procedure E Code. Bereft of all its Explanations, namely, Explanations I to VIII, section 11 is quoted below :

"11. Res judicata.

No Court shall try any suit or issue in which the matter directly F and substantially in issue has been directly and 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, in a Court competent to try and such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard G and finally decided by such Court."

"Res judicata Pro Veritate Accipture 11 is the fu11 maxin1 which has1 over the years, shrunk to mere

1!Res Judicata".

Section 11 contains the rule of conclusiveness of the judgment which H

380 SUPK1:1v!E COURT REPORTS [1995] SUPP. 4 S.C.R.

is based partly on the maxin1 of Ruman Jurisprudence "Jntcrc5t rcipublicae ut sit finis litium" (it concerns the State that there be an end to law suits) and partly on lhe maxim

11Nemo dcbct bis vcxari pro una at eadem causa 1 ' (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction or the Court but operates as a bar to the trial of the suit or issue, if the matter in the suit was directly and substantially in issue (and finally decided) in the previous suit between the same parties litigating under the same title in a court, competent to try the subsequent suit in which such issue has been raised.

In the previous suit, which was instituted by the respondents, an issue, namely, issue No. 5 was framed on the status of the appellant as to whether they were the tenants of the land in suit under the respondents but in the subsequent suit this issue was not raised as the appellants who were the defendants in the subsequent suits did not plead that they were the tenants under the respondents. What they pleaded was that they were in possession since a long time namely from Samvat 2005 and had, therefore, acquired title by adverse possession. Consequently, in the subsequent suits, the issue which was raised and tried in the previous suit was not raised, framed or tried and no finding, therefore, came to be recorded as to whether the defendants were tenants of the land in suit. It is true that the instant suit which is the subsequent suit, is bct\veen the san1e parties E who had litigated in the previous suit and it is also true that the subject matter of this suit, namely, the disputed land, is the same as was involved in the previous suit but the issues and causes of action were different.

Consequently, the basic requirement for the applicability of rule of res judicata is wanting and, therefore, in the absence of pleadings, in the

absence of issues and in the absence of any finding, it is not open to the learned counsel for the appellants to invoke the rule of res judicata on the ground that in the earlier suit it was found by Trial Court that the appellants were the tenants of the land in dispute under the respondents.

Let us now consider the plea regarding the effect of an adverse finding recorded by the Court against a party in whose favour the suit or the appeal is ultimately decided.

It is provided in section 96 of the C.P.C. that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeal from the decision or such Court. So also,

i .,

DEV A RAM v. ISHW AR CHAND [S. SAGHIR AHMAD, J.] 381

Section 100 provides that an appeal shall lie to the High Court from every A decree passed in appeal. Thus sine qua non in both the provisions is the "decree" and unless the decree is passed , an appeal would not lie under Section 96 nor would it lie under section 100 of the Civil Procedure Code.

Similarly, an appeal lies against an norder' 1 under section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the "orders" against which appeal would lie have been enumerated. Unless there is an "order" B

as defined in section 2(14) and unless that "order" falls within the list of "orders" indicated in Order 43, an appeal would not lie.

Thus, an appeal docs not lie against mere "findings" recorded by a Court unless the findings amount to a

11decreen or

11ordern. Where a suit,· is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue, has no right of appeal and he cannot question those findings before the appellate Court. (See Ganga Bai v. Vinay Kumar & Ors., [1974] 3 SCR 882.

In Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, A.LR.

(1922) P.C. 241, it was observed as under :

"Their Lordships do not consider this will be found an actual plea

of res judicata, for the defendants, having succeeded on the other plea had not occasion to go further as to the finding against them: E but it is the finding of a Court which was dealing with facts nearer of their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellant to displace the finding, a duty which they have now been able to perform."

Similar view was also expressed in an -earlier decision in Run Bahadur F Singh v. Luchokoer, (1885) !LR 11 CAL. 301 (P.C.).

The Oudh Chief Court in Pateshwar Din & Anr. v. Mahant Sarjudas A.LR. (1938) Oudh 18 held that where a decree in previous suit is wholly in favour of a person and gives him all the reliefs sought for by him, he has G no right of appeal against the decree so as to enable him to contest any adverse finding against hin1 in such suit. Hence, such adverse finding cannot operate as res judicata as against him in a subsequent suit.

The High Court of Andhra Pradesh in Bansi Lal Ratwa v. Laxminarayan & Anr., (1969) 2 Andhra Weekly Reporter 246 and the Full H

A Bench of the High Court of Patna inA1j1111 Singh & Anr. v. Tara Das G/ws/1 & Anr. A.LR. 1974 Patna l, have taken the view that an appeal would not lie against mere adverse finding unless such finding would constitute res judicata in subsequent procedings. We are, however, nol concerned with this aspect of the matter in the present case nor are we concerned with the

earlier aspect as the plea of res judicata having not been raised in the written statement, the appellant cannot be permitted to raise the plea here.

In view of what we have held above, the points conva>Scd before us are decided against the appellants.

We, however, cannot overlook the fact that the appellants are in possession over the land in suit for a considerably long time anq the respondents themselves at one stage had pleaded in the previous suit filed by them that the land had already been sold to the appellants and that the appellants were liable to pay the sale consideration of Rs. 6,300 to them.

It is strange that inspite of the findings having been recorded by the Trial D Court in their favour that they were the tenants of the land in suit under the respondents, the appellants did not raise that plea in the subsequent suit filed by the respondents for recovery of possession. May be, because the finding was set aside by appellate Court. Why this was not done is not within our jurisdiction to enquire. All that we can say is that the area of E

the land of the suit is 34.9 bighas and the interest of justice would be met if a compact area of 10 bighas is left with the appellants and the decree for possession is made executable only in respect of the remaining area namely an area of 24.9 bighas. The appellants shall be treated as Protected Tenants in respect of ten bighas of land. The Tehsildar concerned shall partition the land between the parties as directed by us. The appellants shall surrender the area falling to the share of the respondents within one month of the order of Tehsildar. The order of the Tehsildar shall be final.

The judgment of the Courts below including that of the High Court shall stand modified to that extent.

G The appeal is partly allowed to the extent indicated above but without any order as lo costs.

R.A.

Appeal partly allowed.