Jagdish Rai vs Makardhwaj Ram and State Madhya Pradesh

T.P. Sharma, J.—By this appeal, the appellant has challenged the legality and propriety of the judgment & decree dated 28.6.1994 passed by the Additional District Judge, Jashpurnagar, in Civil Appeal No. 16 A/90 affirming the judgment & decree dated 7.5.93 passed by the Civil Judge Class-II, Jashpurnagar, in Civil Suit No. 195A/87 whereby learned Civil Judge Class-II has decreed the suit for declaration and possession in favour of respondent No. 1 on the basis of sale deed dated 27.7.1960 executed by deceased Mahabir Rai in favour of respondent No. 1 and Rupjhari.

Brief facts leading to filing of this appeal as per pleading, the property in dispute was owned by Gokul Rai. He died leaving behind his son Baldeo and daughter Dhanmati. Smt. Raj Mohani @ Rupjhari was wife of Baldeo. Mahabir was son of Baldeo and Smt. Gulmat was concubine of Mahabir. Present respondent No. 1 Makardhwaj Rai is son of Mahabir. Rambhajan was son of Dhanmati and the present appellant is son of Rambhajan. As pleaded by respondent No. 1, on 27.7.60 deceased Mahabir Rai executed sale deed of 95.80 acres of the land in favour of respondent No. 1 & deceased Rupjhari. On 23.4.1962, deceased Mahabir Rai, deceased Raj Mohani @ Rupjhari and Smt. Gulmat executed General Power of Attorney in favour of deceased Rambhajan. Lastly on the ground that they were not satisfied with the activity of Rambhajan, they cancelled their General Power of Attorney vide cancellation deed dated 25.6.69. Rambhajan executed sale deed of 21.43 acres of the land in favour of Premprakash Rai vide sale deed dated 17.1.69 and also executed sale deed dated 4.2.69 in favour of Chandar Sao. Name of Chandar Sao was mutated in the revenue record. Rest properties were in the name of Rupjhari and plaintiff Makardhwaj Rai. In the year 1985, Rambhajan applied for mutation of the land. His application was rejected. Finally, in the year 1986 his name was mutated. Present respondent No. 1 has fled suit for declaration of title and possession of the disputed property. During life time of Rambhajan, he has contested the case and pleaded that Makardhwaj Rai is not son of Mahabir. Disputed property has not been sold vide sale deed dated 27.7.60 and Smt. Gulmat was not wife of Mahabir. She was concubine. Mahabir died as issueless. Only Rambhajan was the owner and possessor of the property.

Father of the appellant/original defendant No. 1 has pleaded in his written statement that previous suit was not based on the sale deed, therefore, subsequent suit on the basis of sale deed is barred under the principle of res judicata.

On the basis of averments made by the parties, learned trial Court has framed the issues and after affording an opportunity of hearing to the parties has decreed the suit in favour of respondent No. 1.

Judgment & decree was challenged before the first appellate Court. During pendency of appeal, Rambhajan died and his son present appellant has been impleaded as legal representative of deceased Rambhajan.

For the decision of the present appeal, the following substantial questions of law were formulated vide order dated 27.3.2008:

A. Whether the appellant/defendant not having assailed the finding recorded by the trial Court on the question of res judicata in first appeal can be permitted to take the ground of constructive res judicata in second appeal?

B. If yes, whether the suit is barred on the principles of constructive res judicata?

I have heard learned Counsel for the parties and perused the judgment & decree impugned and records of the Courts below.

Learned Counsel for the appellant argued that the appellant has assailed the judgement & decree before the first appellate Court from all the grounds available to him, but has not specifically raised the ground of res judicata/constructive res judicata. Ground of res judicata/constructive res judicata is a ground available under the law, therefore, present appellant who had not taken specific ground of res judicata before the first appellate Court and second appeal on the ground of res judicata/constructive res judicata is maintainable under the law. Learned Counsel for the appellant further argued that this appeal requires harmonious interpretation of the Section 11 Explanation IV and Order 2 Rule (2) of the Code of Civil Procedure, 1908 (in short `Code''). At this stage it is not disputed that one sale deed dated 27.7.1960 (Ex.P/3) was executed in favour of present respondent No. 1 and deceased Rupjhari, wife of Baldeo by Mahabir Rai, son of Gokul Rai relating to the property in dispute. Mahabir Rai, Raj Mohani @ Rupjhari and Gulmat had also executed General Power of Attorney on 23.4.1962 in favour of Rambhajan Rai which has been subsequently cancelled by deed of cancellation dated 26.6.69 vide Ex.P/4. Father of the present appellant has sold some property to Chandar Sao on the basis of such General Power of Attorney. Earlier suit has been filed by present respondent No. 1, Mst. Sukhmani, Mst. Basanti against Chandar Sao and deceased Rambhajan being a heirs of Mahabir but finally suit was dismissed and High Court of Madhya Pradesh has uphold the dismissal of suit in First Appeal No. 157/1975 vide judgment dated 14.10.1981. Learned Counsel also argued that sale deed (Ex.P/3) was executed on 27.7.1960 in favour of present respondent No. 1 and Rupjhari by Mahabir of the disputed land. Subsequently one power of attorney was executed by Mahabir, Rupjhari and Gulmat relating to all properties including the disputed property. On the basis of such General Power of Attorney Rambhajan Rai has sold the property to Chadar Sao. Suit for declaration of the title was filed by the present respondent, other daughter of Mahabir and alleged Smt. Gulmat against Chandar Sao and Rambhajan on the ground that deceased Rambhajan was not competent to alienate the property to Chandar Sao and any sale or alienation to Chandar Sao dated 4.2.69 does not create title in favour of Chandar Sao because they are heirs of Mahabir, but claim of the plaintiff was dismissed and reached into finality by the judgment passed in First Appeal No. 157/1975 by the High Court of Madhya Pradesh.

In the aforesaid suit, present respondent No. 1 or Rupjhari had not taken ground or had not claimed declaration on the basis that they have purchased the suit land vide registered sale deed dated 27.7.60 which ground was available to them on the date of filing of such suit. If the property was sold on 27.7.60, then any subsequent authorization/alienation of the same property was not legally competent by alleged Mahabir and such substantial ground for claim/attack upon the sale made by Rambhajan in favour of Chandar Sao was available to respondent No. 1 and Rupjhari that they are owner of the property of the parties of sale deed and not as heirs of Mahabir, but they have not claimed declaration on the basis of such alleged exclusive right available to them shows that alleged sale deed was sham nominal and executed with intention, not to be acted upon, therefore, it does not create any right or title over the property in favour of respondent No. 1 and subsequent claim of the property which was subject matter of the alleged sale deed is barred on the ground of principles of constructive res judicata. The appellant may took the ground at any stage. The appellant has not specifically raised ground of principles of constructive res judicata in the first appeal, but ground is included in general ground raised by the appellant in first appeal.

Learned Counsel for the appellant placed reliance in the matter of Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and Anr. in which the Apex Court has held that principles of constructive res judicata in terms of Section 11 Explanation IV of the Code would apply even in a case of title. Learned Counsel further placed reliance in the matter of Kunjan Nair Sivaraman Nair v. Narayanan Nair and Ors. in which it has been held by the Apex Court that to attract the provisions of Order 2 Rule 2(3) of the Code the parties are required to show that second suit is based on identical cause of action. Learned Counsel also placed reliance in the matter of Lakshmi Shankar Mehrotra v. S.M. Sengupta in which it has been held by the Apex Court that pure question of law to fortify the original ground for relief may be permitted to raise even before the Apex Court. Learned Counsel also placed reliance in the matter of Sulochana Amma v. Narayanan Nair in which it has been held by the Apex Court that judgment of court of limited pecuniary jurisdiction will operate as res judicata to a later suit land in a court of unlimited jurisdiction.

On the other hand, counsel for respondent No. 1 vehemently argued that to attract the provisions of principles of res judicata or constructive res judicata the party who claims such relief is required to file copy of the plaint, copy of written statement, copy of issue and copy of the judgment finally decided in previous case to show that parties, cause of action, issue, pleading and claim of the parties are substantially one and the same which has been finally adjudicated in the earlier suit, but in the present case, the appellant/defendant has not filed any such document to show even prima facie applicability of principle of res judicata and constructive res judicata. The claim of the present respondent in previous suit finally decided by the High Court of Madhya Pradesh was based on the right of heirs of deceased Mahabir and such claim is completely different from the claim under alienation. Learned Counsel further argued that the present appellant has not filed document i.e. alleged General Power of Attorney before the Court to show that what was authorization to the present appellant by General Power of Attorney which was subsequently cancelled by testator of General Power of Attorney vide Ex.P/4. If any right has been accrued on the basis of such General Power of Attorney by cancellation of such deed, again right has been vested upon the testator of the document from the date of such execution of General Power of Attorney. According to the appellant, issue relating to applicability of principles of constructive res judicata was the only substantial issue for just decision of the case, but the present appellant has not raised such substantial issue in first appeal and issue relating to principles of constructive res judicata has reached into its finality by the judgment of the trial Court when it was not challenged in the first appeal, therefore, such ground is not available to the appellant first time in the second appeal.

Learned Counsel placed reliance in the matter of Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Ors. in which the Apex Court has held that a party in possession of best evidence which would throw light on the issue in controversy withholding it, the Court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him and party cannot rely on abstract doctrine of onus of proof or on the fact that he was not called upon on produce it. Learned Counsel also placed reliance in the matter of Williams v. Lourdusamy and Anr. in which it has been held by the Apex Court that parties dispute, suit property and issue must be same in that case, in case of suit for permanent injunction, second suit for declaration of title and recovery of possession is not dispute between the parties one and same, therefore, second suit is not barred under the principles of res judicata.

To decide the real controversy between the parties, I have examined the material available on record, claim and pleading of the parties. Father of the present appellant has specifically pleaded in para-24 of his written statement that the present suit is barred under the principles of res judicata which was again denied by respondent No. 1 in para-14 of his additional pleading that principles of res judicata is not applicable in the present suit. The trial Court has framed issue No. 5 that whether on the ground of previous decision relating to the property in dispute, suit is barred by principles of res judicata which was decided by the trial Court as negative. The present appellant has filed first appeal before the lower appellate Court in which specific ground of principles of res judicata has not been taken, but general ground has taken that the Court below has committed illegality in deciding the suit.

Order XLI Rule 1 and Rule 2 of the Code provides the ground which may be taken in appeal and contents of memorandum of appeal which reads as under:

Form of appeal-What to accompany memorandum.- (1) Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the judgment.

Provided that where two or more suits have been tried together and a common judgment has been delivered therefore and two or more appeals are filed against any decree covered by that judgment, whether by the same appellant or by different appellants, the Appellate Court may dispense with the filing of more than one copy of the judgment.

(2) Contents of memorandum.-The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any arguments or narrative; and such grounds shall be numbered consecutively.

(3) Where the appeal is against a decree for payment of money, the appellant shall, within such time as the Appellate Court may allow, deposit, the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit.

Bar under principles of res judicata and constructive res judicata is pure question of law. In the matter of Lakshmi (supra), the Apex Court has held that pure question of law to fortify the original ground for relief may be permitted to rise even before the Apex Court. Para 5 of the said judgment reads as under:

It is true that this point u/s 7(30 did not loom large before the courts below. Nevertheless, on the established facts before us, we are considering the scope of this section. Here, is a case where the appellant- landlord has chosen to evict the tenant u/s 3(e) of the Act. The said section reads as follows:

That the tenant has, on or after the 1st day of October, 1946, sub-let the whole or any portion of the accommodation without the permission of the landlord.

No doubt, the factual finding of the courts below is that there is an implied consent by the landlord. That finding cannot be disturbed by us. Yet, to buttress the sub-letting, it is open to a landlord to urge that Section 7(3) had not been complied with insofar as the tenant had not obtained the permission of the District Magistrate. Be it noted, in this case, the premises came to be allotted by the District Magistrate. Therefore, Section 7(3) ought to be complied with in every respect. This does not mean that the landlord is seeking eviction on the ground of violation of Section 7(3), but only raising this ground as a second string to his bow. That we think cannot be shut out because it is purely a question of law. Admittedly, in this case, the tenant had not obtained the permission of the District Magistrate for sub-letting.

In the matter of Dadu (supra), the Apex Court has held that the principles of estoppel, waiver and res judicata not attracted where the judgment is wholly without jurisdiction or issues involve only pure questions of law. Para 26 of the said judgment reads as under:

26.We, however, are not unmindful of the principles of estoppel, waiver and res judicata are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play

In the present case, the appellant has taken specific plea of principles of res judicata before the trial Court. Issue has been framed by the trial Court and decided against the appellant. The appellant has not specifically taken the ground of principles of res judicata before the lower appellate Court. Lower appellate Court has also not considered the applicability of principles of res judicata, but the principles of res judicata or constructive res judicata are pure question of law and creates bar in terms of Section 11 and Order II Rule 2 of the Code, therefore, this question or ground may be raised at any stage.

Undisputed facts of the case reveals that the present respondent No. 1 has earlier filed suit along with his other sisters and mother against one Chandar Sao and father of the present appellant for declaration of title on the basis of succession which has been contested by father of the present appellant and Chandar Sao and finally decided by the High Court of Madhya Pradesh that father of the present appellant has sold the property to Chandar Sao. He was competent to sale the property under General Power of Attorney and also held that Gulmat was not legally wedded wife of Mahabir. Alleged General Power of Attorney was executed by Mahabir, Smt. Raj Mohani @ Rupjhari and Gulmat vide General Power of Attorney dated 23.4.62. At that time, alleged sale deed dated 27.7.1960 was executed by Mahabir Rai in favour of present respondent No. 1 and present respondent No. 1 was in existence by which the property of the present suit was also sold to present respondent No. 1, but after two years from the execution of such sale deed, Mahabir, his mother Raj Mohani @ Rupjhari and alleged Gulmat have executed General Power of Attorney in favour of father of the present appellant including the land covered by the alleged sale deed. Father of the appellant has also sold the land to Chandar Sao vide sale deed dated 4.2.1969 as General Power of Attorney holder which was found legal and competent in first civil suit.

As argued and submitted in his written statement by respondent No. 1, the present appellant who is claiming that the suit is barred by the principle of constructive res judicata was required to file plaint, written statement, issues and judgment of previous suit to construct the principle of res judicata and to enable the Court to decide that whether both the suits, parties dispute and claim are substantially one and the same, but the present appellant has not filed any such document.

In order to attract the bar created u/s 11 Explanation IV read with Order II Rule 2(2) of the Code, the parties are required to produce the aforesaid document to enable the Court to decide such question. But in the present case, the claim of the appellant for application of principle of constructive res judicata is based on the facts as claimed by respondent No. 1 that sale deed has been executed by deceased Mahabir Rai in favour of respondent No. 1 and deceased Rupjhari dated 27.7.1960 disentitle respondent No. 1 Makardhwaj and deceased Rupjhari for claiming any entitlement or claim on the basis of any other right including the right of succession because if the land has been sold to respondent No. 1 and Rupjhari during life time of Mahabir Rai, then irrespective of right of succession or other right they became full owner of the property against all the persons including deceased Mahabir Rai and after death of Mahabir Rai, they may succeed other property of Mahabir Rai, but the alleged property mentioned in the sale deed would not be the subject matter of succession to heirs of Mahabir Rai, even the present respondent No. 1.

The present suit was filed in the year 1986. Before filing of this suit, another suit was filed by respondent No. 1 and others against Chandar Sao and Rambhajan in which present respondent No. 1 and other persons have challenged the sale deed executed by the appellant in favour of Chandar Sao on the basis of succession. At that time sale deed (Ex.P/3) dated 27.7.1960 was in existence and property of the present suit was included in the sale deed. After two years of the alleged execution of sale deed i.e. on 23.4.1962, General Power of Attorney was executed by Mahabir Rai (seller of Ex.P/3) in favour of Rambhajan father of the present appellant and on the basis of such General Power of Attorney, deceased Rambhajan had sold some land to Chandar Sao and finally General Power of Attorney was found to be legal and enforceable. In that suit, present respondent No. 1 was not competent to claim any relief except on the basis of alleged sale deed (Ex.P/3) and previous suit ought to have been challenged and right ought to have been claimed on the basis of only sale deed executed in favour of present respondent No. 1 and deceased Rupjhari. Right of claim/right of attack relating to suit property on the basis of sale deed was available to present respondent No. 1, but he has not claimed any right or title on the basis of such sale deed.

After final decision of previous suit, the present suit is subsequent suit. The fact of execution of General Power of Attorney, subsequent cancellation of General Power of Attorney and decision of first suit finally by the High Court of Madhya Pradesh is not only undisputed but specifically admitted by the parties and both the parties had filed the document to that effect. The judgment of first suit is Ex.D/2, sale deed in question is Ex.P/3, final decision of the High Court is Ex.D/1, cancellation of General Power of Attorney is Ex.P/4, decision of revenue Court on the basis of order passed by the High Court is Ex.P/5 and appellate Court order is Ex.P/2. These documents are sufficient for drawing inference that previous suit was substantially between the father of the appellant and respondent No. 1 and others. Claim for challenge or attack on the basis of sale deed was available to respondent No. 1, but he has not claimed or attacked upon the claim of opposite party on the basis of such sale deed which was sufficient to wipe out the right of other parties.

Section 11 of the Code deals with the provisions of res judicata which reads as under:

Res Judicata.- No Court shall try any suit or issue in which the matter directly 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 such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

Explanation I.-The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.

Explanation II.-For the purpose of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.-The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the order.

Explanation IV.-Any matter which might and ought to have been made ground defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.

Explanation V.-Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.

Explanation VI.-Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

Explanation VII.-The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII.-An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

Order II of the Code provides the provisions for framing of suit, Order II Rule 2 of the Code provides suit to include the whole claim and Order II Rule 2 (2) of the Code makes the provision that if 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. Order II of the Code reads as under: "1. Frame of suit.-Every suit shall as for as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.

Suit to include the whole claim.-(1) Every shut shall include the whole of the claim which the plaintiff is 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.

(2) Relinquishment of part of claim.-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.

(3) Omission to sue for one of several relief''s.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief''s; but if he omits, except with the leave of the court, to sue for all such relief''s, he shall not afterwards sue for any relief so omitted.

Explanation.-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

As held by the Apex Court in the matter of Gopal (supra), if party withheld the material document which would throw light on the issue in controversy, adverse inference should be drawn against him notwithstanding that onus of proof does not lie on him. In the present case, the appellant and respondent No. 1 has not withheld any document which would throw light on the issue in controversy, therefore, the case of Gopal (supra) is distinguishable on the facts of the present case.

In the matter of Williams (supra), the Apex Court held that in order to attract the provisions of res judicata, the party in suit, suit property and issue must be same in that case. Previous suit for permanent injunction and subsequent suit for declaration of title and recovery of possession are not dispute of same nature between the parties. Definitely in the case of permanent injunction, parties are not required to claim declaration of title or possession. After dismissal of the suit and subsequent dispossession, the suit for possession on the basis of declaration of title is not one and same and would not be effected by the principle of res judicata.

While dealing with the application of principle of constructive of res judicata in accordance with Section 11 Explanation IV and Order II Rule 2 of the Code, the Apex Court in the matter of Dadu (supra) has held that even if any concession is given by the Apex Court, then the principle of res judicata will apply and the Court while passing the judgment cannot take away the right of the successful party indirectly which it cannot do directly. An observation made by a superior court is not binding. Para 22, 25, 26, 27 and 28 of the said judgment reads as under:

22.The judgment of a court, it is trite, should not be interpreted as a statue. The meaning of the words used in a judgment must be found out from the backdrop of the fact of each case. The court while passing a judgment cannot take away the right of the successful party indirectly which it cannot be directly. An observation made by a superior court is not binding. What would be binding is the ratio of the decision. Such a decision must be arrived at upon entering into the merit of the issues involved in the case.

Explanation IV of Section 11 of the Code extends the principle of res judicata stating that the relief''s which could have been or ought to have been prayed for even if it was not prayed for would operate as res judicata. Section 12 thereof bars filing of such suit at the instance of a person who is found to be otherwise bound by the decision in the earlier round of litigation and in a case where the principle of res judicata shall apply.

We, however, are not unmindful of the principles of estoppel, waiver and res judicata are procedural in nature and, thus, the same will have no application in a case where judgment has been rendered wholly without jurisdiction or issues involve only pure questions of law. Even in such cases, the principle of issue estoppel will have no role to play.

However, once it is held that the issues which arise in the subsequent suit were directly and substantial in issue in the earlier suit, indisputably Section 11 of the Code would apply.

Similarly the provisions of Order 2 Rule 2 bars the jurisdiction of the court in entertaining a second suit where the plaintiff could have but failed to claim the entire relief in the first one. We need not go into the legal philosophy underlying the said principle as we are concerned with the applicability thereof."

While dealing with the same question in the matter of Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr., the Apex Court has held that an adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject- matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard and decided. The first reason, therefore, has absolutely no force.

While dealing with the same question in the matter of Kunjan (supra), the Apex Court has held in para 13 as under: "13. Section 11 contains the rule of conclusiveness of the judgment which is based partly on the maxim of Roman jurisprudence "interest reipublicae ut sit finis litium" (it concerns the State that there be an end of law suits) and partly on the maxim "nemo debet bis vexari pro una et eadem causa" (no man should be vexed twice over for the same cause). The section does not affect the jurisdiction of 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 matter of Sulochana Amma (supra), the Apex Court has held in para 9 as under:

Shri Sukumaran further contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in the contention. It is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. In this case, when the right and interest of the respondent were questioned in his suit against K, the validity of the settlement deed and the terms thereof were gone into. The civil court found that K acquired life estate under the settlement deed executed by his wife conferring vested reminder in the respondent and on its basis the respondent was declared entitled to an injunction against K who was prohibited not only from committing acts of waste, but also from alienating the properties in favour of third parties. The later suit of injunction to which the appellant was a party also binds the appellant. Therefore, even the decree founded on equitable relief in which the issue was directly and substantially in issue and decided, and attained finality, would operate was res judicata in a subsequent suit based on title where the same issue directly and substantially arises between the parties. As the appellant is deriving title from K who was a party in the former suit is also hit by the doctrine of lis pendens u/s 52 of the Transfer of Property Act.

In the present case, the appellant has not taken the ground first time before this Court, but has raised the ground before the trial Court and the trial Court has framed the issue No. 7 which was decided as negative which reads as under:

D;k okn laifRr ds lEca/k esa iwoZ fu.kZ; gksus ds dkj.k izkaMx U;k; ,jsltqfMdsVk+ ds dkj.k izdj.k pyus ;ksX; ugh gS

pyus ;ksX; gS & izkaMx U;k; ykxq ugh

Learned Civil Judge Class-II has arrived at a finding on the issue relating to the principle of res judicata on the ground that in first suit, suit was not filed on the basis of sale deed and claim has not been decided on the basis of sale deed, therefore, claim are not one and the same in both the cases.

In the present case, the appellant has not taken the specific ground in the first appeal. Claim of respondent No. 1 has been denied but challenge of this appeal basis of sale deed was available to respondent No. 1 and respondent No. 1 ought to have been claimed or attacked the defence or claimed of Rambhajan (father of the present appellant) on the basis of sale deed, but he has not filed previous suit on the basis of sale deed, therefore, he has intentionally relinquished his right to claim the property on the basis of sale deed, therefore, he is debarred from claiming any right on the basis of sale deed in terms of Order II Rule 2 (2) of the Code and respondent No. 1 is precluded from claiming any right over the property on the basis of such right i.e. on the basis of sale deed in terms of Explanation IV of Section 11 of the Code and is precluded under the principle of constructive res judicata.

Question of res judicata/constructive res judicata is pure question of law and as per dictum of the Apex Court in the matter of Dadu (supra) it can be raised at any stage, even at the stage of second appeal or appeal before the Supreme Court. Substantive law prevail over the procedural law as a rule but prevailing of procedural law over the general law is an exception. Substantive law recognize the right and interest of the person over the property. Procedural law provides remedy and procedure for conjoint the right and interest with the assistance of the Courts, but does not give free hand and uncontrolled right of litigation to any person and no man should be vexed twice over for the same cause.

For the foregoing reasons, substantial question of law "A" formulated for decision of this appeal is decided as positive and substantial question of law "B" is also decided as positive.

As a result, the judgment and decree impugned is not sustainable under the law and deserves to be set aside. The appeal is allowed. Judgment and decree impugned is hereby set aside. Suit filed on behalf of respondent No. 1 is hereby dismissed with costs. Advocate fee as per schedule.

Decree be drawn up accordingly.