Chhaju Ram and others vs Ram Nath and others

Manmohan Singh Liberhan, J.—The only question raised in this appeal is whether the judgment inter se parties in an earlier suit of the

defendant for injunction, wherein finding with respect to ownership of the plaintiff was given, operates as res judicata?

Short facts, in order to determine the said question are: Kotu Ram was allottee of evacuee land as stated in the plaint as per sanad taqseem

arazimatrooka Allotment No. GG/1/20/1. On 4-7-1968 the allotment was made permanent. Formal possession of the suit land was delivered to

the plaintiff on 17-4-1569. On an attempt by the plaintiff to take actual possession of the land allotted to him, the defendants brought a suit for

permanent injunction against the plaintiff, contending, that they were the owners of the land in dispute and were entitled to retain the possession The

plaintiff''s title to the land in dispute was also challenged. The said suit was dismissed. One of the issues in the said suit was whether the plaintiffs

(now defendants) are the owners in possession of the disputed land? Various other issues were raised including that of the jurisdiction of the Civil

Court to try the suit. The appellate Court vide its decision dated 6-2-1971 (Exhibit P-3) came to the conclusion:

......the question as to whether the property in dispute was or was not evacuee property and whether the same has been lawfully transferred in

favour of Kotu Ram cannot be gone into by the Civil Court and the Civil Court has no jurisdiction to try the same..........

.....the entire claim of the plaintiffs-appellants in the present suit is not barred under the provisions of the said Act and the claim of the plaintiffs

appellants claiming the rights of ownership by adverse possession as against Union of India, Custodian or the respondent can be tried by the civil

court has got jurisdiction to try this suit to that extent......................

I am of the opinion that the alleged possession of the plaintiffs appellants during the period from 1947 till 1969 was for and on behalf of the

Custodian, Evacuee Property and the same was not and cannot be treated as adverse possession in the present case. The defendant-respondent

Kotu Ram has been allotted property in dispute by the Custodian in March, 1969, and a usual period of 12 years as against him can only be

computed from 14-3-1969 and not before and I am, therefore, of the opinion that the plaintiffs-appellants have not become the owners of the land

in dispute by adverse possession.

It was further found that the defendants in the present suit had not become owners because of the provisions of the Vesting of Proprietary Rights

Act, (sic), as occupancy tenants on the land in dispute. From a reading of the judgment Exhibit P. 3 in its entirety the only inference which can be

drawn is that the defendants had been held to be trespassers and the plaintiff was held to be an allottee of the land in dispute under the Custodian.

In order to determine whether the judgment Exhibit P.3 inter se the parties in the prior proceedings is res judicata or is an estoppel, one has to

consider whether the decision was pronounced by a Court of competent jurisdiction? What is its nature? What is its effect? On examining Exhibit

P. 3 one cannot escape from finding, that the said Court had found that it could determine the title inter se the parties and it did determine the title

inter se the parties though an observation was made that the civil court had no jurisdiction to determine the nature of the property, as to whether it

was an evacuee property or not. In totality, the effect of the decision by a court of competent jurisdiction was that the plaintiff was an allottee from

the Custodian and the defendants were not the owners and were only tres-passers and had no right to protect their possession qua the valid title of

the plaintiff.

The other test to find out whether the earlier judgment operates as res judicata, which has been accepted by the highest Court of the land, is to

the effect, whether there would be two inconsistent decrees or findings? Looking the judgment Exhibit P.3 on the touchstone of coming into

existence of two inconsistent findings, I find force in the contention that in case the earlier judgment Exhibit P.3 is not treated to be an estoppel or

res judicata and a fresh finding is arrived at to the effect that the plaintiff is not the owner of the land in dispute or it was not validly allotted to him, it

will tantamount to bringing into existence two inconsistent findings, which is against the well accepted principle of consistency in law.

As the rule of res judicata is a rule of conclusiveness of judgments on the point decided, in every subsequent suit findings are estoppel against a

party challenging the findings of the earlier suit in the subsequent proceedings. The very object of the principle of res judicata is to avoid

superfluous suits and endless litigation. The rule is based on the principle of the and not on the principle of absolute justice. The attempt in the

principle is to avoid a person from being tried twice over for the same cause of action. It prevents new decisions, new trial and investigation and

stops contradictory decrees as well as decrees destructive of each other from different Courts.

Another principle established by various judicial pronouncements is that the earlier decision, may be erroneous, is still a good decision for

operating as res Judicata. It shall be deemed to be a practice.

The only contention raised by the learned counsel for the appellants is to the effect that once the civil court gave a finding that it had no

jurisdiction to determine the nature of the land, the civil Court became functus officio and could not have returned a finding whether the land was

the ownership of the defendants or of the plaintiff. It is contended that in suit for possession on the basis of title, the plaintiff could only succeed if

he was able to prove that he derived a valid title from the Custodian. It was for the plaintiff to show that the land in dispute being an evacuee

property vested in the Custodian and it was allotted to him. The counsel for the appellant relies upon:-

Workmen of Cochin Port Trust Vs. Board of Trustees of The Cochin Port Trust and Another,

Sheodan Singh Vs. Smt. Daryao Kunwar,

Pritam Kaur v. The State of Pepsu and others, (1962) 64 PLR 782.

Lila Krishan and others v. Union Indias and others, (1970) 72 PLR 719.

E.K. Pattabirama Reddiar Vs. K. Kanniappa Naicker (Died) and Others,

Iftikhar Ahmed and Others Vs. Syed Meharban Ali and Others,

Lal Ghandand other v. Radha Krishan, (1977) SCC 18.

At this stage it may be pointed out, that in the judgment Exhibit P-3 it was specifically found, that the plaintiff Kotu Ram, had been allotted the

land by the Custodian in March, 1969 and the defendants could not claim running of limitation for purposes of adverse possession against the

Custodian. They could claim it against the plaintiff-respondents only with effect from 14-3-1969 when it was allotted to them.

The principle laid down in Workmen of Cochin Port Trust''s case (supra) is to the effect that any judgment or order or any matter in issue which

has been explicitly and directly decided operates as res judicata and bars the trial of identical subsequent suit/proceedings between the same

parties. It only comes into play when the judgment and order or the decision on a particular issue is implicit in it, that is, it must have been decided

by implication. In order to avoid multiplicity of litigation and bringing invalidity to it, it is deemed to have been constructively decided. In my view,

the principle laid down in the said judgment supports the respondents more than the appellants. As observed earlier, the decision between the

parties vide Exhibit P-3 operates as constructive res judicata.

The principle laid down in Lal Chand v. Radha Krishan, (supra), is not relevant to the facts of the present case inasmuch as in the judgment

cited it was observed by their Lordships of the Supreme Court that the relief sought in the subsequent proceedings was also included in the larger

relief which stood determined in the earlier proceeding. The said decision cannot be reopened in subsequent proceedings.

In Aftikhar Ahmed v. Meharban Ali''s case (supra), the question for determination in the appeal was when a judgment or finding operates as

res judicata between co defendants. This is not the point in the case in hand. Thus the judgment and the law laid down in the aforesaid cases are

not pari materia with the facts and the law involved in the present case.

So far as the principle laid down in E.K. Pattabirama Reddiar v. K. Kannippa Naicker''s case (supra), is concerned again there is no dispute.

It has been observed specifically that the application of rule of res judicata by Indian Courts should be influenced by no technical consideration or

form but by matter of substance within the limits allowed by law. It was further observed that if it were not binding there would be no end to

litigation. If the said principles are observed I have got no doubt it squarely covers the facts found to the effect that vide judgment Exhibit P-3 the

Court of competent jurisdiction had already determined the title of the parties and found that the defendants were tres-passers. It was further

observed in the said judgment that the plaintiff, was the owner because of allotment from the Custodian. It cannot be reopened and the parties

cannot be permitted to undergo a second trial on the same issue and fact.

So far as Sheodan Singh Vs. Smt. Daryao Kunwar, is concerned, there is no dispute with the principle laid down therein for determining when

the judgment operates as res judicata and is conclusive as between the parties with respect as to its existence, date and legal consequences.

In Pritam Kaur v. The State of Pepsu (supra) it was observed that the Court trying the prior suit had no jurisdiction to decide the question

involved in the subsequent proceedings and if there was any decision, it was only an obitar. It was further observed that the objection with respect

to res judicata could be waived Neither of the principles laid down in this judgment are attracted to the facts and circumstances of this case.

Lila Krishan v. Union of India (supra) is not relevant at all to the question involved in the present appeal. In the said judgment section 92 of the

Displaced Persons (Compensation and Rehabilitation) Act, 1954 was considered and it was observed that the sale of property and the issuance of

the sale certificate deprive the property of its nature of being evacuee property and it goes out of the compensation pool. The rehabilitation

authorities lose their jurisdiction to deal with the said property. In the present appeal there is no controversy with respect to the question decided in

the said judgment.

Counsel for the respondents relied upon Sh. Sudarshan Kumar Beri v. Sh. Mahesh Kumar and others (1987-1) 91 P.L.R. 424, wherein it was

observed that the parties should not be allowed to agitate again and again. Merely because some evidence could have been produced and was not

produced is no ground to say that the finding returned earlier was bad.

It is unfortunate that the defendants have been sticking to the possession on account of one litigation or the other in spite of the fact that vide

Exhibit D-4, it was found that the land in dispute was the ownership of the Muslims and the said finding was confirmed upto the High Court. Again,

an attempt was made by them claiming that the proprietary rights have vested by operation of law as they were occupancy tenants on the land in

dispute but again they lost. Another attempt was made by the defendants by way of a suit for injunction claiming that they had become owners by

adverse possession Again, they could not succeed Again and again, the same defense is being taken and on one pretext or the other, the

defendants want to deprive the real owner of its possession.

In view of my above observations, I confirm the findings of the Courts below that the judgment Exhibit P-3 operates as res judicata and the

defendants are stopped from challenging the finding arrived at in the said judgment by which the plaintiff had been found to be the owner of the

land in dispute by allotment from the Custodian. The suit being based on title and within limitation, the plaintiff is entitled to the decree of possession

claimed for.

In the result, I find no force in the appeal, and same is dismissed with no order as to costs.